District Court New South Wales Medium Neutral Citation: Everett v Ulan Coal Mines Limited (No 2) [2015] NSWDC 80 Hearing dates: 26 November 2014 Date of orders: 01 April 2015 Decision date: 01 April 2015 Jurisdiction: Civil Before: Neilson DCJ Decision: Award made on 6 January 2015 confirmed Stay made on 6 January 2015 rescinded Defendant to pay the plaintiff's costs of application on a refresher basis Catchwords: WORKERS COMPENSATION – Coal miners – Payments during periods of partial incapacity – During first 26 weeks of incapacity maximum payable rate is current weekly wage rate – After first 26 weeks of incapacity maximum payable is the statutory rate Legislation Cited: Workers Compensation Act 1926 Cases Cited: Everett v Ulan Coal Mines Limited [2015] NSWDC 22 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 Publication restriction: No Judgment 1. HIS HONOUR: This is the third occasion upon which I have been called upon to give reasons for judgment in this matter. The first set of reasons were given on 26 November 2014. The second set of reasons was given on 6 January 2015. They have been published at [2015] NSWDC 22. An application has been made by the defendant, pursuant to the leave granted by me in [18] of that judgment. The defendant does not submit that the judgment is incorrect. Indeed, the defendant has voluntarily paid the award which I published on 6 January 2015 as set out in [18] of my earlier reasons. However, the defendant does point out that certain of the dicta which I made can be interpreted to lay down an incorrect legal prescription. However, to see the legal prescription which I made as erroneous requires the comments I made to be taken out of context. 2. It is to be borne in mind that the injury relied upon by the plaintiff occurred on 4 June 2011. That can be found in [5] of the earlier reasons. The two closed periods of incapacity alleged were between 11 August 2011 and 3 September 2011, and between 10 October 2011 and 28 October 2011, that is, each of the two closed periods fell within the first 26 weeks of incapacity. My judgment must be construed in light of those primary facts. 3. At [9] of my earlier reasons, I recited s 9(1)(a) of the Workers Compensation Act 1926, as it was prior to the repeal of the Workers Compensation Act 1926. In s 9(1)(a), there is prescribed the sum of $83 per week after the first periods of incapacity totalling 26 weeks. Further on in [9] of my reasons, I pointed out that pars (b) and (c) provided extra payments during the periods of incapacity after the first 26 weeks for a dependent spouse, which was originally $19, and a dependent child, which was initially $9.50, and for certain other dependents. Those sums were indexed pursuant to s 9A of the Workers Compensation Act 1926. The amounts of $83, $19 and $9.50 and certain other benefits are collectively known as the "statutory rate". 4. The defendant points out that what I said in [17] of my earlier reasons might suggest to some that the current weekly wage rate was the maximum payable pursuant to s 11(1) of the 1926 Act at any time. Such a construction is insupportable. The fact is the current weekly wage rate remains the maximum payable under s 11(1) but only to the extent that it limits the statutory rate after the first 26 weeks. For example, after the first 26 weeks, a worker with no dependents would only be entitled to the statutory rate because the statutory rate would hardly approach the current weekly wage rate. Equally, a coal miner with a dependent wife and 12 dependent children could have his statutory rate exceed the current weekly wage rate. That is a matter that I experienced when I was a solicitor and a matter that Mr Odling who appears for the defendant, has experienced with a coal miner in more recent times. 5. The law is that if the statutory rate exceeds the current weekly wage rate, the current weekly wage rate must be substituted for the statutory rate. Equally, after the first 26 weeks, if the worker's statutory rate does not exceed the current weekly wage rate, then the statutory rate is the maximum payable for either total incapacity or partial incapacity after, as I said, the first 26 weeks. I trust these remarks allay any fear of the defendant that I somehow meant to state otherwise. For those reasons, I confirm the award made by me in chambers on 6 January 2015. 6. I am told now that the currently weekly wage rate was $1022.04. The award which I made on 26 November 2014 does not exceed that sum. Therefore the award made on 26 November 2014 is confirmed and the stay made at [18] on 6 January 2015 is rescinded. 7. I order the defendant to pay the plaintiff's costs of today on a refresher basis. ********** 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. Decision last updated: 27 May 2015