Catlow v Accident Compensation Commission [1989] HCA 43

High Court of Australia Brennan, Deane, Dawson, Gaudron and McHugh JJ. Catlow v Accident Compensation Commission [1989] HCA 43

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 5 Brennan and Gaudron JJ.

Between September 1981 and 26 October 1985 Mr. Catlow, the appellant, was employed by Australian Safeway Stores Pty. Ltd. at its Mulgrave warehouse in Victoria. Since 26 October 1985, Mr. Catlow has been and remains totally incapacitated for work by reason of a compensable injury and entitled to payments of weekly compensation as for total incapacity pursuant to the provisions of ss. 82 and 93 of the Accident Compensation Act 1985 Vict ("the Act").

The Accident Compensation Commission is charged with the responsibility of administering the Accident Compensation Fund, paying compensation to persons entitled and performing the other functions specified in s. 20 of the Act. The Commission applied to the Accident Compensation Tribunal pursuant to s. 117(6) for a determination of the weekly payments of compensation to be paid to Mr. Catlow. The compensation payable to Mr. Catlow was in the form of weekly payments payable during the period of total incapacity: s. 93(1) and (2). The amount of a weekly payment was fixed by s. 93(4) which provides:

Subject to this section, a weekly payment to a worker shall be an amount equivalent to —

(a) 80 per cent of the worker's pre-injury average weekly earnings; or

(b) $400 —

whichever is the lesser.

(The sum of $400 is subject to indexation.)

The phrase "the worker's pre-injury average weekly earnings" is critical to the correct quantification of a worker's weekly payments. The phrase is defined by s. 95(1) to mean:

(a) the average weekly earnings during the 12 months preceding the relevant injury if the worker has been employed by the same employer for that period; or