MOIR v PENRITH CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Mason P, COLE JA 4 May 1998, 4 May 1998 [1998] NSWCA 147 Mason P On 27 February 1996 Egan ACCJ made an award of compensation under s66 of the Act in relation to injuries to the back and legs suffered by the appellant in the course of her employment. She had been involved in child care assistance and there were three specific incidents that occurred when she was either lifting a heavy object or carrying a squirming child. The assessment was of ten per cent in relation to back loss and five per cent in relation to efficient use of the right leg. The question of weekly payments during partial incapacity arising under s40 of the Act came for hearing on 28 May 1997. That claim was for the period from April 1996 and thereafter. The facts as found by his Honour were that the applicant had worked, apart from a short period, in a part time basis from April 1996 to the date of hearing. Her present situation which was found to be permanent was that she was working normally twenty-one hours per week, sometimes a bit more sometimes less. However, her evidence was that if she worked extra hours she, to use her own phrase, paid for it later on with increased pain and difficulty. His Honour had some doubts about the appellants case based upon discrepancies between the cases presented at the hearing and the material presented by her to her treating doctor. He also had regard to medical reports that were placed before him in which different views were expressed about the extent of continuing incapacity. The appellant's general practitioner was of the view that she could work twenty-five hours or so per week. Dr Deveridge described as well known to be a sympathetic practitioner, presumably sympathetic to applicants, felt that with due diligence the appellant could work up to about thirty hours per week. There was an opinion by the doctor called for the respondent, Dr Terenty, that the appellant was capable of working in a full time capacity as long as she avoided prolonged bending and heavy lifting. The other factor taken into account by his Honour was evidence of the appellant that from time to time she carried on part time activities spending three to four hours per week on average in a form of door to door selling of aromatherapy products. The wages schedule eventually filed showed that there was agreement as to comparable gross weekly earnings of $480 for the entire period 29 April 1996 to date of hearing and continuing. The same schedule showed gross weekly earnings and consequential gross weekly wage loss of varying figures over that time. There were explanations for the variations some of which reflected the injury, while others reflected the changes in the appellant's work situation in a particular period. 2 UNREPORTED JUDGMENTS His Honour found and was clearly entitled to find on the evidence that the plaintiff was capable of working on a remunerated basis for longer periods than the periods she in fact worked. The task faced by a Judge in addressing s40 of the Act has been described in a number of cases and in particular the decision of this Court in Mitchell v Central West Health Service (1997) 14 NSW CCR 526. Clearly there are a number of steps mandated by s40. The precise number is a matter of some debate and discussion. For present purposes the two steps that were clearly debatable were that required by s40(2)(b) and that required by that part of s40(1) which required the weekly payment of compensation to be an amount which bears such relation to the amount of the reduction earlier referred to in that subsection as may appear proper in the circumstances of the case. The learned trial Judge's reasons on the critical issues are extremely exigent. He said: "The comparable earnings are agreed at $480 per week and a schedule has finally been prepared setting out the actual earnings received from the respondent. There is still a substantial difference between the comparable earnings and what the applicant has been earning, even taking into account additional work which her general practitioner and Dr Deveridge obviously think she could do. Dr Terenty, on the other hand, thinks she could work full-time, but accepting the applicant's complaints though not necessarily at face value, that additional work causes additional problems, I think that the balance somewhere is in between what she is actually earning and the comparable earnings. It seems to me that the actual difference is probably slightly over $100 per week, probably $125 per week. In my view, having regard to her overall presentation in the matter an appropriate award would be at the rate of $75 per week. When this case was called for hearing the Court indicated that it wished to hear senior counsel for the respondent first. We have had the advantage of reading the written submissions filed by the parties. Senior counsel for the respondent argued that since this is an appeal confined to error of law the Court must take care to abide the principles declared in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. We were reminded, correctly, that mere factual error even of an unreasonable sort would not attract appellate review in accordance with the Azzopardi principles. What did however emerge in the course of discussion with senior counsel for the respondent is the difficulty in understanding his Honour's reasoning process. It is common ground that there was a live issue as to the two parts of s40 to which I have already referred. Mr Hislop QC would have us construe his Honour's findings as set out above as indicating a finding on the s40(2)(b) issue covered by the material commencing. "There is still" and concluding "probably 125 per week"; and the sentence commencing "In my view" as addressing the s40(1) issue to which reference has been made. I am not entirely clear whether I agree but what I am clear about is that his Honour's reasoning has not sufficiently exposed his Honour's thought processes to enable us to segregate the two issues in order to be able to determine whether an appealable error occurred. URJ MOIR v PENRITH CITY COUNCIL (Cole JA) 3 The particular matter which concerns me is the reference to "her overall presentation in the matter", in that portion of the judgment which Mr Hislop argues is the only portion addressing the s40(1) issue. Not only is this so vague as to make one unsure whether that submission is correct, but I have a very real concern that if, as Mr Hislop argues, his Honour is there referring to the three to four hours a week work done in the selling venture, there may well be a doubling up in his Honour's reasoning. It is clear that his Honour felt it necessary to adjust upwards the actual earnings of the appellant in order to arrive at a finding as to the average weekly amount which she would be able to earn in some suitable employment. My reading of the judgment is that his Honour took into account in that adjustment the fact that the appellant had spent some of her working week in this other venture. If that is so, then I do not see a proper basis for taking that factor into account again in the s44(1) issue. If it was not, then the reference to "her overall presentation in the matter" is unknowable and there is error because the reasoning has not been exposed. In Mitchell (at 531) the Court said: "Error of law would be involved if the reasoning disclosed in the judgment did not enable the reader to understand the essential steps of the decision making process". In my view that error has been established. The appellant challenged the order for costs contending that the exclusion of portion of the appellant's solicitor's costs for the period between 12 December 1996 and 28 May 1997 was punitive and disclosed error, notwithstanding the broad discretion that a Judge has in these matters. I was not inclined to find error but I think it unnecessary to determine that matter because the order consequent upon the substantive aspect of the appeal means that all of the orders made by his Honour on 28 May 1997 should be set aside, therefore the costs order goes for that reason alone. In my view the appeal should be upheld. It seems to be common ground that the necessary consequence is that the matter should be remitted for further hearing on the s40 issue. Accordingly, I propose the following orders: (1) The award of Egan ACCJ on 28 May 1997 set aside. (2) Remit the matter to the Compensation Court for the determination of the appellant's claim in relation to s40 entitlement. (3) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act if qualified. Cole JA I agree. (1) The award of Egan ACCJ on 28 May 1997 set aside. (2) Remit the matter to the Compensation Court for the determination of the appellant's claim in relation to s40 entitlement. (3) Respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act if qualified. Counsel for the appellant: S G Campbell Solicitors for the appellant: Lamrocks Counsel for the respondent: J D Hislop QC; N Chen Solicitors for the respondent: Sparke Helmore