ALCAN AUSTRALIA LTD v PHILLIPS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and BEAZLEY JJA, and GROVE AJA 7 April 1997, 1 May 1997 [1997] NSWCA 12 Workers Compensation — total incapacity — lack of evidence — error in approach to amounts entered. FACTS The respondent workers employment was terminated on 23 December 1994, the recommendation from his doctor was "fit for light duties" and from July 1995 he has successfully run his own business. The findings of the trial judge were total incapacity from 24 December 1994 through to July 1995, which the appellant challenges for lack of evidence. The trial judge entered awards for this period without giving reasons, which the appellant also challenges. HELD (1) The Respondent conceded the ground of appeal challenging his Honour's finding of total incapacity, and there was much evidence that his Honour's finding was erroneous and unsubstantiated. (2) The figures entered are plainly wrong and the error is compounded by a lack of reasoning by his Honour. Meagher JA This was an appeal by an employer, Alcan Australia Limited, against orders made by Maguire CCJ in the Compensation Court in favour of a worker, the present respondent, Mr B.D. Phillips. The facts of the case which are relevant to this appeal can be stated in two propositions: first, at the time when the worker's employment was terminated (23 December 1994) his own general practitioner, who was the only doctor whose evidence was before the Court, certified him as "fit for light duties"; and secondly, from July 1995 onwards he has conducted his own business, which is extremely successful and in which he works at least five days a week. His Honour found that the worker was totally incapacitated for employment from 24 December 1994 to 10 July 1995. His Honour's precise findings and awards are: "T find but for the injury the applicant would have been earning $953.58 from 24 December 1994 to date and continuing. "] find the applicant capable of earning $200 per week from 10 July 1995 to date and continuing. "Accordingly I award $510.60 from 24 December 1994 to 10 July 1995. "IT award $310.60 from 11 July 1995 to date and continuing." The employer's first ground of appeal was that there was no evidence to justify his Honour's finding that the worker was totally incapacitated from 24 December 1994 to 10 July 1995. There is no need to go into further details, because learned counsel for the worker conceded (as, on the facts, he had to) that this ground of appeal had to succeed. I need only add that in my view there was much evidence that the finding of his Honour was erroneous as well as unsubstantiated. The employee's next ground of appeal was that his Honour gave no reasons to explain how he arrived at the $310.60 figure for partial incapacity, and in particular the $200 component of that figure. It is readily apparent, of course, that 2 UNREPORTED JUDGMENTS his Honour arrived at the figure of $310.60 by deducting the figure of $200 from the figure of $510.60, presumably in purported reliance on s40 of the Act. However, his Honour did not explain why he plucked either figure out of the ether. The figure of $510.60 is simply wrong, as his Honour's own remarks make plain. The relevant "probable earnings" figure was $953.58 (the figure of $510.60 being merely the award weekly wage). The figure of $200, supposed (one imagines) to be a figure representing what in fact the worker is capably of earning, seems suspiciously low having regard to the affluence of his business. What his Honour, therefore, seems to have done is simply deduct one doubtful figure from another wrong figure, but perhaps if he disclosed his reasoning processes all would become apparent. This ground of appeal must also succeed. The worker's cross-appeal was against the failure by his Honour to award s60 expenses. If the worker suffered an injury, and his Honour found that he did, he should have been entitled to recover whatever were the medical expenses occasioned by the injury. In a spirit of fraternal comity, the appellant supported the cross-appeal, just as the respondent had supported the appeal. The cross-appeal must succeed. The orders which in my view should be made are as follows: 1. That both the appeal and cross-appeal be allowed. 2. That the award made by his Honour be set aside. 3. That the matter be remitted to the Compensation Court for re-hearing. 4. That costs in the Court below abide the outcome of the re-hearing. 5. That the respondent pay the appellant's costs of the appeal. 6. That the appellant pay the respondent's costs of the cross-appeal. 7. That each party have a Certificate under the Suitors 'Fund Act in respect to orders 5 and 6. Beazley JA I agree with Meagher JA. Grove AJA I agree with Meagher JA. That both the appeal and cross-appeal be allowed. That the award made by his Honour be set aside. That the matter be remitted to the Compensation Court for re-hearing. That costs in the Court below abide the outcome of the re-hearing.. That the respondent pay the appellant's costs of the appeal. That the appellant pay the respondent's costs of the cross-appeal. That each party have a Certificate under the Suitors 'Fund Act in respect to OS and O6. NAMA YN Counsel for the Appellant: TM Wardell Solicitors for the Appellant: P W Turk & Associates Counsel for the Respondent: K Morrisey Solicitors for the Respondent: Astley Thompson & Valtas