VAUGHAN L CHAPMAN (t/as GUNDOWDA GRAZING CO) v WEBB and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and SHELLER JJA 6 June 1995, 8 September 1995 [1995] NSWCA 72 Worker in primary industry — Successive employers — Full time worker — On return to work after cancer treatment only two days per week available — Subsequent total incapacity — Calculation of weekly payments Appeal from Compensation Court — Worker in primary industry — successive employers — Full time worker — Return to work after cancer treatment — Only two days per week work available — Subsequent total incapacity — Calculation of weekly compensation payments — Whether worker was, as on return to work, a "part time worker" for purposes of s36-s43 of Workers Compensation Act 1987 — Issues not fully litigated at trial — Returned to Compensation Court for further hearing. ORDERS Appeal upheld. Proceeding to be returned to the Compensation Court. The appellant-employer to pay, as agreed, the costs of the Forestry Commission of New South Wales. The first respondent-applicant to pay the appellant's costs of this appeal (not to include the costs payable by the appellant to the Forestry Commission) and to have a certificate under the Suitors Fund Act. Mahoney JA The applicant Mr Earle Arthur Webb has had a long history of work related injuries. By August 1991 he was, because of previous injuries, partially incapacitated. In August 1991 he suffered an injury to his back which, by 31 August 1991, rendered him totally incapacitated. He sought, inter alia, weekly compensation because of that total incapacity. On 19 November 1993 his Honour Judge Duck awarded the applicant, inter alia, weekly compensation from the relevant date in October 1991 to the date of the award and continuing. The employer, Mr Vaughan L Chapman, trading as Gundowda Grazing Company, has appealed against that award upon the ground that the weekly compensation has been wrongly calculated. The proceedings before the Compensation Court in which the applicant has been involved dealt with a number of matters other than the matter now in issue. Duck J, in his judgment, dealt with a number of matters in addition to the present matter. The appeal brought before this Court originally raised a number of those other issues. However, upon the hearing of the appeal, counsel have confined the matters in dispute to the basis on which the weekly compensation should properly have been assessed by the trial judge. I shall confine what I say to that matter. In order to understand the submissions it is necessary to refer in outline to some of the matters which occurred prior to August 1991. In 1975 the applicant Mr Webb commenced employment with Forestry Commission of New South Wales. Whilst in the employ of the Commission he suffered an injury to his neck and an aggravation of an underlying condition of 2 UNREPORTED JUDGMENTS his spine. As the result of what then and subsequently occurred and the treatment of his condition, he became partially incapacitated. His employment with the Commission was terminated in August 1988. By reason of that partial incapacity, the applicant was awarded weekly compensation. On 5 April 1990 Egan J made an award against the Commission based upon the injury of 16 October 1985 and the aggravation of his underlying condition which resulted from the nature and condition of his employment with the Commission. In October 1988, the applicant commenced employment with Mr Chapman. He was, notwithstanding his partial incapacity for work, able to perform the work which Mr Chapman required of him. However, in August 1990, he suffered a recurrence of a cancer of the bowel which first had manifested itself in 1980-1981. Because of that condition, he did not work between August 1990 and 30 April 1991. On 30 April 1991 he resumed work with Mr Chapman. When previously he had worked for Mr Chapman, he had, as I have indicated, a partial incapacity. He had problems with his left arm, a loss of power in both arms, a pain in his neck and other difficulties to which he referred. But his employment was a full-time employment. He was "on the property... on my own". A Mr Messner, who was managing a station called Gundowda Station at Hargraves, came to "have a run around the property' "once every three weeks or so, three to four weeks", for "an hour or two". But the applicant, Mr Webb, apparently did what was necessary "on that station-hand job". When the applicant returned to work on 30 April 1991, he worked, instead of a full week, only two days per week. He explained this as follows: "Q. I suppose in the country that is not so far, but now, when you came back to work in May 1991 there had been a change in your work, is that right. A. Yes. Q. How were you in relation to the bowel problems you had had. A. Well, I felt that I could carry on with the job and then when I was doing this fencing and I injured my back, well, I... Q. I will come to that in a moment. A. M'mm. Q. But I am just asking you about May 1991 and I am asking you just about the bowel problem. You said you felt you could carry on with the job. A. M'mm. Q. So far as that was concerned. A. M'mm Q. You went back on two days a week, why were your hours reduced to two days a week. A. Well, that's all the Gundowda station could afford to pay me. Q. Was it a similar type of work to that you had been doing when you had been working there full time. A. Yes. Q. Had they reduced the number of stock on the property. A. No, they hadn't but they had put the place on the market while I was in hospital having my operation. They'd split it up into farmlets. Q. Did you have any help when you came back at all. A. My younger son at that time when he was out of work he - odd times he would come down and give me a hand which may be only one day a week. Q. How did your arms and your neck go. A. That was the reason why I took him down there because I couldn't handle the heavy going, and he was out of work at the moment so he just came down to give me a hand. Q. Was he paid anything for giving you a hand. A. No. Q. The heavy going, what work are you talking about with the heavy going, just to make this quite clear, that you could not handle because of your neck and your arms at that stage. A. Well, he used to give me a hand to carry the bags of grain out or, say, the bales of hay up onto the back of the truck. WAWGHAN L CHAPMAN (t/as GUNDOWDA GRAZING CO) v WEBB and ANOR (Mahone$ JA) Q. There is a date for this, but you eventually finished up at the property, and I will come back to what you have said about your back, but you finished up at the property at about the end of October 1991, is that right. A. M'mm." In my opinion, when the applicant returned to work for Mr Chapman, he was prepared to work five days a week and would have carried out, in substance, the work that would have been had to be done by him. That work would, I think, have been similar to the work that he was carrying out, albeit partially incapacitated, prior to the recurrence of his cancer in August 1990. The reason why the applicant in fact worked only two days per week was, I infer, because, as he said, "that's all the Gundowda Station could afford to pay me". He did not work only two days per week because he desired or chose to work for only part of the week rather than the whole of the week. It was while he was so working that, because of what happened in August-October 1991, he became totally incapacitated. The contest between the parties has been whether the weekly compensation payments should be calculated upon the basis that the applicant was, as it has been put in argument, a full-time or only a part-time worker. It has been submitted for the employer Mr Chapman that, in the application of s36 et seq of the Workers Compensation Act, the applicant's compensation is to be calculated upon the basis that he was "a part-time worker" within provisions such as s42(4). The trial judge, in calculating the weekly compensation payable on the worker's total incapacity, adopted the rate of $310 per week. This was the rate at which compensation was payable pursuant to the award made by Egan J when, in 1990, he made an award of weekly compensation upon the basis of partial incapacity resulting from the injury or injuries suffered by the applicant whilst employed by the Commission. It was based on the earnings of a full-time worker. The trial judge said: "In this regard the figures in the parties wages schedules remain unexplained by the evidence although in fairness it may be said that the applicant's schedule sets out the thought processes by which the figures are derived. In the circumstances and in the absence of other evidence I propose to adopt the figure found by Egan J as the applicant's current weekly wage rate but for injury in his employment with the second respondent." In the end, no objection was, I think, pressed as to calculations made upon this basis if it were held that the worker was not a "part-time worker'. It has been accepted, presumably, that the weekly compensation initially payable under s36 and subsequently under s37 is to be calculated upon such a basis unless, because the worker is a part-time worker, his "average weekly earnings" are to be calculated in a different way. Counsel are agreed that there is no statutory definition of the term "part-time worker" or any cognate term. The meaning of the term has not been the subject of definitive determination by this Court. The meaning of the term was adverted to in, eg, Van Leer Australia Pty Ltd v Stephenson (Court of Appeal, 9 September 1994, unreported) but it is agreed that what was there said is not definitive of the meaning of it. Counsel are agreed that the Regulations made under the Act do not assist in this regard. The term is, in my opinion, intended to operate not by reference to a single factual situation but in the multiplicity of factual situations apt to arise for consideration under the Workers Compensation legislation. It is therefore not desirable that, by a formula of words, the Court attempt to mark out the boundaries of the term. It may be that, where the parties have by a written contract or otherwise, specifically defined the terms of the work to be undertaken 4 UNREPORTED JUDGMENTS but the worker is to work for but part of what is ordinarily his total working week or period, he will be, when working under that contract, a part-time worker. But, where the worker is ordinarily to work for the whole of his work period and, for a particular reason, he chances to work for a lesser period, it will not necessarily follow that he is, within the provision, a part-time worker. Difficulties will arise where, for example, the worker offers himself for work for the full working period and, for a special reason, the employer invites him to work at a particular time for a lesser period. In the present case, the rural property in question was sold or to be sold and the arrangement made with the applicant was made, in part at least, because of that. If this appeal were to be dealt with upon the basis merely of the evidence before this Court, the proper conclusion would be that, when he returned to work, the applicant was told by Mr Messner for the employer that he was to remain at work and be paid only for two days per week. The evidence-in-chief and in cross-examination suggests this. But I do not think that it is proper to determine this matter finally upon that basis. As I have indicated, the judge did not refer to the application of s42(4) or the significance of part-time employment in adopting "the figure found by Egan J as the applicant's current weekly wage rate". His Honour referred to "the absence of other evidence": it may be inferred that this was not an issue of substance before him. Mr King SC, for the respondent, in the course of argument, referred the Court to the provisions of s42 and s43 and the significance, eg, of the provision in s43(1)(a) that "average weekly earnings shall be computed in such manner as is best calculated to give the rate per week for which the worker was being remunerated...". Mr McGrowdie, for the employer, in his argument in reply referred to s43(1)(f). When referred by the Court to the significance of what had occurred when the applicant had returned to work in May 1991, he indicated that the case advanced for the applicant by Mr King SC had not been raised or pursued before the trial judge. If it had been an issue in the proceeding or been argued, he submitted, it might well have been that the evidence would have come out somewhat differently. The evidence was not, he submitted, directed "towards those relevant issues". It is, of course, desirable that a matter of this kind be disposed of without a succession of hearings. What is now left to be decided is merely the weekly compensation entitlement of the applicant. The amounts involved are, on a weekly basis, not large. But I have with reluctance come to the conclusion that the matter must be returned to the Compensation Court for a rehearing. I do not think it right to deprive the applicant, now totally incapacitated, of the weekly compensation awarded by Duck J without a careful examination of his entitlements under the legislation. It may well be that, to deal with these matters, additional evidence is required. At least, attention should be directed by the parties to the specific matters to be dealt with under, inter alia, s42 and s43. For these reasons, I am opinion that the appeal should be upheld. The proceeding should be returned to the Compensation Court to be determined in accordance with law. The parties should have such rights in respect of evidence and further evidence as to the Court may appear appropriate. The appellant employer should, as agreed, pay the costs of the Commission of this appeal. The applicant should pay the employer's costs of this appeal (not to include the costs payable by the employer to the Commission) and should have a certificate under the Suitors Fund Act. WAWGHAN L CHAPMAN (tas GUNDOWDA GRAZING CO) v WEBB and ANOR (Shelleés JA) Priestley JA I agree with Mahoney JA. Sheller JA I agree with Mahoney JA. Appeal upheld. Proceeding to be returned to the Compensation Court. The appellant-employer to pay, as agreed, the costs of the Forestry Commission of New South Wales. The first respondent-applicant to pay the appellant's costs of this appeal (not to include the costs payable by the appellant to the Forestry Commission) and to have a certificate under the Suitors Fund Act. COUNSEL: Appellant: MJ McGrowdie Respondent (1): L King SC/SG Campbell Respondent (2): DGT Nock SOLICITORS: Appellant: AO Ellison and Co Respondent (1): Kenny Spring Respondent (2): Hunt and Hunt