GEORGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 17 June 1991, 8 August 1991 [1991] NSWCA 99 WORRERS' COMPENSATION — partial incapacity — notional total incapacity — whether unavailable because worker is earning income during partial incapacity — whether s11(2) Workers' Compensation Act 1926 is sub ject to a limit on maximum compensation as recoverable under s11(1)(a) held: (1) The fact that a worker during partial incapacity following a compensable injury earns income does not, as such, deprive the worker of entitlement to the benefits provided by s11(2) of the Act. Shoebridge v Commissioner for Railways (1961) 78 WN (NSW) 643; Chudleigh v David Bros Pty Limited (1962) 79 WN (NSW) 517 not followed; R J Brodie (Holdings) Pty Limited v Pennell (1969) 117 CLR 665; Pennell v R J Brodie (Holdings) Pty Limited (1967) 69 SR (NSW) 78; 86 WN (Pt 2) (NSW) 289 applied; Sydney City Council v Ince (1989) 16 NSWLR 690; Cassidy v International Combustion Australia Limited, Court of Appeal, unreported, 10 October 1988; (1988) NSWJB 183 followed; (2) In some cases the persistence of a worker in employment during partial incapacity will deny "mutuality" of employment and result in a finding of fact that the worker was not "ready, willing and able" to accept suitable employment if offered; (3) However, in the present case the trial judge (Egan J) had found, as a fact, that the worker was "ready, willing and able" to accept such employment despite his continuing work; that finding was unchallenged; it sustained the award under s11(2) in the worker's favour. Electric Power Transmission Pty Limited v D'Urso (1970) 124 CLR 338; Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171; Westfield Shopping Centre Management Co Pty Limited v Kassem (1986) 4 NSWLR 344; Holden v Toll Chadwick Transport Limited (1987) 8 NSWLR 222 considered. PRECEDENT - workers' compensation - anomalous results from construction of Act - desirability of conforming to settled construction of section and principles inherent in earlier holdings of the High Court and the Court of Appeal discussed. WORDS and PHRASES - "fails" - "partial incapacity for work". Workers' Compensation Act 1926, s9, s11. Workers' Compensation Act and Workmen's Compensation (Broken Hill) Act (Amendment) Act 1942. Workers' Compensation (Amendment) Act 1951. Kirby P S11(2) of the Workers' Compensation Act 1926 has been described as "deceptive" for its "apparent simplicity". See Gibbs J in Dowell Australia Limited v Archdeacon (1975) 132 CLR 417, 428. For such a "simple" provision, the subsection has brought many cases to this Court and to the High Court of Australia. This is the latest such case. In issue is whether a worker, who still suffers the physical consequences of a compensable injury but who, post-injury, has obtained remunerative full time work with another employer, may recover full compensation benefits under s11(2) from the employer liable for the injury. May the worker do so where the payments of compensation then received, together with the wages from the 2 UNREPORTED JUDGMENTS post-injury employer, take the worker's total remuneration well beyond that which would have been earned with the original employer, had the worker never been injured? The facts as found by the trial judge Certain matters were not in dispute in the appeal. First, it was common ground that the case fell to be determined by reference to s9, s11(1) and s11(2) of the Workers' Compensation Act 1926. That Act has been repealed and replaced by the Workers Compensation Act 1987. However, by Schedule 6, Pt4 CL4 and 5 of the 1987 Act, the earlier provisions, being in force when the relevant events occurred, apply to determine the rights and obligations of the parties before the Court. Secondly, the appeal is confined (relevantly) to an error in point of law. The recent amendments to the Compensation Court Act 1984, s32 are unavailable to the appellant. Accordingly, the Court must approach the appeal applying the stringent test expressed for such cases in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 (CA). Thirdly, consistent with the foregoing, there was no challenge to the findings of fact recorded by the judge of the Compensation Court who entered the award which is now under appeal (Egan J). By those findings, his Honour determined as follows: "1. the applicant suffered in jury to his lumbar spine in the course of his employment with the respondent on 2 February, 1986 and 5 March, 1986. 2. he was partially or totally incapacitated thereby andpaid compensation up to 28 July, 1986. 3. since 28 July, 1986 he has remained partially incapacitated for work namely work involving repeated bending or heavy lifting. 4. since the 15 December, 1987 the respondent has failed to provide suitable employment to his injured worker. 5. since 15 December, 1987 the applicant has at all times been ready, willing and able to undertake suitable employment with the respondent." Egan J then proceeded to make findings concerning the worker's dependants and findings as to the actual and comparable earnings of the worker during the period of partial incapacity found from 28 July 1986 to the date of the award. His Honour did so upon virtually undisputed evidence. This permitted a comparison to be made between the amounts actually earned by the worker during various periods when he obtained work with other employers and the wages paid to his replacement with the employer (apparently accepted as the amounts which the worker would probably have been earning with the employer had he not been injured). His Honour then proceeded to subtract the actual from the probable earnings. He said: "Based on longstanding authorities and practice and on commonsense it might be suggested that I proceed to make an Award under s11(1) [effectively for the difference]. ... However the question arises whether the applicant is entitled to an award under s11(2) from 15th December, 1987 when the applicant sought and was refused suitable duties with the respondent. To do so would result in the applicant receiving more per week by way of wages and compensation than he would have been earning if he had remained uninjured. This problem arises as a result of the Court of Appeal Judgment in Cassidy v Internal Combustion Australia Limited (unreported 10 October \WEDRGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO (Kirby PB 1988).... The Court of Appeal held that... the worker was entitledr to an Award under $11(2). No authorities are referred to in the Judgment. Each purports as I read them to say that the findings... were sufficient to require the making of an Award under $11(2) and indeed McHugh JA (as he then was) expressly said that if the worker was ready, willing and able (to engage in suitable employment with the respondent) the applicant was entitled to an Award under Section 11(2). There was no difference in the amount of the weekly award whether made under $11(1) or S11(2). In that respect (Cassidy) differs from the present case." After a reference to earlier decisions of this Court and its predecessor, his Honour came to the conclusion "with some misgivings" that he was obliged to make a continuing award at the maximum rate of compensation under s11(2) in favour of the worker. It is that award which is challenged in this appeal. The provisions of s11(2) When originally enacted in 1926, the Workers' Compensation Act did not contain provisions for notional total incapacity. Such provisions were first included by the amending Act (No 13) of 1942. Relevantly, the subsection as then enacted provided: "11(2) Where the Commission in exercise of its discretion thinks it proper so to do, the Commission may order that an employer shall provide suitable employment for his injured worker during the worker's partial incapacity for his pre-in jury employment for such period and subject to such conditions as may be provided by its order. Upon any failure by such employer to comply with any order so made, the worker's incapacity for work shall be deemed to be total and he shall be compensated accordingly. The amendment provided for a right of review. It cast the onus of proving that the employer was unable to provide suitable employment upon the employer. The subsection remained in that form until the amending Act (No 20) of 1951. By that provision, the necessity to secure an order made in the discretion of the Commission was deleted. The subsection's opening paragraph was then amended to read as follows: "11(2) An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for his pre-infury employment." The second paragraph was amended to delete the reference to a special order and to provide a right to receive compensation as if totally incapacitated upon the employer's failure to provide suitable employment. Following a decision which drew attention to the importance of the criterion of "incapacity for pre-injury employment - (see Fournaris v British Motor Corporation Limited (1963) 80 WN (NSW) 993) the subsection was amended once again by the Amending Act (No 97) of 1967. The phrase "partial incapacity for work" was substituted for "partial incapacity for his pre-injury employment". See discussion Holden v Toll Chadwick Transport Limited (1987) 8 NSWLR 222, 226 (CA). In 1980, the subsection was still further amended to take the form in which it appeared immediately before the repeal of the 1926 Act and as it is relevant to the present proceedings. It then read: "11(2) An employer shall provide suitable employment for his infured worker during the worker's partial incapacity for work but, if the employer fails to do so, the worker shall be compensated as if his incapacity for work were total, unless: (c) in any other case - the insurer, provides, or arranges for, such suitable employment having regard to the worker's incapacity and place of abode." 4 UNREPORTED JUDGMENTS Subs11(2) appears in s11 of the Act. The first subsection provides for the ordinary case of partial incapacity. Indeed "partial incapacity" is the marginal heading which appears above s11. The provisions of s11(1)(a) have, like those of s11(2), been altered during the life of the 1926 Act. But at the time relevant to the worker's claim in this case, the subsection read: "11(1)(a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper. Issues in the appeal The appellant employer contends that Egan J erred in law in the award which he entered in favour of the worker. It argues that an award in such terms was not required by the decision of this Court in Cassidy v International Combustion Australia Limited. Nor was it consistent with the true meaning of s11(2) as it was understood in its relation with s11(1)(a). The employer emphasised that both subsections of s11 were dealing with aspects of the compensation payable to a worker during "partial incapacity". In s11(1)(a) it was provided that "in the case of partial incapacity the weekly payment shall in no case exceed... ". Parliament had therefore intended to provide a cap for the compensation for partial incapacity both under s11(1) and under s11(2). In short, the "commonsense" and "longstanding practice" referred to by Egan J was supported by the language of sll of the Act and the clear instruction of Parliament that "in no case" should compensation for partial incapacity cases exceed the amount calculated under s11(2). The appellant sought to distinguish Cassidy v International Combustion Australia Limited. That was a case where the worker was a boilermaker whose work involved much bending and squatting. In the course of his employment he was injured. He was found to have continuing physical disabilities which prevented his squatting and therefore the performance of his pre-injury work. He sought light employment from the employer but was refused. He then commenced suitable work as a lawnmowing assistant. He was in that work when his application for compensation was heard by Manser J in the Compensation Court. He gave evidence that, if he were offered a light job by his former employer, he would go back to it and give away the lawnmowing work. Manser J found that the worker was "ready, willing and able to undertake employment with the respondent if the respondent was moved to make such an offer of employment". However, he held that, from the time that the worker had commenced work as a lawnmowing assistant, he was not entitled to benefits under s11(2). The award was therefore entered on the basis of partial incapacity under s11(1). This Court (Hope, Samuels and McHugh JJA) held that Manser J had erred in law in so concluding. Hope JA said: " [I]t 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 of law." Samuels JA agreed: \GEDRGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO (Kirby PB "Since as it 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... 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." McHugh JA agreed: "Tf 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." In an ingenious argument, the appellant in this case suggested that Cassidy v International Combustion Australia Limited was distinguishable upon two bases. First, that the case had turned on the mistaken opinion that it was obligatory for the employer to offer suitable work. No such issue arose in this case. Secondly, on the facts, the differences between the worker's but for injury earnings and his earnings as a lawnmowing assistant were such that an award under s11(1)(a) might well have been in the same sum as an award under s11(2). Thus the specific classification of the worker's entitlement into one or other of the subsections did not strictly have to be determined. It does have to be determined in this case. If the worker were entitled to no more than the compensation payable under s11(1)(a) his weekly entitlement would in this case be about $60 less than the award actually entered in his favour under s11(2). Echoing Egan J's opinions, the appellant complained that the award, as entered, represented a serious injustice to it. Its argument ran this way: 1. S11(2) appears in a compensation statute designed, as its terms and the Second Reading Speech on its introduction demonstrate, to provide indemnification to a worker for economic loss suffered as a result (relevantly) of a work injury. Far from doing this, the present award would result in the worker making a profit and securing a gross income (post-injury wages plus compensation) greater than he would have enjoyed had he never been injured. This could not have been the purpose of a compensation statute; 2. The employer was ordered to pay full compensation on the basis of notional total" incapacity. Yet this was done in the face of the proved fact that the worker was not totally incapacitated at all. Indeed, he was not in truth able to undertake suitable employment with the employer for the very reason that he was working with another employer, doing suitable work for it. In such circumstances, the scheme and provisions of the Act entitled him to supplement his post-injury earnings to the extent (as a maximum) of his weekly loss of income. It did not entitle him to make a windfall gain; 3. This argument could be tested by hypothesising the case of a worker who, during incapacity, had retrained for a highly skilled job such as, say a computerist or barrister. If, for reasons internal to it, the pre-injury employer was unable to supply suitable work, could it really be suggested that the worker's income as a computerist or barrister, although much higher than his income but for injury with the employer, could be supplemented by full compensation pursuant to s11(2) of the Act? Self-evidently, it was claimed, this could not be so; and 6 UNREPORTED JUDGMENTS 4. The foregoing instances of manifest inequity could be avoided and the "compensation" (ie indemnity) afforded by the Act provided, simply by giving sll a coherent construction encompassing both of its subsections. To do this would reflect its purpose to provide compensation to workers against the lost of income resulting from a compensable injury. If s11 were read as a whole (and s11(2) therefore read as subject to the "cap" provided in s11(1)(a)) the injustice of windfall gains which would follow from the approach which Egan J felt bound to adopt would be avoided. "Commonsense" and the "long acceptance" of the meaning of s11 would be restored. Authority on s11(2) Uninstructed by authority, I would see considerable force in these submissions. However, s11(2) has been the subject of numerous decisions, some in the High Court, which stand in the way of the acceptance of the appellant's submissions. There is a certain artificiality about a number of the decisions on s11(2). This is doubtless explained in part by the fact that the Act works upon the assumption that, in the practical world, most employers will be insured against the risks of liability imposed by the Act. It is thus the insurer which picks up the consequences of the worker's entitlement to compensation, including where the employer has not provided suitable employment for his injured worker during that worker's partial incapacity for work. It has been held that the employer is not relieved of the obligation imposed by s11(2) by the existence of a superannuation scheme which provided otherwise for retirement of workers at the age of sixty-five years. Steele v Australian Gas Light Co (1962) 80 WN (NSW) 503; affirmed (1963) 36 ALJR 336. Similarly the fact that the employer's operation has actually closed down, that it employs no workers and is thus no longer in a position to provide work to an injured worker has been held not to excuse the employer from the obligations imposed by s11(2). See Palmer v J and A Brown and Abermain and Seaham Collieries Limited (1958) 32 WCR 148, 149. Even the fact that an employer has died was held to be no reason to exempt him or her (ie the insurer indemnifying the deceased's personal representatives) from the obligations imposed by s11(2) and the compensation consequences which followed default. See Bullman v the Estate of Late Mildred Dorothy Wilton [1960] 34 WCR 222 (WCC). In a series of decisions of this kind, the obligations imposed by s11(2) have been declared to be "clear, unconditional and unequivocal". See Wheatley v John Herford and Sons Limited (1954) 54 SR (NSW) 232, 235. In certain early decisions of the Full Court of the Supreme Court, support can be found for the proposition which attracted Egan J and which the appellant urged in this case. In Shoebridge v The Commissioner for Railways (1961) 78 WN (NSW) 643, the Full Court (Owen and Collins JJ, Jacobs J dissenting) held that the Commissioner was not obliged, on the retirement of an injured worker, to provide the worker with suitable work because of the terms of a by-law which gave the Commissioner a discretion to re-employ any worker after retirement. Collins J (at 651) recorded the worker's contention that that s11(2) conferred a benefit "only on those workers who are not only partially incapacitated for work but who are also partially incapacitated for their pre-injury work". His Honour rejected this contention saying: "Such construction would create a new class of partially incapaciated workers which is unknown to any other Provision of the Act. The creation of such a class is so incongruous to the whole scheme of the Act, and is so out of harmony with \WGEDRGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO (Kirby PY the provisions of s9 and s11, as they have been construed in numerous cases over a long period of years that I am of the opinion that such a construction is impossible, The interpretation contended for postulates to existing partial incapacities... Such an interpretation would lead to a strange abnomally. A worker who is partially incapacitated for his pre-injury task, on the interpretation contended for, would be entitled to obtain an award on the basis of total incapacity from his pre-injury employer if suitable employment nt is not provided and yet use the residuum of his partial incapacity for work generally, to earn wages from another employer and to do both simultaneously." Collins J regarded such a possibility as so inconsistent with the terms and scheme of the Act as to be unthinkable. A similar view was expressed by Herron J (with whom Evatt CJ and Clancy J agreed) in Chudleigh v David Bros Pty Limited (1961) 79 WN (NSW) 517. Herron J (at 522) agreed with the observations of Collins J in Shoebridge: "In my view s11(2) takes its stand only where the injured worker is not earning anything. He makes a claim for compensation. Section is designed to meet the case where the employer says to the injured worker 'you are despite your in jury able to earn something by working in a suitable job albeit at a reduced wage'. At this point subs(2) says to the employer you cannot be heard to say this. You have the onus or proving your statement and you can either provide that suitable job yourself or pay compensation on the basis of total incapacity. If the employer finds suitable employment at a lesser rate than the pre-accident earnings he must make up the difference under s11(1).... The mandatory language of s11(2) will only operate in Chudleigh's case if and when he claims that he cannot earn anything. while he is earning a post-accident wage his rights are to be quantified under s11(1)." (emphasis added) This is the old law to which Egan J referred in his reasons. It provides what, on its face, appeared an arguably sensible and just operation of a statute designed to provide "compensation" and to protect workers against the economic consequences of work in juries. Had the law remained as stated in Shoebridge and Chudleigh, there is no doubt that the appellant would have been entitled to succeed in this case. However, the law took a different turn. Notional total incapacity whilst earning wages In Pennell v R J Brodie (Holdings) Pty Limited (1967) 69 SR (NSW) 78, the worker was in receipt of an award of $10 per week for partial incapacity pursuant to s11(1)(a) of the Act. Soon after the recovery of the award, he wrote to his employer asking for suitable employment pursuant to s11(2). The employer notified the worker that it was unable to offer light work. An application was made to the Workers' Compensation Commission to convert the award to full compensation on the basis of "deemed total incapacity". Between the date of the refusal of light work and the day before the hearing of his claim, the worker engaged in a demolition operation in which his activities were managerial but by which he recovered a nett weekly amount. Notwithstanding such earnings, the Commission awarded the worker compensation under s11(2). The award reflected the difference between the extent of the worker's but for injury earnings and the nett weekly income from his demolition operations. The Court (Wallace P and Jacobs JA; Walsh JA dissenting) held that as from the date upon which an employer informed a partially incapacitated worker that he had no suitable light employment for him, that worker was entitled to an award based on notional total incapacity, even though he had been earning, but earning less than, his but for injury earnings. 8 UNREPORTED JUDGMENTS In Pennell, the Court confined Chudleigh to its own facts. Walsh JA went further and disputed its correctness (at 87): "At first sight this attempt to resolve the difficulties created by s11(2) and recognised in Chudleigh's case seems attractive, but I am not prepared to accept it. It is founded upon the assumption n that it is the policy of the Act to equate compensation with the economic consequences of an injury (at 88). In plain fact, since the statute commands the giving to a man who is in fact only partially incapacitated an award of compensation on the basis that he is totally incapacitated, it is impossible to adhere to a theory of making the compensation reflect no more than his true economic loss. If we are compelled to treat what is white, or even what is grey, as black, 'anomalies' created by the difference between the true factual position and the fictionaal position are likely to occur. If a man who has quite d substantial capacity to earn has to be treated as if he has none at all, it is not surprising that he may receive compensation exceeding what seems appropriate to the real facts." Pennell thus upheld an award of compensation, purportedly under s11(2) of the Act, to a worker even though, as was found, the worker was not only partially incapacitated, and had an earning capacity, but had actually earned income during the award period. The decision in Pennell was affirmed by the High Court of Australia. See R J Brodie (Holdings) Pty Limited v Pennell (1969) 117 CLR 665. The majority reasons (by Ritto, Taylor, Windeyer and Owen JJ) found that the decision in Chudleigh did not "satisfactorily resolve the problem to which the subsection [11(2)] gives rise". Their Honours (at 669) then provided a "clue" to the sensible operation of s11(2): "A clue to the true solution may, perhaps, be found in the somewhat loose language of the subsection itself for the 'provision' of suitable employment involves an element of mutuality. Employment is not a commodity which can be provided merely by an offer; it can in strictness be provided only by the employer and the employee entering into and performing their obligation under a a contract of service and this involves the cooperation of both employer and employee. There can, of course, be no " failure" on the part of an employer to provide suitable employment if the employee refuses, and continues to refuse, to enter his employment, or, if the facts show that the employee's conduct is inconsistent with the necessary degree of cooperation on his part... Whether or not there has been any such failure in relation to any period during the continuance of partial incapacity is, of course, a question of fact to be determined in the light of all the circumstances including the situation of the worker. If throughout any such period he is engaged in activities which would have made it impossible for him at the same to have performed the duties of an employment with his former employer there cannot be said to be a failure on the latter's part to provide suitable employment. This being so the vital question of fact in the present case was allowed to go by default on the original hearing for the only ground upon which the appellant denied liability pursuant to s11(2) as that, since the respondent had earned money after 9th December 1964 that subsection did not apply." (emphasis added J Menzies J (at 671) was even more emphatic. In terms, he disagreed with the holding in Chudleigh that s11(2) "operates only when a partially incapacitated worker is not earning any remuneration at all ". He said: \GEDRGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO (Kirby PB "with this I do not agree. There is no warrant in the section for denying its operation to a worker otherwise within its terms who earns some money while, for instance, waiting for his forrner employer to fulfil his obligation to provide suitable employment. The section is one of great difficulty which must give rise to many anomalies, but to deny its operation to a worker simply because he is earning some money is no solution of its problems and is unwarranted by its language." Giving effect to the natural and primary sense of the word in s 11(2). is the approach which the High Court also endorsed in Arnott Snack Products Pty Limited v Yacob (1985) 155 CLR 171, 179. The precise point raised in this appeal has not previously been determined. It was identified and reserved in Trass v Qantas Airways Limited [1976] 1 NSWLR 425, 436. Clearly, it is now too late to solve it by resurrecting the principle in Shoebridge and Chudleigh to which Egan J referred, as if in lament of their passing. That principle cannot stand with the essential reasoning of this Court, affirmed by the High Court in Pennell. It is plainly incompatible with the result of Pennell. It is also inconsistent with the approach adopted by this Court in Sydney City Council v Ince (1989) 16 NSWLR 690 and Cassidy v International Combustion Aust Limited (above). No application has been made to reargue the holdings in these decisions, to the extent that this Court could review them conformably with the decision of the High Court in Pennell. Accordingly, whilst the precise issue in this case has not previously presented itself for decision, the consistent application of legal principle since Pennell requires, on the findings recorded by Egan J, that the award of compensation under s11(2) be upheld. Once it was determined, as Egan J decided here, that the employer had failed to provide suitable employment to his injured worker during that worker's partial incapacity and that the worker had "at all times been ready, willing and able to undertake suitable employment" with the employment, the relevant requirements of s11(2) were made out. The worker was thus entitled to the compensation for which s11(2) provides. "Nutuality" prevents the worst anomalies There are now so many judicial comments on the difficulties and anomalies produced by s11(2) that it would be fruitless to add to the collection. See especially Owen J in Shoebridge (above) at 645. Before parting with this case, however, it is worth pointing out that the "clue" given by the High Court in Pennell remains the best means of preventing the worst anomalies which may be thought to derive from a worker's receiving compensation (as if totally incapacitated) continuing to receive wages and thereby deriving a total income greater than he would have received had no injury occurred. S11(2) makes no express mention of mutuality. Nor does it mention the worker's being "ready, willing and able" to perform light work if offered. As I have previously pointed out, the subsection, to the contrary, casts its primary obligations on the employer. See discussion Westfield Shopping Centre Management Co Pty Limited v Kassem (1985) 4 NSWLR 344, 350. See also Asciak v Australian Glass manufacturers Pty Limited (1964) 64 SR (NSW) 344, 351; 81 WN (NSW) Pt2,367,372. Nevertheless, as was explained in Pennell, the section necessarily imports the notion that the worker must be ready and willing to accept suitable employment when offered. Obviously, the mere fact that a worker gives evidence that he or she would accept such employment, if offered, is not conclusive of that factual issue. It remains, ultimately, for the judge of the Compensation Court to decide whether such a statement should be accepted. To 10 UNREPORTED JUDGMENTS the extent that the worker is engaged in remunerated activity which is stable and produces a weekly income approximating or surpassing that which would have been earned but for injury, the judge will be entitled to look with scepticism upon the assertion that the worker would abandon the post-injury employment actually secured and accept, if offered, the "suitable employment" with the employer with whom the worker was earlier injured. In this way the requirement of "mutuality" provides the answer to the most offensive possibilities cited by the employer in this case as spectres to be avoided. The injured labourer who goes on to be a computerist or a barrister with high earnings may assert that, if an offer had been made, he or she would have returned to suitable work with the former employer. But a judge would be entitled to treat such assertions with scepticism. To the extent that the judge is unconvinced, the court will conclude, as a matter of fact, that the worker was not ready, willing and able to accept suitable work if offered. That factual finding will put the worker outside entitlement to the benefits of s11(2). I recognise that "mutuality" is not a complete answer to the anomalies presented by s11(2). For example, there can be no real "mutuality" between a worker and an employer who has died, or, if a company, has been wound up or ceased to exist. The difficulty for the employer in this case was the finding of Egan J, in the face of the post-injury employment, that this worker did remain ready willing and able to accept employment with the appellant. In this Court the employer did not challenge that factual finding as unsupported by evidence. Whilst it stands, in this case as in Pennell the "vital question of fact" was resolved in a way which deprived the employer of the available means to escape the burdens of s11(2). I have a feeling that in this case, as was said in Pennell, that "vital question of fact" was allowed to "go by default on the original hearing" where the major attention appears to have been a doomed endeavour to return to Shoebridge and Chudleigh. Pennell in the High Court and this Court stood in the way of that endeavour. But Pennell emphasised, as I now do again, that the essential factual finding is a precondition to an award under s11(2). This "clue" provides a means to avoid the worst anomalies thrown up by cases such as this. Nor should it be concluded that the result reached here is necessarily anomalous, so that it could not have been intended by Parliament. The purpose of Parliament is to be found primarily in the statutory language. As Walsh JA said in this Court in Pennell (at 89): "The problem seems to be to come to this. One must take s11(2) as it is, and not seek to qualify it because of anomalies which may result from awarding compensation on the basis of total incapacity unless it is qualified (at 91). If the legislature has a different view on the matter in which it is desirable that that provision should operate, it can make such amendments as it considers to be appropriate." Whilst s11(1)(a) and s11(2) appear together in s11, they provide two different regimes for compensation. The regime provided in s 11(2) is one which has, as at least one of its apparent purposes, the encouragement of the rehabilitation of injured workers. The onus is therefore cast upon employers liable to pay compensation to such workers to provide them with suitable work. As an encouragement to such provision, s11(2) was enacted. Although the burden of paying compensation, in fact, usually falls upon the employer's insurer, the pressure of increasing premiums may have been thought sufficient to stimulate compliance with the subsection. \WEDRGE WESTON FOODS LIMITED T/AS TIP TOP BAKERIES v RANTINO (Meaghtt JA) If a partially incapacitated worker is in receipt of some income and it is contended that he or she is not truly "ready, willing and able" to accept suitable work if offered, the best way to put the worker to the test is for the employer to offer the worker suitable work. Doing so will achieve the purpose of s11(2). In cases where the worker's application is not genuine, the offer will expose that fact and deprive the worker of benefits under the section. See Electric Power Transmission Pty Limited v O'Urso (1970) 124 CLR 338, 341. It is true that, in this case, the worker recovers compensation which puts his total income some $60 per week over that which he would have been earning had he not been injured. However, the adoption of a strict mathematical "cap", as urged for the appellant, could also lead to anomalies. This possibly explain Parliament's refusal to provide a maximum under s11(2) where it so provided expressly under s9 and s11(1)(a). The facts of this case afford an illustration of this point. The worker did not simply sit back, relying on his entitlement to weekly compensation under s11(2). He went out and secured work suitable to his partial incapacity. At first, he did so with the assistance of the Department of Social Security. Thereafter, he did 80 on his own initiative. There will be cases where a skilled worker is able to earn (together with compensation) more than his but for injury earnings, but only at a price that he works extremely long hours (eg as a taxi driver). Or his post-injury employment may produce a higher wage but require the worker to travel daily very long distances at a high cost for transport which effectively leaves the worker in a disadvantageous nett financial position, even though the gross figures appear to result in a "profit". These instances simply illustrate once again the anomalies to which s11(2), as it has been interpreted, can give rise. The anomalies appear inherent in the process of "deeming" required by the section. In such circumstances, the only safe course to adopt in giving meaning to s11(2) is to adhere to settled legal authority. Such authority gives the subsection the meaning which its words apparently bear. It now does so without preconceptions about its perceived function in a compensation Act or its relation to s9 and s11(1)(a). Such an approach can be adopted mindful of the fact that real anomalies will be avoided, where appropriate, by a simple factual finding at trial that the "mutuality" necessary for the application of s11(2) was absent, as a matter of fact. If the judge of trial so determines, the worker will be confined to benefits under s11(1)(a). Conclusion and order Because Egan J concluded that this worker was ready, willing and able to accept suitable employment if offered by the employer, the result must follow that his Honour's award based on s11(2) contained no error of law. The appeal from that award must therefore be dismissed with costs. Meagher JA I also agree with Kirby P. Meagher JA I also agree with Kirby P. Appeal dismissed with costs. Counsel for the Appellant: AB Parker Counsel for the Respondent: JP Curtis / TM Rolls Solicitors for the Appellant: Curwood and Partners Solicitors for the Respondent: RF Giles Payne and Co