NEW SOUTH WALES HARNESS RACING CLUB LTD v FORREST SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and POWELL JJA 9 June 1995, 1 September 1995. [1995] NSWCA 313 Appeal from Compensation Court — Harness racing — Driver injured in accident during race — Deemed employee — Assessment of weekly compensation: s40, Workers Compensation Act 1987 — Whether "uninjured earnings" to be calculated by reference to actual or comparable employment — "Injured earnings'calculated by reference to State Award for workers in racing industry — Deduction for amounts actually earned. ORDERS Appeal dismissed, subject to adjustment of calculations. Short minutes to be prepared. Appellant to pay the respondent two-thirds of the costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act. Mahoney JA Miss Joanne Lee Forrest, the applicant, was injured on 31 August 1990 whilst driving a horse in a harness race. She was, it is accepted, a deemed employee of the New South Wales Harness Racing Club Ltd ("the Club"). She has been partially incapacitated because of the injury suffered by her and has claimed compensation from the Club under the Workers Compensation Act 1987. Her claim was heard by his Honour Judge Davidson of the Compensation Court. There was, at the hearing, a contest as to the incapacity which she claimed to have suffered. His Honour concluded that she had suffered and continues to suffer "partial incapacity as the result of her injury to the low back, to her neck and to her left upper limb". That incapacity is not now in question. The trial judge made an award of, inter alia, weekly compensation for various periods commencing on 15 October 1990 and continuing. Subject to adjustment in respect of one period (the details of which are not now relevant) his Honour awarded weekly compensation at the rate of $185 per week from 15 October 1990 to the date of the judgment and continuing. It is the amount of the weekly payments which is alone now in question. Mr Deakin QC, for the appellant Club, submitted that his Honour had erred in the calculation of the weekly compensation. He submitted that he had erred both in the determination of (as I shall describe it) her uninjured earnings and in the calculation of (as I shall describe it) her injured earnings. 1. UNINJURED EARNINGS: Stated in general terms, it was necessary for the trial judge to determine what, uninjured, the plaintiff would probably have been earning. In the circumstances of this case, this was a difficult task. The applicant had been involved with horses: she said, "... that's all I know is horses". When she "got old enough I got interested in the trotters and went for my licence'. She drove her father's trotting horses and trained and cared for them. When she was about seventeen or eighteen years of age, she received offers from other horse owners "to drive their rigs" and 2 UNREPORTED JUDGMENTS it was that which she was doing when she was injured. But she was doing that only for a "short time": she said, "I only just started to get going and then I had the accident". She gave evidence of the earnings from such an activity. As a driver she would apparently receive five per cent of the winning prize money and, if she trained the horse, another five per cent. The prize money varied from about $2500 to about $8000. She said, "... I only just started out in the business just before I had the accident so at that point of time I wasn't really making anything because I only just started". At the time of the accident she was she said, "getting $200 a week and most of that was getting spent on the horses". As I have indicated, to infer from the evidence what, uninjured, she would have been earning at the date of the trial, namely, in June 1994, was difficult. His Honour concluded that "she was a trainer/driver of trotters". But what she would have earned in that capacity following her injury on 31 August 1990 and until June 1994 was quite uncertain. What the judge did was to conclude that the best or appropriate measure of her uninjured earnings was the award wage established for (as it was described in the award) a "'stablehand/rider". His Honour had before him the terms of the Strapper and Stablehands (State) Award. That award provided for, inter alia, two categories: Adult Stablehand and Stablehand/Rider. His Honour said: "Whilst there may have been more satisfactory evidence on this aspect, such as the winnings and earnings of a comparable person of her age and experience since the date of the injury to the present time, made available to more precisely find the comparable earnings, I have in this instance included that recourse should be had to the occupation of stablehand/rider, which is provided in Exhibit On that basis, his Honour found the uninjured earnings to be $360.30. Mr Deakin QC, for the Club, submitted that his Honour's approach was the wrong approach. His submissions were phrased in various ways but the thrust of them was, I think, that the applicant, uninjured, would not have worked as a stablehand/rider or been paid the rate provided by the award for such a worker. She would have continued what she had started out to do, namely, to train and drive horses with a view to earning prize money, percentages, and the like. The thrust of the submissions was that the only evidence as to income from such activities disclose that she was deriving about $200 per week but was spending that upon the horses with which she was associated. Accordingly, the submission suggested, the judge should have found that her uninjured earnings would have been of such small dimensions. Mr Deakin stressed that s40 of the Workers Compensation Act 1987 requires such an assessment to be made by reference in substance to the weekly amount which the applicant would have earned in the same employment as she was engaged in or some comparable employment. His submission suggested, I think, that there was, in circumstances such as the present, no reason to go beyond the earnings which she would have derived in "the same" employment as that in which she was deemed to be at the date of the accident. There is, in my opinion, substantial force in this submission in the sense that, as a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment. But that principle, to the extent that it is accepted, does not require that in every case the court must confine its attention to the same UR.NEW SOUTH WALES HARNESS RACING CLUB LTD v FORREST (Mahoney JA) 3 employment as that in which uninjured the applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment. The issue in the present case is, I think, whether on the evidence the judge was right to make his assessment by reference to the comparable employment of stablehand/rider. This Court must, on a rehearing, consider that question. The question is made more difficult because, as I infer, little or no attention was paid to it during the hearing. I do not mean by this that in the course of the hearing reference was not or may not have been made to the distinction between actual and comparable earnings or employments. But, in the evidence, there appears to have been little or no attention paid to the factual considerations which would enable the judge, or this Court, to determine what course should be taken. As I have indicated, the plaintiff had had only shortly before the accident come into "the industry". She had been training and caring for her father's trotters and had started "getting offers from other horse owners to drive their rigs". The result had been that, net, her earnings had been little or nothing. It is open to inference that, if that position had continued, she would have had to take employment. If she had taken employment, the selection of the category "stablehand/rider" was an appropriate one to adopt. But little or no attention appears to have been directed at the trial to ascertaining what in fact she would have done. The question of whether her record would have improved or her earnings increased was not pursued at length; she was not, I think, asked to consider how long she would have continued as at the date of the accident had her record or earnings not improved; nor was she asked to determine definitively what she would have done and whether, for example, she would have taken employment. The trial judge did not explain the reasoning which led him to deal with the matter on the basis that he did, namely, that her earnings would probably have been that of a stablehand/rider. I am inclined to think that his Honour, in the absence of "more satisfactory evidence" upon these matters, saw the probabilities to be that her income uninjured would have been that earned by a stablehand/rider. In the end, I am not satisfied that she would have continued for an indefinite time earning no income. I think she would have taken appropriate employment associated with horses. The only employment appropriate for this purpose was, I think, that selected by the judge. I see no error in what his Honour did. No attention was directed to the period during which, uninjured, she would have continued to train and drive horses as she had done. The judge awarded weekly compensation payments from 15 October 1990, about six weeks after the date of her injury. It may be that she would have continued as a trainer/driver for a longer period. But in the absence of any consideration of this aspect of the matter upon a factual basis before the judge, I do not think that it is appropriate to speculate or to interfere upon what, in any event, would be a minor matter. 2. INJURED EARNINGS: His Honour concluded that a suitable employment for her was that of "adult stablehand" and measured her injured earnings accordingly. The evidence disclosed that, injured, the applicant had real disabilities and her partial incapacity made her unfit for various kinds of work. She had tried work testing wool, as a kitchenhand, as a barperson and stocking confectionary displays. She worked for a time with a friend in a food business doing catering. In each of these her physical injuries caused difficulties and she ceased these employments. 4 UNREPORTED JUDGMENTS The evidence showed that she had, thereafter, done some driving of horses: details were obtained of the races in which she had driven. The judge took into account what was said in this regard. He concluded that because each race "only lasted three minutes" the physical activity was less than was required in various forms of employment. In the end, he concluded that the employment which was "suitable" was that to which I have referred, an adult stablehand of some five years experience. I see no error in the judge's conclusion in this regard. It is, in my opinion, the proper conclusion. Mr Deakin QC then pointed to the fact that for brief periods since the accident, the applicant had been in employment and consequently had earned wages. Apart from the period 23 August 1992 to 29 November 1992, no adjustment had been made to take account of the earnings actually derived: apart from that period, compensation was awarded at the rate of $185 per week from 15 October 1990 to 30 November 1992 and continuing. He pointed to the fact that there was evidence of the earnings of the applicant during the relevant periods and submitted that appropriate deductions should be made. It does not appear what attention was directed to this question at the trial. A wage schedule was provided at least by the applicant but whether that schedule was in evidence does not appear clearly from the evidence. Reference was made in argument to the schedule appearing on p 75 of the appeal papers and to the discussions recorded in the transcript between his Honour and Mr Evans of counsel. There appears to be little or no evidence as to her earnings as a wool tester (15 October 1990 - 16 October 1991). As a kitchenhand between 16 October 1991 and 15 March 1992, it was suggested she earned $105 per week. Between the 23 August and 29 November 1992 she acted as a barperson in a hotel and, it was said, earned $290 per week. And between 31 August and 20 December 1993, as a confectionary worker, she was said to earn about $135 per week. In catering work in which she was engaged after December 1993, it was said that she earned about $90 per week. Reference was made in passing to the provisions of s42(1) and in particular s42(1)(d). I do not think that those provisions, insofar as they are relevant, determine the present case. In my opinion the Club was entitled to claim an appropriate deduction in respect of the amounts actually earned by the applicant during these periods. In the absence of more detailed evidence (there was some evidence in the oral examination of the applicant; the relationship between this and the wage schedule has been contested) I am of opinion that the Club's entitlement is to deduct amounts calculated by reference to the amounts to which I have referred and the periods to which I have referred. No other adjustment is required. In my opinion, therefore, the appeal should be upheld only to the extent that it is necessary to adjust the amount of the weekly payments to take account of the amounts actually earned by the applicant during the periods to which I have referred. Apart from that, the appeal should be dismissed. Having regard to the limited extent to which the appeal has succeeded, I am of opinion that the costs of the appeal should be paid as follows: the appellant should pay the respondent/applicant two-thirds of the costs of the appeal. The appellant should, if entitled, have a certificate under the Suitors Fund Act. URJ NEW SOUTH WALES HARNESS RACING CLUB LTD v FORREST (Powell JA) 5 The appellant should bring in short minutes of the orders necessary to give effect to the conclusions set forth in this judgment. The short minutes should be brought in within fourteen days from the date on which the judgment is delivered. If, as is to be anticipated, the parties are agreed as to the amount for which the Club is entitled to credit in respect of the matters to which I have referred, the short minutes may be prepared as a consent order and the orders to dispose of this appeal may be made in chambers and without the necessity of a further appearance before the Court. If the form of the short minutes are not agreed, the matter should be relisted for argument before the Court on an appropriate date. Priestley JA I agree with Mahoney JA, for the reasons given by him, that the appellant is entitled to have the amount of the weekly payments adjusted to take account of the amounts actually earned by the worker during the relevant periods. I also agree that there is no ground for otherwise interfering with any of the trial judge's orders. I agree with the orders proposed by Mahoney JA. Powell JA I agree with Mahoney JA. Appeal dismissed, subject to adjustment of calculations. Short minutes to be prepared. Appellant to pay the respondent two-thirds of the costs of the appeal and, if entitled, to have a certificate under the Suitors Fund Act. COUNSEL: Appellant: PJ DEAKIN QC/P EVANS Respondent: JH LICHTENBERGER SOLICITORS: Appellant: EDWARDS JOHNSTONE SULLIVAN Respondent: JOHN C MACKEY and CO