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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

CHAMBERS: TUESDAY 6 JANUARY 2015

9. The above reasons for judgment were forwarded to me at 3.16pm on Friday 19 December 2014 electronically by the reporting service. I have had an opportunity to research the question of law here involved more thoroughly. I believe I have erred. Section 9(2) of the Workers Compensation Act 1926 immediately prior to its repeal was in the following terms:

“The total weekly payments by the employer under subsection (1) shall not, after a period of incapacity resulting from an injury to the worker of, or periods of incapacity resulting from the one injury to the worker totalling, 26 weeks, exceed an amount equal to the workers current weekly wage rate.”

The subsection was amended by Act No 124 of 1977, s 4 and Sch 1. That Act was the Workers’ Compensation (Rates) Amendment Act 1977. Immediately prior to the repeal of the 1926 Act, s 9(1)(a) provided:

“9. (1) Subject to the provisions of this section and of sections 11 and 13, where total or partial incapacity for work results from the injury the compensation payable by the employer under this Act shall include:-

(a)the worker’s current weekly wage rate in respect of any period of incapacity which together with any other such periods (whether occurring before or after the date of assent to the Workers’ Compensation (Rates) Amendment Act, 1977) of incapacity resulting from the one injury do not total more than 26 weeks, and, in respect of any subsequent period, a weekly payment in respect of the worker during the incapacity which shall not exceed 90 per cent of his average weekly earnings for the previous twelve months if he has been so long employed by the employer, but if not, then for any less period during which he has been in the employment of the same employer. Where compensation is payable for incapacity for part of a week the amount shall bear the same ratio to compensation for a full week that normal working time during such part bears to the worker’s full normal working week. The compensation payable under this paragraph in respect of any period of incapacity occurring after a period of incapacity of, or periods of incapacity totalling, 26 weeks shall not exceed $83 per week, and shall be not less, in the case of an adult worker, than $66 per week for total incapacity.”

Paragraphs (b) and (c) provided extra payments during periods of incapacity after the first 26 weeks for a dependent spouse ($19) and a dependent child ($9.50) and certain other dependants. The amounts of $83, $66, $19 and $9.50 were indexed under s 9A. The “current weekly wage rate” (“CWWR”) applied by s 9(1) and s 9(2) was defined by section 9(8) - (11). The latter provisions were re-enacted as s 42 of the 1987 Act, until its effective repeal by Act No 53 of 2012.

10. Accordingly, the scheme of the 1926 Act immediately prior to its repeal was that during the first 26 weeks of incapacity an injured worker was entitled to his CWWR and thereafter to a maximum of 90% of his “average weekly earnings” (“AWE”) but the weekly payment was never to exceed the CWWR. The problem which then arises is that the limiting provisions of the 1926 Act are in s 9 of that Act, not in s 11(1).

11. Schedule 6 Pt 18 cl 1(1) provides this:

“In the case of a worker employed in or about a coal mine, the provisions of clauses 4 and 5 of Part 4 of this Schedule apply as if any period of incapacity for work of the worker occurred as the result of an injury received before the commencement of Division 2 of Part 3 of this Act”

Part 3 (“Compensation-Benefits”) Div 2 (“Weekly Compensation By Way Of Income Support”) commenced on 30 June 1987. Relevant provisions of Div 2 (as originally enacted) were:

Schedule 6 Pt 18 cl 1(2) provides that redemption under s 15 of the 1926 Act is still available to coal miners.

12. Schedule 6 Pt 18 cls 1(3) to (5) provide this:

”1 Continuation of weekly compensation payments under former Act

[…]

(3) However, clauses 4 (1) (b) and 4A of Part 4 of this Schedule (as applying under this clause) do not apply in respect of any period of incapacity for work that:

(a) results from an injury received after the commencement of Division 2 of Part 3 of this Act, and

(b) occurs after the commencement of this subclause (as inserted by the WorkCover Legislation Amendment Act 1996 ), and

(c) occurs during the first 104 weeks of incapacity but after the first 78 weeks of incapacity.

(4) For the purposes of subclause (3), the first 78 weeks of incapacity and the first 104 weeks of incapacity are the periods of incapacity for work (whether total or partial, or both) of 78 and 104 weeks, respectively, after the worker becomes entitled to weekly payments of compensation in respect of the incapacity. In this subclause, a reference to a period of incapacity for work includes, in the case of separate periods of incapacity resulting from the same injury, a reference to the aggregate of those periods.

(5) The amendments made to subclauses (3) and (4) by the WorkCover Legislation Amendment Act 1997 are taken to have had effect from the commencement of those subclauses (as inserted by the WorkCover Legislation Amendment Act 1996 ).”

13. I return now to Sch 6 Pt 4. Clauses 4 and 5 are these:

“4 Former Act applies to weekly payments continuing after commencement in respect of existing injuries

(1) A weekly payment of compensation payable under Division 2 of Part 3 of this Act in respect of any period of incapacity for work occurring after the commencement of that Division shall, if it resulted from an injury received before that commencement, be determined as follows:

(a) section 35 (Maximum weekly payment) does not apply,

(b) section 37 (Weekly payment during total incapacity-after first 26 weeks) applies as if:

(i) the amount of $44.80 per week were payable in respect of a dependent wife or husband or dependent de facto spouse or other family member of the worker under section 37 (1) (b), and

(ii) the amount of $22.50 per week were payable in respect of each dependent child or dependent brother or sister of the worker under section 37 (1) (c),

(c) section 11 (1) of the former Act applies instead of section 40 of this Act (but the maximum weekly payment for partial incapacity for work shall not exceed the amount payable under this clause for total incapacity for work),

(d) section 12 of the former Act applies instead of section 39 of this Act,

(e) section 13 of the former Act applies instead of section 46 of this Act.

(2) Division 6 of Part 3 of this Act (Indexation of amounts of benefits) applies as if the amounts of $44.80 and $22.50 were adjustable amounts.

(3) If a period of incapacity for work resulted both from injury received before the commencement of Division 2 of Part 3 of this Act and an injury received after that commencement, the incapacity shall, for the purposes of determining the amount of compensation payable in accordance with this clause and for the purposes of clause 6, be treated as having resulted from the injury received after that commencement.

[…]

5 Continuation of operation of sec 11 (2) of former Act

Section 11 (2) of the former Act applies (instead of section 38 of this Act) for the purpose of determining the weekly payment of compensation in respect of any period of incapacity for work occurring after the commencement of Division 2 of Part 3 of this Act and resulting from an injury received before that commencement.”

14. The following ought be noted. Section 35 originally applied a maximum of $500. That was indexed. By 1 October 1991 it had reached $616.40. It was increased by statute to $1,000.00 commencing on 1 February 1992. By 1 April 2014 it had reached $1,948.80. Section 36 of the 1987 Act does apply to coal miners so that the payment during the first 26 weeks of total incapacity is the CWWR. Section 37 of the 1987 Act also applies to a coalminer except with a modification of the rates payable for a dependent spouse and a dependent child. Commencing on 1 April 1987 the rates for such dependents under the 1926 Act were $36.40 and $18.20. The initial rates prescribed under the 1987 Act were $42 and $30. One can see in cl 4(1)(b) a compromise: the methodology of the 1926 Act was kept, but the rates were adjusted.

15. Prior to the Workers Compensation Legislation Amendment Act 2012 (No 53) s 37(2) provided this:

“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.”

16. The amendments made by Act No 53 of 2012 do not apply to coal miners: Schedule 6 Pt 19H cl 26.

17. Accordingly, it can be seen that the CWWR is the maximum payable under Sch 6 Pt 4 cl 4 for total incapacity at any time. Therefore the limitation in cl 4(1)(c) on the amount payable under s 11(1) of the 1926 Act is the CWWR. The immediate problem that I face is that I do not know what the CWWR was during the relevant periods.

18. Pursuant to the District Court Act 1973, s 142J(2) I reconsider the award I made on 26 November 2014. That power was formerly contained in the Compensation Court Act 1984 s 17(4) and before that in the Workers Compensation Act 1926 s 36(2). I stay so much of the award of 26 November 2014 as exceeds (if any) the CWWR. If either party wishes to argue the matter again, Counsel will contact my Associate who will fix a further hearing date in Sydney convenient to both the Court and Counsel and, if not earlier, during the Sydney Mining Sittings commencing 30 March 2015. If both parties accept the validity of my revised reasoning, the parties are to advise my Associate in writing of the relevant CWWR so that an amended Award can be entered. I anticipate that if the parties adopt the latter course, there will be an argument about costs in which case it will also be necessary to adopt the former course as well.

**********

Decision last updated: 05 March 2015