Evans v OTC/Telstra Pty Ltd [1998] NFSC 2

SUPREME COURT OF NORFOLK ISLAND WORKERS' COMPENSATION – assessment and amount of compensation – appeal from determination of Employment Tribunal – whether claim for lump sum compensation can include specific amount to compensate for loss of amenities and of enjoyment of life, in addition to the lump sum otherwise calculated in accordance with Employment Act 1988. Employment Act 1988 ss 28, 30, 31, 32, 43 Teubner v Humble (1963) 108 CLR 691, cited.

ARTHUR EVANS V OTC/TELSTRA PTY LTD

SC 3 of 1998 JUDGE: BEAUMONT CJ. PLACE: SYDNEY (Heard on Norfolk Island) DATE: 4 SEPTEMBER 1998

IN THE SUPREME COURT

OF NORFOLK ISLAND SC 3 of 1998

BETWEEN: ARTHUR EVANS

Appellant AND: OTC/TELSTRA PTY LTD

Respondent

JUDGE: BEAUMONT CJ.

DATE OF ORDER: 4 SEPTEMBER 1998

WHERE MADE: SYDNEY

ORDERS: 1. The appeal is dismissed with costs.

IN THE SUPREME COURT No. SC 3 of 1998

Of NORFOLK ISLAND IN THE MATTER of an appeal pursuant to section 91 of the Employment Act 1988

BETWEEN: ARTHUR EVANS Appellant

AND: OTC/TELSTRA PTY LTD Respondent

REASONS FOR JUDGMENT BEAUMONT CJ: INTRODUCTION This appeal from a determination of the Employment Tribunal raises an important question of law as to the meaning and operation of Part III (ss 26-47) of the Employment Act 1988 ("the Act"). Part III deals with compensation for work-related accidents. In the present case, a claim for lump sum compensation seeks to include a claim for a specific amount to compensate for loss of amenities AND of enjoyment of life, in addition to the lump sum otherwise calculated in accordance with the Act. The question for determination, one of law, is whether, on the true construction of the Act, such an additional claim is open The provisions of Part III that are presently relevant, are as follows: Section 30(1), in dealing generally with compensation, provides: "30. (1) Where an employee suffers incapacity the employer shall pay to the employee periodical compensation in accordance with this section." Section 28(1), in dealing with the meaning of "incapacity", defines "incapacity" to include – "(a) Personal injury by reason of a work-related accident… suffered by an employee as a result of which there is a loss or diminution of the employee's capacity to earn". [Emphasis added] Section 28(2) provides: "(2) For the purposes of subsection (1), the physical and mental consequences of personal injury referred to in paragraph (1)(a), or of a work-related accident, constitute incapacity in relation to an employee where, as a result of those consequences, there is a loss or diminution of the employee's capacity to earn." Section 28(3), which is central to the appellant's present argument, provides: "(3) Loss of amenities and of enjoyment of life because of permanent loss or impairment of a bodily or mental function of an employee by reason of an occurrence or condition specified in subsection (1) constitutes incapacity for the purposes of this Part, whether or not the loss or impairment results in a loss of diminution of the employee's capacity to earn." [Emphasis added] Sections 30(3) and (6), in dealing with compensation for partial incapacity, provide: "(3) A reference in this section to partial incapacity, in relation to an employee, is a reference to diminution, whether temporary or permanent, of the employee's capacity to earn by reason of the incapacity of the employee. [Emphasis added] … (6) Where an employee suffers partial incapacity compensation shall be paid at a rate calculated in accordance with subsection (4) as if the employee had suffered total incapacity, less the proportion of that rate that is equal to the proportion by which the employee's capacity to earn is not affected by the incapacity." (Section 30(4) provides for compensation for total incapacity.) Section 30(8) provides: