New South Wales Court of Appeal CITATION : Ferreira v. Zebra Stoneworks Pty. Limited [2002] NSWCA 405 FILE NUMBER(S) : CA 40969/01 HEARING DATE(S) : 30 August 2002 JUDGMENT DATE : 17 December 2002 PARTIES : Manuel Ferreira - appellant Zebra Stoneworks Pty. Limited - respondent JUDGMENT OF : Hodgson JA at 1; Santow JA at 64; Gzell J at 65 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD20254/00 FILE NUMBER(S) : LOWER COURT James J JUDICIAL OFFICER : COUNSEL : The appellant was unrepresented Mr. A. Bridge SC with Mr. A. Jungwirth for respondent SOLICITORS : The appellant was unrepresented William K. Chambers, Sydney for respondent CATCHWORDS : ESTOPPEL - Issue estoppel - Award under Workers Compensation Act on basis of total incapacity for periodic payments of statutory maximum amount - Common law damages against employer - Whether employer bound by issue estoppel as to a minimum figure for past economic loss. LEGISLATION CITED : Workers Compensation Act 1987, ss.35, 36, 37, 42, 43, 151B, 151I Blair v. Curran (1939) 62 CLR 464 Commissioner of Railways v. Bielewica (1963) 63 SR(NSW) 466 Egri v. DRG Australia Ltd. (1988) 19 NSWLR 600 Husher v. Husher (1999) 197 CLR 138 CASES CITED: Laws Holding Pty. Ltd. v. Short (1972) 46 ALJR 563 Lombardo v. Stuart Bros. Pty. Ltd. (1967) 58 SR(NSW) 159 Medlin v. The State Government Insurance Commission (1995) 182 CLR 1 Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 147 CLR 389 Suttor v. Gundowda Pty. Ltd. (1950) 81 clr 418 Zebra Stoneworks Pty. Ltd. v. Ferreira [2001] NSWCA 86 DECISION : 1. Appeal allowed to the extent of increasing the judgment by a figure of $6,795.84, but otherwise dismissed.; 2. Each party to bear its own costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40969/01 CLD 20254/00 HODGSON JA SANTOW JA GZELL J Tuesday 17 December 2002 FERREIRA V. ZEBRA STONEWORKS PTY. LIMITED Judgment 1 HODGSON JA: On 9 November 2001, James J entered a verdict of $434,189.26 for the appellant Manuel Ferreira in proceedings against the respondent Zebra Stoneworks Pty. Limited. After taking into account workers compensation payments and medical expenses of $118,082.00 paid by the respondent, the primary judge entered judgment for the appellant for $316,107.26. He ordered the respondent to pay one-half of the appellant's costs. The appellant appeals to this Court from that assessment of damages. CIRCUMSTANCES 2 The appellant was born in Portugal on 9 March 1952. He left school at the age of 13, started work as a stonemason's apprentice, and after about five years was regarded as a qualified stonemason. For about three years in the 1970s, he served in the Portuguese army, obtaining the rank of sergeant. He married in 1978, and he and his wife have four children born between 1980 and 1989. 3 In 1989, he migrated to Australia, sponsored by a company called Mellocco, and he worked for that company as a stonemason for about seventeen months. This employment was then terminated, because of the recession at that time. He then worked for about a year for Traditional Stone Constructions, being paid $13.00 per hour. In October 1991, he commenced working for Volparto Pty. Limited at the rate of $35.00 per hour; but some time later Volparto became insolvent. 4 In about 1993, he obtained a certificate as a tiler, and he did some work as a tiler. Volparto resumed business, and between 1994 and the accident on 22 July 1997 the appellant worked for Volparto at the hourly rate of $35.00, although he did not have enough work from Volparto to keep him fully employed. Some months before the accident, the appellant agreed to work for the respondent at the hourly rate of $35.00, and during the period leading up to the accident he worked from time to time for Volparto and also for the respondent. 5 On 22 July 1997, the appellant went with a Mr. Bustamante and an apprentice to a house at Mosman, where the respondent had agreed to supply and fix a large slab of marble, estimated by the appellant to weigh about 200 kilograms, onto a wall above a fireplace. While the three men were attempting to fix this slab, it fell onto the appellant and broke into a number of pieces, causing injury to the appellant. The appellant was taken to St. George Hospital where he remained for some hours. He has not worked since the accident. 6 The appellant claimed workers compensation, and the respondent paid him weekly compensation from the date of injury to 20 December 1998. When these payments ceased, the appellant applied to the Compensation Court claiming weekly payments of $525.50 for himself and his dependent wife and children. In the particulars accompanying his application, he alleged that his current weekly wage rate and his average weekly earnings were $1,200.00 gross. 7 This application was heard on 10 November 1999, with the respondent having abandoned all issues raised by its answer apart from whether or not the appellant was a worker: see Zebra Stoneworks Pty. Ltd. v. Ferreira [2001] NSWCA 86 at [21]. In the result, an award was made in favour of the appellant on the basis of total incapacity, at the rate of $525.50 per week from 20 December 1998 to 31 March 1999, $534.70 per week from 1 April 1999 to 30 September 1999, and $543.50 per week as adjusted from 1 October 1999, such weekly payments to continue in accordance with the provisions of the Act. An appeal against this award failed; and no application was made by the respondent to vary the award prior to the hearing of this case. The instalments were paid up to 4 October 2001, the weekly amount being increased to $558.30 as from about 1 December 2000 and to $571.00 as from about 6 April 2001, in accordance with the statutory adjustments. 8 In the Supreme Court, the appellant sued the respondent and Mr. Bustamante. Prior to the hearing Mr. Bustamante died, and the action against him was not pursued. Ultimately the respondent conceded liability, and the case against the respondent was determined as one involving the assessment of damages. DECISION OF PRIMARY JUDGE 9 The parties agreed on out-of-pocket expenses at $18,514.96, and the Fox v. Wood component at $18,257.70. 10 The primary judge found that the appellant suffered a significant soft tissue injury, which resolved within a fairly short time; but that pre-existing congenital or degenerative conditions of the appellant's spine, which prior to the accident had been asymptomatic, were aggravated and accelerated and made symptomatic. In the result, he held that the appellant had suffered and will continue permanently to suffer pain in various parts of his body, including his back, neck, shoulder and legs. Although the primary judge thought his complaints of pain were to some extent exaggerated, he held that the appellant had suffered loss of enjoyment of life. 11 The primary judge was not satisfied that the appellant had suffered any injury to his head or brain, stating that there was "no acceptable evidence that any part of the marble slab stuck [the appellant] on the head". He found there was some loss of sexual function; and accepted the evidence of Dr. Phillips that the appellant was suffering from an adjustment disorder with depressed mood. 12 The primary judge found non-economic loss as 55% of the maximum amount, that is $122,347.00. 13 He assessed future out-of-pocket expenses as $4,169.00. 14 As regards economic loss, the primary judge treated the pre-existing condition of the appellant's spine as going only to the appropriate discount for contingencies. He noted that the appellant's income tax return for the year ended 30 June 1996 showed a taxable income of $21,993.00, and that for the year ended 30 June 1997 showed a taxable income of $17,651.00. He noted the respondent's submission that this indicated earnings of around $350.00 per week after tax. He noted the submission of the appellant that compensation was for loss of earning capacity (Medlin v. The State Government Insurance Commission (1995) 182 CLR 1, Husher v. Husher (1999) 197 CLR 138); and that the appellant's earnings of $35.00 per hour translated to $1,400.00 per week gross, $1,200.00 per week after deducting work expenses, or $800.00 after tax. Alternatively, it was submitted for the appellant that some figure of average weekly earnings should be adopted. 15 The primary judge accepted that compensation was for loss of earning capacity, but held that what the appellant was actually earning was the best measure of this; and accordingly he adopted $350.00 per week. 16 The respondent conceded that, because there had been no attempt to vary the Compensation Court award, it was precluded from submitting that the appellant had any residual earning capacity in the past; and in the result, the primary judge assessed past loss of earning capacity at 215 x $350 = $75,250.00 ; and past loss of superannuation at 215 x $450 x 7% = $6,772.00. 17 As for future loss of earning capacity, the primary judge found that the appellant had no residual earning capacity and that the ordinary 15% deduction for contingencies was appropriate. Accordingly, he applied the appropriate multiplier (567) to $350.00 and subtracted 15%, giving $168,682.00. Future loss of superannuation was then calculated at $19,518.00. 18 This gave a total figure of $433,511.00, from which had to be taken weekly workers compensation payments of $96,877.54 and medical expenses paid by the employer of $18,514.96. By the time judgment was entered, the amount of weekly workers compensation payments was $100,303.54, and there were other slight adjustments of the figures in arriving at the judgment amount of $316,107.26. GROUNDS OF APPEAL 19 The appellant, who appeared unrepresented in this Court, relied on the following grounds of appeal: 1. That his Honour erred in law on assessment of past and future loss of earning capacity, because he failed to apply the provisions of s151I of part 5 of the Workers Compensation Act. 2. That his Honour erred in the law on 9th November when the final decision was made even though knowing the Respondent was in breech (sic) of part 55 Rule 1. The Appellant gave documents to prove the breech (sic) to his Honour, however no action was taken as per part 55 Rule 11(1). 3. That his Honour erred in the law to make the Appellant repay $24,657.00 on past weekly payments awarded on the 10th of November 1999 in the Compensation Court and upheld in the Supreme Court of Appeal on the 5th of April 2001. 4. His Honour denied the Appellant procedural fairness in that he accepted the tender of medical evidence in the respondents case but refused to accept the tender of medical evidence on behalf of the Appellant. 20 The appellant's arguments on the appeal dealt essentially with three areas of concern: firstly, the Court's alleged failure to respond appropriately to the respondent's breaches of rules and directions (ground 2); secondly, alleged errors concerning assessment of the appellant's earning capacity at $350.00 per week (grounds 1 and 3); and thirdly, alleged factual errors and non-admission of evidence, particularly relating to the appellant's claim to have suffered injury to his head and brain (ground 4). I will deal with the first matter, then the third matter, and finally the second matter. RESPONDENT'S BREACHES 21 The appellant submitted that, prior to the hearing before James J, the respondent had breached directions as to procedural steps to be taken in preparation of the case for hearing, and that James J should have acted against the respondent under Pt.55 of the Rules. He also submitted that, because the respondent had provided written submissions to this Court late, this Court should not consider them. 22 On the latter point, the appellant was asked if this late service meant that he had insufficient time to consider and deal with them, and it was not suggested that this was the case. 23 Breaches of directions and rules are serious matters, but the purpose of directions and rules is to ensure that cases are heard in a manner that is fair to both parties. Generally, the consequences of such breaches are adjournments, if they are needed for the other side to deal with late-served material, and costs orders against the party guilty of the breach. It is very rare for formal contempt proceedings to be taken in relation to such matters, and rarer still for the Court to take the initiative to institute contempt proceedings itself. 24 Under Pt.55 the Court can take the initiative of initiating contempt proceedings, but in adversary proceedings to do so involves some departure from the Court's position as an impartial adjudicator between the parties; and generally the Court will initiate contempt proceedings itself only in respect of conduct considered so serious as to demand a positive response from the Court. 25 In this case, there was no occasion for James J to take any action. And in circumstances where there has been no prejudice from late service of submissions, this Court should receive the respondent's submissions in order to assist it in reaching a correct decision on the appeal. FACTUAL ISSUES 26 The appellant referred to a number of statements by the primary judge which he alleged indicated factual error. 27 First, he referred to a statement that the appellant had not received or sought any medical treatment for a couple of years or thereabouts prior to the hearing (that is, prior to August 2001). The appellant submitted that this was shown to be incorrect by a report of 11 January 1999 (incorrectly dated 11 January 1998) by a rehabilitation specialist Dr. Dalley, which showed that the appellant was unable to have treatment because he had no money. 28 This report was not tendered before the primary judge; and there is no basis for finding that it was not available to be tendered; so that it is not material which would normally be admitted on an appeal. One ground of appeal suggested that there had been a refusal by the primary judge to accept evidence, but we were not referred to any material which suggested there had been any such refusal. In any event, this report does not indicate any error by the primary judge, but at most indicates an explanation for something correctly stated by him. 29 Secondly, the appellant referred to a reference by the primary judge to submissions by the respondent's Counsel that the appellant had not attempted to find work. The appellant submitted that this was shown to be incorrect by a letter dated 6 April 1998 from the respondent to the appellant, advising that light duties were not available. 30 This letter also was not tendered before the primary judge, and is not material which this Court would normally admit on appeal. In any event, in the passage indicated, the primary judge was only noting a submission of the respondent's Counsel, and he made no adverse finding against the appellant on the basis of that submission. 31 Thirdly, the appellant referred to statements by the primary judge that no application had been made by the respondent to vary the award made by the Compensation Court; and he submitted that this was untrue, when in fact the respondent had appealed from that award to the Court of Appeal, and that the mistake led the judge to look favourably on the respondent's conduct. 32 It is clear that an appeal is a different procedure from an application to vary an award, so the statements made by the primary judge were correct. Furthermore, the point of the statements was not to favour the respondent as a generous employer, but as part of the basis of a finding against the respondent that the appellant had no residual earning capacity from the time of the accident to the time of the hearing. 33 Fourthly, the appellant referred to a statement made in relation to his 20% loss of effective use of the sexual organs, where the primary judge said that, according to Dr. McMahon, this was aggravated by the appellant's chronic depression and high degree of negativity. The appellant submitted that, on the contrary, Dr. McMahon had said that the loss was "directly attributable to injuries". 34 However, Dr. McMahon did also say "his sexual dysfunctions are compounded by the presence of both chronic depression and a high degree of negativity". In my opinion, no error is shown which could possibly have affected the result in this case. 35 Finally and most significantly, the appellant referred to the primary judge's statements that he was not satisfied that the appellant had suffered any injury to his head or brain, that there was no acceptable evidence that any part of the marble slab struck the appellant on his head, and that there was no evidence of any external injuries to the appellant's head. The appellant referred us to four medical reports. 36 First, there was a report of Dr. Seaton dated 10 June 1998, in which it was stated that a "very heavy weight compressed his spinal column and gave him a head injury". Next, there was a report of Dr. Evans dated 22 February 1999 in which there was a diagnosis of "head injury". Next, there was a report of Dr. Bleasel dated 7 December 2000, which referred to changes disclosed in an MRI brain scan not related to the accident, and continued that this scan "did not in any way dispute the fact that he had suffered a head injury" although it did not indicate brain damage. Finally, there was a report of Dr. Endrey-Walder dated 9 February 2001, which expressed the opinion that the appellant had sustained soft tissue injuries to the back of his head, neck and spine. 37 Mr. Bridge QC for the respondent submitted that the primary judge had carefully read all the material and given a detailed judgment, and had come to a decision on the basis of evidence of what actually happened at the time and reports made at the time, rather than histories and opinions appearing in later medico-legal reports. Furthermore, he submitted, it was plain that the appellant was attempting to rely on abnormalities shown in an MRI scan, in circumstances where the evidence was clear that that was not related to the accident. 38 In my opinion, it is necessary to consider the oral evidence given by the appellant and the histories and opinions in various medical reports. In the initial account of the accident in his oral evidence, the appellant assented to a question asserting that the marble slab hit him on his back (transcript p.16), but when he was asked on transcript p.17 how much of his body did the marble strike, and what did he feel when it hit him, he answered "I feel pain in my back, as well as in my head". Reports from Dr. Rosenberg, whom the appellant saw in 1997, make reference only to his neck and back; but the appellant in his oral evidence gave evidence of pain in the head from the time of the accident. It would seem that the earliest reference in the medical reports to his being hit on the head and to pain in the head are in Dr. Smith's report of 17 October 1997 and Dr. Seaton's report of 10 June 1998. The appellant was not cross-examined to suggest that the marble had not hit him on the head, or that he had not had pain in the head from the time of the accident. 39 In all those circumstances, I would question the statement of the primary judge that there was no acceptable evidence that any part of the marble hit the appellant on the head. Having regard to the material to which I have referred, and also to material in other medical reports suggesting that the initial impact of the marble was on the back, but that when the marble broke a part of it hit the head, such a statement (that is, that there was no acceptable evidence that any part of the marble struck the appellant on the head) would in my view have required some further justification. I think a possible view on the evidence is that, after the marble broke, a portion of the marble did strike the appellant on the head, causing a closed soft tissue head injury, of much less significance than the injury to the back and neck. However, the only medical evidence concerning the effect of injury to the head is of abnormalities not due to the accident; and there is no medical evidence specifically linking the appellant's present complaints of such things as headaches and ringing in the ears to his being hit on the head in the accident. 40 In circumstances where the primary judge found that the appellant had no residual earning capacity, the relevance of this matter is to non-economic loss only. I have already noted that the primary judge found that the plaintiff has suffered and will continue permanently to suffer pain in various parts of his body, including his back, neck, shoulders and legs; and that the damages for non-economic loss should be 55% of the maximum amount. Accordingly, although I have indicated possible disagreement with what the primary judge said concerning the actual occurrence of any impact on the head, I am not satisfied that this discloses any relevant error in the result, having regard to the lack of medical evidence associating any such impact with the present complaints of headaches and ringing in the ears. EARNING CAPACITY 41 The most substantial complaints about the primary judge's decision relate to the damages awarded for loss of earning capacity. An evaluation of these complaints requires consideration of various sections of the Workers Compensation Act, as they were in force at relevant times. 42 First, there are sections of that Act relevant to the calculation of the appellant's award of compensation under the Act, namely ss.35, 36, 37, 42 and 43. Those sections are as follows: 35(1) The maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work shall not in any case exceed $1,000. (2) If the amount mentioned in subsection (1): (a) is adjusted by the operation of Division 6, or (b) is adjusted by an amendment of this section, the maximum weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of incapacity for work occurring on and after that date, to be determined by reference to that amount as so adjusted. (3) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted. 36(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker's current weekly wage rate. (2) In this section: "current weekly wage rate", in relation to a worker, means the worker's current weekly wage rate determined from time to time in accordance with section 42. 37(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be: (a) 90 per cent of the worker's average weekly earnings, except that: (i) the payment shall not exceed $235.20 per week, (ii) in the case of a worker who is over 21 years of age at the time of payment---the payment shall not be less than $187.10 per week, and (iii) in the case of a worker whose average weekly earnings do not exceed $170 per week---the payment shall be 100 per cent of those earnings or $153, whichever is the lesser amount, (b) in addition, $62 per week in respect of: (i) a dependent wife or dependent husband of the worker, or (ii) if there is no dependent wife or dependent husband at any time during which weekly payments are payable---any one dependent de facto spouse or other family member of the worker, and (c) in addition: (i) in respect of the dependent children of the worker, the following amounts per week: No of dependent children Additional amount per week 1 dependent child $44.30 2 dependent children $99.10 3 dependent children $164.16 4 dependent children $230.90 5 or more dependent children $230.90 plus $66.60 for each child in excess of 4 (ii) if there are no dependent children at any time during which weekly payments are payable---in respect of the dependent brothers and sisters of the worker, the same amounts per week as are payable under subparagraph (i) in respect of dependent children of the worker. (1A) Despite subsection (1), for a maximum of 26 weeks the weekly payment of compensation to an injured worker in respect of any period of total incapacity for work (whether the period is during or after, or partly during and partly after, the first 26 weeks of incapacity) is the amount specified in section 36. This subsection applies even if the injury concerned resulted in any period of partial incapacity for work in respect of which the worker received or receives weekly payments of compensation. (2) The total weekly payment under subsection (1) shall not exceed the worker's current weekly wage rate determined from time to time in accordance with section 42. (3) A weekly payment made under this section in respect of a dependent wife, husband, de facto spouse or other family member, child, brother or sister is payable only during the period of dependency. (4) For the purposes of this section, a person is a dependent wife, husband, de facto spouse or other family member, child, brother or sister in relation to a worker if the person is totally or mainly dependent for support on the worker at the date compensation becomes payable to the worker or (whether married to the worker or born before or after that date) becomes so dependent after that date. (5) A person is not precluded from being totally or mainly dependent for support on a worker merely because: (a) in the case of a child---a payment is made in respect of the child under the Social Security Act 1991 of the Commonwealth, or (b) in the case of a de facto spouse or other family member---the worker pays wages to the person for the performance of domestic services for the worker. (6) A husband, wife or de facto spouse or other family member of the worker who, at the time of the injury to the worker: (a) was employed, and (b) was not totally or mainly dependent for support on the worker merely because of earnings from that employment, shall be regarded as being so dependent at the time of the injury if the Commission is satisfied that the person left that employment for the purpose of caring for the worker. (6A) If an amount mentioned in subsection (1): (a) is adjusted by the operation of Division 6, or (b) is adjusted by an amendment of this section, the weekly payment of compensation applicable to a worker injured before the date on which the adjustment takes effect is, for any period of total incapacity for work occurring on and after that date (not being a period during the first 26 weeks of incapacity), to be determined by reference to that amount as so adjusted. (6B) Such an adjustment does not apply to the extent that the liability to make weekly payments of compensation in respect of any such period of incapacity has been commuted. (7) In this section: "appropriate period", for the purposes of the calculation of "average weekly earnings" in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period. "average weekly earnings", in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings: (a) the time of the injury concerned, (b) the time at which the relevant weekly payment of compensation is due, with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment. "brother" or "sister", in relation to a worker, means a brother or sister of the worker who is: (a) under the age of 16 years, or (b) a student, but does not include a person in respect of whom a weekly payment is being made under subsection (1) (b) (ii). "child", in relation to a worker, means: (a) child or stepchild of the worker who is under the age of 16 years, (b) a person under the age of 16 years to whom the worker stands in the place of a parent, or (c) a student who is a child or stepchild of the worker or is a person to whom the worker stands in the place of a parent. "de facto spouse or other family member", in relation to a worker, means a person who: (a) in relation to: (i) an injury received before the commencement of Schedule 5 [2] to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 - -although not legally married to the worker, lives with the worker as the worker's husband or wife on a permanent and genuine domestic basis, or (ii) an injury received after that commencement---is the other party to a de facto relationship with the worker, or (b) is the worker's father, mother, grandfather, grandmother, stepfather, stepmother, grandson, grand-daughter, brother, sister, half-brother or half-sister and is over the age of 16 years, or (c) is over the age of 21 years and is caring for any child of the worker. "student" means a person of or over the age of 16 years but under the age of 21 years who is receiving full-time education at a school, college or university. … 42(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated: (a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))---is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated, (b) was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period---is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated, (c) belonged to a class of workers prescribed by the regulations for the purposes of this paragraph---is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or (d) was not a worker or employee to whom paragraph (a), (b) or (c) applies---is a reference to the prescribed proportion of the worker's average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate. (2) If a regulation made for the purposes of subsection (1) (c) or (5) (b) contains a reference to an award or a provision of an award and the award or provision, in so far as it relates to a particular worker, is subsequently varied or replaced, the reference shall, on and from the date of the variation or replacement, be deemed, in relation to that worker, to be a reference to: (a) the award or provision as so varied, or (b) the award or provision which replaced that award or provision, as the case may be. (3) For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but: (a) there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service---the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or (b) although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work---the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award. (4) Subject to subsections (6) and (7), if the amount of a part-time worker's current weekly wage rate, as determined under subsection (1), exceeds the worker's average weekly earnings, a reference in this Division to that worker's current weekly wage rate is a reference to those average weekly earnings. (5) In subsection (4), the reference to a part-time worker: (a) includes a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph, and (b) does not include a reference to a worker belonging to a class of workers prescribed by the regulations for the purposes of this paragraph. (6) In determining a worker's current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker: (a) in respect of shift work, overtime or other penalty rates, (b) under the terms of the worker's employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or (c) to cover special expenses incurred by the worker because of the nature of the worker's employment, is, except in so far as the regulations otherwise provide, to be disregarded. (7) A reference in this Division to the current weekly wage rate of a worker, being a worker who: (a) at the time of the worker's injury, was employed under 2 or more contracts of service under which the worker worked at one time for one employer and at another time for another employer, and (b) is incapacitated from performing work under any 2 or more of those contracts, is a reference: (c) except as provided in paragraph (d)---to the sum of the current weekly wage rates applicable to the worker under subsection (1) or (4) as a worker employed by each of the employers by whom the worker was employed under the contracts referred to in paragraph (b), or (d) where the total of the worker's ordinary weekly hours of work under the contracts referred to in paragraph (b) exceeded 40---to an amount that bears to the sum referred to in paragraph (c) the same proportion as 40 bears to that total, and the current weekly wage rate of such a worker, as determined under this section, shall be deemed to be the worker's current weekly wage rate as a worker in the employment of the employer for whom the worker was working at the time of the worker's injury to the exclusion of any other employers. (7A) If the application of subsection (7) to an injured worker results in the current weekly wage rate of the worker being less than the rate that would be determined under this section if regard was only had to employment with the employer for whom the worker was working at the time of the worker's injury, a reference to the current weekly wage rate of the worker is, despite that subsection, a reference to that higher rate. (8) In this section: "appropriate period", for the purposes of the calculation of "average weekly earnings" in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period. "average weekly earnings", in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings: (a) the time of the injury concerned, (b) the time at which the relevant weekly payment of compensation is due, with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment. "award" means: (a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force, (b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991, (c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or (d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946, (e) (without limiting the above) includes a State industrial instrument, and includes any such award, industrial agreement or other agreement or instrument as from time to time amended. "prescribed proportion" means 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage. 43(1) For the purposes of the provisions of this Act relating to "earnings" and "average weekly earnings" of a worker, the following rules shall be observed: (a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned: (i) by a person in the same grade, employed at the same work, by the same employer, or (ii) if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district. (b) If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked at one time for one such employer, and at another time for another such employer, the worker's average weekly earnings shall be computed as if the worker's earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury. (c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the worker was employed at the time of the injury, uninterrupted by absence from work due to illness, strikes, lockouts, bad weather or any other unavoidable cause. (d) If the employer has been accustomed to pay to the worker a sum to cover any special expenses incurred by the worker because of the nature of the employment, the sum so paid shall not be reckoned as part of the earnings. (e) The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker's earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury. (f) If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section: (i) in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and (ii) in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker. (1A) Any relevant rules provided by this section are also to be observed in determining the average weekly amount that a worker would be able to earn in suitable employment for the purposes of section 40. If there is an ordinary weekly rate of pay generally applicable to employment of that kind under industrial law, the average weekly amount is to be determined by reference to that rate of pay together with any other likely weekly payments which it would be proper to include in the circumstances of the case (such as overtime or other amounts payable under common industry or other practice). (2) An employer shall, within 28 days, or such other period as may be prescribed, after a request from the employer's injured worker, supply to the worker, in writing and in accordance with any requirements of the regulations: (a) such details of the relevant award ("award" having the same meaning as in section 42) and such classification details as will enable the worker to determine his or her current weekly wage rate for the purposes of this Act, (b) such details of the earnings of the worker as will enable the worker to determine his or her weekly earnings for the purposes of this Act, or (c) such details of the earnings of at least 2 persons employed by the employer at the same or a comparable grade and work as the worker as will enable the worker to determine, for the purposes of section 36, 37, 40 or 55, the amount which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment. (2A) An employer who fails without reasonable excuse to comply with subsection (2) is guilty of an offence. (2B) The regulations may make provision for or with respect to: (3) In this section, "basic wage" means the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996, at the time of the computation. 43 Next, there is s.151I relating to the amount recoverable for economic loss at common law: 151I(1) In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker's net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 35 (even though that maximum amount under section 35 is a maximum gross earnings amount). (2) The maximum amount of weekly payments of compensation under section 35 for a future period is to be the amount that the court considers is likely to be the amount for that period having regard to the operation of Division 6 of Part 3 (Indexation of amounts of benefits). (3) This section applies even though weekly payments of compensation to the worker concerned are not subject to the maximum amount prescribed under section 35. 44 Finally, there is s.151B(1), which is now repealed with effect from 27 November 2001, but which applied to proceedings commenced prior to that date. This section concerned the amount to be deducted from common law damages by reason of payments previously made under the Workers Compensation Act: 151B(1) If a person recovers damages in respect of an injury from the employer liable to pay compensation under this Act: (a) the person then cease to be entitled to any further compensation under this Act in respect of the injury concerned (including compensation claimed but not yet paid); and (b) the amount of any compensation already paid in respect of the injury concerned is to be deducted from the damages (awarded or otherwise paid as a lump sum) and is to be paid to the person who paid the compensation. 45 The appellant submitted that, because in the Compensation Court proceedings the respondent had taken issue only on the question of whether the appellant was a "worker", it could not now seek to re-litigate other matters alleged in the appellant's application to the Compensation Court, including his allegation that his current weekly wage rate and average weekly earnings were $1,200.00 gross. He submitted that the effect of s.37 of the Workers Compensation Act was to limit the appellant's recovery to $543,50 at the time of the Compensation Court hearing, but that this limit was removed for the purposes of the Common Law proceedings by s.151I of the Act. He submitted that his actual earnings, as indicated by his income tax returns, were irrelevant, for this reason and also because the compensation at common law was for loss of earning capacity and thus not limited to earnings disclosed in income tax returns. The appellant relied on Port of Melbourne Authority v. Anshun Pty. Limited (1981) 147 CLR 589. 46 He also submitted that the respondent had not taken issue with the appellant's chronology provided to the Court of Appeal, and accordingly could not dispute matters in that chronology. Among the matters in the chronology were an entry under the date 5 April 2001 relating to the previous Court of Appeal decision in which it is asserted: "Appeal dismissed. No appeal was made to the High Court, so the judgment creates a estoppel which merely means that what has been decided must be taken to be established as a fact". Under the entry for 13 August 2001, when the matter came on for hearing before James J, the following appears: By the decision of the Court of Appeal on 05/04/01 the only remaining issue to be for litigation in the case was negligence and liability who denied by the first defendant up until the commencement of the hearing. However during the hearing the liability was admitted by the first defendant. It was common ground between Counsel for the plaintiff and Counsel for the first defendant that the assessment of damages was subject to the provisions of Pt.5 of the Workers Compensation Act 1987. 47 Finally, the appellant submitted that the primary judge was wrong to deduct $100,303.54 from the verdict as being weekly payments made under the Workers Compensation Act, when the Court of Appeal had decided that the appellant was entitled to those payments and when the primary judge awarded only $75,250.00 in respect of the relevant period for economic loss. 48 In my opinion, the appellant's argument to the effect that the primary judge should have calculated economic loss on the basis of $1,200.00 per week gross must fail. Any excess of the appellant's earnings over the statutory amount (then $543.50 per week) could not be an issue in the case before the Compensation Court, so there was no occasion for the respondent to raise any question to be determined by the Compensation Court concerning any excess of weekly earnings over the statutory figure. Accordingly, in my opinion, no issue estoppel or Anshun estoppel could possibly arise in relation to any possible excess of the appellant's weekly earnings over the statutory figure. 49 In my opinion, the chronology does not take the matter any further. The failure by the respondent to file its own chronology cannot possibly mean that the Court must accept assertions in the appellant's chronology such as those I have referred to. 50 On the question of the deduction, the primary judge was required by s.151B(1) to make the deduction which he made from the judgment. The decision of the Court of Appeal does not prevent that deduction being made. However, there is a question whether it was open to the primary judge to award only $75,250.00 for economic loss in respect of a period where, pursuant to a judgment of the Compensation Court, a total of $100,303.54 had been paid to the appellant. 51 Indeed, since the appellant was unrepresented, I considered it appropriate to put to Mr. Bridge a variant of the appellant's arguments as follows. First, that an award of $543.50 per week could not be sustained under the Workers Compensation Act unless the current weekly wage rate and/or average weekly earnings of the appellant were no less than that sum, that is, in substance, unless the appellant, if uninjured, would have been earning at least that amount. On that basis, it could be submitted, the respondent was bound by an issue estoppel to the effect that the appellant's economic loss in respect of the period for which workers compensation was paid as determined by the judgment of the Court was not less than the amount which was paid pursuant to that judgment. 52 In response to that line of argument, Mr. Bridge by leave provided written submissions. These submissions made the following points. 53 First, the existence or otherwise of any such estoppel was not an issue at the trial: it was not pleaded as required by Pt.15 r.13 of the Supreme Court Rules: see Laws Holding Pty. Limited v. Short (1972) 46 ALJR 563 and Commissioner for Railways v. Bielewicz (1963) 63 SR(NSW) 466. There was no relevant evidence or submission relating to such estoppel at the trial. 54 Next, Mr. Bridge submitted that Bishop J in the Compensation Court expressly refrained from making any finding on current weekly wages or probable earning figures: it would be wrong to find that the respondent was bound by an issue expressly reserved by Bishop J. In any event, the relevant sections of the Workers Compensation Act are not concerned with impairment of earning capacity in the common law sense. There was not sufficient identity of issues in the two sets of proceedings to give rise to any estoppel: Egri v. DRG Australia Limited (1988) 19 NSWLR 600 at 609C-610B. 55 If, contrary to the earlier submissions, the Court were to find that an issue estoppel did arise, Mr. Bridge submitted that it could only be binding until the date of the judgment of Bishop J, namely 10 November 1999: Lombardo v. Stuart Bros. Pty. Limited (1967) 68 SR(NSW) 159 at 163. 56 In my opinion, there is force in Mr. Bridge's submission relying on the absence of any pleading of estoppel; but the authorities referred to make it clear that, although estoppel should be pleaded, failure to plead it is not conclusive against any reliance on estoppel. The ultimate question is whether reliance on estoppel should be precluded by consideration of procedural unfairness. In respect of any point which could have been dealt with by further evidence or by the trial being conducted differently, the principles in Suttor v. Gundowda Pty. Limited (1950) 81 CLR 418 would preclude reliance on that point for the first time on an appeal. 57 Although Bishop J expressly refrained from making any finding "on current weekly wage rates or probable earning figures", nevertheless the judgment can give rise to an estoppel if some finding of fact on that matter was legally indispensable to the judgment: Blair v. Curran (1939) 62 CLR 464 at 532. And as pointed out by Clarke JA in Egri at 610, it is not necessary that the issues in the two cases be identical, so long as it is the same question of fact or law that has been determined in the earlier case, albeit in the course of determining an issue which was not identical to that arising in the current case. 58 By reason of s.37(2) of the Act, it was not open to Bishop J to order that the appellant be paid $543.50 per week if that sum exceeded his "current weekly wage rate determined from time to time in accordance with s.42". There may be a question as to where the onus of proof lies on this matter; but it seems to me that the onus is generally on the worker to show circumstances supporting the award which is made. Clearly, a worker applying under s.36 would have to show what his current weekly wage rate was; and a worker applying under s.37 would have to show that his average weekly earnings were at least one-ninth greater than the amount specified in s.37(1)(a)(i). It would be artificial to identify a distinct onus on the employer in relation to the issue under s.37(2). In my opinion, the employer would have to raise in its defence any relevant issue bearing on wage rates or average earnings, whether this be under s.37(1)(a)(i) or s.37(2) or s.42 or s.43; but when the employer has done so, there is I think a general onus on the worker. 59 Section 42, to which s.37(2) refers, and s.43, to which various provisions of s.42 refer, are complex and convoluted, and make various provisions for different classes of case. However, it seems clear that in this case, the appellant would not be entitled to be paid $543.50 per week unless his average weekly earnings over the year preceding the injury or the year preceding that week were no less than this amount: see ss.37(2); s.42(1)(d), (4), (7), (8); s.43(1). 60 After 10 November 1999, each weekly payment that was made, including increases up to the ultimate figure of $571.00 per week, was required by the judgment, in the absence of any application for variation or (possibly) any resistance to any increase by reason of statutory variations, on the basis of s.37(2). In my opinion, until payments ceased, the judgment, the making of payments pursuant thereto, and the absence of any application to vary, conclusively established that the appellant's average weekly earnings over the year preceding the injury or the year preceding the particular weekly payment were not less than these weekly payments; and as noted earlier, the respondent conceded that these same circumstances conclusively established that the appellant had no residual earning capacity for this period. In my opinion, the inference that the value of the loss or impairment of the appellant's earning capacity in respect of the period was not less than the amount of the weekly payments is inevitable; and the respondent could not have resisted that inference by any evidence or any different conduct of the case below. 61 In so far as the Compensation Court proceedings established that the appellant's average weekly earnings for the year prior to the accident were no less than $534.50 per week, this would also be powerful evidence of a minimum value of the impairment of the appellant's economic capacity for the period after the trial before James J. However, it would not have been conclusive, if only because there was no estoppel to the effect that the appellant had no residual earning capacity in this later period; and it is possible that the respondent could have led evidence or conducted the case differently so as to resist this conclusion. In circumstances where this matter was not pleaded or relied on below, in my opinion the principle in Suttor v. Gundowda would prevent the appellant relying on any estoppel in respect of economic loss for the period after the trial. 62 The appellant has been required to repay $100,303.54 to the respondent in respect of weekly payments prior to the trial or (more accurately) the judgment. In respect of the relevant economic loss, the appellant has received not only the $75,250.00 referred to earlier, but also the Fox v. Wood component of $18,257.70, making a total of $93,507.70. The question then is, whether the estoppel I have identified justifies an increase in the judgment by the difference between the two figures, that is by $6,795.84. It could be argued that the Suttor v. Gundowda principle applies to this period of economic loss, as well as the subsequent period; but as stated above, I do not think that any additional evidence or any difference in the conduct of the case below could possibly have avoided the effect of the estoppel for this period, and so I do not think the principle applies in respect of this period CONCLUSION 63 For those reasons, in my opinion the appeal should be allowed to the extent of increasing the judgment by a figure of $6,795.84, but otherwise dismissed. Having regard to the very limited measure of success, in my opinion each party should bear its own costs of the appeal. 64 SANTOW JA: I agree with Hodgson JA. 65 GZELL J: I agree with Hodgson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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