WHITTAKER v FLYNN (T/as FLYNN'S SILK STORE) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY,CLARKE and SHELLER JJA 9 August 1995, 22 August 1995 [1995] NSWCA 513 WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE FACTS The appellant sought an award for partial incapacity but her claim was rejected. Although the judge found that the appellant was still partially incapacity, the judge found that she had not suffered any economic loss from that incapacity. The appellant had worked at Fair Dinkum Bargains after her services had been terminated with the respondent at a higher rate of remuneration. The appellant does not challenge any of the trial judge's findings of fact. Held (per Clarke JA; Mahoney and Sheller JJA agreeing) In my opinion the acceptance of his Honour's factual findings is, in the light of the evidence, fatal to the appeal. His Honour's finding that the appellant could still earn in the vicinity of what she was earning at Fair Dinkum Bargains was a conclusion well open to his Honour and the appellant was unable to show that there was any basis upon which this Court could interfere with it. ORDERS Appeal is dismissed with costs. Mahoney AP The facts are stated in the judgment of Clarke JA which I have had the advantage of reading. Mr Poulos QC, for the appellant worker, accepted that the findings of fact made by the trial judge were correct except his conclusion that "she could still earn in the vicinity of what she was earning at Fair Dinkum Bargains". His submission as to facts has been that, although the findings of fact are correct, his Honour did not make all of the findings of fact which he should have made. Upon this basis, I am of opinion that the appeal should be dismissed. The worker suffered an injury on 2 February 1989 and thereafter she remained relevantly incapacitated for work. His Honour so found and, I think, her partial incapacity has not been contested by Mr Deakin QC, for the respondent employer. Accordingly, the worker is entitled to such weekly compensation payments as s40 of the Workers Compensation Act 1987 provides. The employer's submission has been that, in the circumstances of the case, no such payments may be made. Over-simplified, s40 provides that (as far as is here relevant) weekly compensation payments are to be assessed by reference, in the first instance, to the difference between what uninjured she would probably have been earning and what in her injured state she is earning or is capable of earning in relevant employment. The employer's submission was that although she was not actually earning at the time of the hearing, she was capable of earning an amount in excess of what uninjured she probably would have been earning. His Honour accepted that submission. He said: "T am satisfied the applicant is still partially incapacitated. The wage schedule tendered reveals she was earning far more when she worked at Fair Dinkum Bargains that (sic) she was earning when she was employed by the respondent. 2 UNREPORTED JUDGMENTS In those circumstances I have no alternative but to make an award for the respondent on the ground that the applicant has no economic loss whatsoever and I am satisfied she could still earn in the vicinity of what she was earning at Fair Dinkum Bargains." Mr Poulos QC submitted that it was wrong for his Honour to say that he had "no alternative but to make an award for the respondent..." and that the use of that use of that language indicated his Honour had not applied his mind to the correct question. The use of phrases such as "T have no alternative" and the like can lead to the misunderstanding of what a judge intends; Mr Poulos's submissions have correctly pointed to this. I am satisfied that his Honour meant, not that there was in law no alternative, but that in the circumstances it was plain that an award for the respondent should be made. But however that be, this Court may, as on a rehearing, make such findings and such order as is appropriate in the circumstances. The phraseology used by the judge does not require that the appeal be upheld. Mr Poulos's substantial submission was to the effect that his Honour was wrong in concluding that the worker was at the time of the hearing able to earn at the rate of remuneration derived by her when working for Fair Dinkum Bargains. It was that question which was at the heart of his Honour's determination. In my opinion his Honour's conclusion in that regard was right. She had been dismissed from her employment with the respondent employer on or about 19 September 1989. In the beginning of November 1989 she commenced to work with Fair Dinkum Bargains as a "store manageress". As his Honour found, "her duties included paying the wages and keeping the books and looking after the registers and staff'. She remained in that position until 14 January 1990. She did not leave because of matters related to her incapacity. His Honour found, in my opinion correctly, that her employment was terminated because her employer, Dr Johnson, "had found out the applicant had a claim for workers compensation against her previous employer" and that he "did not want any claim against him for workers compensation". His Honour inferred, I think, that had she not been dismissed for that reason, she would have worked and been able to work with that organisation as store manageress for an indefinite period. At least, the circumstances of that employment indicated that she was able to perform the duties of that position. Accordingly, she had a capacity to do work which would provide for her an income in excess of that which probably she would have earned in ha employment with the respondent employer. The employment was, in the sense here relevant, employment which was within the range of employment she could be expected to undertake. Therefore, prima facie, his Honour's conclusion was right. Mr Poulos submitted that his Honour should have found that, having been dismissed from that employment, she had been unable to find other employment and that her condition had so deteriorated in the meantime that she would not be able to perform that work. At least, that was suggested by the submissions made. Had the evidence disclosed that, since she left Fair Dinkum Bargains in January 1990, there had been such a deterioration in her capacity that she would not have been able to work as a store manageress or the like, it would have been necessary to consider the effect of that upon the order to be made. However, his Honour held that, at the date of the trial. "she could still earn in the vicinity of what she was earning at Fair Dinkum Bargains". The medical evidence referred URJ WHITTAKER v FLYNN (T/as FLYNN'S SILK STORE) (Clarke JA) 3 to in the judge's judgment supported that finding. Dr Graham said, as his Honour recorded, that her condition "might show a disc lesion" in the lower cervical spine and capsulitis of the shoulder. It was, the doctor said, "quite a real condition which is painful" but he opined that it was one which "usually disappears". As the judge noted, he said "it can take up to three years". The injury was suffered on 2 February 1989. The judgment given by the judge was given on 15 December 1992. His Honour could conclude on that evidence that at the time of the judgment her capacity was no less than it had been in January 1990; that finding was, I think, correct. For these reasons I am of opinion that the appeal should be dismissed with costs. Clarke JA Beverley Whittaker (the appellant) commenced employment with Flynn's Silk Store (the respondent) in 1986 as a sales assistant. In that work she served customers, obtained stock and arranged it on shelves. In performing this work she was obliged on occasions to climb ladders. On 2 February 1989 she fell from a ladder and was injured. She was off work for three weeks during which she was paid workers compensation. After that period she returned to her normal work but she said that she could not thereafter climb ladders. She had continuing pain in her right shoulder and neck. In July 1989 she was moved from the wool section of the store to the materials section in which, she said, she was obliged to perform heavier work. In particular she rolled material, lifted rolls of material, measured material on the rolls and she also had to stack shelves. She found that this work hurt her neck and right shoulder. In August 1989 her doctor, Dr Keegan gave her a certificate for light work but when she gave this certificate to her employer on 19 September 1989 she was informed that there was no light work available and her services were terminated. She was off work for several weeks but in the beginning of November 1989 she obtained employment in another store known as Fair Dinkum Bargains. She was employed as store manageress in which capacity she paid the wages, kept the books and looked after the registers and staff. She remained in that position until 14 January 1990 when she was sacked. There was a dispute at the trial as to the reason for her dismissal but the trial judge accepted the appellant's evidence and found that her employer had sacked her because he had learnt that she had had a claim for workers compensation against her previous employer. She has not worked since January 1990. She sought an award in respect of partial incapacity but Thompson CCJ rejected her claim. The trial judge considered the medical evidence and concluded that the appellant was still partially incapacitated at the time of trial and that she did have pain in the shoulders, neck and back. He also indicated his preference for the evidence of Dr Graham who had been called by the appellant. In the concluding paragraph of his judgment the judge said: "T am satisfied the applicant is still partially incapacitated. The wage schedule tendered reveals that she was earning far more when she worked at Fair Dinkum Bargains than she was earning when she was employed by the respondent. In those circumstances I have no alternative but to make an award for the respondent on the ground that the applicant has no economic loss whatsoever and I am satisfied that she could still earn in the vicinity of what she was earning at Fair Dinkum Bargains." The only evidence of earnings which was tendered was the appellant's wages schedule in which it was stated that during her employment with the respondent she was paid $290.90 per week and during her employment with Fair Dinkum 4 UNREPORTED JUDGMENTS Bargains she was paid $400 per week. It was said that following that employment she had not earned any wages and that, if uninjured, she could probably have earned $400 per week. Initially senior counsel for the appellant, Mr Poulos, said that none of the trial judge's findings were challenged and that the ground of appeal on which he relied in substance was a ground in which it was asserted that his Honour erred in failing to take into account sufficiently, or at all, the fact that the applicant's (ie the appellant's) employment with the subsequent employer ceased to be available to the applicant during the later period of the applicant's incapacity. The same approach is evident in the short written submissions of the appellant in which para3 and para4 read: "3. Simply, the Appellant does not challenge any finding of fact but contends that those findings of fact have entitled the worker to an award pursuant to the provisions of s40 and/or s38. 4. Post January 1989 (sic) the worker's rights to compensation are plainly evident. Arnotts Snack Foods v Yacob (1985) 155 CLR 171." In my opinion, contrary to those submissions, the findings of fact did support his Honour's award. His concluding words were that he was satisfied that the appellant could still earn in the vicinity of what she had been earning at Fair Dinkum Bargains and on that basis found that she had no economic loss. When confronted with this problem during the hearing of the appeal Mr Poulos shifted ground and sought to challenge the finding which I have just expressed. He contended that his Honour had failed to consider each of the steps which fell to be taken into account under s40 of the Workers Compensation Act 1987 (the Act). If, according to the argument, his Honour had considered s40 and had paid regard to those steps he would first have considered what the appellant probably would have earned if uninjured. Secondly, the appellant not having earned anything he would then have considered what the appellant was capable of earning in her injured condition in some suitable employment. In considering the second question it was necessary for his Honour to have regard to Regl0AA of the Workers Compensation (General) Regulations 1987 and in particular subReg(d) and subReg(e) which read: "Guidelines for assessments under s40 of ability to earn 10AA For the purposes of s40(8) of the Act, the following guidelines are prescribed in respect of any assessment of a partially incapacitated worker's ability to earn in some suitable employment: (d) in the assessment, regard is not to be had to any limitation, because of changes in economic conditions from time to time, in the actual availability of suitable employment (but that employment should be within the general labour market reasonably accessible to the worker concerned); (e) employment of a kind which (because of the general level of its availability on the labour market referred to in para(d)) is more likely to be available to a person in the worker's circumstances is to be given more weight in the assessment than employment of a kind which is less likely to be so available;" His Honour was obliged to consider subReg(d), according to Mr Poulos, because there was evidence that the appellant had sought employment since leaving Fair Dinkum Bargains and had been unable to find it. For my part I have some difficulty in seeing how Reg10AA(d) assists the appellant in this case. The instruction contained in that sub-regulation is that the court should disregard difficulties in obtaining employment consequent upon changes in economic conditions. The evidence in this case is silent on the question whether the URJ WHITTAKER v FLYNN (T/as FLYNN'S SILK STORE) (Sheller JA) 5 appellant's difficulties arose from her partially disabled condition or whether, in the economic conditions prevailing there simply was no employment for her. The evidence concerning the appellant's attempts to obtain employment were, I regret to say, quite unsatisfactory and did not assist his Honour in determining what the appellant was able to earn in suitable employment. It is readily apparent that his Honour considered that the best evidence available on the question of the appellant's ability to earn was the evidence relating to her employment with Fair Dinkum Bargains. She was then in her injured state and had managed to earn more than she was earning prior to her injury. That evidence provided some material upon which his Honour could conclude that despite her injuries she remained able to earn as much as she could if uninjured. It is true that the appellant said that her condition had deteriorated since her employment with Fair Dinkum Bargains but his Honour was aware of that and there was nothing in the evidence accepted by his Honour which suggested that the deterioration was so great that she would have been unable to perform the work of a manageress at Fair Dinkum Bargains if she had been offered that job again. In my opinion the acceptance of his Honour's factual findings is, in the light of the evidence, fatal to the appeal. Further, although Mr Poulos belatedly challenged the ultimate finding of fad (ie that the appellant could still earn in the vicinity of what she was earning at Fair Dinkum Bargains) he was unable to point to any finding which was inconsistent with it or to any evidence which compelled a contrary finding. In my opinion that conclusion was well open to his Honour and the appellant was unable to show that there was any basis upon which this Court could interfere with it. The alternative submission that his Honour did not separately deal with each of the limbs of s40(2) while possibly technically correct, in my opinion, has no substance. It is clear beyond argument that his Honour's finding was that the appellant had failed to show that in her injured condition she was unable to earn in suitable employment as much as she would have been earning in employment of the nature in which she was engaged at the time of sustaining injury. As I have said the findings of fact made by his Honour were open to him and I am unable to see ane around, in the way that the case was argued, for interfering with the judgment. In my opinion the appeal should be dismissed with costs. Sheller JA I agree with Clarke JA. Appeal is dismissed with costs. COUNSEL: Appellant: J POULOS QC AND RI GOODRIDGE Respondent: PJ DEAKIN QC AND SW HICKEY SOLICITORS: Appellant: STACKS Respondent: LYONS BARNETT KENNEDY