COB SUPPLY CO PTY LTD v GIBSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, COLE and BEAZLEY JJA 28 November 1996, 28 November 1996 [1996] NSWCA 107 Workers' Compensation — S11(1) Workers Compensation Act 1926 — Process of assessment to be undertaken by trial judge — Multiple by trail judge — multiple earnings from concurrent employers — worker's earnings from rugby league. Clarke JA Mr Kerry Gibson, the respondent, was injured while working for the COB Supply Company Pty Ltd, the appellant, during the course of his employment on 12 December 1980. He received a fairly serious injury to his lower back which left a disability which extended over many years. That disability flowed from what his Honour accepted was a subluxation of the sacroiliac joint. The injury happened just prior to Christmas, as I have pointed out, but in the winter of each of the preceding years the respondent had played Rugby League and earned $1500 on each of those years for playing that game. He played with the Clarence River District Club. He was paid workers' compensation in respect of the months leading up to October 1981, but then his compensation payments were terminated. He brought a claim for further compensation upon the basis that he was suffering from partial incapacity. He based his claim on two heads. First, he said that he was not able to earn as much as he otherwise would in his ordinary employment as a picker or casual labourer working for the appellant. Secondly, he said that as a consequence of the injury he was partially incapacitated for playing Rugby League and therefore was unable to earn as much as he otherwise would have in that sport. His Honour rejected the first basis of the claim but upheld the second. In his judgment his Honour identified the issues which were contested in these terms. 1. What was the nature of the injury received; 2. What effect has it on the applicant's earning capacity; and, in particular, 3. What were the probable earnings of the applicant from Rugby League but for the injury; and 4. What was the applicant able to earn from Rugby League. It is apparent from his Honour's judgment that he resolved the issue of the nature of the injury. In respect of the second issue he determined that the respondent's back disability meant that he was less able to perform the training which was required of first class Rugby League players and he was not as mobile as he had been. In broad terms what was said was that his fitness did not reach the high standards demanded of first grade Rugby League players, and the reason for his inability to reach that level of fitness was his disability. His Honour accepted that claim. His Honour considered the question of the probable earnings of the respondent from Rugby League but for the injury in terms which indicate to me that that was the major issue and it was one to which I will return in a moment. 2 UNREPORTED JUDGMENTS The fourth issue was concerned with what the respondent was able to earn from Rugby League. That was covered by a schedule that was tendered in evidence by the respondent and which indicated that in the years following 1980 he earned initially no more than $300, but that in 1986 and 1987 his earnings went up to $10,000 when he played a season of football in France. That evidence was, however, supplemented by evidence from the Western Suburbs District Rugby League Club which showed that the respondent earned $455 in 1983 and $28 in 1984. There was argument, to which I will return, that his Honour did not take account of his actual capacity to earn from Rugby League in his injured state, but it must be said that no attack was made on the respondent's evidence to the effect that he earned all he could. It was not, for instance, suggested in cross-examination that he had not been trying hard enough or that he could have earned more money. His Honour concluded that were it not for the accident, the respondent would have become a first grade player, probably with Western Suburbs District Rugby League Club, and that in that position he would have earned around $40,000 per year. Accordingly he determined to allow the claim for a closed period, being the period during which, in his Honour's view, the respondent would have played first grade Rugby League if he had not been injured. That closed period was between 28 October 1981 and 30 September 1984. Having regard to the fact that the respondent earned relatively small amounts during that period from Rugby League and that if uninjured he would, according to his Honour's findings, have earned around $40,000 per annum, his Honour concluded that it was appropriate to make a full award in his favour. In that respect it is relevant to note that a full award between 1981 and 1984 rose from $107.50 to $145 per week. It is readily apparent that the difference between the moneys he would otherwise have earned and those which he did earn was far greater than the amounts actually awarded. The appellant has challenged the finding and raised three grounds. The first ground is that his Honour erred in the application of s11(1) of the Workers' Compensation Act 1926. That section has been considered in a number of cases and the court has been specifically referred to Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530. The appellant contends that while it is permissible to take account of earnings from sources other than that in which the worker was employed at the time he received his injury, the Court is restricted to taking account only of earnings from other occupations in which the respondent is at the time of injury a worker or under contract. The submission was in this case that the respondent was not at the time of injury a worker in Rugby League, he was not in employment in Rugby League, he was not in receipt of remuneration in Rugby League and he was not under any contract which required an employer to pay him to play Rugby League. Accordingly, it was submitted that no matter how liberally one construed s11(1)(a), there was simply no evidentiary basis on which the aspect of Rugby League could be taken into account. There are many difficulties with the submission. The first and foremost difficulty is that it was taken for the first time at this Court. It was contended by counsel for the appellant that the Court should permit it to be taken for it raised a stark point of law and the authorities were in favour of allowing points of that nature to be taken for the first time in an appellate Court. I would agree that the courts do in general allow points of law to be raised on appeal, although not raised at first instance. URJ COB SUPPLY CO PTY LTD v GIBSON (Clarke JA) 3 The difficulty in this case is that the point involves a consideration of a large number of facts, the first fact being whether the respondent had been under contract in 1980 to play Rugby League, the second the nature of any contract in existence and the third the nature of his relationship with the body which paid him to play Rugby League. The fourth is the nature of his relationship with the Western Suburbs District Rugby League Club, which his Honour accepted had invited the respondent to trial with it with a view to entering into a contract. None of these issues were explored in the evidence. That is explicable, because the question now raised was not in issue. It was not raised as an issue in the pleadings and was not, so far as I can tell, raised in issue in any way during the course of the hearing. Accordingly, as it seems to me, this Court cannot say that evidence was not possibly relevant on the issue and that that evidence could not have been led at the trial if the issue had been taken, and in those circumstances the authorities oblige the Court to decline to entertain the point. I accordingly decline leave to the appellant to raise the point in this Court. I would, however, add that I doubt that the strict interpretation that the appellant seeks to place on s11(1) is in accordance with the line of authorities which enabled the Courts to take into account multiple earnings received from concurrent employers. The second point taken was that in any event the trial judge had failed to carry out the process of assessment under s11(1) step-by-step as required by the authorities. I would accept immediately that the authorities have identified variously three or five steps which are required to be followed in the process. That does not, however, mean that in every case and despite the issues contested by the parties the judge must carry out the vacuous exercise of making express findings on matters which clearly are not in issue. Matters can be taken to be accepted by the parties, and in those circumstances it would be unnecessary, in my opinion, for a judge to point out expressly that the parties had accepted a particular fact or to make a finding in the presence of such an acceptance. There will be cases, there have been in the past, where a failure to follow a step-by-step process has resulted in judicial error. But unless it can be shown that a judge has failed to address the questions litigated before him or her in an appropriate manner and without error, it does not seem to me to matter that the judge has not formally followed a regime of listing each of the steps and providing an answer at each stage. This view is, I think, in accordance with that expressed by the Court in Lovett Building Com Pty Ltd v Bums (1992) 29 NSWLR 475. In my opinion the critical issue in this case was what the respondent would have earned playing Rugby League if uninjured. There is no doubt that his Honour addressed that issue in sufficient detail. It is said, however, that he did not address an equally important question, and that is what he was able to earn playing Rugby League in his injured condition. It was submitted that it is necessary to make a formal finding on that aspect of the matter in order to enable the Court to reach a final and appropriate conclusion. The difficulty with this submission is that there does not seem to have been any issue as to what he could earn playing Rugby League. In other words, it does not seem to have been suggested that he could have earned any more than he in fact did earn. Having regard to the very great difference between what he did earn and what in his Honour's view he would have been able to earn if uninjured, it is perfectly explicable that his Honour did not go through the exercise of saying that he was of opinion that he would earn what he had been demonstrated to have earned, and I am quite unpersuaded that any error has been shown because of his Honour's not following the stage-by-stage approach which has been urged upon this Court. 4 UNREPORTED JUDGMENTS The third error suggested is that his Honour was wrong to find a hypothetical capacity to earn about $40,000 per year. In this respect the Court was taken to a portion of the judgment where his Honour referred to the evidence of a Mr Prenter who said that in the 1980s a contract to play first grade Rugby League would have been worth about $40,000 a year. Counsel then mace an illogical leap into asserting that his Honour accepted everything that Mr Prenter had said and in these circumstances directed the Court's attention to statements made by Mr Prenter which cast considerable doubt on the likelihood that the respondent would ever have played first grade Rugby League. The difficulty with the submission is that in reaching his conclusion that the respondent would have played first grade Rugby League, his Honour expressly adverted to the whole of the evidence, including many glowing tributes from other professional footballers, and he did not express any acceptance of Mr Prenter's rather sceptical views. If one has regard to those glowing tributes one finds that they extend from coaches to managers to players, including such well-known players as Mr Terry Lamb. Those players all speak of the respondent's great ability at Rugby League and of the likelihood that he would have played first grade if uninjured. They also make a point, which seems to me to have weight and to have provided an inducement for clubs to select him to play first grade if he was up to standard, and that is the fact that as a one-armed Rugby League player he was a significant drawcard for crowds. It may be that if I had been judging this case at first instance I would not have made the same finding that his Honour did, but on the facts led before the Court, I am quite unable to find any error in his Honour's conclusion. It was well and truly open to him in the light of, the competing evidence, and I can find no basis on which this Court should interfere with that finding. In all of these circumstances it follows that the appeal should be dismissed. Cole JA I agree. Beazley JA Yes, I agree. Clarke JA: The appeal will be dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: P Deakin QC and DJ Brogan Solicitors for the appellant: Abbott Tout The respondent appeared in person.