Foster v Fonthill Pty Ltd

[1987] TASSC 67

Serial No 64/1987
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Foster v Fonthill Pty Ltd [1987] TASSC 67; A64/1987

PARTIES:  FOSTER, Albert Douglas
  v
  FONTHILL PTY LTD

FILE NO/S:  198/1985
DELIVERED ON:  15 December 1987
JUDGMENT OF:  Cosgrove J

Judgment Number:  A64/1987
Number of paragraphs:  18

Serial No 64/1987

List "A"

File No 198/1985

ALBERT DOUGLAS FOSTER v FONTHILL PTY LTD

REASONS FOR JUDGMENT  COSGROVE J

15 December 1987

1. For some time prior to the 11 September 1983, the plaintiff was employed on a property known as Fonthill at Lemont. It is a big property, comprising some 4,000 acres and running 200 head of cattle and up to 8,000 head of sheep. Although Mr Foster described himself as a station hand, it appears that, subject to direction from the officers of the company which owned the property, he ran the station more or less single handedly.

1. On the 11 September 1983 whilst chasing a ewe in a sheep yard, he suffered an injury to his back. It was slightly painful. As he cooled down the back ache increased, and by the following morning, he was unable to move. He has remained totally incapacitated ever since and will remain so for the rest of his life. He is a big man, and, prior to his accident, was capable of lifting, without any difficulty, a bale of wool weighing about 160 kilograms. He is now quite incapable of lifting a bag of cement and even the lifting of a hay bale is extremely painful and rarely attempted. The injury is probably in the L4 – L5 region and is probably an injury to a disc. Whatever the site of the injury, and whatever the physiological nature of it is, it gives rise to severe back pain, and by compression of nerve roots, sets up an irritation in a nerve which leads from the spinal area to the back of the knee. There is therefore a permanent dislocation or distortion of the nerve serving the upper part of the left leg. The effect on the left leg is that it carries a constant sensation of pain, varying from a dull pain and numbness to a sharp sensation such as might be caused by the insertion of a needle. The pain extends right through the upper leg from the hip to the knee. There is no mechanical hindrance to the operation of the leg, but any exertion of the back causes an increase in pain in the leg, almost to the point of collapse. Use of the leg also exacerbates the pain in it, described by Mr Foster as being like cramp in the back of the leg. Mr Foster has difficulty standing for long periods but he can walk up to a kilometre before the leg pain demands that he stop, and by rubbing his leg he can ease the pain so that he can commence exercising again. Driving a car into Oatlands, a distance of about 10 kilometres brings on pain. He is unable to mow the lawn. Walking around the yard at home for twenty minutes brings on the leg pain, although on some days he can walk about for an hour. When he does walk for that time, he suffers the consequences on the following day. In short, he has sustained an injury to his back which has left his back in a permanently painful condition, and has in some way affected the nerve in the leg which has left him with a permanently painful condition in the upper leg. The permanently painful condition of his back means that he is less able to use both the left and the right leg, but there is no physiological change in the right leg and no pain in it. In the left leg there is a physiological change and there is pain which limits the use of the leg independently of the limitation of the whole body caused by the painful back.

1. The questions for decision are:

(a)       is the plaintiff entitled to a lump sum payment under the Workers Compensation Act, and

(b)      if so, what is the appropriate sum?

1. Mr Pickard, for the plaintiff, did not contend that any injury suffered by the plaintiff was compensable directly in accordance with the table set out in r5. His contention was that r6 operated in such a way as to require the court to assess the plaintiff's disabilities as a whole and then, having regard to the provisions of r5, award as compensation an amount just and proportionate to the degree of the total injury suffered by the plaintiff. This is a novel argument and in order to understand the ingenuity of it, it is necessary to set out r6 in full:

"6 – (1) Where a worker sustains an injury –

(a)that, as to the major part thereof, consists of an injury for which compensation is payable under rule 5 of this schedule; or

(b)that consists, to any lesser degree, of an injury for which compensation is payable under that rule,

the injury shall, subject to this rule, be regarded as an injury for which compensation based on the table set forth in sub–rule (1) of rule 5 is payable, and a judge may award as compensation such amount as, having regard to the provisions of rule 5, appears to be just and proportionate to the degree of injury sustained by the worker.

(2)In no case shall the amount of compensation payable to a worker under this rule in respect of any one injury exceed a sum calculated in accordance with the formula B x 532."

1. Mr Pickard contends that the plaintiff has suffered only one injury, i.e. an injury to his spine. That injury is not directly compensable under r5, but a minor part of the injury is the partial loss of use of the left leg. The latter being an injury of the type described in r6(1)(b), the whole of the injury (ie the injury to the spine and its effect on the back and the legs) is to be regarded as an injury for which proportionate compensation based on the table is payable. With respect I think that the argument is not grammatically sustainable, but that would not necessarily be a fatal flaw in the construction of this statute, which cannot be interpreted in a purely grammatical way. It seems to me that if the words of the rule are construed strictly, it cannot be called into operation unless the worker has suffered a Table 5 injury, ie in most cases a total loss of a digit, limb, faculty or organ. Whether that total loss is a major or minor part of his total injury is immaterial. Once the rule is called into operation, it is the overall "injury" which is to be compensated. That this is the correct interpretation was Mr Worsley's primary submission. If it is correct, then the plaintiff can recover nothing. However, in my opinion it is not correct. The division of the qualification provision into two paragraphs can not be explained if any total loss, whether a minor or major part of the overall injury, is the qualifying circumstance. In any case, as will be seen, the interpretation runs contrary to the trend of authority.

1. Mr Pickard referred me to Fraher v Wunderlich Limited (1963) 110 CLR 466. The case is not directly in point because it concerned the Workers' Compensation Act 1958 (Vic), which differed from the Tasmanian Act in that a lump sum award was in many ways an alternative to weekly payments. R.3 of the Tasmanian Act makes it plain that weekly payments are to be paid in addition to a lump sum payable under r5 or r6. The case is also unsatisfactory in other respects. The Court was split 32, and it is not unfair to say that the combinations of both the majority and the minority resembled war time alliances in that although the majority were agreed upon the "final solution", they were so for differing reasons, and the minority's agreement was of a similar character. However, the report is illuminating because the Court was invited to construe a provision very similar to r6(1)(b) of the Tasmanian statute. The worker had suffered a fracture of the right patella involving a 25 per cent loss of use of the right leg and also compression fractures of the thoracic spine. Dixon CJ held that the 25 per cent loss of the use of the leg would, by virtue of the provision similar to 6(1)(b), entitle him to 25 per cent of the appropriate lump sum (p472). Taylor J came to the same conclusion at p478. Menzies J described the paragraph as:

" ... – a difficult provision which I do no more than assume was applicable – ...". (p488)

Windeyer J said of the suggestion that a 25 per cent loss of use was compensable under the table:

" ... I am not convinced that this is a correct application of s.11(2). But it is the approach to the question that the Board adopted. The parties accept it. I shall therefore consider the case on the basis that the appellant's leg injury, if it stood alone, would be a table injury and assessed pursuant to s.11(2); but that his back injury is not a table injury". (p491).

Owen J said at p496:

"Section 11(2)(b) [the appropriate section] is confined in its application to a 'lesser but substantial degree' of any injury described in the Table and this can only refer to an impairment such as the Table describes but less in extent than that described".

As the majority justices were Taylor, Menzies and Owen JJ, these passages illustrate the differences in detail involved in their general agreement.

1. The view that r6(1)(b) entitles a worker who has sustained a partial loss of use of a digit or limb or other organ referred to in table 5 to lump sum compensation has been uniformly held in Tasmania at least since the decision of Crawford J in Collis v Huddart Parker ([1962] Tas SR 243). Fraher's case indicates that the view has some qualified support in the High Court. In this State, it is, I think far too long standing to be abandoned now.

1. Mr Pickard accepts this construction of par(b) but from that base submits that when a "lesser degree" injury is found, the "injury" which is compensable is the whole injury. That submission has some support in the language of the rule, but encounters real practical difficulties. If accepted, it would mean, for example, that a worker who suffered a severe injury, a minor part of which was the total loss of a forefinger, could not have recourse to r6, whilst a worker who suffered the same overall injury, a minor part of which was partial loss of a forefinger, could do so. In my opinion, such a result indicates that Mr Pickard's submission does not reflect the intention of Parliament. In his secondary submission, Mr Worsley also accepted this long–held Tasmanian interpretation, but argued that par(b) does not authorise an award of compensation based on the overall injury. In my opinion, this submission is correct.

1. I think that what the draftsman had in mind was the following categorisation:

Injuries basically of the  Compensable
specific type set out in r5  under r6
but aggravated.

Injuries set out in r5.  Compensable
  under r5

Injuries of the type  Compensable
set out in r5, not  under r6 in
involving total loss.  respect of
  that injury only

1. Such a categorisation is not unreasonable as an extension of r5 covers the whole field fairly well, and adheres to the basic notion that a lump sum is payable only if the injury, looked at as a whole, is, in essence a r5 type injury.

1. For the purpose of determining whether the rules apply, injuries can be separated into parts, without losing their nature as injuries. This separation process, of an injury within an injury, is readily understandable and has received judicial acceptance, eg by Menzies J in Fraher (supra) at p481. It is more easily comprehended, if one reads, as I think one must, "injury" as meaning "condition" (see Fullagar J in Brugnoni v Hydro Electric Commission (1957) 97 CLR 548 at 562).

1. The result is that I reject the primary submissions of both counsel and hold that r6 means that where a worker has sustained an injury, the major part of which is a total loss injury compensable under r5, he is entitled to bring r.6 into operation to compensate him for the entire injury; and when a worker has sustained an injury, which although it is only part of a larger injury, may properly be described as being a lesser degree of a type of injury tabulated in r5, he is entitled to compensation under r6 in respect of that injury only. This conclusion conforms to the reasoning of Owen J. in Fraher v Wunderlich Limited (supra) at 496 to which Mr Worsley referred, and which he adopted for the purpose of his second submission. In this case there is one injury, i.e. the spinal lesion. There are two conditions, the back condition and the leg condition, neither of which is compensable under par(a) of the rule. The leg condition is compensable under par(b). That being so, all that is left for me is to assess the amount which, having regard to the provisions of r5, is just and proportionate to the degree of injury to that leg sustained by the plaintiff.

1. In my opinion, an appropriate amount is 70 per cent of total loss of a leg, ie, 70 per cent of B x 138. I am told that B is $157.50. The plaintiff will therefore have judgment for 70 per cent of $157.50 multiplied by 138 ie $15,214.50.

1. The other question which the parties in this matter have asked me to decide concerns the amount of holiday pay to which the plaintiff is entitled pursuant to s8C of the statute. The relevant parts of the section read as follows:

"8C – (1)         If during a period for which compensation would otherwise be payable to a worker under this Act there occurs any period during which the worker would be entitled under the contract of service in force when the right to compensation accrued to be absent from his employment on full pay, the worker shall –

(a)       ...

(b)in the case of a period in the nature of annual recreational leave, be given by his employer a similar period of leave on full pay in lieu at some time within 3 months of his return to work, or at the termination of his right to compensation under this Act if he does not then return to work."

1. On the occurrence of his injury, the plaintiff was entitled to weekly payments up to a total amount of B x 284. Sometime ago, those weekly payments were redeemed by payment of a lump sum which amounted to B x 284. The order was made by consent, and although it was not agreed that the plaintiff was totally incapacitated, it was agreed that totally or partially incapacitated, his incapacity was of such a nature that he would, at some time, be entitled to the full amount payable by way of weekly payments. The question is – Did the right to holiday pay cease on payment of the redemption moneys?

1. In Betty Joan Cannon v Coats Paton Australia Limited Tas unreported No 5585, I held that holiday pay was payable by virtue of this section in addition to weekly payments. That decision is not challenged. I also held that the "period for which compensation would otherwise be payable" was the period during which the right to compensation was accruing. In that case, the workers' compensation had not been paid at the due time. I held that the plaintiff was entitled to holiday pay only in respect of the period during which the right was accruing, and not in respect of the period subsequent to accrual but before payment. In the course of so doing, however I used these words:

"I return now to the question which I set aside before, what is the period 'for which compensation would otherwise be payable'? It seems to me that consistency requires that period to be the same period which ends on the 'termination of her right to compensation'".

1. Mr Worsley argues that the right to compensation terminated once the payment by way of redemption was made, and that therefore the plaintiff is not entitled to holiday pay in respect of the period between the payment of that sum and the termination of the period during which the right to compensation would have accrued but for redemption. With respect, that argument fails to perceive that the expression "at the termination of his right to compensation" refers only to the time at which payment is to be made. It does not affect the amount of the compensation. The amount is fixed by the period for which compensation is payable. The shortest such period in which B x 284 may be reached is that during which compensation for total incapacity is payable. That period is not altered by redemption, although in some cases it will fix the amount of the redemption sum. The payment of B x 284 by way of redemption recognised that compensation would be payable for at least the period ending at the time when ordinary weekly payments for total incapacity would reach B x 284. I therefore hold that the amount claimed by the plaintiff is the amount to which he is entitled. On the figures agreed by counsel, he is entitled to $4,039.93 under this head. The total amount due to him is therefore $19,254.43.

1. I place on record my gratitude to both counsel for their careful, thoughtful and concise submissions.