Nicholas Loizos v Carlton and United Breweries

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 25 February 1994
• Neutral Citation: [1994] NTSC 23
• Docket Number: No. AP14 of 1992
• Date: 25 February 1994

[1994] NTSC 23

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Mildren J

No. AP14 of 1992

Nicholas Loizos

and

Carlton and United Breweries

Counsel for appellant: J Waters

Counsel for respondent: S Southwood

Workers' Compensation

ORDER

Appeal dismissed.

JUDGE1

1 Mildren J This appeal involves the construction to be given to s65 of the Work Health Act (‘the Act’) in circumstances where the appellant worker was injured in the course of his employment prior to the commencement of the Act and after the commencement of the Act elected to pursue his rights to claim compensation under the provisions of the Act rather than the provisions of the former workers compensation legislation.

2 The appellant received an injury to his right wrist whilst at work in the employ of the respondent on 21 February 1961. In 1963 he received compensation under the provisions of the Workmen's Compensation Ordinance, later to become the Workers' Compensation Act (hereinafter referred to as the ‘former Act’). He returned to work in 1964 with another employer. Except for a brief period in 1974, he returned to Greece between 1965–1984 where he was also in employment. In about May 1984 he returned to Australia and again found work until 1986. In 1986 he was given an invalid pension due to continuing pain in his wrist. Since then he has not been in work. In 1989 a claim for compensation was heard in the Work Health Court for weekly payments under the Act for the period 28 October 1986 to 23 March 1989. This claim failed because the learned Chief Stipendiary Magistrate found that the appellant had unreasonably refused to undergo medical treatment which was offered to him and would have permitted him to return to work. There is no appeal from this decision. The matter was then adjourned in respect of any claims for compensation for the period thereafter. On 8 March 1991 the learned Chief Stipendiary Magistrate delivered her reasons for ruling on a preliminary issue between the parties. The respondent conceded that, as from 23 March 1989 the appellant was totally incapacitated for work and that he was entitled to payments of weekly compensation as from that date and continuing. The question which the Chief Stipendiary Magistrate was asked to decide was which was the appropriate method of calculating the quantum of the appellant's right to weekly payments. The appellant submitted that he was entitled to be paid at the rate of 70 per cent of 150 per cent of ‘average weekly earnings’ at the time of payment, vide s65(3) of the Act. The respondent submitted that the appellant was entitled only to the minimum rate of compensation calculated in accordance with s65(7) of the Act. Both submissions proceeded upon the contention that it was not possible to calculate any amount of ‘compensation equal to 70 per cent of (the appellant's) loss of earning capacity’ within the meaning of s65(3) (hereinafter called ‘the assumption’). It remains to be seen whether this assumption was correct.

3 The Chief Stipendiary Magistrate concluded that the appellant was entitled to be paid weekly compensation at the rate of 70 per cent of 150 per cent of average weekly earnings. In arriving at this conclusion, her Worship accepted the validity of the assumption. Following this ruling, an order was made that the respondent pay the appellant $55,836.32 in respect of weekly compensation for the period 23 March 1989 to 25 March 1991 and the matter was adjourned for any further orders and for argument on the question of costs to 18 April 1991. It does not appear that the matter proceeded any further in the Work Health Court, as in the meantime the respondent had appealed to the Supreme Court. On the hearing of the appeal, Martin J (as he then was) also accepted the validity of the assumption, but his Honour held that in those circumstances the minimum rate fixed by s65(7) of the Act applied.

4 Section 189 of the Act provided at the time of the learned Chief Stipendiary Magistrate's decision on 8 March 1991 (‘the relevant time’) (see Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73; Builders Licensing Board v Sperway Constructions (1976) 135 CLR 616 at 619) as follows:

‘189. CLAIM, andc., BEFORE OR AFTER COMMENCEMENT OF ACT (1) Where a cause of action in respect of an injury to or death of a person arising out of or in the course of his employment arose before the commencement of this section, a claim or action (including a claim or action at common law) in respect of that injury or death may be made, commenced or continued after the commencement of this section as if this Act had never commenced and for that purpose the repealed Act shall be deemed to continue in force.

(2) Notwithstanding subsection (1), a person may claim compensation under this Act in respect of an injury or death referred to in that subsection and on his so doing this Act shall apply as if the injury or death occurred after the commencement of this section, and subsection (1) shall have no effect.’

5 The Act came into force on 1 January 1987. It repealed the former Act. The effect of s189 of the Act is that a worker who suffered a work-related injury prior to 1 January 1987, and who was entitled under the former Act to compensation under that Act, could either claim compensation under the former Act (s189(1)) or could elect to claim compensation under the Act (s189(2)). If the worker elected to pursue his claim under the Act, whilst he must show an entitlement to compensation under the former Act, it is the Act which provides the procedures for claiming compensation and provides for the amounts and the methods of calculation of the compensation payable: see Cunningham-Beattie v Groote Eylandt Mining Co Pty Ltd (1989) 60 NTR 1. Another consequence of claiming under the Act in these circumstances is that a worker could not claim any weekly benefits in relation to the period of time prior to 1 January 1987 because s189(2) requires the injury to be treated as having occurred after that time. In this case, the appellant had no entitlement under the Act until 23 March 1989 when he became totally incapacitated for work.

6 Section 65 of the Act relevantly provided at the relevant time as follows:

‘65. LONG-TERM INCAPACITY

(1) Subject to this Part, a worker who is totally or partially incapacitated for work as the result of an injury out of which his incapacity arose or which materially contributed to it shall be paid, in addition to any other compensation to which under this Part he is entitled, after the first 26 weeks referred to in section 64, compensation equal to 70% of his loss of earning capacity of 150% of average weekly earnings at the time the payment is made, whichever is the lesser amount, until —

(a) he attains the age of 65 years; or

(b) if the normal retiring age for workers in the industry or occupation in which he was employed at the time of the injury is more than 65 years — he attains the normal retiring age.

(2) For the purposes of subsection (1), loss of earning capacity in relation to a worker is the difference between —

(a) his normal weekly earnings indexed in accordance with subsection (3); and

(b) the amount, if any, he is from time to time reasonably capable of earning in a week during normal working hours in work he is capable of undertaking if he were to engage in the most profitable employment, if any, reasonably available to him.

(3) The normal weekly earnings of a worker for the purpose of calculating his loss of earning capacity at a particular date shall be taken to be his normal weekly earnings immediately before the date on which he first became entitled to compensation multiplied by the average weekly earnings at the particular date and divided by the average weekly earnings applying at the date on which he first became entitled to compensation.

(4) …

(5) …

(6) For the purposes of this section, a worker shall be taken to be totally incapacitated if he is not capable of earning any amount during normal working hours if he were to engage in the most profitable employment, if any, reasonably available to him.

(7) The Regulations may prescribe, in respect of a prescribed period, a minimum rate of compensation under this section and while a minimum rate is so prescribed a worker shall be paid compensation at that rate during that period in lieu of any payment at less than that rate that would otherwise be payable to the worker under this section.’

7 (Both parties accepted that s64, which deals with the...