Everett v Ulan Coal Mines Limited [2015] NSWDC 22

District Court New South Wales

Medium Neutral Citation: Everett v Ulan Coal Mines Limited [2015] NSWDC 22 Hearing dates: 26 November 2014 Decision date: 06 January 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Award for the plaintiff for $924 per week from 11 August 2011 to 3 September 2011

Award for the plaintiff for $864 per week from 10 October 2011 to 28 October 2011

Credit to the defendant for payments already made to the plaintiff

Defendant to pay plaintiff's costs

Limitation on the amount payable to the current weekly wage rate Catchwords: WORKERS COMPENSATION – Coal miners – Maximum payable for partial incapacity Legislation Cited: Compensation Court Act 1984 District Court Act 1973 Workers Compensation Act 1926 Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 2012 Workers' Compensation (Rates) Amendment Act 1977 Category: Principal judgment Parties: Craig Thomas Everett (Plaintiff) Ulan Coal Mines Limited (Defendant) Representation: Counsel: Mr P O'Rourke (Plaintiff) Mr B Odling (Defendant)

Solicitors: Whitelaw McDonald (Plaintiff) Sparke Helmore (Defendant) File Number(s): RJ168/14

Judgment 1. The plaintiff, Mr Craig Thomas Everett, claims weekly payments of compensation for two short closed periods. They are from 11 August 2011 to 3 September 2011 and from 10 October 2011 to 28 October 2011. His claim is under s 11(1) of the Workers Compensation Act 1926 as applied by Sch 6 Pt 18 cl 1(1) of that Act which applies Sch 6 Pt 4 cl 5 of that Act. Schedule 6 Pt 4 cl 4 (1)(c) provides that s 11(1) of the former Act applies instead of s 40 of the Workers Compensation Act 1987 and then provides this: "(but the maximum weekly amount of payment for partial incapacity for work shall not exceed the amount payable under this clause for total incapacity for work)." The problem is that cl 4 does not provide a maximum that is payable for total incapacity. It would appear from the terms of Pt 4 cl 4 that s 36 of the 1987 Act applies. According to s 36 as enacted, the weekly payment for compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity is the amount of the worker's current weekly wage rate. Part 4 cl 4(1) para (b) then applies s 37 but changes the rates payable for a dependant spouse and a dependant child. 1. Significantly, cl 4 (1)(a) says that s 35 of the 1987 Act as initially enacted does not apply. Section 34 as initially enacted provided that the maximum weekly payment of compensation to an injured worker in respect of any period of total or partial incapacity for work should not exceed $500. That amount was varied from time to time by indexation. There is nothing prescribed as the maximum for total incapacity for work under Sch 6 Pt 4 cl 4. If I go to s 11(1), the most that can be awarded is provided by the terms of s 11(1) itself. It is in the following terms: "In the case of partial incapacity, the weekly payment shall in no case exceed the difference between 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, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper." It is axiomatic from that provision that the most that could be possibly awarded for partial incapacity is the average weekly earnings of the worker but, of course, that must, by reason of the provision, be reduced by the amount the worker is actually earning or is able to earn in some suitable employment. 1. Unfortunately, no one can provide me here at Newcastle with a copy of the 1926 Act as it was immediately prior to its repeal by the 1987 Act. The only source of antique knowledge available to me here is the second edition of Marjorie O'Brien's work "Workers Compensation Law in New South Wales" published in 1946. Annexed to that work is a copy of the Workers Compensation Act 1926 as it was in 1946. Under the statute reproduced in Ms O'Brien's work is the then s 9(2). Section 9 governed payments to workers for total incapacity. In 1946 s 9(2) provided this: "The total weekly payment by the employer under subsection one of this section shall not exceed a sum equal to the average weekly earnings referred to in paragraph (a) of that subsection, or the sum of six pounds, whichever is the smaller amount." Unfortunately, I do not have before me s 9(2) as it stood immediately prior to the repeal of the 1926 Act but, based on my experience as a practitioner between 1976 and 1987, the subsection had been amended to remove the limiting amount which, as at 1946, was the princely sum of £6. In any event, £6, which became $12 with the adoption of decimal currency, was a very large sum in 1946. The scheme of the 1926 Act was to make the maximum the average weekly earnings. The scheme of the 1987 Act as enacted was to make the currently weekly wage rate the maximum compensation payable. The current weekly wage rate is the award rate for a standard 40 hour or 38 hour week. There was no such limitation under the 1926 Act. 1. Accordingly, the plaintiff is entitled to the difference, during the two periods in question, between what his average weekly earnings would have been but for injury and what he actually earned. After much huffing, puffing, scowling and invective from the Bench, those at the Bar table, being four lawyers, eventually agreed that the plaintiff's average weekly earning, subject to what I shall say shortly, amounted to $3,319. It was eventually agreed that during the first period the worker actually earned $2,395 and during the second period actually earned $2,455. The difference during the first period is $924 and the difference in the second period is $864. 2. The insurer of the defendant paid to the plaintiff during each of those periods the statutory amount for the period after the first 26 weeks of incapacity for a single worker with a dependant spouse. The difference is substantial. The only real dispute now is how the plaintiff's average weekly earnings are best to be computed. The transitional provisions applicable to coal miners do not adopt s 14 of the 1926 Act and, therefore, I would have to apply s 43 of the 1987 Act as enacted, but the reason for the failure to apply s 14 of the 1926 Act is that it is in almost identical terms to s 43 of the 1987 Act. Section 43(1)(a) of the 1987 Act provided this: "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 impractical at the date of injury to compute the rate of remuneration, regard may be had to the average weekly earnings 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." The dispute as to how the average weekly earnings ought be computed stems from the fact that, for some considerable time, the plaintiff was working afternoon shifts, that is, from 2pm to midnight, between Mondays and Thursdays. However, in February 2011 the plaintiff changed his shift structure in order to work night shifts on weekends which remunerated him at a higher rate. Between that change and the plaintiff's knee injury on 4 June 2011 is a period of 17 weeks. The average weekly earnings of $3,319 is the average that he earned over that 17 week period. 1. It appears to me that it would be improper to take into account his earnings in a different shift structure prior to February 2011 because that would not allow the best calculation of the rate per week at which the worker was to be remunerated but for injury. The only issues tendered by the amended defence filed by the defendant to the plaintiff's statement of claim are these: "1. The plaintiff does not suffer from any economic loss as a result of any injury arising out of or in the course of employment with the defendant as alleged or at all. 2. That if the plaintiff does suffer from any economic loss as a result of any injury arising out of or in the course of employment with the defendant as alleged or at all, the plaintiff has been paid his full entitlement to weekly benefits. 3. That the plaintiff's claim is frivolous, vexatious and/or brought without proper justification and the defendant relies upon same in relation to any issues as to costs." The defendant applied the statutory rate applicable after the first 26 weeks to the calculation of the plaintiff's loss under s 11(1) but that, in my view, is impermissible by operation of s 11(1) of the Act and the transitional provisions. It was not necessary in the circumstances to adduce any oral evidence, merely to seek agreement from the parties as to the amount of the average weekly earnings and the plaintiff's actual earnings and to know as to how those earnings were computed. 1. For those reasons I make an award for the plaintiff for $924 per week from 11 August 2011 to 3 September 2011 pursuant to s 11(1) of the Workers Compensation Act 1926. I make an award for the plaintiff for $864 per week from 10 October 2011 to 28 October 2011. I grant credit to the defendant for payments already made to the plaintiff. I order the defendant to pay the plaintiff's costs. 2. I merely add this. Neither the wages schedule filed by the plaintiff nor the wages scheduled filed by the defendant have any resemblance to the figures which eventually were agreed to by the parties. I also observe that a dispute of this nature, which depends upon the law, should not be had here on circuit at Newcastle but held in Sydney where everyone would have available to him or her a copy of the relevant legislation, none of which is readily available on the internet.