CASSIDY v INTERNATIONAL COMBUSTION AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Hope, SAMUELS and MCHUGH JJA 10 October 1988, 10 October 1988 [1988] NSWCA 20 Workers' compensation — Workers' Compensation Act 1926 s11(2) — worker found to be ready, willing and able to undertake employment if employer offered it — application for award under s11(2) refused and award made under s11(1) — Held worker's entitlement to an award under s11(2) not conditional upon offer of employment by employer — appeal allowed. ORDERS (1) Appeal allowed. (2) Award in respect of period commencing 28 May 1985 set aside. (3) Proceedings remitted to Compensation Court to be dealt with in accordance with reasons of this Court. (4) Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if otherwise qualified. Hope JA The appellant was an applicant in the Compensation Court for compensation pursuant to s9, s11(1) and s11(2) of the Workers Compensation Act 1926. The matter arose in this way. The appellant had, for most of his life, carried on business as a boilermaker on his own account. In March 1981 he commenced employment with the respondent as a boilermaker, shortly afterwards being promoted to the position of inspector. His work involved a considerable amount of bending and squatting. On 18 March 1983, in the course of his work, he fell and injured his left ankle and leg. His Honour Judge Manser found that the appellant had a continuing physical disability which prevented him squatting and performing duties of a similar type normal to the duties of a boilermaker. On 11 October 1983 the appellant brought with him a medical certificate of Dr Trevitt and sought light employment from the respondent. This request was refused. On 2 March 1984 the appellant commenced employment as a lawn-mowing assistant with Mr Jim Purnell and his work with Mr Purnell was still continuing at the time when the application was heard by Judge Manser in May 1985. Before the proceedings had commenced the appellant's solicitor wrote a letter to the respondent's solicitor on 10 May 1984 in these terms:- "We refer to previous correspondence and wish to advise that the Applicant has obtained casual employment with Lawngroom Mowing of Eastwood as from 30/4/84. At this stage we are unable to provide you with exact details of income although the applicant expects to be earning on the average approximately $70.00 per week. The Applicant is employed as a lawn mowing assistant. Please note that the Applicant will be relying upon S11(1) of the Act as from 30/4/84 to date and continuing." In his evidence in the Compensation Court the applicant said:- Q. At the present time if your old employer offered you a light job would you go back and do it? A. Yes. Q. And would you give away the lawn mowing work? A. Yes. 2 UNREPORTED JUDGMENTS Judge Manser found that on 11 October 1983 the appellant had sought suitable employment from the respondent and had at all material times since that date been partially incapacitated for work. He made an award for the appellant from 11 October 1983 until March 1984 under s11(2). However, his Honour held that from the time that he commenced work with Mr Purnell up till 27 May 1985 he was not entitled under s11(2) but was entitled to an award on the basis of partial incapacity under s11(1). From 28 May 1985 his Honour found that he was satisfied that the appellant would be ready, willing and able to undertake employment with the respondent if the respondent was moved to make such an offer of employment. In respect of the intervening period his Honour's reasons for his conclusion and for his ultimate findings are not entirely clear but he did find what he described as an absence of the state of mutuality during that period. His Honour said:- Although I accept that Mr Cassidy's entitlement to s11(2) was revived on 28th May 1985, he is, on the evidence, still employed by Mr Purnell, and consequently would not be entitled to be compensated concurrently under s11(1) and s11(2), although his rights under s11(2) have been revived and available to him at any time that he ceases to receive remuneration from Mr Purnell. In other words, I think Ex 2 had the effect of evidencing a state of absence of mutuality on the part of the worker from the time of his commencing with Mr Purnell until 27th May 1985. As I would understand it, his Honour had regard to the nature of the employment of the appellant with Mr Purnell and also to the letter of 10 May 1984 which was Exhibit 2. Having regard to both these matters he found, in my opinion as a fact, that the appellant was not, during that period, ready, willing and able to undertake suitable employment were if offered by the respondent. There was evidence upon which he could base this finding, and accordingly his Honour was not in error in making the award to the appellant for that period on the basis of s11(1). In respect of the period from 28 May 1985 onwards his Honour clearly accepted the evidence of the appellant which I have quoted and concluded that the appellant would be ready, willing and able to undertake employment if the respondent offered it. That condition was not appropriate to be imposed on the appellant's right to an award under s11(2). The appellant was entitled, if he was ready, willing and able, to an award under s11(2), and his entitlement should not have been delayed until the respondent made an appropriate offer. It has been submitted that on a proper understanding of his Honour's judgment there has to be read into his findings in relation to compensation from 28 May 1985 a further condition, namely, that the appellant should no longer be employed by Mr Purnell. I have already referred to the evidence which his Honour has accepted and in my opinion it is clear that his Honour was acting on an assumption that the appellant would not be entitled to an order until the respondent offered him employment; that is, only if the respondent offered the appellant employment did the question of s11(2) arise. In my opinion that was an error in law. His Honour's conclusion that the appellant was entitled to an award under s11(1) and not to an award under s11(2) in respect of the period from 28 May 1985 onwards was wrong and should be set aside. Accordingly I would allow the appeal insofar as it concerned the award made by his Honour in respect of the period 28 May 1985 onwards, and would remit the matter to be dealt with by the Compensation Court in accordance with the reasons which I have given. URJ CASSIDY v INTERNATIONAL COMBUSTION AUSTRALIA LTD (McHugh JA) 3 The respondent should pay the costs of the appeal. Samuels JA I agree. I do not think that any error can be detected in his Honour's conclusion so far as the period preceding 28 May 1985 is concerned. From that point onwards, however, the appellant's entitlement is established by what seems to me to be a finding which laid down all the evidence which is necessary to enable the appellant to invoke s11(2). His Honour said:- From 28 May 1985 I am satisfied that the applicant would be ready, willing and able to undertake employment with the respondent if the respondent was moved to make such an offer of employment. Although an ingenious attempt was made by Mr Perry to read this in a conditional way depending upon some further event, it seems to me that his Honour meant that in the event that the respondent offered him employment the appellant would then be ready, willing and able to accept it. Since, as is made clear by majority of the High Court in Electric Power Transmission Pty Limited v D'Urso (1970) 124 CLR 338 at 341, the employer is under the continuing obligation to provide suitable employment, it must follow, as Hope JA put it during the course of argument, that there is nothing outstanding in the element necessary to establish a consensus, or mutuality of offer and acceptance, between the employer and the worker. I have come to this opinion with some diffidence bearing in mind the learned Judge's experience in this area of law. But I must conclude that on this occasion he fell into error and his conclusion simply does not follow from the findings interpreted in the only way which, in my view, they bear. I therefore agree with the orders proposed. McHugh JA I also agree with the orders proposed. If his Honour's statement that he was satisfied that from 28 May the applicant would be ready, willing and able to undertake employment with the respondent meant that the applicant was at all times from that date ready, willing and able, the applicant was entitled to an award under s11(2). If, on the other hand, his Honour's statement was conditional upon the respondent moving to make an offer of employment, his Honour misdirected himself on the relevant issue. As Samuels JA has pointed out, the decision of the High Court in Electric Power Transmission Pty Limited v D'Urso demonstrate that the respondent employer had a duty at all times to provide suitable employment to his partially incapacitated worker. On either view the learned trial Judge fell into error. I agree with the orders proposed. HOPE JA: The orders of the Court are:- (1) Appeal allowed. (2) Award in respect of period commencing 28 May 1985 set aside. (3) Proceedings remitted to Compensation Court to be dealt with in accordance with reasons of this Court. (4) Respondent to pay appellant's costs of the appeal and to have a certificate under the Suitors Fund Act if otherwise qualified. Counsel for the Appellant: P. SWEENEY Counsel for the respondent: P. PERRY Solicitors for the Appellant: TURNER FREEMAN Solicitors for the respondent: HUNT and HUNT