LAWRENCE v CARROLL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 5 PRIESTLEY, HANDLEY and POWELL JJA 27 November 1998, 18 December 1998 [1998] NSWCA 129 WORKERS COMPENSATION ACT 1926, s11(1)(a) — WEEKLY PAYMENTS WORKERS COMPENSATION ACT 1926 s11(1)(A) — WEEKLY PAYMENTS — Respondent brought a compensation claim for partial incapacity to which s11(1)(a) of the Workers Compensation Act 1926 applied — the judge made an award being the "difference" he found between the probable amount the worker would have earned uninjured and the amount the worker was earning or was able to earn after injury, without either reducing the amount of the "difference" or explaining why he awarded it without reduction — interest also was awarded. 20 On appeal the appellant submitted: 1. The trial judge erred in law in his application of s11(1)(a) and his subsequent order granting weekly payments to the respondent. 2. Pursuant to a ground of appeal raised for the first time in the course of the oral argument, that because of the repeal of s19 of the compensation Court Act and the enactment of s113 of the 1987 Act, the trial judge was not entitled to grant interest on the awards he made for any period before March 1996. Held: 1. The trial judge's reasoning, coupled with the impossibility on the evidence to estimate the worker's after injury amount for the period from | June 1981 to 9 April 1984, indicated an incomplete application of s11(1)(a) amounting to an error of law, requiring 30 anew trial; 2. contrary to the authorities, the trial judge gave no explanation as to why he considered it proper to award the difference, under s11(1)(a), without a reduction; in the circumstances, this also was an error of law; 3. if the issue as to the award of interest had been appropriately presented in this appeal, 35 the court may have been able to determine it as a matter of law however, this new point should not only be decided once it has been considered, in light of all possible material facts, by the trial court at the new trial; 4. other grounds of appeal not considered as they were new trial points not raising any new point of principle. Compensation Court Act 1984 No 89 40 WorkCover Legislation Amendment Act 1995 No 89 Workers Compensation Act 1926 s11(1)(a) Workers Compensation Act 1987 s113 Gregory R Bell Pty Ltd v Stead (1993) 9 NSWCCR 148 J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 45 St Vincents Private Hospital v Maher (1 May 1996, unreported, Mahoney P, Clarke and Cole JJA) New South Wales Industrial Gazette, Volume 237, p5 New South Wales Industrial Gazette, Volume 281, p288 Priestley JA This is an appeal against certain of a number of orders made by 50 Walker CCJ in the Compensation Court on 18 September 1997 in respect of claims for compensation by a worker, a jockey and stable hand, for an injury 2 UNREPORTED JUDGMENTS suffixed on 29 May 1979. The orders were expressed to be made "pursuant to the former Act" (the Workers Compensation Act 1926) and were that the employer pay weekly compensation pursuant to s9 for total incapacity until 31 May 1981, pursuant to s11(1)(a) for partial incapacity from 1 June 1981 and continuing, interest on those weekly payments, a lump sum pursuant to s16, and medical expenses and costs. It is common ground that the appeal is limited to points of law. The grounds in the notice of appeal challenged only those of the trial judge's orders that depended on para(a) of s11(1) of the former Act. (There is no dispute about that provision being the relevant one, so it is unnecessary to go into the detail of how Schedule 6 of the Workers Compensation Act 1987 (the 1987 Act) made it so.) The appellant employer relied on a number of grounds of appeal. These were all new trial grounds. At least two of these must be upheld and I come immediately to them. An essential step in the application of para(a) of s11(1) was to decide what was, using the words of para(a), "the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment" (the uninjured amount). Another essential step was to decide, (again using the words of para(a), "the average weekly amount [the worker] is earning, or is able to earn in some suitable employment or business after the injury" the after injury amount). The object of deciding these two amounts was to arrive at the difference between them. Para(a) provided that the weekly payment for partial incapacity must not exceed that difference but must "bear such relation" to it "as under the circumstances of the case may appear proper". Thus, after deciding upon the two amounts, and obtaining the difference, the court had to decide what amount of that difference it thought proper to order to be paid. On rather sparse evidence the trial judge estimated the uninjured amount as about $525 per week at the date of his decision. In the absence of any evidence to help him with the after injury amount, he referred to the Strappers and Stable Hands (State) Award published in the New South Wales Industrial Gazette. From that he chose a classification which he thought was applicable to the worker's ability to earn in suitable employment after his injury. The award figure became $331 at August 1994. It was varied in November 1995 to $339. The trial judge, "[T]aking this award as a rough guide", said: "it appears that the current difference under s11(1) is about $160-$180 per week and the incremental trend suggests that an average difference of about $170 would have existed between 1981 and the present day". Although this approach is understandable (and indeed practical) in the circumstances, it seems to me to involve an incomplete application of s11(1)(a) amounting to error of law. Before the trial judge could arrive at the para(a) "difference" he had first to find both the uninjured and after injury amounts: see per Gibbs J in J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 652-653. It is apparent from the above citation from the trial judge's reasons (and from them generally) that he did not find any after injury amount, either explicitly, or (as is permissible) less formally. This conclusion is, incidentally, supported by the fact that, in my opinion, there was no way, on the material before the judge, by which he could even estimate the worker's after injury amounts for the period from | June 1981 to 9 April 1984. URJ LAWRENCE v CARROLL (Priestley JA) 3 His Honour, as a judge in a specialist jurisdiction, had a broad latitude to take judicial notice of a wider range of matters than is customary in non specialist courts. Also, in appropriate circumstances he was entitled to use the award that he relied on; but the wages shown by that award began, according to his reasons, in 1985. He had no figures for the period between May 1981 and the first award wage figure he relied on. He had no evidence, as he himself said. It did not appear that his Honour was able to find any award figures preceding the first one he used. In the course of the oral submissions one member of the Bench suggested that this may have been because there had been no award prior to the one used by his Honour. The court asked counsel whether they had checked this. One had not. The other had done something; he had left the award in his chambers; he told the court its commencing date was 3 April 1985. The court was not sure whether this meant that there had been no award wage previously to that date and asked during the oral submissions for copies of the award showing all the figures the trial judge had relied on. At the close of the oral submissions the court said that in the further written submissions which were then directed to be promptly filed there should be a copy of the award up to date. The court also said it did not matter whether it was in both sets of submissions. With the further written submissions the court received (i) a copy of the presently current award, which showed the August 1994 and November 1995 figures used by his Honour, and (ii) a letter from the New South Wales Department of Industrial Relations showing the earlier figures. The court obtained for itself two earlier versions of the award, one published in Volume 237 of the New South Wales Industrial Gazette, p5, the other in Volume 281, p288. The award in Volume 237 was published on 3 April 1985 and in cl26 was expressed to take effect from the first full pay period to commence on or after 9 April 1984. The letter from the Department of Industrial Relations said there had been no award prior to 9 April 1984. The figure in effect awarded by the trial judge for the period 1 June 1981 to the first full pay period commencing on or after 9 April 1984 totals approximately $26,000. I do not think the most liberal interpretation of the broad brush approach can allow this amount to be swept up against the employer's interest with no basis whatsoever. The materials I have referred to, which should all have been made available to the court no later than during the hearing of oral addresses in the appeal, seem to make it clear that there was no award covering stable hands before the award gazetted on 3 April 1985. I do not think there is any basis for assuming that the wages available before the award came into effect bore any estimatable relation to those in the award. This in itself demonstrates, in my view, that it was an error of law for the trial judge to conclude that an average difference of about $170 would have existed between 1981 and the present day for purposes of s11(1)(a). There is no need to consider further criticisms relied on by the appellant. It is to be hoped the trial court will be given more assistance on the new trial than it seems to have had on the first. The figure of $170 was that adopted by the trial judge as "the difference" referred to in sl1(1)(a). Once the trial judge had arrived at that difference, s11(1)(a) said that the weekly payment of compensation for the worker's partial incapacity "shall in no case exceed" that difference "but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper". 4 UNREPORTED JUDGMENTS Many familiar authorities have interpreted those words as requiring trial judges to consider what is proper in the circumstances. Sometimes a proper award will be the amount of the difference, often it has been found to be less. In at least one case a judge found the weekly payment to be the amount of the difference, without reduction, and without explaining why it has not been reduced, but was held not to have made an appealable error, because it was clear from all the circumstances that there could be no discretionary considerations justifying a reduction and this court was prepared to infer that the parties had made it clear to the judge that a proper exercise of discretion must result in the full amount of the difference being awarded: Gregory R Bell Pty Ltd v Stead (1993) 9 NSWCCR 148, (where the familiar authorities are collected at 151-153). The present case, however, is not of the exceptional kind that Stead is. The judge gave no explanation why he considered it proper to award the difference without reduction. There is nothing in his reasons to suggest that he gave that matter any consideration. The circumstances of the case were such as to require a consideration by him, and some indication, if after consideration he concluded there should be no reduction, why it was that he thought that was so. One set of matters that needed to be explicitly dealt with in this connection arose from the worker's claim that he had had no employment after October 1980. In my opinion the trial judge's apparent failure to consider what amount of "the difference" was proper to award was another error of law. One of the new grounds of appeal raised in the course of the employer's oral submissions was that the repeal, by Act 89 of 1995 of s19 of the Compensation Court Act, and the enactment of s113 of the 1987 Act, had had the effect that the trial judge was not entitled to award interest on the awards that he had made for any period before March 1996 when his application was filed. In view of this court's decision in St Vincents Private Hospital v Maher (1 May 1996, unreported, Mahoney P, Clarke and Cole JJA), this point when first raised in the oral submissions appeared as if it might be right. However, in written submissions filed by leave subsequent to the oral hearing it was pointed out for the worker that s113(2)(b) prohibited the ordering of interest on any compensation payable "for any period before the claim for the compensation was duly made" and it was submitted that the facts in the case showed that a claim for compensation had been duly made in 1979. Thus, whether the claim had been duly made in 1979 became an issue in the appeal because of the late raising of the interest point. In the worker's "Application for Determination" in the Compensation Court it was stated that the date of claim for compensation was 29 May 1979. It was common ground that this was the date of injury. The worker gave evidence that he received workers compensation from the AJC for three weeks after his injury, but then "they told me I didn't have a claim" and he received no further compensation. Counsel for the employer did not put the question of interest in issue at the trial. The circumstances surrounding the alleged claim for payment in 1979 were not investigated. Because of the way the case was conducted, there was no need to. The trial judge asked the employer's counsel whether the court was entitled to award interest prior to 1987. Counsel replied that the answer was yes and he knew of no legal impediment to that. This answer was, belatedly, repudiated in the appeal. The lateness of the raising of the point is shown by the fact that the chronology furnished by the appellant to this court for the purposes of the appeal records "29.05.79 Date of claim for compensation". URJ LAWRENCE v CARROLL (Powell JA) 5 It may be that the proper construction of s113(2)(b) requires that interest not be awarded for any period before the date of filing of the worker's application in the Compensation Court (either 21 March 1996 or 12 March 1997) and that if the question had come up appropriately in the appeal it could be decided now as a matter of law. Whether this be so or not, and without having formed any opinion on the construction point, I think it should only be decided after the worker as had an opportunity to put before the trial court whatever evidence there may be concerning his assertion of a claim having been duly made, so that the new point can be considered in light of all possible material facts. Because of the errors of law I have indicated, the employer's appeal must succeed, the orders below relating to weekly compensation pursuant to the former s11, and interest, consequent upon those orders must be set aside, and a new trial ordered on that aspect of the worker's claim. None of the other grounds of appeal raised any new point of principle. In the circumstances I will not consider them. One of them was another ground added to the notice of appeal by leave in the course of the oral argument. The presentation of the oral submissions had, from the court's point of view, some unsatisfactory features, some of which were remarked on in the course of the hearing and addresses and some of which I have mentioned in these reasons. The directions that were given at the end of the oral argument concerning further written submissions included the following: "There may be costs considerations arising out of the amendment of the notice of appeal, there might be costs considerations which the court thinks are relevant in regard to the general apparent preparation for the appeal. You will each have, until Tuesday at 4.30, liberty to put whatever you want to put about the costs in the various eventualities that might come about here in light of what I have just said." Each side subsequently filed written submissions as directed, including submissions concerning costs. Notwithstanding what is said in the submissions, I think the unsatisfactory features of the presentation of the oral submissions make it appropriate that there should be no order as to costs of the appeal. Handley JA I agree with Priestley JA. Powell JA I agree with Priestley JA. 1. Appeal regarding the trial judge's application of s11(1)(a) upheld. 2. Orders below relating to weekly compensation pursuant to s11(1)(a) and interest consequent upon those orders set aside. 3. A new trial ordered on that aspect of the worker's claim. 4. No orders as to costs. Counsel for the appellant: J Poulos QC/M Fordham Solicitors for the appellant: Abbott Tout Counsel for the respondent: C Branson QC/J de Burg Solicitors for the respondent: Shaw McDonald