S AND M RYNEHART t/as THE FASHION HOUSE v WARREN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 21 June 1989, 21 July 1989 [1989] NSWCA 181 PERSONAL INJURY — WORKERS COMPENSATION — s9(1)(a) OF WORKERS' COMPENSATION ACT 1926 — DATE OF COMMENCEMENT OF COMPENSATION PAYMENT ORDERS 1.Appeal upheld and the award made on 30 March 1988 in favour of the respondent set aside; 2. The matter be remitted to the Compensation Court for the making of a further award; 3.The respondent to pay the appellant's costs of this appeal and have a certificate under the Suitors Fund Act. Priestley JA I agree that the law applicable to this case is as stated by Meagher JA. IL alsoshare Clarke JA's concern arising from the fact that the decision of this Court, covering the point in issue, and leading to the upholding of the appeal in this Court, was not relied on in the court below. However, for the reasons given by Clarke JA, that does not help the respondent, in the circumstances of the case. The appeal should be upheld and orders made as proposed by Meagher JA. Priestley JA Although I have some difficulty with the reasoning in State Rail Authority of New South Wales v Belgrave, [1982] 2 NSWLR 738 counsel for the respondent was unable to distinguish that decision and did not seek leave to reargue it. In these circumstances it should be followed and, subject to one matter, determines the present appeal. My reservation concerns the failure of the appellant to raise Belgrave in the Compensation Court or to argue the point for which Belgrave stands as an authority. If counsel for the respondent had been able to show that there was a possibility that if Belgrave had been raised additional evidence could have been called to meet the point it would have been inappropriate to allow the appellant to rely on the decision in this court. However, counsel was unable to suggest that possibility and was forced back onto the submission that if he had been confronted with Belgrave in the Compensation Court he may have been able to recast the respondent's case in order to avoid the impact of that decision. The difficulty with his submission, as I understood it, was that the evidence given by the appellant, and accepted by his Honour, placed her case on a basis which fell squarely within Belgrave. Any recasting would, it seems to me, have involved the abandonment of her evidence. In these circumstances I am of opinion that the appellant should be permitted to rely on Belgrave in the appeal with the consequence that it must be upheld. Accordingly, I agree with the orders proposed by Meagher JA. Clarke JA In this matter Mrs Warren, the respondent, worked for some time for the appellants, S and M Rynehart, who traded as "The Fashion House" at Wagga. Whilst so employed, on 26 March 1984, she slipped and fell at work, and thus became "partially incapacitated" within the meaning of s9(1)(a) of the Workers' Compensation Act 1926. So much was found by his Honour Judge Coleman below. She struggled on at work despite her ailments, earning her pre-injury wage of $279.20 per week, until 25 April 1986, when her condition 2 UNREPORTED JUDGMENTS forced her to leave her employment permanently. His Honour accordingly found that she was "partially incapacitated" from 26 March 1984 to 25 April 1986 and "totally incapacitated" thereafter. His Honour's findings in these regards are unchallenged, and, on the evidence, unchallengeable. On these facts his Honour's award was expressed to be as follows: "Accordingly, there will be an award for the applicant at the rate of $279.20 per week, from 26 April 1986 until 25 October, 1986; and at the rate of $155.00 per week (as adjusted) from 26 October 1986 to 15 May 1987; and at the rate of $84.20 per week from 16 May 1987 to 29 February 1988; and at the rate of $95.00 per week from 1 March 1988 to date and continuing as per s11(1). " S9(1)(a) of the Act is in the following terms: Subject to the provisions of this section and of s11 and s13, where total or partial incapacity for work results from the injury the compensation payable by the employer under this Act shall include: (a) The worker's current weekly wage rate in respect of any period of incapacity which together with any other such periods (whether occurring before or after the date of assent to the Workers' Compensation (Rates) Amendment Act 1977) of incapacity resulting from the one injury do not total more than 26 weeks, and, in respect of any subsequent period, a weekly payment in respect of the worker during the incapacity which shall not exceed 90 per cent of his average weekly earnings for the previous twelve months if he has been so long employed by the employer, but if not, then for any less period during which he has been in the employment of the same employer. Where compensation is payable for incapacity for part of a week the amount shall bear the same ratio to compensation for a full week that normal working time during such part bears to the worker's full normal working week. The compensation payable under this paragraph in respect of any period of incapacity occurring after a period of incapacity of, or periods of incapacity totalling, 26 weeks shall not exceed $83.00 per week, and shall not be less, in the case of an adult worker, than $66.00 per week for total incapacity;" From the terms of the award it will be appreciated that his Honour took the 26 weeks mentioned in s9(1)(a) as running from 25 April 1986, the date of the onset of the total incapacity. In so doing, according to the submission of the appellants, his Honour fell into error; the 26 week period should have commenced on the date of her partial incapacity on 26 March 1984 and had thus expired long before the onset of the total incapacity. That this is so was decided by this Court in State Rail Authority of New South Wales v Belgrave [1982] 2 NSWLR 738. This submission must be upheld. Indeed, the contrary was not argued by counsel for the respondent. I might add that his Honour's error is easily explicable by the fact that the only relevant authority was not cited to him by either counsel. The order of the Court should therefore be: 1. That the appeal be upheld and the award made on 30 March 1988 in favour of the respondent be set aside; 2. That the matter be remitted to the Compensation Court for the making of a further award; and 3. That the respondent pay the appellant's costs of this appeal. Counsel for Appellant: I Roberts Solicitors for Appellant: Hunt and Hunt Counsel for Respondent: P Sweeney URJ SAND M RYNEHART t/as THE FASHION HOUSE v WARREN (Clarke JA) 3 Solicitors for Respondent: Commings Thompson and Reading (Wagga Wagga)