Nicholas Loizos v Carlton and United Breweries Ltd [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kearney J,Angel J,Mildren J
• Judgment Date: 25 February 1994
• Date: 25 February 1994
• Docket Number: No. AP14 of 1992

(1994) 94 NTR 31

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

Kearney, Angel and Mildren JJ

No. AP14 of 1992

Nicholas Loizos

and

Carlton and United Breweries Ltd

Counsel for appellant: J.B. Waters

Counsel for respondent: S.R. Southwood

Victorian Stevedoring and General Contracting Co. and Meakes v Dignan (1931) 46 CLR 73, applied. Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616, applied. Wilson v Lowery (unreported, Court of Appeal (NT), 11 May 1993), applied.

Builders Licensing Board v BJ Lindner Pty Ltd (1982) 1 NSWLR 561, applied. George Hudson Ltd v The Australian Timber Workers' Union (1920) 32 CLR 413, applied. Fibrosa Spolka Akcyjna v Fairburn Lawson Combe Barbour Ltd (1943) AC 32, applied.

Cunningham-Beattie v Groote Eylandt Mining Co. Pty Ltd (1989) 60 NTR 1, applied. Wainer v Rippon (1979) 29 ALR 643, referred to. The Council of the Shire of Redland v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641, referred to. Coates v Commissioner for Railways (1961) 78 WN (NSW) 377, applied. Commissioner for Superannuation v Bayley (1979) 41 FLR 385, referred to. Foresight Pty Ltd v Maddick (1991) 79 NTR 17, applied. The Queen v The Justices of Berkshire (1878) 4 QBD 469, applied. In re Beaumont dec'd (1980) 1 Ch 444, referred to. Jelley v Iliffe (1981) 2 WLR 801, referred to. Water Board v Moustakas (1988) 77 ALR 193, applied. Alphafield Ltd v Barratt (1984) 3 All ER 795, referred to. Secretary of State for Employment v Spence (1987) 1 QB 179, applied. Litster v Forth Dry Dock and Engineering Co Ltd (In Receivership) (1990) 1 AC 546, referred to. R v Horseferry Road Metropolitan Stipendiary Magistrate; ex p. Siadatan (1991) 1 QB 260, referred to. Perfect v Northern Territory of Australia (unreported, Supreme Court of Northern Territory (Mildren J), 29 May 1992), referred to. Hobbs v London and South Western Railway Co (1875) LR 10 QB 111, applied.

Work Health Act (NT), ss65(1), (3) and (7), 189(2).

Work Health Act (NT), ss49(1), 65(3) and 189(2).

Work Health Act (NT), s116.

Workers' compensation — appeal on a question of law — general principles applicable.

Workers' compensation — assessment of compensation — whether parties' common assumption that worker's loss of earning capacity could not be calculated, is correct — whether necessary to decide if the rate of compensation is 70% of 150% of average weekly earnings, or 70% of loss of earning capacity, or the minimum statutory rate.

Workers' compensation — construction of terms in Act — worker injured prior to commencement of Act electing to claim compensation under Act — application of Act — effect of deeming provision — whether ‘normal weekly earnings’ confined to earnings from respondent employer — meaning of ‘immediately before’ — meaning of ‘the date upon which he first became entitled to compensation’.

ORDER

Appeal dismissed.

JUDGE1

1 Kearney J This is an appeal from a decision by the Supreme Court (Martin J, as he then was), allowing an appeal from a decision of the Work Health Court of 8 March 1991, and varying its determination. The function of this Court is to decide whether the Supreme Court was right or wrong; see Wilson v Lowery (unreported, Court of Appeal, 11 May 1993) at pp5–7.

2 I have had the benefit of reading the opinion of Mildren J. There the relevant provisions of the Work Health Act, the facts, the history of proceedings and the issues arising in this appeal are fully set out and discussed. I need not repeat them.

3 His Honour has concluded that whether ‘normal weekly earnings’ in the Act refers to earnings at the time of the injury, or to later earnings (when no immediate financial loss flowed from the injury), or whether on the proper construction and application of s65(3) the appellant had no normal weekly earnings for the purpose of calculating his loss of earning capacity, the result is the same and the appeal must be dismissed. I agree that the appeal must be dismissed but as I consider that the analysis by the learned trial Judge was correct, and that that conclusion should determine the outcome of the appeal, I should state my reasons for that approach.

A STATUTORY FICTION AND ITS CONSEQUENCES

4 The problems which arise in applying the Act to the facts of this case ultimately stem from the words ‘as if’ in s189(2), a deeming provision which, for the purpose of the appellant's claim under the Act, transposes the occurrence of his injury from 1961 to a date ‘after’ 1 January 1987. The Act thereby creates a fictitious factual situation. This is not uncommon in statutes; see for example, Wainer v Rippon (1979) 29 ALR 643 at p650, and The Council of the Shire of Redland v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641 at p655.

5 One consequence of this fiction in my opinion is that it was not open to the appellant in his application under the Act to rely in any way before the Work Health Court on the reality that his injury had occurred in 1961; s189(2) does not simply attach the benefits of the Act to a pre-existing injury. The appellant was bound to proceed on the fictional basis which arose when he made his election under s189(2); see Coates v Commissioner for Railways (1961) 78 WN (NSW) 377, where Kinsella and Collins JJ said at p384:-

‘When a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact; and it is not open to a worker against whom the provision operates that the injury shall be deemed to have happened at a certain point of time, to seek to establish that he has in fact received the injury before that time.’

6 It follows that the appellant's “normal weekly earnings” in 1961 were irrelevant to the calculation to be made under s65, unless they were encompassed by the words ‘immediately before’ in s65(3). For reasons set out later, I consider they were not within the scope of those words. Insofar as the hearing before the Work Health Court proceeded on a root assumption that the appellant's 1961 earnings were relevant to the s65 calculation, the proceedings were unsoundly based and the decision erroneous.

7 Statutory fictions of the s189(2) type commonly result in practical difficulties; see, for example, the problems created by the ‘asifism’ discussed at (1979) Crim LR 266 and 607–8, and (1980) Crim LR at 68–9. And so it is here. In other Australian jurisdictions which have reformed their workers' compensation legislation in recent years, the legislatures have not relied on the deceptively simple ‘asifism’ approach of s189(2) to provide for compensation for pre-existing injuries, but on the techniques outlined by Asche CJ in Cunningham-Beattie v Groote Eylandt Mining Co. Pty Ltd (1989) 60 NTR 1 at p6. See, for example, s124 of the Safety Rehabilitation and Compensation Act 1988 (C'th), and Schedule 6 of the Workers Compensation Act 1987 (NSW).

THE CONSTRUCTION OF ‘IMMEDIATELY BEFORE’ IN S65(3)

8 As Mildren J points out, on the facts on which the Court was required to act, the appellant had no entitlement to compensation under the Act until 23 March 1989; that is ‘the date upon which he first became entitled to compensation’, for the purposes of s65(3).

9 I bear in mind that the Act is a remedial statute, and accordingly its provisions should be interpreted in a benign and liberal manner, and a construction most favourable to the worker is to be preferred where any ambiguity exists; see Foresight Pty Ltd v Maddick (1991) 79 NTR 17 at p24. I have no real or substantial doubt that the words ‘immediately before’ in their context in s65(3) plainly and unambiguously bear only a temporal meaning; I consider this view was also held by Martin J.

10 The next question is as to the time-scope encompassed by ‘immediately before’; in particular, does it encompass the period which elapsed since the appellant last had ‘normal weekly earnings’ prior to 23 March 1989? It is clear that the appellant last worked in 1986 though there was no specific finding to that effect by the Work Health Court; see its earlier judgment of 24 May 1989. This stemmed from the way the case was run before that Court, the concentration being on his employment in 1961, any employment in 1986 being regarded as irrelevant. Mildren J has pointed to the difficulties, flowing from the way the case was conducted, in now dealing with the significance of the 1986 employment; however, for present purposes, I set those to one side. Since October 1986 the appellant has been an invalid pensioner.

11 Different views have been expressed in the case-law as to the time-scope of the words ‘immediately before’, in different contexts. I turn to some of the cases, by way of illustration.

12 Cockburn CJ said in The Queen v The Justices of Berkshire (1878) 4 QBD 469 at p471:- ‘It is impossible to lay down any hard and fast rule as to what is the meaning of the word ‘immediately’ in all cases’. I respectfully agree. The meaning, however, clearly depends on the context in which the words appear. The words do not necessarily connote the instant prior to the date in question. In In re Beaumont dec'd (1980) 1 Ch 444, a reference in inheritance legislation to a ‘person … who immediately before the death of the deceased was being maintained’ was held to require the Court to consider whether there was some settled basis or arrangement for that maintenance, and not merely the de facto position at the moment of death, though it was confined to the basis subsisting at the moment before death. That is, ‘a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal sickness’, as Stephenson LJ put it in Jelley v Iliffe (1981) 2 WLR 801 at p807.

13 Clearly, the words ‘immediately before’ refer to a more confined period of time than that...