New South Wales Court of Appeal CITATION : The Zinc Corporations Ltd v Robbins [1999] NSWCA 194 FILE NUMBER(S) : CA 40372/98 HEARING DATE(S) : 16/04/99 JUDGMENT DATE : 16 April 1999 PARTIES : The Zinc Corporation Donald George Robbins JUDGMENT OF : Handley JA at 24; Powell JA at 25; Beazley JA at 1 LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 22017/95 LOWER COURT JUDICIAL OFFICER : Curtis CCJ COUNSEL : Appellant: J D Hislop QC/J Doak Respondent: R F Wilkins SOLICITORS : Appellant: Bartier Perry Respondent: Doyle Kingston & Swift CATCHWORDS : Workers Compensation - meaning of "employment" - effect of voluntary redundancy - loss of weekly earnings - judicial discretion ACTS CITED : Workers Compensation Act 1987 (NSW) Johnston v Commissioner of Railways (1973) 128 CLR 632 CASES CITED: O'Loughlin v The Zinc Corporation Limited (unreported, New South Wales Court of Appeal, 21 December 1989) Novello v Zinc Corporation Limited (1988) 14 NSWLR 25 DECISION : Appeal Dismissed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40372/98 CC 22017/95 HANDLEY JA POWELL JA BEAZLEY JA Friday, 16 April 1999 THE ZINC CORPORATION v ROBBINS JUDGMENT 1 BEAZLEY JA: This is an appeal on a question of law from a decision of Curtis CCJ, in which his Honour awarded the respondent weekly compensation for partial incapacity from 28 July 1995 and continuing under s 40 of the Workers Compensation Act 1987 (NSW). The appeal is limited to a question of law: s 32 of the Act. 2 The respondent had been employed in the mining industry since 1975. Relevantly he sustained two injuries whilst in the employment of the appellant. The first occurred on 31 December 1991. He suffered injury to his right knee when he jumped from his loader some distance to the ground after preparing some explosives in the basket of the loader. This injury resulted in a derangement of the structures of the knee. The second injury occurred on 23 March 1995 when the respondent suffered injury to his back whilst driving a dump truck that hit a bump in the road, jarring his back. Since that injury the respondent has had continuing pain and restriction of movement in his back. 3 The trial judge held that before his knee injury in 1991 the respondent had been working as a dump truck driver because that was the particular work to which he had been assigned by the appellant. He continued to work as a dump truck driver in the employment of the appellant up until the time he left the industry in 1995. 4 Notwithstanding that that was the particular work that the respondent was doing, his Honour implicitly found that the he was employed as a miner, and in respect of that work made findings as to its heavy and arduous physical nature. 5 In about July 1995 the respondent accepted a voluntary redundancy package with the intention of commencing a haulage business on his own account. That package was in the order of $112,000. 6 The haulage business was not successful and he fruitlessly sought his old job back in the mines. He then took a job driving trucks for another employee. He remained in that employment up to the time of the hearing. In that employment he earned less than he would have earned as a miner in the employ of the appellant. 7 Two issues were argued on the appeal. The first was that his Honour erred in his application of s 40(2)(a), finding that the appellant employed the respondent as an underground miner. The second was that his Honour failed to properly direct himself in terms of the s 40 of the Act. The appeal is limited to a question of law. Error in Respect of s 40(2)(a) 8 The appellant submitted that there was no evidence to support his Honour's finding that the appellant may have assigned the respondent to work as an underground miner or that he would not have coped with such work. 9 The respondent was employed by the appellant as a miner. This was never in dispute: see the application for determination and the answer. He was also paid as a miner. His Honour found that at the time of the 1991 knee accident the respondent was sometimes assigned to the duties of a dump truck driver. This factual finding was disputed by the respondent, however in my opinion, there was evidence to support it: see transcript at page 5. Accordingly, I am of the opinion that the appeal should proceed upon the basis of his Honour's finding. 10 Section 40(2)(a) of the Workers Compensation Act provides that in respect of weekly payments during partial incapacity: "(2) Calculation of reduction in earnings of worker - general . The reduction in the worker's weekly earnings is (except as provided by this section) the difference between: (a) the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000)…" 11 The issue in this case arises out of the application of that subsection. Senior counsel for the appellant submitted that the trial judge erred in finding that the respondent was a miner and that his occupation or employment was that of a dump truck driver. He referred the Court to the decision of the High Court in Johnston v Commissioner for Railways (1973) 128 CLR 632, particularly Stephen J at 640 and Mason J at 644. 12 Stephen J referred to the meaning of employment in a compensation legislation provision in similar terms to s 40, where his Honour said that employment "accords with one of its well-recognised dictionary meanings, 'that on which one is employed, business, occupation, a commission'". Mason J likewise went to the dictionary meaning of employment, noting that according to the dictionaries, "both 'the work upon which one is or may be engaged' and 'occupation'" are natural meanings of employment. 13 However, in applying these definitions, Stephen J said at 642: "On the facts as found Johnston's occupation was that of an officer of the Commissioner, employed in the locomotive branch of the Commissioner for Railways, and in those circumstances the trial judge was not required to act as he did and to pay regard to the promotion within his chosen occupation, which Johnston would probably have received had he not been injured." 14 Mason J was of a like view. He said at 644: "The appellant's occupation was that of railway servant. On the findings of fact it is probably that he would have advanced at the relevant date from cleaner, acting fuel man to engine driver in that occupation. Account must therefore be taken of the likely earnings of a railway servant who had advanced to that grade or classification." 15 Section 40(2)(a) speaks in terms of employment. If one wishes to adopt the dictionary definitions to which reference was made in Johnston's case, one can add the word 'occupation', but it does not refer to the tasks or duties which one undertakes or is assigned during the course of that employment or that occupation. Section 40(2)(a) also provides that the Court is required to ascertain the weekly amount which the worker would probably have been earning but for the injury, had the worker continued to be employed in the same or comparable employment. In other words, the section is directed to the finding as to earnings. His Honour did not find, and there was no evidence, that the respondent was ever employed by the appellant as a dump truck driver. As I have said, his employment was, and his Honour found it to be, that of a miner. 16 Accordingly, the comparison which is required by the section is, in my view, with the earnings of the respondent as a miner and his Honour did not err. 17 The appellant also submitted that there was no evidence that the respondent may have been assigned to work as an underground miner from time to time, as found by his Honour. Having regard to my finding that s 40(2)(a) deals with employment and not with tasks or duties, this question is irrelevant. But even if it is a relevant consideration, there was evidence upon which such a finding could be based. The respondent had given evidence of the wide range of duties that he had performed as a miner. It was also open, in my opinion, for a judge in this jurisdiction to infer that if a person is employed in a particular occupation, in this case, that of miner, he may (and his Honour's finding went no higher) from time to time, be required to perform all the duties of that occupation. 18 Accordingly, I am of the opinion that the first issue raised on the appeal should be rejected. 19 The second issue raised on the appeal was that his Honour should have directed himself in the terms required by s 40 of the Act. One leg of the argument was as to the respondent's proper classification, and I have already dealt with that. 20 The second leg of the argument was that any loss of weekly earnings sustained by the respondent was a result of him taking voluntary redundancy, and that was a matter which was to be taken into account in the exercise of the trial judge's discretion under s 40. It was further submitted that his Honour appeared to have had regard to irrelevant considerations, namely the imprudence of the respondent's actions in taking the redundancy package and whether the appellants knew what the respondent intended to do on taking that package. There was no evidence as to knowledge of this on the part of the officers of the appellants. 21 The process required by section 40(2)(a) includes this exercise of discretion as to the amount of weekly compensation to be awarded. A matter such as voluntary redundancy is relevant to the exercise of that discretion: see O'Loughlin v The Zinc Corporation Limited (unreported, New South Wales Court of Appeal, 21 December 1989) and Novello v Zinc Corporation Limited (1988) 14 NSWLR 25. 22 In my opinion, the trial judge did not err in law in the manner in which he exercised his discretion. To say that a matter is relevant to the exercise of a discretion under s 40 does not mean that a judge may not, after having given it due consideration, discard it as a factor affecting the final computation of the amount of compensation to be paid. That is what happened here. I have already referred to the principle upon which this discretion is to be exercised and matters which might be relevant to it. However, it is worth noting further that in Novello v The Zinc Corporation Limited, this Court, whilst having considered the effect of the voluntary redundancy on the worker, rejected it as a factor which would cause the Court to reduce the amount of compensation. The respondent, to the knowledge of the appellant, used the redundancy payment in a venture which failed. His Honour considered that the likelihood was that it always would fail. He considered in those circumstances that he should not reduce the amount of weekly compensation to take account of that payment. In my opinion, those findings were open to his Honour to make, were relevant to the exercise of his discretion, and it has not been established that there was any error in the manner in which he did exercise it. 23 In my opinion, the appeal should be dismissed with costs. 24 HANDLEY JA: I agree. 25 POWELL JA: As do I. 26 HANDLEY JA: The order of the Court is that the appeal is dismissed with costs. 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.