Compensation Court of New South Wales CITATION : Pinter v Ryde Contractors Pty Limited [2001] NSWCC 153 PARTIES : Ivan Pinter Ryde Contractors Pty Limited MATTER NUMBER(S) : 10452 of 1992/1 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 12 June 2001 EX TEMPORE JUDGMENT DATE : 07/12/2001 FOR APPLICANT:Mr J Klarica instructed by Taylor & Scott Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr S Marsh instructed by McCulloch & Buggy Solicitors JUDGMENT: 1. This is a commutation application in which the employer, Ryde Contractors Pty Limited (in liquidation), seeks to commute its liability to the applicant pursuant to an award for weekly payments under s 40 of the Workers Compensation Act 1987 ("The Act") and medical expenses under s 60 of the Act pursuant to an award of Commissioner Turner of 7 February 1994. Intercurrently, he prosecuted a common law action and a contention by the employer that it was as a result not liable to pay the weekly payments or medical expenses under Commissioner Turner's award was the subject of a judgment by myself on 15 February last. I shall not repeat what I said in that judgment as it sets out the situation at that time, except insofar as it is necessary to explain my refusal to approve the present commutation. 2. As I traced towards the end of the judgment of 15 February 2001 at p9 and p10 in par 29 to par 31, the situation at the end of the common law trial before Acting Judge Hale in the District Court was that his Honour had pronounced a verdict for non-economic loss damages in favour of the worker on the present application against the employer on present application, and in addition his Honour awarded as a component of his verdict out of pocket expenses. The total amount of his Honour's award of damages was therefore $38,791. Because the payments of compensation to the date of the common law verdict pursuant to Commissioner Turner's award totalled $45,439, the employer on the present application contended in written submissions to Acting Judge Hale that the plaintiff had received "damages for economic loss" within s 151B(1)(a) of the Act and that therefore s 151B(2) did not apply, so that the worker on the present application was allegedly liable as a result of Acting Judge Hale's award of damages to repay to the extent of the verdict and judgment of the weekly payments of compensation made to him to that time pursuant to Commissioner Turner's award. The result was, according to the present employer's submissions to Acting Judge Hale, that because the payments to that time under Commissioner Turner's award exceeded the total award of damages of Acting Judge Hale, the employer was not liable to meet the common law verdict pronounced by Acting Judge Hale at all. 3. I was not, as I said in my reasons for judgment of 15 February last, favoured with a copy of Acting Judge Hale's reasons for judgment on the questions raised by these submissions, but I recorded in my reasons that I was told by Mr Marsh, who appeared at that time and now for the present employer, from the bar table, that the defendant's (i.e. the present employer's) contentions in these submissions failed before Acting Judge Hale. Apparently no appeal was mounted to the Court of Appeal against Acting Judge Hale's verdict, but notwithstanding that, Acting Judge Hale's verdict awarding the present worker damages in the sum of $38,791 has not, I am now told, both by the worker in the witness box today and by Mr Marsh who appears for the employer, been paid by the employer. This, says Mr Marsh, is because his client still contends that it has already met the amount of the verdict of damages pronounced by Acting Judge Hale because of the earlier payments of compensation, notwithstanding Acting Judge Hale's ruling against that proposition at trial in the District Court. 4. I think with great respect that this stand is unsustainable as a matter of law, but it is not something that I have any jurisdiction to consider, and I do not do so, as the proper course is to leave the worker to his solicitor's efforts - one hopes vigorous - to enforce his common law verdict, presumably by action under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 in view of the liquidation of the respondent. Be that as it may, my function is to consider under s 51 of the Act whether the present commutation is in the worker's interests. In so doing, it seems to me that I can and should consider the total position so far as monetary compensation to the worker for his injuries is concerned. Plainly, had the worker received the fruits of his verdict before Acting Judge Hale, it would be a matter which I would have to consider favourably in deciding whether or not to approve the current commutation. The worker's evidence was to be, I was told by Mr Klarica, his counsel today, that the Department of Social Security pursuant to the appropriate legislation has been deducting the amount of the worker's present weekly payments from a social security pension he receives so that he gains no financial benefit from the weekly payments, hence his desire for the current commutation to be approved. 5. In those circumstances, having regard to the worker's age (he having been born on 22 June 1937) I would have approved the commutation unhesitatingly had he received his common law verdict. The fact that the worker has not received his common law verdict and that the employer does not propose to pay it, as at present instructed, is therefore a matter that I should consider negatively in assessing the value of the current commutation to the worker. It seems to me that until the worker receives what to my mind he is entitled to as a matter of law, that is, the fruits of his verdict in common law, the current commutation is inadequate compensation for the loss of his compensation rights. 6. No doubt the present commutation includes a common law release, and indeed I am told from the bar table by Mr Klarica that this is the case, and the effect of that on the worker's rights to enforce his common law verdict is of course problematical, although it is probably, although I have not been addressed by counsel about this, to extinguish any liability the employer may have to pay the common law verdict pronounced by Acting Judge Hale. That being so, the result of my approving the commutation would be that the entirety of the worker's rights would be extinguished in respect of the injuries the subject of the present application, by payment of the sum of $17,500. That is inadequate compensation for the loss of such rights in the absence of the common law verdict being met, and therefore, having regard to the considerations I must consider under s 51(2), which I note explicitly includes in s 51(2)(d) "other benefits that the worker may be entitled to from any other source", I should refuse the present application, and I do so. 7. Despite Mr Marsh's submissions to the contrary, nothing has been put that convinces me I should take any other course than the usual one in these circumstances, which is to order that the employer pay the worker's costs on the present application, and I do so. 8. I direct that a copy of these reasons be taken out and placed with the papers. Mr J Klarica instructed by Taylor & Scott Solicitors appeared for the applicant Mr S Marsh instructed by McCulloch & Buggy Solicitors appeared for the respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.