TA CATCHWORDS SFM FEET eee em Workmen's Compensation Ordinance 195] - Payments of compensation on basis of total incapacity made voluntarily - Cessation of such payments without agreement or arbitration - Effect of paragraph 12 of First Schedule of Ordinance - Application by worker for arrears of payments and for award on basis of continuing total incapacity or alternatively partial incapacity - Whether onus of proof as to continuance of total incapacity on employer or worker - Whether onus of proof of partial incapacity on worker. Antonio Barbaro v. Leighton Contractors Pty. Limited F.C. No. 8 of 1979 ° Coram: Smithers, Connor and Franki JJ. Date: 27 May 1980 Canberra. . OR ORATT 1. AORTA RETIRE IT IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT R=GISTRY GENERAL DIVISION Judges Making Order: Date of Order: Where Made: THE COURT ORDERS THAT: 1, The appeal to this Court is dismissed. 2. There wm eS Bs] ON APPEAL FROM "HE SUPREME COURT OF THE AUSTRALTAN CAPITAL TERRITORY BETWESN: A ND: ORDER ANTONIO BARBARO Appellant LETGHTON CONTRACTORS Respondent Smithers, Connor and Frankia <i. 27 May 1980 Canberra eppeal to this Court, shall be no order as to the ccsts of tne IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DESTRICT REGISTRY Ne ty e Q ° ved Oo ® fe) iy ' AaWw GENERAL DIVISION ON APPEAL FROM THE SUPREME CCURT OF Tilk AUSTRALTA® CAPITAL TERRITORY BETWLEN: ANTONIO BARBARO Appellant AT D: LEIGHTON CONTRACTORS PTY. LIMITED Respondent Coram; Smithers, Connor and Franki JJ. 27 May 1980 Canberra SEASONS FOR JUDGMENT Smithers J.: Section 7(1) of the Werkmsn's Compensation Ordinance 1951 (as amended) (the Ordinance) provides that:- "If personal ingury by accident arising out of or in the course cf his employnent by his employer 13 caused to a vorkman, his employes shall, subject to the Ordznance, be liable tc pay comnensavion in accordance with the Farst Sehcdule to this Ordinance," On 22 September 1975 the epvellant suffered ingury arising out of or in the course of his emuloyment wath the respondent. Imnediately after the appellant was injured the respondent commenced weekly payments to him ot an amount equal to the weekly payment payable pursuant to para.(1)(b) of the First Schedule. It 1s conceded that the original veyment and andeed all payments therearter were made on the taszs thet angury was suffered by the appellant and that at icast for + me substantial period after sustazning nis ingury he was thereby totally ancanacitated for work, Weekly peyments werc mace until a date in Maren 1977. From that stage the 1esponcent made no payments ac all. However, 1t 2s provided by para.12 of the First Schedule, so far as material, that "Aweekly payment ... payable under fe this Ordinance may be varied or ended by agreement or by arbi- tration under tnis Ordinance". It woulda 2 'S pear that the effect ef para.12 of the Schedule is that once weekly payments "nayable under" the Ordinance have been made not only may such payrents seam et -- - aw eee ae ee wee =~ we - - be varied or ended by agreement or by arbztration but the same may not be ended or varzed otherwise. The consequence of tr i is 18 1n my view, for reasons disclosed below, that where the weekly payments have been made on the basis of toval incavacity the relationship between the emplcyer and the workman 1s 1n substance the same as would exist if there were an award on the basis of total incapacity 1n favour of the workman. As was po1nted out by Northrop J. 1n Thicss Bros. Pty. Ltd. v. Carbone and Anor (1976) 15 A.C.T.R. 15 the appropriate procedure to be adupted by an enpicyer desiring relief from payment of weekly payments whicn he has paid, even voluntarily, 2s to apply for such relief by an application pursuent to rule 7 cf the yorkmans Compensation Rules using "orn No. 5 provided in such rules. In this case,vthe emvloyer having ceased to make ~he weekly payments but not naving taken any legal nroceeding seekin; to have the same ended or varied by agreement or arbitration, che appellant on 20 Nay 1977 commenced proceedings under the ordinance seeking an arbitration "with respect to the compensation payable to him", The terms of the anplication showed thet questions had arisen:- "(a) As to whether the said Applicant 1s a workman whom the sbrovementioned Ordinance applies; (bo) As to the liability of the said Respondent to pay weekly compensation uncer the abovementioned Ordinance in respect of the ingury. (c) As to the ability of the said Resvondent to pay medical, noespival exvenses incurred by the ~Applicatt since che 22 dey of Septerber, 1975. a ne een ee - -- - + (ad) As to the liabilaty of the sa1rd Respondent to pay arrears or weekly payments to the Applicant." Paragraph 3 of the application stated, "An arbitration mder the abovementioned Ordinance 1s requested between the said Applicant and the said Respondent for the sevtlement of the said cuestions", Under the heading, "Particulars of incepacity for work, whether total or partial and estimated duration of incapacity" the anformation supolied was "total and permanent," Notwithstanding the absence of a separate initiatory proceeding on tne part of the respondent seekirg to have the weekly payments which had been paid varied or ended in accordance with pera. 12 of the First Schedule, the terms of the applicant's application were comprehensive enough to permit and indeed require an adjudication cn the issue as to whether such weekly peyments should be varied or ended, Buk although that 1s so, 1t was necessary that it be recognised that the appellant should have full advantage of the situation erasing from the payment of tne weekly payments, namely that until it appeared that tne weekly payments ought to be varied or ended the respondent's liability to continue to pay the seme persisted. Unfortunately para. 712 oF the First Schedule enpcars to neve been overlookedc by all parties and nowt brought to tne notice of the learned Magistrate. It 18 apparent that as a matter of evidence the appellant's case rested in the first instance on the fact that weekly payments had been made. Had the matter stopped there the case for an award on the basis of total incapacity would have been complete. Whether or not this would have been so in the absence of para.i2 of the Farst Schedule 1% 1s clear that in the presence of para.12 and in the absence of evideuce that tne appellant was no Longer totally PT cP y incepacitated for work the appellant would have been entztled to an ay award, But more dic occur, namely evidence wAs given geins Lo the = cuestion of the existence and extent of the annellant's incapacity on cr aa the basis of which 1% was contended by the appelilent end contested by the respondent that there should be ar. award for the eppellant, Issues were raised w1th respect to which the Magistrate stated "for practical purposes the issue before mé is whether the applicant has any and if so what incapacity for work sitice March 1977". The learned Magistrate approached this issue on the basis that the onus of proof of the existence and extent of incapacity for work was on the appeliant, It 1s said b Q an this he was in error, The decisions of the H2gh Court, in particular JH, Timbers Pty. Ltd. v. Nelson (1971-72) 126 C.L.R. at 625,were relied upon. The Magistrate correctly accepted the view that for the purpose of entitlerent to workman's compensation it was necessary that there be not only ovhysical incepacity but also econonm1ic incapecity supervening thereon. Lecause para. 12 9° the First Schedule was overlooked he took the view thac the appellant carried tke onus of proof of doth elements of incapacity. The Magistrate's rinding was that although the eppcllant demonstrated a continuing physical incapacity he had not demonstrated to his satisfaction that economic loss had supervened, The result was that he made an award zn favour of the respondent. WI On appeal it is put by whe appellant that because of the operation of para.12 he was entitled to an award uniess the respondent satisfied the learned Magistrate that the total .ncapacityby reference to which the weekly payments had been meade had ccased. This 1s a sound view. But because o: the error which had ciept into the proveedings in that para.12 was overlooked the Magistrate did not address himself? to the question as to whether or not he was affirmatively satisfied that the incapacity by reference to whicn the weekly peyme hed B th been made had ceased, And if the appcllant relied on the situation arising out of the weekly payments having been made, it was necessary that the Magistrate should have directed his mind to the .uestion whether on the evidence he was satisfied that the total ancapacity by reference to which those weekly vayments had been made had ceased. If such a finding had been made the question would have arisen as to whether there was any,and to what extent, economic loss supervening upon physical incapacity to support the making of an award on the basis of partial incapacity under para. 1(c) of the Farst Schedule. The result was that the prima facie case entitling the apoellant to an award securing to him the con- tT.muance of weekly paynents was 1gnorod and the cus¢g uvon which the respondert might have contested the making of such an award was not dealt with. It as fundamertel to the issues oO ca9 b scd in the prozcedings, that the entitlement if any or the appellaut depended upor the provisions of s.7 of the Ordinance to tno effect that in the case of compensible personal injury the liability of the cmployer 1s to pay compensation in accordance wath the First Schedule to toe crdinence. The First Schedule is headed "Scale and Conditions of Compensation". Paragraph * provides that:- "The amount of compensation shall be - (a) where the death of the workman results from the ingury - ... fa sum specified/; (o) where the workman 1s totally incapacitated for work by the injury - a weekly payment during his incapacity of ... /surs specified according to circumstances' ...; and (c) where the workman is partially incapacitated for work by the injury - a weekly payment during his incapacity ... /sums specified according to circumstances/ ...". It appears to me that in the proceedings before the DP 5 Magistrate, the issues before the Court were:- (a) whether pursuant to para.12 of the Furst Schedulc there was in respect of the period between Merch 1977 and 20 May 1977, any liability in the respondent to pey compensation on the basis either of total or partial Liability; (b) whether as at and from 20 May 1977 there was a liabziity in the respondent to pay compensation in accordance with para. (1)(b) of the First Schedule; and, \ (e) if the answer to issue number two be in the negative, ynetner as at and from 20 May 1977 there was a liability un the respondent to pay compensation in accordance with pera. 1(c) of the First Schedule. In proceedings for compensation where weekly payments have not theretofore been made and there 1s ro 5revious avard the workman would bear the onus of proof of angury, of rhat ungury having arisem out of or in the course cf his employment, and of the extent to which the saleability of his labour in the market was reduced by his ungury. But in relation to the appellant's application of 20 Mey 1977 for an award of compensation the situation was different because weekly payments on the basis of total incapacity had been made by the respondent to the appellant for some eighteen months, The ressondent had ceased to make sucl. payments as from March 1977 without any Sgreement or sanction pursuant to para.12 of the First Schedule. This was contrary to law. The respondent could not gain «ny benelit from this breach of the lew. Accordingly in respect of 1ssues (a) and (b) above the result is that in the proceedings of 20 Way 1977 the applicant was entitled to an avard for weekly payments on the basis of total incapacity unless 1t were established,not that there vas no continuing incapacity for work, but that total] incapacity hed ceased. On issue (c) above, 1f 1% arose, the onus of proof was on the appellant to satisfy the Court that he was partially incapacitated for work to some particular degree within the meaning of para.i(c) of the Farst Schedule. Once the weekly payments had been proved there was no Pa Es further onus o* proof om the appellant until 2t was estedlishod = rs that total tncavacity had ceased. It 1s convenient to notice, at this stage, that the touchstonc of incapacity for work for the purpose of paragraphs 4(b) and 1(c) of the First Schedule is not merely tne continuance of physical effects of the angury originally suffered but the non~saleability or reduced saleability of the workman's labour by reason of those continuing effects 1m a market cor his labour reasonably accessible to hin. o lt 1s apparent from the learned Magistrate's reasons for his decision that he was not satisfied that, with resnvect to any material time, the appellant was totally incapacitated for work. But by reason of the payments of compensation on the basis of total incapacity the appellant was entitled to an award continuing such payments unless the resvondent satisfied the Court thac totel incapacity had ceased, It 2s nol apparent from the reasons of the learned Magistrate what his finding would heve been if ho had asked himself whether he was satisfied on the evidence that tne appellant was not totally incapacitated for work with respect to the period comnencing on 77 Warch 1977. Because of the course taken by the parties in the proceedings the Magistrate Cid mot ask nams¢l) tnis question, He did not realise that 1t was an essential question, His view was that it was for the appellant to satisfy him that he wes totally incapacitated for work or partially incapacitated and to what extent. He was net satisfied on either counts, but that does not mean that the Wagistrate would have made the finding that total ancapacity did not exist as from March 1977 or from 20 May 1977 1f he had addressed himself to the task of considering whether such a finding was appropriave on Lhe evidence, All that tne Magistrate was satisfied about was thet some physical effects of the origznal injury persisted, He vas not satisfied, however. that partial incapacity for work in sae relevant sense, existed as and from May 1977. But this question would never have arisen unless it had been established by the a respondent that total incapacity in the relevant sense die net ex Tt 1s necessary therefore to consider whether, on the evidence, a finding should have been made thet,w2th respect to PANS eppeliant *neanacitated, S WES 34 years 55 He was a native of Italy, wee POPts to have littie Or no SKill in the English Langua ing "*30 oY write Ln: 19E4 ang Worked os a 22 1974 when he suffered ¢ 18 lost work because of hi S illness he decided Ta ang and Work for Wages, He Said that by the date Of the accident in Which he Sustained his *njuries } Perform heavy la At the tine of the &CCident the appellant Lived W2th his wife and four children at Narrabundah 1 a house owned by him, Before the accident he had in the Suburb of Spe 2 @ block of lang Nee in the A.C.7, where he nN tended CO build 2Nnother femaly home, it was not that this CX1sting OME Nog %0O much to manage It was that he Wanted to burid a hew house, He Said that Qurins 4975 and 1976, but aTter has &@ccident, he did erect 4 family hore o¢ 25 Squares 94 that land TT . 10. lhe builder employed in connection with the erecrion oz the new house was one Nino Raza. There was no contract with Raza. He did not give evidence. The new house is valued by the appellant at some 100,000,alvnough he saxd that an insurance company,asked to lend money on the security of the house,valued it at $380,000. The appellant said that he did no work in the building of the house , that it was built by Raza assisted by the appellant's relatives. The apneliant said that to fimance the building at Snence he borrowed money from a farnance company and a bank and obtained loans from friends and relatives. He said that since the respondent ceased to a fe make weekly payments he had had no income and existed on money lent to him by both friends and relatives. According to the appellant he owed at November 1977, a totel of $69,000, 613,000 om mortgages and #21,000 to relatives and friends fcr money borrowed from them. None of the lenders gave evidence and there was ro evidence of the terms of the loans or the circumstances in which they were made. I% was from these loans thet he fed and clothed and generally mainteined himseif and his family. Included in i11s expenditure was the cost of a new Eolden motor car wnach he acquired on hire nurchace because his previous car was "no good". In respect of the mortgages on his house and the hire purchase agreenont concerning his car the monthly commitments of the appeilant as 2t November: 1977 were ua more than 500. 11, During the terzod between the accident in September 1975 and November 1977 he bad borrowed an additional $15,000 to invest in a toy gjcinery business in a partnership or company witn a brother and two other persons. According to the appeilant the returns "ram this business were insufficient to produce any ancome lor him and after about seven ionths he withdrey, receiving back his $15,900 an full, The terms of rhe $15,090 loan do "ot enpear in the evidence, During the same period he took the part of a guarantor in relation to a loan of approximately $15,000 obtained by his Brother Rocco Barbaro from a finance company. This loan was to enable Rocca to become a partner in the Little Jounery business. Rocco worked in that business for a time and was paid for doing so. The appeliant said that he did not work at the goanery but went out "a couple of times to tne office", According to the appellant it was gust to see how the tusiness was going. The appellant's wife worked at the younery for a short perzod and was paid $100 per week. In ccennection with ct ottaining loans from banks and f:nance companies the appe b lant me o made stavements which ne now says were untrue. He said he told these untruths because otherwise he could not have cbtaincd finance for his nouse and for going into the goincry business and would not lieve been able to obtain [finance for the new car and would have had to séll his new house, The substance os oe the untrue statements made were:- 1. that the josnery business was going quite well; 2. that as at May 1977 he was receiving 4: income of {650 per month; 3. that he wes in receipt of a substantzal sum, possibly $200 per week from the Tuttle Joinery; 4, that he was working; and 5. that he was self employed in the little Joinery. The sppellant said that since his accident ne had not attempted to obtain any work. Jie saxd he had told the Insurance Company that he would take Jight work 12 the company found 1t for him. As to whether he couid do laghv werk he said thet it devends, sometimes he feels well ena sometimes he does not. He said that he did not Look for wor because he did net feci well and he did not xr:ow where to 20 about fi..ding a gob with lignt duties. He had nowt registered watn the Common- wealth Employment Service; nor had he locked al newspaper advertisements. He had not thought of setting a part time gob or getting a gob at ail. It is apparent that he has never applied for unemployment relief. He saad that he has done no work 1n his garden since his accident and did no work in the building of the house at Spence. There was evidence from two neishbours at Narrabundan that from January 1976 until the appellant wenr to live at Spence ticy had never seen the appellant worx in the garden. They said that he was not crippled but walked with a slow easy walk. There was evidence of a neignbour at Spence tnet he had never scen 13, the appellant work in the garden or otherwise around his house and that he never saw the appellant do any vork in the building of the new house. The aopellant's wife gawe evidence that the appellant 1s not able to do anything, 1s not able to work, as nowt allowed to lift heavy things and 1s not able to go into the garden. She said that since September :975 the appellant sometimes gets up, walks around a while and then goes back to bed. He sleeps in a normal bed. She did not mention that he wears a surgical Neck coller at night. Beyond those matrers Mrs. Barbtro was rather varus. Sneé said that all business matters were attended to ty the appellant, Although she went with nlm on Pusiness occasions te help with his language problem she could not remerber wheat had been said to the finance company or banks. aAltnoupgh she had made quite large payments to the bank, once as much as $813,000, she was unable to remember the circumstances or where thet money came from. She explained "Tony handles 211 tne pavers. I don't know anything about these things". One Gerarda Barillaro,a partner in the goinery business,confirmed that Rocco Barbero and th: appellant paid $30,000 as part of an anticipated $£5,000 to purchase shares 1n tae business, but arter a litthe while trey decided te leave because there was not crough profit. althougn the appellant came to the susiness on a few occasions ne hed never seen him co any work. 14. Medical Evidence Relative to Cepacity for Work Physical or Otner So far as the medical evidence 1s conceined several doctors gave evidence viva voce or in writing, The doctor most favourable to the appellant was Dr. Newcombe. He first examined the appellant on 24 September 1977. ie prescribed a collar to support the appellant's neck and advised that he sleep on a hard bed, Dr. Newconbe's opinzon was that some permanent partial incapacity would appear to be inevitable be- cause it would be inadvisable for him to return to heavy labouring duties. He accepted that the appellant suffered exacerbations of main of betwee one and three wesks duration every three or four weeks, He appears tc be of the opinion a that the appeilant had a condition cf dise protrusion .t F the 4/5 lumber spine level. If that condition were confirmed by myelogram then an operation should ve verformec. Presumably this weuld relieve the apvelilant's syrptors. Dr. Newcombe attached significance to a neck and shoulder ingury although he did not regard it as a maszor element in the injury. There were no X-ray records relating to the shoulder. The appellant had no recollection of injury to has shoulder or neck in the accident and apparently Iirst mentioned it to a doctor on 19 November 1975. Dr. Newcombe conceded that although there were objective signs of angury his opinion rested basically on the apvellant having been truthiul co him in describding his symptoms. it was the view of Dr, Golski who examined the apvellant on a nunber of occasions between September and Noverber 1976 that there was some ingaury to the aopellant's 1Icft shoulder and some evidence of disc deterioration at LD and $1. Under hig direction the appellant uncerwent physiotherapy but Sound 15. no change in his condition as a result thereof. Dr. Golski's conclusion was that "the situation should be accepted and the appellant should gust avo1c performing any heavy work", Dr. Stenning on 6 October 1977 cbserved some slight narrowing of the L4/5 disc. He descrited the appellant's back as "powerful, stocky bu1rld witn posture gso0d", He found forward bending restricted so that outstretched fingers reach just below the knees. Other movenents were not restricted but all are associated with low central bacx pain, Dr. Cairns attended the eppellant from November 7975 until June 1976. It was his op2nion that the appellant hed suffered a minor xznjury to his lurbo sacral spine «nd that he had at least a minimal organic basis for his continued complaints. He believed 'that there was a significant degree of psychological magnification of the appellan ' Fo] cr symptoms and he doubted the accuracy of the el ' hwc wo is) '3G n symptoms. It was his finel conclusion when ke : y wv o H "T refer to all tnese fincings simply to support my present opinion tnat the sagnificant component in this man's continuing inability to return to work is largely psychogenic. All reasonable forms of conservative management have been tried, and at this point the only alternative treatment which can be offered to this man in ry opinion is surgical, if his symptoms are in Tact legitimately based woon an organic problem. However I cannot satisfy myself that this is in fact so and I do not believe therefore that he 1s a candidate for any rorm of spinal surgery. I have therefore unformed Mr, Barbaro that I can offer im nothing further 1n the form of mansgemcnt of his back pain and that my advice to him 1s to return To worr allowing for the fact that ne may not be able to return to heavy manual occupations but that he should certainly be capable of verforming ail but the most arduous of occupations. It would seem therefore on the .vhole of the evidence as to the appellant's physical capacity for work the proper anference 1s that he 1s capable of wora in any occupation which does not anvolve heavy lifting and repetitive bending. Accordingly there is a range of occupations which are suitable for the appellant's capacity. It 1s always difficult to specify such occupations, but vehicle driver, watchman, ticket collector, gate keeper, supervisor of workers 1n an establishment such as the Tittle Jonnery or any factory andin modern industry there are sedentary occupations where watching processes are concerned, However in the case of the anppeliant there are difficulties, Eis lack of knowledge in English is 4 serious handicap and greatly reduces the range of establishments in which he can expect to obcazn work, In the search for lisht work he 1s lixely to meet much competition and other «oplicants may be persons with no physical disabilities, On the other hand his nationality may assist him to find work in the Italian community. Obviously he has business initiative, is not without business acumen and 1t is far from clear that he woulce be rendered unable to earn money by being excluded from heavy labouring work. It 1s relevant that the applicant has made no attempt to find light work andhad hardly given a vhought to doing so. It is 17. apparent that the appeilant 1s not really interested in employment on light duties. The question is why this 1s so. The sunswer could be that the anpeliant 1s more interested 11 engaging in some business. Credibility The Magistrate observed thet the appellant had received substantial sums of money and had given an unsatis-— factory explanation in vespect thereof, He found thet the applicant was a person who would tell lies in order to achieve his ow ends. This was manifestly sc on the appellant's own statements. His credibility is thus inevitably very low. Considerations Relevant to Inferences to be Sravn According to the appellant, notwithstanding his accident, and shortly thereafter, while he was suffering its effects and under medical treatment which was not showing signs of bringing relief, he decided to erect the nev houze. Ile vas then receiving weekly payments on the basis of total incapacity. The conterplated house was quite large and the project involved borrowing a large sum of money. Although he had an unspecified sum of money, possibly about $5000 1t would ve clear to the 18. appellant that he would necessarily incur heavy interest payments and probably recurring payments on account of capital. He arranged for both bridging and long term finance. The sum borrowed could not be less than $40,000 which at interest rates common and notorious in "975 and 1975 would involve payments of $80 per week at least. Uiswape cas en cmployee of the respondent had been betwoon $130 and 140 per weck neth., On the uppellanv's cvidence from September 1975 the appellant krew that he could not werk, end, with increasing cervainty thereafter, he must have realiiid thet his chances of earning money by working were moniural. To Keep himself and his four children on workmen's corpensetion wes 2 daunting prospect but to add to it another $80 per week would create a serious situation, And it was not that the house at Narrabundah was shown to have been too emall or too @2ifficult to manage, merely that the appellant wanted to build the new house. Not only did the appellant decide to build the new house but also to buy a new car, This he did about May 1976. 'The price is not disclosed but finance tnerefor involved repayments at the rate of $119 per month. In addition to the above the appeliant borrowed $15,000 from a finance company to go into the Tittle Joinery project. These transactions were quite large for a man witn a wife and four children on compensation with a disebling back condition, and na prospects of being able to work. It ais said that to help him with his financial obligations he recesved Joans from relatives and friends, By March 1977 his monthly commitments were raid to be %495 fu loans on the house and $119 with respece to the car - $504 1n all. rp ence RATT T RN POTATO PLEO Te EL ST ET II ment yp ww - By that stage the appellant, according to his evidence, had been disabled for eighteen months and there was no sign of improvement. According to the appe?iant some short time before March 1977 he had commenced to borrow money from his relatives and friends and between about the beginning of 1977 and November 1977 he borrowed $27,000. From early in 1976 the appellant was faced with payments out of about $500 per inonth and he had to keep a family of £1™ on workman's compensation and no prospects of any more. And yet throughout 1976 and until November 1977, he never gave thought to obtaining light work. From March to November, when he had no ianceme at ali, he aid not register for laght work or attempt to obtain unemployment or sickness relief. It seems that the house et Narrabundeh was sold in January or February 1977. When he actually moved from Narrebundah to Spence does not appear. It was apparently throughout 1977 that he was paid large sums of money by relatives and friends, namely $5000 by Rocco Andessa, $5000 from Antonio Pangello, #5000 from Carlo Pachik1 and $3000 from Nomenzco Romeo who were apparently friends. Throughout 7977 until at the earliest about October "977, 1% was the apparent intcntion cf the appellant to continue to live in the new house end pay for it. During that tame his hope of returning tc work must heve seomed very remote. The reality of the situation rust have been clear to the appellant in 1976. At that stage he still had the Narrabundan house and could have returned there, sold the new ho Lo) house, and satisfactorily resolved his frnancial problems, He did not do that but in 1976 borrowed $15,000 himself and guaranteed a rurther $715,000 loan for his brother and took on additional liabilities in respect of a new car. The purpose of the new car was said to be to go to the doctor and other unspecified journeys. But in the appellant's difricult situation that expenditure seems to have been an extravagance, especially as Mrs. Barbero said th.t his normal day was to get up move around the house for a couple of hours and then return to bed, Butthe one thing the neighbours did see the apvellant do was @rive his car, % may well be that Italian families and friends are generous to their relatives and friends who need money. But if at the time the money was lent it was the intention of the appellant to continue to live in the house then there was no prospect of them ever being renaid, except perhaps out of some workers compensation settlement, In this latter event the appellant would have his large house and car but no income and no chance of any income. The appellant repudiated or at any rate put aside the notion that he hoped to repay them out of some redemption of workers compensation. Asked if he intended to seli the new house andif sc, when, he said "as socn as anyone comes along to buy it". It was not until about a montn betore the hearing of the Worters Conpensation case that, according to hamself, he put the new nouse in the hands of an agent for sale. No particulars of price were suggested as having been discussed or arranged, and the appellant 21. was unable to remember the name of the agent. When pressed he adentified him as the agent who sold the Narrabundah house, It is relevant that whatever tne appellant's educational limits he was quite a successful business man. After being in Australia for 11 years he had accumulated a house at Narrabundah, a block of land at Spence suitable for a large and expensive house, an interest worth $7000 1n land at Gunning, a car and some thousands of dollars in the bank, He had done this not by working for companies like Leightons, but by contracting on his own account. It was he who arranged for the 2oans and the goint investment sunported by loans end 2 guarantee for tne Little Joinery venture. It was he ho controlled all tne signing by himcely and his wife and the psyments in resect of the mortgages. It was he who had the initiative and the determination te teil lies, 12 they were lies, that he was working, and about the receipt of ancome, in order to raise the bank and finance company loans. To read the evidence is to confirm the Magistrate's finding that the anpellant's evidence is unsatisfactory. He did not satisfy the Magistrate that he was not gaining from employment or business what may be called a full wage. Tf he had addressed himself to the question wrether on the evidence he snould make a finding thet by May 1977 the appeliant had ceased to be tovally incapacivated for werk 1t would have been by reference to considezations such as those mentioned above that the answer would kave been found. I do not doubt thac the answer should have been, "Ves" The question would have been whether he should or should not draw the inference with rcsepect to the period from March 1977 to 20 May 1977 that the appellant was not totelly incapacitated, in other words thas notwithstanding his injury he was earning, or was able to earn, in some suitable employment or business at Icast some significant remuneration, In this connection it 1s apparent that the only occupation from which the appellant vas excluded by his ingury wasone involving heavy lifting and repea 2d bending. It is clear that the appellant has not even atcempted to seek any other class of employment, In addition 1+ may be thought reasonably that the evidence reveals thet since Sentember 1975 the appellant has chosen a life-style and undervaken financial obligations beyond the capacity of a person whoge only income was Workman's Compensation or at least has adopted a course of financial conduct out of accerd with that to be expected in the light of common experience of a rational person in his pestulated financial position. Where such a state of affairs exists 1t 1s proper for the Court to consider whether inferences may be drawn, as on a balance of probabilities, that there 1s an undisclosed explanation of the apparent improbabilities in the conduct disclosed. As was said by Dixon C.J. im Plomp v. The Queer(7963) 170 C.L.R. 234 at p.2u5 reveating what he had said in Martin v. Osborne (1936) 55 C.L.P. 367 at 0.3575;- ho \N "Tf an 1ssue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explan- ation. This means that, according to the common course of human afiairs, the degree of prob- ability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to de proved 1s so high that tne contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process oF 1easoning include all facts and matters which form constituent parts or ingredients of the transection itself or explain or make intelligible the course of concuct pursued. Tae moral tendencies of persons, their proneness to acts or omissions of a particular description, thcir reputations and their %ssoc1ations are in general not matters whicn it 1s lawful to take into account, and evidence disclosing them, if not otherwise relevant, 18 rigidly excluded. But the class of acts anc occurrences that may be considered ancludes circumstances whose relation to tne fact in issue consists in tne probability or increased probability, judged rationally upen common experience, that they would not be Found unless tne fact to be proved also existed." (See 2lso Morgen v. Babcock & Wilcox (1929) 43 C.L. R. 163) It should be observed that, certainly in 2 civil case, such an inference may be made not only wnere 21t provides the only rational explanation of the situation but where on balance 1t provides the probable explanation. In this case th t fa fet] i] to be proved by the respondent on the evidence was in the first instance that the appellant had other undisclosed income. There can be no doubt thac cn the evidence this intererce 1s open. Even :f the loans from relatives and friends were a reality tne probabilities are little effecved because the decision to take a course of action involvirg the assump- tion of heavy repayments was made beZyore the lJoens were received and in any event the loans had to be repaid. Perhaps the most sign_-ficant feature as that until, at eny rate,a month before the hearing in November 1977 the appellant's intention was to continue to use the new house as his family home. To have built the house as an investment would have been one thing but to build it to live in must almost necessarily have proceeded on tne basis that the appellant haa other income. If the inference 1s dra' n tnat the appellant nad other urdisclosea income regard might then be had to the most probable source of income. if the appellant cheese to adopt some undisclosed method or carning money tt 18 open Lo the Court in the case of a man with bus2ness ability, and experience to find that it was earned in busincss or employment. Accordingly it 18 open to the Court to draw the inference fro the evidence that as at and shortly before 20 May 977 lhe enoellant did earn or was able to earn at Least some substantial remuneration by way of wages or the proceeds of engaging 1n Lusiness. The history of the appellant's business activities, ils experience as a contractor, his general entrepreneurial initiative and skill manifested in his association with the Little Joinery and otherwise, the necessity tor the new car, the capacity to arrange large and complicated finance and the deterrzin2tion to transfer to a new large house all point to a confident man of business. T9 treat his conduct as that of a nan who never expected te werk again could well be regarded as quite unreal, indeed morc than 1rrational. The question whether 10 was shown that the appellant had ceased to b2 totally incapacitated was not dealt with. The respondent was entitled to have 1% dealt with. Tn the circumstances this Court sheuld deal with this actual question. in my opinion the evidence +s such as to enable it to do so and I have no doubt that the appellant at the rolevant time was not totally incapacitated for werk. Consequence in relation to the location of the onus of proof that total capacity has ceased In the light of the foregoing, the appeliant 1s entitled to an award only 12 he vroves, on the ba:ance of probabilities, cr that the circumstances are such as to erritle hin to an avurd an accordance with clause 1(c) of the Frist Schedule on tne basis of partral incapacity. It is, cf course,arguable that it would be for the respvondent tc prove that the appellant was not partially incapacitated for work or that the degree or partial incapacity for work was of such minor degree that the weekly payments should be terminated or reduced. In this connection the form of award,set forth as Form 17 in the First Schedile to the rules under the Crdinance, is relevant:- "Having duly considered the matters submitted, the Court hereby orders and awards as follows:- Here insert any introductory recitals of findings on which the award 1s made which the Court may direct./ 1. That the respondent, C.D. ,» do pay to the applicant, A.B., , the weekly sum of as compensation for personal injury caused to the said A.B. on the day of » by accident arising out cf and in the course of his employment eas a workman employed by the said respondent, such weekly payment to commence as from the day of , and to continue during the total or partial incavacity of the said A.B, for work, or until the same shall be ended, diminished, increased, or redeemed in accordance with the provisions of the above-mentioned Ordinance." This form has been Judacially approvec., See Higgins v. Poulson /191272 i.B. 292. It mey be accepted therefore that the Ordinance contemplates that 1n a case where an award has been mace for weekly payments on the basis cf total incapacity,the respondent remains liable,except,at least 1n special circum— stances, to make such payments notwithstanding the cessation of total incapacity until the award 1s terminated or veried by a competent Court or perhaps by agreement. It may be argued from this that on an application to vary such an eward the employer carried the onus of snowing thet circunstances had so changed, that not only had the work-nsn ceaseu to be totally incepacateted for work but was not partially to ~J ancapacitated for work om was able tc earn in work or business an amount which would reduce the weekly payments on the tasis of partial incapacity to some specified arount less than the current weekly payments, In my opanion this does not follow. The form of the award provided for by Form 17 no doubt reflects the polacy of Workmen's Compensation legislation that once an award is made the payments therein provided for skall continue until terminated or varied by the Court or by agreement, The workman 18 not to be harassed by an omployer unilaterally terminating or reducing his payments on the allegation that the workman's incapacity for work had decreased, thereby vutting the workman in the position of having to taxc acticn to prove, perhaps repeetedly,that his ancapvacity has nov ended cr decreased. It is a policy more than reasonadie thav the im) employer desiring relief from an award based on total ancapacity should be required to obtain that relacf from a Court on proof that there has been a change of circumetances going to the basis ot that award. That volicy is reflected in ypera.12 of the First Schedule. COnce weekly payments are made, on whatever basis, tney are to continue until terminated or varied by agreement or by award. See Guinn v. McCallum (7902) 2 B.W.C.C. 339, Cory Bros & Co, Ltd. v. Hughes /19117 2 K.P. 738, North's Navigation Co, Ltd. v. Batten (1933) 26 B.W.C.C. 525, and compare Western Australian Coastal Shipping Commission v. Wallner (1979) 26 4.L.R. 597 a decision of the Full Court of tae Pederal Court of Australia. but i% does not epnear te me that the factors abovementioned go to the question of the Incation of th o onus of proof when relzef is sought fron weekly payrenzs thereto- Id ee) * fore voluntarily made or under an award. When relief is scught from an award vased on total 1ncepacity no doubt the onus is on the employer to show a critical change in the circumstances upon which the award was based. Those circumstances comprise , in the words of s.7 of the Ordinance and para. 1(b) of the First Schedule, that the workman had suffered injury arising out of or in the course of his employment with the employer and that in consequence thercof the workinan was totally incapacitated for work. When it 1s shown that one vital circumstance has changed, namely that total incapacity has ceased, then 1t is the turn of the workman 1c raise a case depending upon a new circumstance and a different statutory provision, namely fF .7a- 1{c) of the Pirst Schedule activated by s.7 of the Ordinance. it 1s logical encugch thet the onus should then nass generelly to the worksen, particularly an relation to his lack oF capacity to earn mone7y in bisinegs OF employment. In that connecticn the facts are necessarily known to him and not necesserily or even propably to the employer. The comments of Gibbs J. in Jd & H Timbers Pty. Lid. v. Nelson (1971-1972) 126 C.L.R. 625 at 651 concerning the relative unimportance of the actual location of the legal onus of proof are very much in point because it may well happen, and mo doubt does happen in countless cases, that the evidence for instance, of cessation of total incapacity may well indicate @ continuance of partial incapacity. But 2n a case like the present there was danger te both parties if the location of the onus of proof were not clearly perceivec. TN martin bene om atameted manna tay cml Ane AEN ESE ret Nake ne eattaed rt on NUN de cach At Peano - 29. + There 1s a sense in which an employer who seeks termination or reduction of weekly payments, the subject of an award based on the total incapacity or of payments being made volunterily on the basis of total incapacity, is alleging change 3f c1reun-— stances as a result of which the payments snould be tezrirnated or reduced, If the metter is looked at 1n this way and tne application 1s seen as directed to Liability, both for total and partial w.ncapacity, as though the award were ror total and parvial incapacity, tnen proof of every circunstancce necessary to reduce the award, as if it were an award for partial incapacity, would lie on the employer. It is argued that the English decisions mentioned above should be read as preceeding on this basis, but I am not satisfied thet this is necessarily so. However, in view of the decision in Philips v. The Commonwealth ('964) 710 C.L.R. 34 and tne remarks of vecobs ¢, in Commonwealth of Australia v. Muratore (1979) 53 4.7.R. 98 concerning Phillins' Case this ct Court should not proceec according to cheat view. Upon my e interpretation of those last mentioned cases I feel bound to adopt wnat seem, the more analytical view. It would appear that tne menbsrs of the High Courl,while recornising the authority of the English cases ,have taken the view that they are not incompatible with the general thrust of the decision in Phillips' Case. ft may be noted that tne l1ability of en employer under s.7 of the Ordinance 1s a liability "to pay commensation in eccordance with the First Schedule to this Ordinance", According to that schedule the scale and conditicnse of comnensation are laza aown in paragraphs 1(a),i(>) and i(c). Proof of Geath. total incapacity or partial incapacity as the case may be, 1s a condition of an n award based orn the particular event relied on. The structure of the Muglish Worlmen's Compensation ! different. Section 1 of the Act created a liabilii terms to s.7 of the Nrdinance of to the 1906 Act omits what is pare Ordinance and para. 1(b) provides "1 (>) \nere total or partial incapacity for work results from the injury, a weekly payment during the incanacity not exceeding fifty per cent of his average weelly earnings previous twelve any less period during which he has been during the montns, if he "has been so long employed, put if nes then for in the employment of the same employer, such weekly payment not to exceed one pound," To obtain an award under tne 1906 total or partial would provide the required basis. Act proof of inc a case, mere proof of cessation of total liabilit to the basis upon which the award rested measurement of the weekly payments payable. was not affected materially save by the enactmenu of Worlaonens Conncnsation Act (1925). P- |e a an hy ch iie] What T heve called the stand 1%, 1s that an award based substance, an award based on total and vartial incapacity and as subject to avolaance on proof of the circumstance that tae total incapacity on which it was Tt connection the provisions of from che Ordinance The structure woulda not go but only to the The 1905 Act of that apacity In such Act under ceonside analytical view, as £5 under on total uncera basec has ceased. Justified by the policy of tne legislation tnat of the workman, an award shall persist so long es ther fer the "orm 17, referrcc to above, a B] In this are s ra caty 2s not, in the Enclish L u 4on srotection ancapacity, be it total or partial,until sct aside but thas should not be seen to zmply that an award based cn tctal incapacity 18s inherently an award based on total and supervening partial incapacity. Thisrcre analytical view appears to me to reflect the policy of the legislation in combination with convenience logic and gustice. It analyses the liability as arising under { either pare+4 (b) or Para. 1 (c) and places on those seeking relief from liability under one or other the onus of | proving a change of circumstances relevant to the pertacular grounds of liability established by voluntary payments or awarded under Pcre. 1(b) orl(c),as the case nay be. Once there 1s a finding that the appellant has ceased to be totally incapacitated for work liability under para. "(b) of the rst Schedule as activated by s.7 o2 the Ordinance hss ceased. IF tnal is the only finding,it may be a question whether 1t operates in respect of the earlier total incapacity Dy way of subtraction, so to speak, so that some degree of incapacity either vhysicel or economic remains. And, if economic incapacity remains, hoy much remains? It appears to me that the better view is 'hat once the critical factor of total incapacity for work has heen removed the respondent has destreyed tke basis of the tiability established by an award under para.1(b) of the Schedule orthe Jiabiliy which he had admitted by making rayrents av th? rete for total incapacity and there 1s no ground for casting on the respondent any further burden, by saying ta the resvondent —- "Well you have discharged total liability but you are Liable for partisl lncapacity at some rate unle $s you show there is mo partial incapacity for work cr establish tne amourc payatlo pursuant to pera.1(c) of the schedule." 72. In my opinion the true view is tiat 1n a situarzon such as existed in thts case the eppellant was at the outset of the proceedings in as strong a position as though there were an existing award in his favour imposing liability uvon the respondent on the basis of total incapacity. If there had been an award it would have been based on an establisned incapacity for work, constituted in the words of Lord Loreburn in Rall v. William Hunt & Sons Limiled /19127 a,c. 496 by "a physical defect in the appellant waich made his labour unsaleable 1n any merket reaseonedly accessible to him". It 1s this basis of liability which would lterminate if tr. respondent established the change of circumstances cn which he relies. When that occurrs, there 1s ro basis ot liability on the ground of paitial incapacity on the theory that 1t had been wrapped up in the concept of total auncapacity and was revealed by way of subtraction from thet concept. In the case menvtioned,Lord Loreburn said at p,. 500 " ... there is partial sncapacaty for work when such a defect /i.e. a physical defect in a man' makes his labour saleable for less than 1t would otherwise fetch." ww Xl It 1s a condition of entatlenent to an award,in 1espect of partial incapacity, that there be proof that as a conseguence of physical incapacity the workman's labour 1s saleable for wt i) t s to a specified degree. It :s logical that the burcen ci proving this, when there is no antecedent finding of vartial incapacity under the Ordinance, should be on the sppellant. In a case in which cessation of total incapacity for work 1s 2 iC) cr fo a H beoOm there may still be evidence of residual prysical incepacity which has made the appellant's labour saleable for less than 1t would otherwise fetch. B3uv that would merely mean that there was evidence avallable to the workman on the 2z3sue with respect to which the lezal onus of proof 25 on him. And even in such a case,tne degree of unsaleability would be peculiariy within the knowledge of the appellant. For the purpose of making en award on the basis of partial incapacity, 2n eccordance 71th 3.7 of the Ordinance and para.1l(c) of the First Schedule,ihe extent o7 the Gar *) C to ive) so He diminution of lity cf that labour would have to be OQ established to irplemert the provisions of fara.1(c). In @ case in which liability is ostablished for peynont of @ weekly sum at a rate establighed by a werkman on the Lasis of partial incapacity, 1t may be Lhal at a later date the employer may desire to seek reducticn or cessation of those weekly sums. In such a case the onus of proof vould be upon the employer. This 1s because an employer challenging an award based on total incapacity or on partial incapacity must prcve the relevant change of circumstances on which he relies. Where the award under challenge was based on total incapacity, the relevant change of circumstance is cessation of total incapacity (para.1(»)). 34. Where the awarc under challenge was based on partiaL incapacity and reduction of payments is sovent, the relevant chnge of circumstances weuid be reduchicn an the d2ainmuiticn of earning capacity suffered by the workman. In this exercise the employer is at the disedvantage that the reievant facts may ve exclusively zim the knowledge of the workman. However, there 18 a difference pvetween the situation of an employer when he faces an original claim based on partial incapacity and that when he subsequently challenges an award based on pertsal incapacity. Tn the former,nothing has been established in relation ta the workman's partial incapacity. In the latter, the employer has at least an established position to work from, In any event it 1s inevatabie that an employer challeng:ng en award should prove the relevant change cf circumstances. it would seem tnat arising ouc of the rrovisions of the Ordinance the concepl of total incapacily for work differs in nature from thet of compensibdle partial sneapacity for work. The cause oF action in respect of W S)] total liabilaty depends upon s.7 of the Crdinance and pare. 1(b) of the First Schedule, that 1n respect of partial iuncapucity devends on s.7 and pare '(c) of the Pirst Schedule. The decision cf Katto, Taylor and Owen JJ. in Phillips v. The Commonwealth (1954) 1°70 C.L.R. 247 appcars to ne ro be fo) directly in point. %n that case an employee received payments of compensation under pare. 1(b) of the Farst Schedule ot the Commonwealth Emoloyees Compensation Act 1940-1956 (Cth) upon the basis of her total incapacity for work because of an employment anzgury. Later the Commissioner for Employces! Compensation determined that payments should end because she was ro longer totally incapacitated, Upon appeal to the County Court she contended that she was still totally incapacitated, alternetively, partially incapacitated and thus entitled to ccempensation under par.1(c) of the First Schedule. It avpears that, "At the rehcarsrg im the County Court the appellant submitted that on the evidence before him the delegate should have found that as from 16th November 1961 she was totally incapacitated for work, but his Honeur Judge Durn held that botn on tno2 finding in a certificate of a medical board given pursuent to s.19 of the fcr ard on the evidence beToré nim it was clear that the appellant was not totally incapacitated for work. 'The appellant als; argued that she was partially incapaciteted for work, but the Judge held that on the material before him he was unable to find that the appellant was not capable of carning, in some suitable employment or business, a weekly amount not less chan her pay at the date of tne ingury as since varied. He went on to say 'It wes urged on behalf of the appellant that the onus of proof as to the amount vhe appellant 1s capaole of earning in some suitable employment or business 1s con the respondent. In ny opinion, that 18 not correct. I have not been able to rand mucn authoraty on this point, but there is a decision of the Suprene ~ 36. Court of Queensland that the burden of proof of past and present carning capacity rests on the claimant for compensation (Adams v. Scott (2)), = think as a matver of principle that that is the proper view to take." (p,2%48) p.350- 351 the Court said:- "in the present case what had been initielly established was that the appellant was totally incapacitated as, indeed, was the basis of her original claim for compensation, and :msediately before the final determination of the delegate she held, in effect, an award establishing her entitlement to compensation 1n accordance with par.1(b) of the First Schedule to the act. Thac award however, could survive only so long as she remained totally incapacitated. Apparently the delegate of the Commissioner was satisfied that she did not so remain after i6th November 1961 and upon the rehearing of the appeal to the County Court 1% was found as a fact that she was not totally incapacitated after that date. This finding ns not challenged in this Court and indeed it could not be challenged, for it was founded upon e certificate of a medical board which s.19(4) makes conclusive evider.ce of the matters certified. Accordingly, 1t 1s clear that the appticant has no further right to compensation under par.1(b). But at 1s contended on her behalf that in order to secure the dismissal of her appeal to the County Court it was incwibent upon the Commonwealth not only to establish treat fact, but also thet after the date in question she was not partially incepacitated or, alternatively, that seny remaining residual incapacity did not diminish ker earning capacity. That 1s to say, that 1% was the appellant's contention that tne cnus lay upon the Commonwealth or proving facts snowing, not cnly an absence of liability on its part under par.i(b) of the First Schedule, but also an absence of liability under par.i(c). There is, we think, sone conrusion in this contention, it may be that the issues before the County Court were not vrecisely defined but that the appeal had dual aspects 1s beyond question. In the first place, there arose for determination the question whether the liability of the Commonwealth to pay compensation to the eppeliant as a totally incapacitated employee should be brought to an end. Upon this issue the onus rested fairly upon the Commonwealth but, as already appears, 1t was dis- charged and the finding of the County Court carnot be challenged. Then arose the gqustion whether comp-— ensation should be awarded to the appellant as « person partially incapacitated and with a dimanished earning capacity. This, in effect, constituted the basis of a new claim not previously pronounced upon before its rejection by the Commissioner. On this issue tne onus was, we think, clearly upon the apnellant,. Accordingly, ve do not think that the learned County Court Judge made any error of law upon this point." It was argued by ilr. Costigan that this decision should be seen as nothirg more than an application of what yas Gecided by the majority of the members of the High Court in J. & H, Timbers Pty. Ltd. v. Nelson (197'-72)126 C.L.R. 625, namely that in the case of a workman seeking an initial award the onus is on the claimant to prove "not only angury and incapacity for work but, where that incapacity is less than total, financial loss", per Menzies J. at 637. Mr. Costigan contended that 1m Phillips' Case the appellant was really seeking an initial award. He said, as I understood, that the proceeding ain which the appeliant lost the award in her favour, because it was shown that she was no longer totally incapacitated, was, or at least should be considered, quite separate frem the proceecang 1n whick she sought an award on the basis of nartzral incapacity for work. & E He contended that this followed from the form of the proceedings and from tne fact thet the Commissioner under the Commonwealth Employees! Compensation Act was entitled not only to make determinations 2D initio, Dut was eniitled himself to vary cr termunate any payment cr compensation, It was argued that the Commissioner was the employer and to equate his position to tnat of the respondent in this case would be to say, but wrongly, that the respondent had the right to vary or terminate payments of compensation as did the Commissioner. It was also argued that the situation an the case before this Court was similar to that dealt witn in Comnonweeltn of Australia v. Muratore (supra) at n.98 rather then that joo dealt with in Phillips! Case. 38, I am unable to accept the first contention, It appears to me that because the procedure was by way of rehearing (see Phillips' Case (supra) at p.349) the situation on the appeal to the County Court was precisely that obtaining in this case. At the outset of the proceedings the appellant was able to rely on the previous award having been made on the basis of total incapacity. It was held tnat the onus was on the Commonwealth to disvlace that award. This was ¢ accomplished Ey evidence in the appeal. Tre fact that it was IP accomplished easily by vroduction of the certificate 15 not to eat the point. When that had been accomplished tne evpellant, as in this case, sought an award based cn partial incapacity and was required to prove the elements necessary to support such an award. Tnis she failed to do. It was in the sare proceeding, namely the appcal, that all these issues were dealt with. It was that one proceeding which was said by the Court to have a dual aspect. The claim by the appellant in tnis case, in the proceedings brought by him, had similarly a cual aspect. In its first aspect the award equivalent arising from Peal rE para, 12 of the First Schedule was :n issue. As from 20 May 1977 that ecuivalent ought not to have survived if the finding had been made that total incapacity for work had then ceased, In 1ts second asvect the anpeliant's claim for an éeward on the basis of partial incapacity for work vas in issue. On that the appeliant carried the onus of proot, ol Ww In Muratore's Case (supra) the workman had the benefit of the equivalent of an award on the basis of partial incapacity for work, It was held that the Common- wealth's challenge to that award was on the ground of charged circumstances and that the Commonwealth carried the onus of proving a dimirution of incapacity. =n the case under appeal before this Court there 1s no challenge to any award already made in respect of partial incapacity. ln Muravore's Case the previous finding of partial aincapecity for work was regarded as critical, It was poznted out that the aporeacn cf the majority of tne Court in Thompson v. Araustrong and Royse Pty. Ltd. (1950) 81 C.L.R. 585 docs no: support the submission that despite the reasonirg in Phillips's Case the onus always 1ligs on the employee to prove cconomic loss, even if he has in his favour a finding of partial incapacity for work. See per vacobs J. at p.100. Whale deciding in Muratcre's Case that the onus wus upon the Commom-ealth to prove diminution of the worker's incapacity fcr work, in th ra) relevant sense, his Honour said at p.109 "The position 1s quite different if there has been no previous finding of partial incapacity with a consevuent assessment of the compensation payable," it 1s establisned that in such a case the employ an ra) bears the onus of proving the partial incapacity for work and the degree of his loss of ability to earn. J.& H. Timbers Pty. Lud. v. Nelson (1977) 126 C.L.R. 625. The emphasis in Myratore's case 18 upon the andivisibility of the concept of vartial incapacity for work in relation to 1%ts physical and economic aspects. As 40, Jacobs J. poznted out:- "An employee who has been found to be partially incapacitated for work has his incapacity measured by the extent that the amount per week that he is able to earn in some suritable employment or business is less than his average weekly earnings before his angury (see s.46(2) of the 1977 Act). His partial incapacity for work 1s only relevant in so far as such a measurement can be made, that 1s to say, in so far as it produces incapacity to earn the wages which he was previously able to earn. Therefore the Commonwealth, when it alleges that the employee 1s physically able to earn, in some suitable employment or business, a weekly amount which 1s not less than his weekly pay at the date of injury is alleging nothing relevantiy different from an allegation that he has no physical incapacity for work producing an incapacity to earn those wages. The position would be no different 1f it were alleged that has degree of incapacity for work had diminished so that his compensation should be reduced. In both srtuations the Commonwealth is, orywould be, alleging that the circumstances of tne employee had changed; and the onus lies upon the party alleging the change of circumstances to prove it." (page 180) The remarks of Fullagar J. av p.613 and Kitto J. at p.621 1n Thompsons Case (supra) apnear to me to anticipate what was said above by the learned Justice.In the critical phrase "incapacitated for work" the economic aspect 1s wraeuved up in the words "for work". Thus in the words of Fullagar J. "Aman is,totally incapacitated for work when he is by recson of his ingury,vhysically unable to work" p.613. Kitto d. said at 2.621: "Thus compensation is awarded, not for loss of wages,nor for impairment of physical condition per se,but for the economic aspect of that impairment, namely a lost or diminished ability to obtain wages by working." 44. In Muratore's Cas¢ (supra) Mr. Justice Murphy in a separate Judgment stated the effect of Phillivs' Case in words which appear to summarise the matter with compelling clarity. At pp. 101-702 he sa1d:- "The problem in Phillips was somewhat dirfferent. The Comaissioner varied his determination of total incapacity by finding that there was no total incapacity; in these circumstances the court held that on an appeal by way of re-hearing, the onus was on the Commonwealth to show that total incapacity had ceased, but if that onus were discharged (and there were questions whether the worker was partially incapacitated, if so and to what extent) the onus was on the worker to show that there was partial incapacity and the degree of partial incapacavy." In the result I find that between 17 March 1977 and 20 May 1977 the appellant,despite physical injuries supervening upen those he suffered in September 1975, was able to earn a substantial income in some employment or bdusincss and was not then totally incapacitated within the meaning of para. 1(b) of the First Schedule to the Workmen's Compensation Ordznance 1951 of the Australian Capital Territory. Accordingly, the appellant at ali times carried the onus of proving partial incapacity for work within the meaning of para.1(c) of the First Schedule of the Act. I am satisfied that the findsng of the learned Magistrate that he was not satisfied that the appellant suffered any economic loss by reason of such injuries during the period referred to was one open to the Megistrate on the evidence and shculd not be disturbed, Re nn Re mel me nn e e -- - 42, Partial Incapacity It was pointed out that the Magistrate said that but for certain aspects of the evidence he would have thought it proper to adjourn the matter to afford to the appellant an opportunity to call further evidence :f he so desired. But in this case there was no reason to think that the appellant had not fully presented his case so far as he desired te de so. The appellant was under the impression that he carried the onus on the issues both of total, as well as partial, ncapacity and in both the physical and economic aspects thereof. As was pointed out by the learned Magistrate ,the case had not really beer fought on partial incapacity. It is not to be thought that the course adepted by the appellant was not advisedly taken. He was not without advice. Reference to the course of proceedings befare the learned Magistrate indicates that the appellant hed every opsertunity Lo supply any omissions 1% or tender any additions to the evidence he had submitted in the course of four separate hearing occasions ies} between 18 October i977 and 22 November 1977. After the case was closed it was statec on benalf of the appellant that 1% was not desired to call any other evidence. in those circumstarces the question of whether the Magistrate of hi2s own motion should suggest ' an adgcurnment for the purpose of giving the appellant an opportunity to call further evidence to support what was really an alternative case of partial incapacity was a metter purely in the discretion of the Magistrate. Indeed, I do not consider that the Magistrate would nave been at fault had he not considered 2 t a . However, h r S red it and havi the matter at all However, having considered it and having exercised his discretion for the reasons stated by him I see no reason why his decision should be treated as unsound. The Magistrate stated that he exercised his discreticn :n the way that he did because:- ",.. having regard to the unsatisfactory evidence and to the unsatisfactory exvlanation for these larce sums LES of money that <he applicant has undoubtedly recez-red. I am not persuaded, on the belance of probabilities that the applicant has, as a conseguence of this accident in fact an incapacity to earn money. I am not satisfied that he has suffered economic loss as a consequence of the injury 1n the period that 1s relevant for my present decision," To my mind,the decision of the Magistrate not to adjourn the matter for further evidence reflected a conclusion by him that further evidence would not avail, and that this conclusion vas really the effect on his mzrd of the total unreality of the alleged fanancial conduct of the appellant, considered as a person with no income and no prospects. Just as inferences might be drawn from tnese factors, as discussed above, in relation to the existence of a condition of total incapacity for work, so inferences may be dravm in relation to partial incapacity for work. Mr. Costigan argued tiat there was really no need for further evidence, that in relatzon to 2 subject such as Workers Compensation the experlenced tribunals dealing therewith frequently did and should recognise the impossibliity of a workman providing recise eviderce of the comparison of earnings he might Lave E & ry earned and can now earn and make a kind of experleaced assessment on a broad basis. He conterded that the Magistrate should have done that, and that if partial incapacity 1s relevant to this case, this Court sncould do it. But in this case one cannot really do this. Tne procedure to which Mr. Costigan refers is no doubt very sound in the ordinary case where physical incapacity 1s the governing factor 1n earning money and general bone fides @@ apparent. But in a case like the present 17 15 impossible to fecl any satisfaction that the Court has anything like a true piccure of the appellant concerning his conduct in relation to earning money. Accordingly, like the Magistrate, it could not feel on s balance of probabilities thet the appellant has satisfied me that during the relevant period he suffered any economic loss. In the event therefore, the appeal should be dismissed, I consider thet the costs of the proceedings beforc the iagistrate should be borne by the appellant in accordunce with the order made by that Court. As to the costs of the appeal to the Supreme Court, it was the fault of both perties that an appeal co that court eventuated. : L3 It being apparent that the basic cause of the c€i*ficulties arising in these proceedings was the conduct of the respondent in ceasing to maxe weekly pay mnts in March 1977 in the absence or p crpa wvis) 3B of an agreement or ar authorising the seme, and tho responcent havang successfully maintazned ian the Supreme Court & P at cd 45. that the respondent did not carry the burden of proving circumstances entitling it to end or vary the payments made by it until March 1977 with the result that the necessary finding of fact as to the continuance or cessation of total incapacity was not made or provided for in the Supreme Court, 1t is my view that each party to the appeal should bear its costs of these proceedings. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ) ) F.C. No. 8 of 1979 GENERAL DIVISION ) BETWEEN: ANTONIO BARBARO Appellant AND: LEIGHTON CONTRACTORS PTY. LIMITED Respondent Coram: Smithers, Connor and Franki JJ. 727 May 1980. ay Canberra REASONS FOR JUDGMENT CONNOR J. Soper ees, * 4 BESTT ' - cos La REASONS FOR JUDGMENT OF CONNOR J. This is an appeal from the Supreme Court of the Australian Capital Territory where Blackburn C.J. dismissed an appeal from the Court of Fetty Sessions which in turn had dismissed an employee's claim for workers compensation and made an award in favour of the employer. On 22 September 1975 the appellant Antonio Barbaro, (the workman) was employed by the respondent Leighton Contractors Pty. Limited (the employer). In the course of his employment he was walking on a concrete stormwater pipe which was placed across a trench. He slipped and fell to the bottom of the trench, a distance of two metres. Two fellow workers assisted him to the employer's site office where instructions were given that he be taken to the Woden Valley Hospital. At the hearing before the learned magistrate, who was the arbitrator, the workman was extensively cross-examined about other matters but was not asked any questions about the accident. ihe two workers who assisted him out of the trench, one of whon took him to the hospital, were at the hearing but neither was called by the cmployer who did not dispute that the workman attended the hospital. His back was there x-rayed and he was refeired to an orthopaedic surgeon. He was at the hospital for three or four hours and then came under the care of his general practitioner who prescribed bed rest at home. On 18 November 1975 the workman first saw the orthopaedic surgeon to whom he had been referred tat the hospital. He was then complaining, amongst other things, of low back pain and pain in the left shoulder which had been present for a few weeks, although the workman had no recollection of having injured wore rm ee ee ee his neck or shoulder. This orthopaedic surgeon, whose reports were tendered by the employer concluded that the workman had sustained a combination of twisting injuries and a direct blow to the lumbar spine resulting in a minor injury to his lumbo- sacral spine. The employer's insurer then began making weekly payments to the workman on the footing of total incapacity. The insurer continued making these payments and the workman continued to accept them for a period of about eighteen months until 13 March 1977 when the paymeats were unilaterally ended by the insurer. There was neither an award nor a recorded agreement in respect of these weekly payments. It was not suggested that the employer had requested a medical examination of the worker under paragraph 10 of the First Schedule of the Workmen's Compensation Ordinance 1951 as amended (the Ordinance). On 20 May 1977 the workman's solicitors took out an application claiming compensation. The learned arbitrator treated this as an original claim for compensation and on that basis regarded the workman as having the onus of proof on all issues. 'he learned arbitrator held that the workman had failed to discharge the onus principally because of unsatisfactory explanations he had given for large sums of money which he had undoubtedly received. Consequently the learned arbitrator made an award in favour of the employer. In giving his reasons the learned arbitrator said that the worker was seeking an award for compensation on the basis of total and permanent incapacity for work. He said further that "for practical purposes the issue before me 1s whether the applicant has any and if so what incapacity for work since March 1977 ..."" (italics supplied). He said further:- 1 1 TAEDA OR me RET ETNI) ee ul "I am satisfied on the evidence that the applicant suffered an injury to his back at work on 22 September 1975 and that ... between the date on which compensation ceased and now the applicant has had, in the physical sense, a partial incapacity for wotk. JT am not persuaded on the evidence that he is tetally incapacitated for work, let alone totallv and permanently incapacitated for work." : After examining the law the learned arbitrator, correctly in my view, concluded that he was concerned ultimately not with physical incapacity but with economic incapacity. He then went on to say:- "So that the applicant has to persuade me, on the balance of probabilities, that he is unable to earn his pre-injury carnings. In order to succeed in a claim before me the applicant has to show that he is not able to earn the equivalent of his pre-injury earnings allowing the changes that may have occurred since the date of the injury and what people, in the category that he was, were earning. Now, of course, this case was not conducted on the basis of partial incapacity although the issue as to whether the applicant was incapacitated at all was very much raised by the respondent's counsel", The learned arbitrator then went on to say that there was no evidence before him of what the worker could earn from his own physical efforts. Referring to the unsatisfactory evidence which the worker had given concernirg his financial affairs, the learned arbitrator said that were 1t not for this feature of the case it may have been that the proper course for him to take would be to refrain from finalising the matter in order that the worker might have the opportunity of placing some evidence before him of what the minimum wage would be for someone who was partially incapacitated or even perhaps to attempt to establish that although he had only a partial incapacity for work he should nevertheless in the circumstances be treated as a person who was totally incapacitated for work as was done in Ruiz v. Canberra Rex Hotel Pty. Ltd. (1974) 5 A.C.T.R. 1. The learned arbitrator then concluded his reasons by saying: - tooge ryan s APL Cer ve ose ee 4. "But here having regard to the unsatisfactory evidence and to the unsatisfactory cxplanation for these large sums of money that the applicant has undoubtedly received I am not persuaded, on the balance of probabilities, that the applicant has, as a consequence of this accident, an fact an incapacity to earn money. T am not satisfied that he has suffered economic loss as a consequence of the injury in the period that 1s relevant for . my present decision. There will be an award for the respondent". I have cove io the following conclusions and will deal with each of them in turn:- 1. The employer ceased payments in breach of the Ordinance; 2. The worker's application should have becn treated on the footing that it was an application by the employer to vary or end cxisting weekly payments; 3. On an employer's application to review weekly payments the onus is on the emplover either to show that the weekly payments should he ended o2 to put the learned arbitrator in a position to determine hy what amount they should be reduced; 4, The learned arbitrator did not deal fully with the question of the wotker's capacrtty to earn; 5. There should ,be a new trial The Employer Ceased Payments In Breach Of The Ordinance Section 7(1) of the Ordinance provides that if personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to the Ordinance, be liable to pay compensation in accordance with the First Schedule to the Ordinance. The First Schedule provides in paragraph 1(b) and (c) for weekly payments for total and partial incapacity. Paragraph 10 provides that any workman receiving weekly payments shall, atm MER note es ree ee if so required by the employer, from time to time submit himself for examination by a legally qualified medical practitioner provided and paid by the employer and if the workman refuses to do so his right to such weekly payments shall be suspended until the examination has taken place. Paragraph 12, in so far as material to the present case, provides as follows:- "A weekly payment ... payable under this Ordinance may be varied or ended by agreement or by arbitration under this Ordinance". Paragraph 9 of the Fourth Schedule provides that whore any matter 1s decided under the Ordinance by agreement a memorandum may be sent to the Clerk of the Court to be entcred in a special register and thereupon for all purposes it is enforceable as a judgment of the Court. The scheme of the Ordinance with regard to weekly payments payable under the Ordinance pursuant to an award or a recorded agrecment is clear enough. They remain payable until varied or ended by agreement or arbitration. Rule 32 provides that the award of the Court or any arbitration shall be in accordance with Form 17 which contains the following: - "1, That the respondent, C.D. ,» do pay to the applicant, A.B., ,» the weekly sum of as compensation for personal injury caused to the said A.B. on the day of > by accident arising out of and in the course of his employment as a workman employed by the said respondent, such weekly payment to commence as from the day of ,» and to continue during the total or partial incapacity of the said A.B. for work, or until the same shall be ended, diminished, increased, or redeemed in accordance with the provisions of the above-mentioned Ordinance." In Higgins v. Poulson [1912] 2 K.B. 292 the Court of Appeal held that an identical form in the English Workers Compensation Act 1906 was intra vires and entirely consistent with the policy of the Act and that the arbitrator ought to make his award in accordance with it in all ordinary cases. arene, aren = ee nes it will thus be seen that the employer is not at the mercy of the workman because he can require a medical examination and suspend the payments if the worker refuses to be examined. After he has had the worker medically cxamined the employer can apply to vary or end the weekly payments. Neither is the . workman bound to continue receiving payments which have for one reason or another become inadequate. He can apply for an increase. The scheme of the Ordinance thus enables the weekly payments to be brought into line with changed circumstances by the process of agreement or arbitration. I think 1t is clear that, apart from a workman's refusal of a medical examination, the scheme does not permit of unilateral cessation of weekly payments by the employer - cf. Ocean Coal Company Limited v. Davies [1927] A.C. 271 per Lord Atkinson at p.284 and Thiess Bros. Pty. Ltd. v. Carbone 15 A.C.T.R. 15 at p.19. So much for the general scheme of the Ordinance. In this case two related questions arise as to whether the payments made to the worker were payable under the Ordinance and if so whether the expression in paragraph 12 of the First Schedule "A weekly payment ... payable under this Ordinance" includes a pavment under an unrecorded agreement. An emplover might for compassionate reasons make ex gratia payments to a worker which would not be regarded under paragraph 12 of the First Schedule as "payable under this Ordinance". In the present case, however, there was a dramatic accident at work and the workman was taken immediately from his place of work to the hospital on the employer's directions. Thereafter the employer made weekly payments for a period of eighteen months at the rate appropriate for total incapacity. I think the inference is irresistible that these payments were in respect of the respondent's liability to the workman under the Ordinance. Plainly enough the expression "A weekly payment ... payable under this Ordinance"',as it appears in paragraph 12, includes a payment pursuant to an award or under a recorded ' agreement. It frequently happens, however, that weekly payments are made pursuant to an unrecorded agreement written or oral. After injury by accident the workman makes a claim and the employer accepts liability by making weekly payments of the amount prescribed in the Ordinance. If nothing more appears this amounts to an agreement that there was an injury by accident giving rise to incapacity and an agreement to make weekly payments for the time being. It seems to me that as a matter of principle such payments are weekly payments payable under the Ordinance within paragraph 12 because the employer, in making such payments, 1s discharging his liability under the Ordinance. As Lord Shaw of Dunfermline said in Ocean Coal Company Limited v. Davies [1927] A.C. 271 at p.287:- "... it is not the award which creates the liability; an award is merely part of the machinery for determining its amount and for having it enforced. But the liability 1s tmposed by the statute itself ...". In any event I think the matter is well settled by authority. In Pudney v. William France, Fenwick and Company Limzted [1925} 1 K.B. 346 the Court of Appeal considered s.14 of the English Workmen's Compensation Act, 1923 which provided: - "An employer shall not be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment under the principal Act ..." except in certain cases. I do not think the difference in wording between this provision and paragraph 12 of the Ordinance is material to the question whether or not a weekly payment under an unrecorded agreement YS Fearn eer - "7% 1s included. The Court of Appeal held that the "weekly payments" referred to in the section were not confined to weekly payments assessed under an award or recorded agreement, but included weekly payments made voluntarily or under an unrecorded agreement see per Pollock M.R. at p.350; per Warrington L.J. at pp.354, ° 356; per Scrutton L.J. at pp.359-360. Because of the particular issue which arose in that case it was in the workman's interests to argue that weekly payments did not include voluntary payments; but the argument was rejected. In Ocean Coal Company Limited v. Davies [1927] A.C. 271 the House of Lords was also considering s.14 of the 1923 Act. The employer by an oral agreement admitted liability and paid the worker full compensation for over a year. The amount was then reduced by agreement and about a year later the employer stopped the weekly payment and served on the respondent a request for arbitration. The case concerned another point but it is of interest to note that Pudney's Case supra was not referred to either in the arguments or the speeches; and it was accepted on all sides that s.l4 applied to voluntary weekly payments. Viscount Dunedin at p.278 said:- "Now, I think*the scheme of s.14 is this: ayment which 1s being de facto made must be continued — until it is ended in any one of five ways ..." (atalics supplied). Lord Atkinson, speaking of s.14, said at p.284:- "I think it is clear that the object of this provision was to deprive the employer of the power or right to which he was theretofore entitled, arbitrarily, at his own will and pleasure, to end or diminish the weekly payment". \ It must be borne in mind that Lord Atkinson made these observations in a case where the only weekly payments under consideration were payments made under an oral agreement. Sr meted Ae EMER EA Hemme tee om 9. In Anchor Donaldson Limited v. Crossland [1929] A.C. 297 the Nouse of Lords considered s.12 of the English Workmen's Compensation Act 1925. By the time of this case a new Act had been introduced and s.14 of the 1923 Act had in effect become s.12 of the 1925 Act. The employer had unilaterally stopped making weekly payments which it was not making under an award or a recorded agreement. The House of Lords upheld the right of the workman to obtain an interim award pending the arbitration and held further that the arbitrator was not entitled to authorise the employers to pay the compensation into Court as it should be paid to the workman. Lord Buckmaster at pp.302, 303 said:- "The justification for the award is sought under the terms of s. 12 of the Workmen's Compensation Act, 1925, which is in the following terms:- 'Limitation of power of employer to end or diminish weekly payments. ~ An employer shall not be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment except in the following cases' (which are then specified under three sub-heads). 1 do not entertain much doubt as to the meaning of s, 12. Its purpose is, to my mind, plain. It 1s to secure that if weekly payments are, in fact, being made to a workman, they shall not be ended apart from agreement or arbitration except in the cases that are specified. None of the occurrences mentioned in the three sub-heads is alleged in the present case, and it therefore follows that the obligation imposed by the first words of the section still remains. ... No award has been made, and pending the making of the award, or an agreement, the employer is not at liberty to suspend the weekly payments." His Lordship at p.306 said:- "In my opinion the object of the Act was, to secure payment to the workman while matters were unsettled, and this 1s not accomplished by payment into Court." <0 CE mee or + pee eee 10. As to the efficacy of unrecorded agreements and the implication of agreements from the offer and acceptance of weekly payments, sec also Guest, Keen and Nettlefolds Ltd. v. Williams (1925) 18 B.W.C.C. 68 per Pollock M.R. at pp.73-74, per Scrutton L.J. at pp.77-78, per Sargant L.J. at p.80; Lindsay vi Glasgow Iron and Steel Co. (1925) 18 B.W.C.C. 600 per Lord Skerrington at p.616 and Lord Sands at p.619; North's Navigation Co. Ltd. v. Batten (1953) 26 B.W.C.C. 525 per Slesser L.J. at p.534; Birch v. Pease and Partners Limited [1941] 1 K.B. 615 per Scott L.J. at pp.627-628, per Goddard L.J. at p.636. I think it is plain on principle and authority that the employer in this case unilaterally ended the payments in contravention of paragraph 12 of the First Schedule of the Ordinance. The Workman's Application Should Have Been Treated On The Footing That It Was An Application By The Employer To Vary Or End Existing Weekly Payments In the present case the irregular conduct of the employer in ending the weekly payments in breach of the Ordinance virtually forced the workman to make an application. In my view the employen should not be rewarded for its arbitrary behaviour by being permitted to shed its onus of proof. I agree with what was said by the Workers Compensation Board of Victoria in Spitari v. Braun Transworld Corporation 3 W.C.B.D. 150. The Chairman of the Board in that case was Ilis Honour Judge Stretton, a most experienced judge in this field. At p.351 the Board said: "For the guidance of future litigants we express the vicw that where an employer ends payments in breach of the provisions of the Clauses, he should not be placed in a better position than if he had pursued the only other course open to him under the legislation, namely, that of application by the employer to end or diminish "Tne TERR Tee il. the weekly payment. Where that proceeding is taken, the onus of proving a change of circumstances (such as total or partial recovery of the worker's earning capacity) rests upon the applicant employer. We feel that an employer who ends or alters payment wrongfully and thereby commits a punishable offence should not be permitted to rest in a better position as a result of his wrongful act." It is true that in this Territory, unlike the State of Victoria, the employer does not commit a punishable offence for wrongful ending of payments; but I do not think that consideration materially diminishes the force of whet was said by the Board in Spitari's Case. For these reasons I am of the opinion that the workman's application should have been dealt with, in so far as onus of proof was concerned, as if it had bcen an employer's application to vary or end the weekly payments under paragraph 12 of the First Schedule of the Ordinance. On_An Employer's Application To Review Weekly Payments The Onus Is On The Employer Either To Show That The Weekly Payments Should Be Ended Or To Put The Learned Arbitrator In A Position To Determine By What Amount They Should Be Reduced The right to review a weckly payment is inherent in the award itself. It has been likened to a statutory liberty to apply on the question of the weekly payments - see The Tyne Tees Shipping Co. Ltd. v. Whitlock (1913) 6 B.W.C.C. 559 per Cozens- Hardy M.R. at p.562, per Kennedy L.J. at pp.564-565. Unless there is a change of circumstances the application to review will be dismissed - Steel, Peech and Tozer Ltd. v. Lambert (1933} 26 B.W.C.C. 579. When the employer brings the application he alleges changed circumstances whereby the workman has recovered all or part of his earning capacity. It has frequently been held that the onus of proof is on the party alleging the change of circumstances - see for example Quinn v. McCallum (1908) ww - 4 oeercimy + PUTT Tm a ter - -—— 12. 2 B.W.C.C. 339; Proctor & Sons v. Robinson [1911] 1 K.B. 1004; Cory Bros. and Co. Ltd. v. Hughes [191i] 2 K.B. 738 per Cozens- Hardy M.R. at p.744; Wemyss Coal Co. Ltd. v. Kilpatrick (1922) 15 B.W.C.C. 379 at pp.387, 388; Smeaton and Sons Ltd. v. Taylor (1933) 26 B.W.C.C. 369; Schuster v. Broken Hill Co, Pty. Ltd. » [1934] W.C.R. (N.S.W.) 398 at p.403; Spitari v. Braun Transworid (1956) 3 W.C.B.D. (Vic.}) 350; J. §& H. Timbers Proprietary Limited v. Nelson [1971-1972] 126 C.L.R. 625 per Owen J. at p.644. Of the above cases Proctor §& Sons v. Robinson [1911] 1 K.B. 1004 bears many points of resemblance to the present case. The workman had received an injury to his leg for which he was receiving weekly payments on the basis of total incapacity. The employers applied for a diminution of the weekly payment on the ground that the worker was no longer totally incapacitated for work. It was common ground that the workman could not do his former work as a lime-washer because he was not fit to work on ladders or scaffolding. One of the medical witnesses thought the workman could do ordinary work on the flat, another that he could do any work which did not involve long standing or much walking or stooping or lifting heavy weights. One of the witnesses added that he could not say what work would be suitable for the worker, and the other said that the worker could not earn his living as an ordinary labourer. The worker gave evidence that he had not tried to get any job because he could not do his usual work. He did not think that he could do labouring work because nobody would employ him. The county court judge took the view that as the employers were asking to have the compensation diminished and the worker was still partially incapacitated as a result of the accident it was incumbent on them to adduce some evidence of his capacity to obtain some work which he could do. $, 13. Cozens-Hardy M.R. at p.1007 said-- "There was not a particle of evidence on the part of the employers as to the chance which the man had of obtaining suitable employment or as to the amount of wayes which he could earn in any kind of cmplovmeut. There were no materials before the county court judge to enable him to make any diminution. The argument addressed to us is this, that in a bona fide contested case the order ought to be made unless the workman can say 'I have applied for light work and have not been able to obtain it.' I think the employers here have struck too soon. They must first establish what particular kind of light work the workman is able to perform and must follow that up either by proving that they have offered him that particular kind of light work or by giving some evidence that there is a chance of his obtaining that particular kind of work in the district if he applies for it. In my opinion the employers here have failed to prove the case they have put forward. The burden rests on them and they have failed to discharge it. I think that the decision of the county court judge was right and that this appeal should be dismissed." Fletcher Moulton L.J. said:- "The appellants here were the employers, who were applying for a reduction of the amount of compensation which the workman was receiving from them. They had therefore not only to establish a right to reduce the compensation but to put the Court in a position to determine the amount by which it should he reduced. They succceded in obtaining a finding from the county court judge that the workman was able to do some light work - a vague phrase to which I think the learned judge attached no very definite meaning. They adduced no evidence that he was able to do any obtainable work nor any evidence as to his wage-earning capacity in the condition in which he then was, I think that the decision of the county court judge was right and that this appeal should be dismissed." Farwell L.J. said:- "TI am of the same opinion. The employers had to prove a cessation of total incapacity on the part of the workman. That they have succeeded in doing. Then they had to show what he was earning or capable of earning. It was not suggested here that the workman was earning anything, and the county court judge has found ai ey 14, that there was no evidence of his capacity to obtain such light work as he could do. They have failed to prove what he could earn or that he could obtain suitable employment in his present condition." We were referred to two cases in the High Court namely Phillips v. The Commonwealth (1964) 110 C.L.R. 347 and The Commonwealth v. Muratore (1979) 53 4.L.J.R. 98. Both of these cases were decisions on Acts in relation to the provision of compensation for the employees of the Commonwealth and its instrumentalities. Phillips' Case was decided on the Commonwealth Employees' Compensation Act 1930-1956 (reprinted in 1957 volume p.751). Section 6 sub-ss.(1) and (2) were as follows:- "(1) The Commissioner shall have power to examine, hear and determine all matters and questions arising under the Act and the Regulations. (2) The Commissioner may reconsider any such determination and may alter, amend or revoke any such determination." Section 20 so far as applicable provided: - "Any person affected by any determination or action of the Commissioner under this Act may ... appeal to a County Court against the determination or action and the Court shall have jurisdiction to hear and determine the appeal, and such appeal may be in the nature of a rehearing." Paragraph 10 of the First Schedule provided:- "Any weekly payment may be reviewed by the Commissioner at the request either of the Commonwealth or of the employee and on such review may be ended, diminished or increased, subject to the maximum above provided." In Phillips' Case a delegate of the Commissioner made a determination on 22 August 1961 that the employee was entitled to weekly payments as for total incapacity. On F} December 1961 a delegate of the Commissioner determined that as from 16 November 1961 the employee had been able to carn in some suitable em ~ - BS pam Seg one ree Lo. employment or business a weekly payment not less than her pay at the date of the injury as since varied, and thereupon she ceased to be entitled to weekly payments of compensation under the Act. The employee appealed to the County Court at Melbourne against the determination. The precise issue which arose for +: determination before the County Court Judge was whether the employee "was at the material time able to earn in some suitable employment or business a weekly amount which was not less than her pay at the date of injury" (36 A.L.J.R. 358). The County Court dismissed the appeal. The employee then appealed to the High Court which upheld the appeat (on a ground related to the medical certificate) and remitted the matter for a Fresh heating. At the rehearing before another County Court the employce submitted that she was totally incapacitated for work but the County Court Judge held that on the medical certificate and on the evidence that she was Not totally incapacitated for work. The employee then argued that she was partially incapacitated for work but the County Court Judge was unable to find that she was incapable of earning her pre-injury pay. The County Court Judge considered that the employee had the onus af proof on this issue. The employee again appealed to the High Court which dismissed the appeal holding that hefore the County Court the onus lay on the Commonwealth to show that its liability to pay compensation to the employee as a person totally incapacitated should be brought to an end, but that the onus lay on the employee to show that she should be awarded compensation as a person partially incapacitated and with a diminished earning capacity. The ratio of thas decision has, with respect, proved to be elusive - see J. & H. Timbers Proprietary Limited v. Nelson moe TRE ee ones momo it Rare = ~— ro» wt 1 nore eee 16. [1971-1972] 126 C.L.R. 625 per Barwick C.J. at pp.635, per Menzies J. at p.637, per Owen J. at pp.644, 645, per Gibbs J. at pp.650, 651 and The Commonwealth of Australia v. Muratore [1979] 53 A.L.J.R. 98 per Jacobs J. at pp.99-100 and per Murphy J. at p.101. ' Phillips' Case secms in part at least to have turned on the nature of the appeal provision, namely s.20 set out above, It provided for a hearing de novo in the County Court leaving that Court '"'to pronounce anew upon the rights of the parties as disclosed by the evidence before it" (see p.350). In that situation the Court said "if a claim for compensation be rejected by the Commissioner or his delgate the onus of proving the necessary facts to entitle the applicant to what is virtuaily an award of compensation will be upon the claimant in later proceedings before the County Court" (see p.358). At p.351 the Court said:- "Then arose the question whether compensation should be awarded to the appellant as a person partially incapacitated and with a diminished earning capacity. This, in effect, constituted the basis of a new claim not previously pronounced upon before its rejection by the Commissioner. On this issue the onus was, we think, clearly upon the appellant. Accordingly, we do not think that the learned County Court Judge made any error of law upon this point". ' In The Commonweaith of Australia v. Muratore [1979] 53 A.L.J.R. 98 the employce had in his favour a determination of partial incapacity. The High Court held that the onus of proof of matter entitling the Commonwealth to have that entitlement of the employce reduced to nothing lay on the Commonwealth and not on the employee. The Court took the view that the Commonwealth was alleging a change of circumstances and therefore the Commonwealth had the onus. + ESTERS ET ane age ARTO HILAL LT On one view of Phillips' Case there would appear, | 17. | with respect, to be a logical difficulty in reconciling the two decisions. It might be said that Phillips' Case is authority for the proposition that an employer sccking to end weekly payments, which are being made to a worker on the footing of * total incapacity, has the onus of showing that the worker has fully recovered his capacity to work; but, if he seeks only to diminish such weekly payments, the employer has the onus merely of showing that the worker is no longer totally incapacitated and thereafter the onus passes to the workman to put the Court in a position to determine the amount by which his compensation should be reduced. On this footing the employer presumably would retain the heavier onus of showing that the worker had totally recovered his earning capacity but could discharge with comparative ease the lighter onus of showing that he had partially recovered it. Muratore's Casc, on the other hand, holds that an employer seeking to end or diminish a weckly payment for partial incapacity has the onus of putting the Court in a position to determine the amount by which the compensation should be diminished, The explanation appears, with respect, to be that the High Court in Phillips' Case did not consider that the issue of partial incapacity was encompassed in the issue whether a worker Was OY was not able to earn her pre-injury pay, but was an entirely new claim. So treated, the employee clearly had the onus of proof on all issues. 1 think this view of Phillips' Case is supported by the approval of the High Court of Quinn v. McCallum, Smeaton v. Taylor and Cory Bros. v. Hughes, all supra. In Quinn v. McCallum the Court of Sessions said:- "Tt is for the employer who wishes to bring the payments to an end to establish his case by proof (2 B.W.C.C. at p.341). 18. In Smeaton and Sons Ltd. v. Taylor the Court of Appeal said:- "Where there is a recorded agreement and the application is to review, the onus is on the person making it to prove the change of circumstance on which the application is based." (26 B.W.C.C. at p.370). In Cory Bros. and Co. Ltd. v. Ilughes, Cozens-Hardy M.R., with - whom Buckley and Kennedy L.JJ. agreed, said:- "there is an express power given to either party to review the amount of compensation, which may be either increased or diminished or terminated. The employer may say 'I am now paying you too much'; the man may say "You are now paying me too little'; or the employer may say "I ought now to pay you nothing at all'. But whoever makes that application is the person on whom the burden of proof lies." - [1911] 2 K.B. at p.743. In Phillips' Case the High Court said (at p.350):- 'We do not doubt the authority of those cases and think they clearly establish the validity of the propositions we have set out." One of the propositions which the High Court had just set out was the following (also at p.350):- "... the application of the ordinary principles relating to the determination of disputed questions of fact by judicial tribunals requires the conclusion that if a claim for compensation be rejected by the Commissioner or his delcgate the onus of proving the necessary facts to entitle the applicant to what is virtually an award of compensation will be upon the claimant in later proceedings before the County Court. Likewise, the application of the same principles may well mean that in some cases the onus of proving critical facts may rest upon the Commonwcaith. Such a case would be where the Commissioner has purported to terminate an employee's right to compensation under an antecedently existing determination by reason of a material change of circumstances," In the light of this I interpret Phillips' Case, with respect, to mean that where it is clear that the proceedings are by way of review of weekly payments, and not by way of original claim, the onus of proof on all issues is with the party alleging changed circumstances whether the existing payment is on the footing of total incapacity of partial incanacity; and that it Aare trea umn ein > va 19. was only because of the scheme of the Act, including the appellate provisions, and the course of the particular litigation that the Court held in Phillips' Case that the application for an award for partial incapacity was in effect a fresh application for an award of compensation and that consequently the onus of . proving it lay upon the employee. For these reasons I am of opinion that in an employer's application to review weekly payments the employer has the onus either of showing that the weekly payments should be ended or of putting the arbitrator in a position to determine by what amount they should be reduced. The Learned Arbitrator Did Not Deal Fully With The Question Of The Workman's Capacity To Earn The learned arbitrator, in a passage I have quoted above, said that for practical purposes the issue before him was whether the workman had "any and if so what incapacity for work since March of 1977''. He did not, however, go beyond holding that the workman had not persuaded him that he was totally incapacitated. Prima facie the workman had some incapacity for work because he was a builder's Labourer who had a partial physical incapacity. The learned arbitrator did not find that the worker had no economic incapacity. He contemplated that further evidence might nave quantified a partial economic incapacity or might even have established a total economic incapacity. The scheme of the legislation is that in general an agreement has the same effect as an award - see Birch v. Pease and Partners Limited [1941] 1 K.B. 615. The authorities, which I have cited above, show that, in an application to review, weekly payments which have been agreed are treated as being on all fours with weekly payments under an award. Ilad the payments = 8 TR er Sateen eo . 20. in this case been the subject of an award, that award would have provided that they "continue during the total or partial incapacity of the [workman] for work, or until the same shall be ended, diminished, increased or redeemed in accordance with the ... Ordinance" - sec Form 17 supra. When either an employer ora . workman applies for a review of weekly payments, the application opens up the whole question of the workman's state of health and his capacity or incapacity to earn - see Bagley v. Furness and etc. (1914) 7 B.W.C.C. 560 per Cozens-Hardy M.R. at p.564, per Swinfen- Tady L.J. at pp.564-565. In the present case the learned arbitrator ended the payments without considering the matter of partial incapacity. In my view he should either have considered the matter on the evidence before him or, if he took the view that further evidence was necessary, he should have so advised the parties. He should not, in my view, have made an award for the employer unless he found that the workman had totally recovered his earning capacity; and, as I understand the learned arbitrator's reasons, he made no such finding. 1 think, with respect, that the observation of the Master of the Rolls in Cory Bros. and Co. Lid. v. dughes [1911] 2 K.B. 738 at p.743 (which was specifically approved by the High Court in Muratore's s Case) is in point, namely that "the burden 1s on the employers Pp ? y ploy to satisfy the Court that the man at this moment is not under any incapacity by reason of the accident which admittedly befell ham". For these reasons I am of the view that the learned arbitrator did not properly or fully consider the question of the workman's capacity for work. New Trial The appeal from the learned arbitrator was heard in the Supreme Court of the Australian Capital Territory by Blackburn CiJ. who, in his reasons for judgment, said:- 21. "Tor myself, I am not convinced that the mere fact that an employer commences to make payments to a workman, when he is not under an obligation to do so by reason of an award or agreement under the Ordinance, creates a legal obligation on the part of the employer to continue those payments until he is relieved of that obligation by an award under the Ordinance or by some other provision of the Ordinance." ve Because His Honour took this view he considered that the workman had the onus of proof on all issues before the learned arbitrator. For the reasons I have given I think there was an agreement to pay compensation,albeit that it was not registered under the Ordinance, and also that the employer had the onus of proof, as I have was in uphold matter described it. It follows that I consider that His Honour error in holding otherwise. For these reasons I would the appeal. The question then arises as to whether the should be sent back to the learned arbitrator or whether the employer, if so advised, should he left to make an application to end or diminish the weckly payments. In the latter case the worker would arguably remain entitled to weekly payments from March 1977 until such time as they were ended or diminished by any application which the employer chose to make, a period already longer than three years. When the matter of the worker's incapacity has been fully investigated it may emerge that his capacity for work during this substantial period has been such that it would be unjust for the emplover to be liable to pay him as fer total incapacity. It might be said that the employer has brought such a result on himself by unilaterally ending the weekly payments. On the other hand a substantial amount of the three year period has been occupied by the appeal to the Supreme ' Court of the Australian Capital Territory and by this appeal. Had Blackburn C.J. taken another view, it would not have been open to His Honour to remit the matter to the learned emi Serer nero ie cet niemeunN TIE + to t2 arbitrator - see s.26(2) of the Workmen's Compensation Ordinance 1951 as amended and ss.208(1) (hj), 215, 218 and 219F of the Court of Petty Sessions Ordinance 1930 as amended. Section 28(1)(c) of the Federal Court of Australia Act gives this Court power to remit a proceeding to the Court from - which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit. I do not think it would be satisfactory to renit the matter for further hearing and determination to the Supreme Court of the Australian Capital Territory. It is not a trial court for such matters and has no power to remit to the learned arbitrator. This provision gives no power to this Court to remit direct to the learned arbitrator. Such a power might be spelt out of s.28(1)(b) which enables this Court on appeal to make such order, as, in all the circumstances, it thinks fit; but quaere whether paragraph (b) should be read down in the light of paragraph (c). I do not find it necessary to decide this matter because of the presence of paragraph (f) which provides that this Court, in the exercise of its appellate jurisdiction, may "grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it 1s appropriate to grant a new trial", I do not think that any narrow view should be taken of this provision by reading into it a proviso that the power exists only when the intermediate appeal court could also order a new trial by the trial court, which in the Australian Capital Territory is the Court of Petty Sessions, Canberra. I turn, therefore, to consider whether this is an appropriate matter in which to grant a new trial. For the reasons I have given I consider that the learned arbitrator misdirected himself on the onus of proof and failed to consider properly or fully the question of the workman's incapacity. =e Fe h needa IEE Section 27 of the Federal Court of Australia Act 1976 provides that in an appeal the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact. I have reread the whole of the cvidence which was given before the learned arbitrator. I have endeavoured to make full allowance for the fact that I have not had the advantage of seeing or hearing the workman and that he did not impress the learned arbitrator at all favourably. Even so 1 am unable to say whether or not the learned arbitrator would have come to the same conclusions if he had not misdirected himself as to the onus of proof and if he had fully considered the question of incapacity. For myself I would not have been satisfied that the employer had shown, on the balance of probabilities, that there was work available in Canberra at the time of the hearing for an 11literate builder's labourer, who spoke very little English, who had no other skill, who had a back and neck injury for each of which he was wearing a brace and who was also a potential candidate for spinal surgery. Moreover there were some unsatisfactory aspects about the evidence concerning the source of the payments which the worker had received; and [ think there is a real question as to the extent to which it was possible to make a rational inference from such evidence that the workman had any capacity to earn. I note also that the learned arbitrator discouraged the workman's solicitor from investigating these matters fully - sce Appeal Book pp.&9-90 (original transcript pp.86-87} and Appeal Book pp.105-108 (original transcript pp.102-105). , I must also bear in mind that the learned arbitrator suggested that further evidence might be desirable. [If that be te ee erent ote 24. so, then, in deciding matters under beneficial legislation which enjoins the Court to act "according to the substantial merits of the case" (paragraph GA(c) of the Fourth Schedule), I think the parties should have been given the opportunity to get such evidence. All these considerations lead me to the . conclusion that justice will be served best by an order for a new trial in which the matter will be settled by the Court of Petty Sessions by arbitration. It Follows from what I have said that I consider that when the matter comes on anew it should be treated as an application by the employer under paragraph 12 of the First Schedule of the Workers Compensation Ordinance to end or vary weekly payments, 1n which the onus is on the employer to prove changed circumstances. It 1s impossihie to indicate in advance how such an onus will be discharged in any given case, In some cases if the employer by medical or other evidence can show that a workman has a partial physical capacity for work there might be an evidentiary onus on the workman to lead evidence of his inability to obtain work, particularly 1f his inability is based on facts which are peculiarly within his knowledge. Tor the foregoing reasons I would uphold the appeal, set aside the judgment below and the award of the learned arbitrator and order a new trial in the Court of Petty Sessions at Canberra in accordance with s.24 and the Fourth Schedule of the Workers Compensation Ordinance 1951. I would order the employer to pay the workman's costs of the hearing before the learned arbitrator, of the appeal to the Australian Capital Territory Supreme Court and of this appeal. meee ie 7 Serer Ne IRE FATA THEI TE IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY F.C. No.8 of 1979. DISTRICT REGISTRY GENERAL DIVISION BETWEEN: ANTONIO BARBARO Appellant AND: LEIGHTON CONTRACTORS PTY. LIMITED Respondent. Coram; Smithers, Connor and Franki JJ. 27 May 1980. Canberra REASONS FOR JUDGMENT FRANKI J. On 22 September 1975 the appellant, whilst working for the respondent, was injured when he slipped and fell into a trench. Thereafter compensation was paid by the respondent to the appellant at the rate appropriate for total incapacity until a date in March 1977 when the respondent unilaterally terminated the payments. On 20 May 1977 the appellant applied for arbitration under the provisions of the Workmen's Compensation Ordinance 1951 of the Australian Capital Territory ("the Ordinance") for the determination of the following questions: "(a) As to whether the said Applicant is a workman to whom the abovementioned Ordinance applies; ~-2- (b) As to the liability of the said Respondent to pay weekly compensation under the abovementioned Ordinance in respect of the injury. (c) As to the liabililty of the said Respondent to pay medical, hospital expenses incurred by the Applicant since the 22nd day of September, 1975. (da) As to the liability of the said Respondent to pay arrears of weekly payments to the Applicant." Particulars given in the application included the following: "S. Particulars of incapacity for work, whether total or partial and estimated duration of incapacity - total and permanent." The learned magistrate who heard the application made an award for the respondent. In his decision he said, inter alia: "T am satisfied on the evidence that the applicant suffered an injury to his back at work on 22 September 1975 and that between March of 1977 and the date on which the - or put more precisely that between the date on which compensation ceased and now the applicant has had, in the physical sense, a partial incapacity for work. I am not persuaded on the evidence that he is totally incapacitated for work, let alone totally and permanently incapacitated for work." He also said: "So that the applicant has to persuade me, on the balance of probabilities, that he is unable to earn his pre-injury earnings. In order to succeed in a claim before me that applicant has to show that he is not able to earn the equivalent of his pre-injury earnings allowing for changes that may have occurred since the date of the injury and what people, in the category that he was, were earning." He then pointed out that the case was not conducted on the basis of partial incapacity but rather on the basis of total incapacity and continued: "But here having regard to the unsatisfactory evidence and to the unsatisfactory explanation for these large sums of money that the applicant has undoubtedly received I am not persuaded, on the balance of probabilities, that the applicant has, as a consequence of this accident, in fact an incapacity to earn money. I am not satisfied that he has suffered economic loss as a consequence of the injury in the period that is relevant for my present decision." Pursuant to s.215 of the Court of Petty Sessions Ordinance 1972 the appellant appealed from this arbitration to the Supreme Court of the Australian Capital Territory and that Court dismissed the appeal and confirmed the award. This appeal is by the appellant from the judgment of the Supreme Court. Section 7(1) of the Ordinance provides: -4- "Tf personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to this Ordinance, be liable to pay compensation in accordance with the First Schedule to this Ordinance." Paragraphs l(b) and l(c) of the First Schedule, together with the provisions of s.12A of the Ordinance, provide the formula for calculating the payments to which a workman is entitled in respect of total incapacity and partial incapacity for work respectively. Section 12A of the Ordinance provides for the adjustment of certain figures in accordance with a specified Index number. Paragraph 12 of the First Schedule provides: "A weekly payment (...) payable under this Ordinance may be varied or ended by agreement or by arbitration under this Ordinance." The learned magistrate held that he was not satisfied that the appellant was totally incapacitated for work and the learned trial judge found: "The medical evidence showed and in my opinion the preponderance of evidence was, that the appellant waS, as a result of the injury, incapacitated for heavy labouring work, and that he was thereafter capable of other work not being heavy labouring work." Both the magistrate and the learned trial judge were satisfied that it had not been shown that the appellant was -5- totally incapacitated for work. The appellant argued before us that the appellant was totally incapacitated for work by the injury but I consider that this was not so. Paragraph 1(c) of the first schedule which deals with partial incapacity provides: "1. The amount of compensation shall be - (a) ... (b) ... (c) where the workman is partially incapacitated for work by the injury-~a weekly payment during his incapacity-— (i) of the amount (if any) by which the weekly amount that he is earning, or is able to earn in some suitable employment or business, after the injury is less than his weekly pay at the date of the injury, or of the amount of Fifty-seven dollars, whichever is the less; or (ii) of the amount (if any) by which the weekly amount that he is earning, or is able to earn in some suitable employment or business, after the injury is less than the weekly amount that would have been payable to him under sub-paragraph (b) of this paragraph, if he had been totally incapacitated, whichever is the greater." It will be seen that the amount, if any, to which an injured workman is entitled where he is partially incapacitated for work by injury depends upon ascertaining the amount he "is earning, or is business." able to earn in some suitable employment or -€6- The principal argument advanced for the appellant before us was that the onus of establishing the amount the appellant was able to earn in some suitable employment or business did not fall upon the employee as had been found by the magistrate. The learned trial judge in his judgment said: "In my opinion this case is one in which the appellant, as applicant in the proceedings below, failed to persuade the learned magistrate that he was totally incapacitated, and also failed to provide the learned magistrate with evidence that the amount that he was earning, or was able to earn in some suitable employment or business, after the injury, was less than his weekly pay at the date of the injury, or that that amount was less than the weekly amount that would have been payable to him if he had been totally incapacitated, or evidence from which the learned magistrate could made a decision on these matters. I would therefore uphold the decision of the learned magistrate. But counsel for the appellant submitted that it was open to me to make other orders." Before dealing with this argument in detail it is relevant to point to the findings of the magistrate that the applicant was shown to be a person who would tell lies in order to achieve his own ends, and that he had received substantial sums of money and that the account of the circumstances in which these monies were received, in so far as they had been disclosed in the evidence, was not convincing. The magistrate then said: -7- "IT am not satisfied that he has suffered economic loss as a consequence of the injury in the period that is relevant for my present decision." On the question of onus the respondent argued that the words "payable under this Ordinance" in paragraph 12 of the First Schedule were only applicable where weekly payments were made pursuant either to an arbitration in accordance with the provisions of the Fourth Schedule or to an agreement which had been registered pursuant to paragraph 9 of the Fourth Schedule. Paragraph 12 of the First Schedule does not refer to the variation of a weekly payment payable as a result of agreement or arbitration under this Ordinance but only to a weekly payment payable under this Ordinance. It then says that such a weekly payment may be varied or ended by agreement or by arbitration under this Ordinance. The word "agreement" is not defined in the Ordinance or in the Workmen's Compensation Rules and it is used in a number of places both in the Ordinance and in the Schedules and in the Rules. I can see no reason why the agreement cannot be an oral agreement. Certainly one might expect an oral agreement ultimately to be recorded in a memorandum which was registered as provided in paragraph 9 of the Fourth Schedule. The evidence was entirely silent about the way in which payments had been made and accepted in respect of the period from 27 September 1975 to March 1977 and, in particular, there was no evidence of any letters accompanying the payments or of any documentation with respect to - 8 - the payments. It was said in the application for arbitration by the appellant that "the respondent admitted liability and made compensation payments for some time thereafter." It seems that no answer was filed by the respondent but when the matter was first before the magistrate counsel for the respondent indicated that he was not taking any technical defences and said "I would expect that the appellant would be able to prove that he has received payments. So there is no point taken." The only possible inference is that the respondent regularly paid compensation based on total incapacity for work from the date of the accident for a period of about 18 months. In my opinion these payments were not suggested to be by way of gift or for any other purpose than to satisfy a liability under s.7(1) of the Ordinance and must be regarded as payments "payable under this Ordinance" within the meaning of par.12 of the First Schedule. This view is compatible with that expressed by che majority of the Full Court of this Court when it was considering a section of the Workmen's Compensation Ordinance (N.T.) in The Western Australian Coastal Shipping Commission v. Wallner (1979) 26 A.L.R. 591. In Phillips v. The Commonwealth of Australia (1964) 110 C.L.R. 347 Kitto, Taylor and Owen JJ, in a joint judgment, were considering the position under the Commonwealth Employees Compensation Act 1930. In that case it appears that determinations had been made that Miss Phillips was entitled to payments for total incapacity and at a later date a further -9- determination was made by a delegate that she was able to earn an amount which was not less than her pay at the date of the injury as since varied. From that determination she appeaJed to the County Court where the appeal was dismissed and she then appealed further to the High Court which also dismissed her appeal. As appears from the joint judgment at p.351 it was found as a fact in the County Court that she was no longer totally incapacitated and the judgment continues: "This finding is not challenged in this Court and indeed it could not be challenged, for it was founded upon a certificate of a medical board which s.19(4) makes conclusive evidence of the matters certified. Accordingly, it is clear that the applicant has no further right to compensation under par.1(b)." Paragraph 1({b) provided the measure of compensation in the case of total incapacity and par.({c) the measure in relation to partial incapacity. The Court held that although the onus lay upon the Commonwealth to establish that it no longer had liability to pay compensation to Miss Phillips as a totally incapacitated person since that onus had already been discharged by the finding of the County Court which cannot be challenged, the question whether compensation should be awarded to Miss Phillips as a person partially incapacitated and with a diminished earning capacity then arose. The Court said that this, in effect, constituted the basis of a new claim not - 10 - previously pronounced upon before its rejection by the Commissioner and on this issue the onus was on Miss Phillips. Senior counsel for the appellant before us sought to distinguish the lastmentioned case upon the basis that any issue in relation to total incapacity was determined conclusively by the certificate of the medical board whereas in the case before us there was nothing corresponding to that certificate and on the contrary par.12 of Schedule 1 of the Ordinance required an agreement or arbitration before a weekly payment under the Ordinance could be varied or ended. In my opinion this argument should be rejected because I consider that there was adequate proof that at the relevant date the appellant was no longer totally incapacitated. In Commonwealth of Australia v, Muratore (1978) 22 A.L.R. 176 the High Court considered a somewhat similair question. The main judgment was delivered by Jacobs J. with whom Gibbs, Stephen and Aickin JJ. agreed. This case involved an appeal by special leave and the High Court had to decide who bore the onus in proceedings brought by way of judicial review from the determination of a Commissioner. It was conceded that the appeal by way of judicial review was a hearing de novo. The facts of this case differed from the facts in Phillips v. The Commonwealth of Australia, supra, in that there had been a determination in 1966 that -ll- Muratore was partially incapacitated and the decision from which the relevant appeal was brought was that of a commissioner who determined that Muratore was able to earn in some suitable employment or business an amount not less than his average weekly earnings before the injury. (p.178 11.22-30). It was held by Jacobs J. the the onus was on the Commonwealth, which was alleging a change in circumstances, to prove that change of circumstances. (p.180 11.35-38). Jacobs J. next stated: "The position is quite different if there has been no previous finding of partial incapacity with a consequent assessment of the compensation payable." Reference was then made to J. & H. Timbers Pty. Ltd.v. Nelson (1972) 126 C.L.R. 625. His Honour at p.179 11.27-30 said: "It has always been recognised that 'incapacity for work', those words being taken to refer to physical incapacity, is only relevant where it produces an economic incapacity." and at p.180 11.12-15 his Honour refered to judgments in Thompson v. Armstrong and Royse Pty. Ltd. (1950) 81 C.L.R. 585 and said that they do not justify a conclusion that economic loss can be regarded as an element wholly separate from incapacity for work. Murphy J. at p.182 11.8-11 expressed the view that Phillips v. - 12 — The Commonwealth of Australia incorrectly differentiated between total incapacity and partial incapacity. Jacobs J. on the other hand at p.180 1.45 to p.181 1.14 cited Phillips v. The Commonwealth of Australia without expressing any disapproval. In my opinion Phillips v. The Commonwealth of Australia and The Commonwealth of Australia v. Muratore are compatible because a distinction is made between total incapacity and partial incapacity. In the subject case, in my opinion, the employer has satisfied the onus of establishing that the appellant is no longer totally incapacitated. The onus of showing the extent of incapacity then lies with the appellant. This conclusion is also consistent with the judgment of the majority of the High Court in J. & H. Timbers Pty. Ltd. v. Nelson, supra. Both the learned magistrate and the learned trial judge proceeded upon the basis that in the circumstances the appe]lant bore the onus of establishing that he was totally incapacitated and to this extent I consider that they were in error. Nevertheless, it is clear that both the learned trial judge and learned magistrate proceeded upon the basis that they considered that the appellant was not totally incapacitated for work during the relevant period. Looking at the evidence, as I think we ought, I consider that it is sufficient to establish that during the relevant period the appellant was not totally incapacitated for work. This conclusion is assisted by the assessment by the learned magistrate of the reliability of the appellant as a witness. -~13- Another ground of appeal was against the refusal of the learned trial judge to permit the appellant to call further evidence under the provisions of s.215(3) of the Court of Petty Sessions Ordinance 1930. This section provides that the appeal shall be heard on the evidence before the Court of Petty Sessions together with any evidence admitted pursuant to leave granted by the judge upon the ground that the evidence is evidence in relation to matters which have occurred after the hearing of the proceedings in the Court of Petty Sessions or for any other special reason. The evidence which it was sought to have called was that of a doctor who had given evidence in the proceedings and it was sought to introduce evidence of the results of a myelogram performed after the hearing and which was said to be confirmatory of that doctor's evidence. The learned trial judge refused the application and in my opinion that was a proper exercise of his power. I consider that no adequate special reason has been shown for the admission of the evidence nor do I think in any real sense is it evidence in relation to a matter which had occurred since the first hearing, It is simply evidence said to be confirmatory of the opinion expressed by the doctor. Before us, senior counsel for the appellant, did not seek a fresh trial but sought firstly that we should determine that the onus rested on the employer to establish that there was no incapacity for work at all and that this court should order payment on the basis of total incapacity. The second submission was that this court ought itself to attempt to assess the measure of partial incapacity. The third submission was that the court should remit the matter back to the learned trial judge with a direction that it was appropriate to admit fresh evidence of the doctor (Dr. Newcombe) and, any further evidence if the trial judge thought fit, with a direction that in assessing the compensation to be paid to the appellant the onus rested on the employer in all respects. No suggestion was made to us that we should consider whether we had power to, and if so, whether we should, remit the matter back to the magistrate. Before the learned trial judge it was common ground that he had no power to so remit the matter. What I have already said shows that I would not make an order based on total incapacity. Before this Court could make any order based on partial incapacity there must be sufficient material before itt for it to be able to assess in money the entitlement, if any, which the appellant had to compensation for partial incapacity during the relevant period and the onus lay upon the appellant in this regard. In my opinion the material before the Court is not sufficient for this purpose. The learned magistrate clearly indicated that he did not believe the appellant. No assessment of money payable for partial incapacity can be made without an assessment of the amount which the appellant was "earning or is able to earn in some suitable employment or' business". Although a Tribunal which handles regularly large numbers of workmen's compensation cases may draw upon certain of its judicial ~15- knowledge (e.g. J. & H. Timbers Pty. Ltd. v. Nelson, supra, Gibbs J. at p.651), it 1s different when a Court such as this is considering this matter or indeed when the learned trial judge was considering the matter. It is appropriate to note that the learned magistrate held that he was not satisfied that the appellant had suffered any economic loss in the relevant period. I would reject the appellant's second submission, I see no reason to accede to the third submission. In any event I would direct that the onus, in relation to partial incapacity, rests on the appellant. The appellant has already failed to satisfy the learned trial judge on the issue of partial incapacity. I am of the opinion that it is appropriate for this Court to dismiss the appeal. I would mark my disapproval of the respondent's conduct in terminating the payments which it had made other than in accordance with paragraph 12 of the First Schedule, by making no order as to the costs of the appeal to this Court. Lcortify that this und the fourhes (iw) | | preceding pages are a true copy of the Reasons for Judgment herein of his Honour ur. Justice Franks Tated: