Kelly v Transport Accident Commission
[2012] VSC 252
•15 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 2011 of 06416
| WILLIAM KELLY | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2012 | |
DATE OF JUDGMENT: | 15 June 2012 | |
CASE MAY BE CITED AS: | Kelly v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 252 | |
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ACCIDENT COMPENSATION – Transport accident – Settlement of minor’s claim – Weekly payments of compensation for loss of earning capacity under s 49 Transport Accident Act 1986 – Meaning of sub-s 49(5A) of Transport Accident Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G Nash QC with Mr G Burns | Slater & Gordon Lawyers |
| For the Respondent | Mr P Solomon SC with Mr C Young | Solicitor to the Transport Accident Commission |
HER HONOUR:
The applicant was 17 and a year 12 student at Kerang Technical High School when he was injured in a transport accident in April 2008. He suffered significant injuries to his head and spine which have severely impacted upon his daily life.
The applicant settled a common law claim against the respondent on 26 November 2009. Under the settlement, he received damages for pain and suffering but elected to receive benefits under s 49 of the Transport Accident Act 1986 (‘the Act’), rather than common law damages for loss of earning capacity.
On 19 February 2010, the respondent determined the applicant’s loss of earnings capacity benefits at $576.19 per week. The applicant sought a review of the respondent’s determination by the Victorian Civil and Administrative Tribunal (‘VCAT’). He challenged the way the respondent had applied s 49 to calculate the weekly payment. The VCAT member affirmed the respondent’s determination on 31 October 2011. The applicant now seeks leave to appeal from the VCAT decision.
The parties disagree about the amount of the weekly payments to which the applicant is entitled under the Act because they disagree as to the proper interpretation of s 49 and, in particular, sub-s (5A) of s 49. The applicant maintains that, under the statutory scheme, he should receive 80 percent of average weekly earnings as a weekly payment. The respondent, however, contends that the weekly payment should only be 80 percent of that amount, or 64 percent of average weekly earnings.
Neither party had asked VCAT to determine de novo a weekly amount under sub-s (5). Even though there was a reference to an alternative method of calculation of the applicant’s pre-accident earning capacity in his written submissions in support of the application for leave, the matter was not pursued.
Leave to appeal
Questions of law are stated in a Proposed Notice of Appeal exhibited to the affidavit of Jane McCullough of the applicant’s solicitors:
(1) Did the Tribunal err in its interpretation of section 49 of the Transport Accident Act 1986 (“the Act”); and in particular
(a) in its construction of sub-section (5A) of that section;
(b)in its calculation of the weekly amount payable to the applicant pursuant to the provisions of that section;
(2)Did the Tribunal err in not holding that the applicant’s entitlement under s 49(1) of the Act is by virtue of section 49(5A) of the Act “the amount which is equal to 80% of the average weekly earning of all employees for Victoria last published by the Australian Statistician”?
(3)Did the Tribunal err in law in the interpretation which it placed on s 49 of the Act and in particular:
(a)in determining that sub-s (5A) provided a definition of “pre-accident earning capacity” alternative to the definition set out in sub-s.(5);
(b)in not finding that s 49(5A) provided a definition of the ‘amount’ payable under s 49(1), alternative to that in s 49(2)(a).
The Proposed Notice of Appeal then states the following as grounds of appeal:
(1)The tribunal erred in interpreting section 49(5A) of the Act as containing a definition of “pre-accident earning capacity” alternative to that set out in s 49(5).
(2)The tribunal erred in law by misinterpreting the provisions of section 49(5A) of the Act and in particular:
(a)by using that sub-section to calculate pre-accident earning capacity for the purpose of section 49(2)
(b)in not treating that sub-section as determining the amount to be paid under section 49(1)
in cases where the pre-accident earning capacity referred to in section 49(2) cannot be determined.
(3)The tribunal erred in failing to interpret section 49(5A) of the Act as a provision calculating the amount of weekly payment to be paid to a person:
(a)who has suffered a total loss of earning capacity as a result of injuries suffered in a transport accident;
(b)where the requirements of s 49(2)(a) are not able to be satisfied and his pre-accident earning capacity cannot be calculated pursuant to s 49(5).
(4) The tribunal interpreted s 49 in an unbalanced way:
(a) by reference to only one of the objects of the Act;
(b) by reference to only one of the objectives of the Commission;
(c)without regard to the fact that the legislation is beneficial legislation.
(5)The tribunal erred in law by failing to determine and apply section 49(5A) as deeming the amount of the weekly payment to be made to the applicant under section 49(1) of the Act in respect of his total loss of earning capacity as 80 per cent of the average weekly earnings of all employees for Victoria last published by the Australian Statistician.
Senior counsel for the applicant, nevertheless, helpfully identifies the issue as being whether sub-s 49(5A) attaches itself to sub-s (5) or is to be read as an independent sub-section.
I am persuaded that leave to appeal should be granted. I will refer to the applicant’s submissions challenging the VCAT decision. I am satisfied that he has raised a ‘real or significant argument’[1] and that there is sufficient doubt about the answer to justify the grant of leave. The question is also one of obvious general importance in relation to the calculation of weekly payments under s 49 of the Act.[2]
[1]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, 337 (Phillips JA (Tadgell and Batt JJA agreeing))
[2]See Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [30](Warren CJ (Chernov JA and Bell AJA agreeing).
The Act
In answering the question as to whether sub-s 49(5A) attaches itself to sub-s (5), it is convenient to start with the Act.
Its purpose and objects are set out in ss 1 and 8, respectively:
1 Purpose
The purpose of this Act is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents.
8 Objects of Act
The objects of this Act are as follows—
(a)to reduce the cost to the Victorian community of compensation for transport accidents;
(b)to provide, in the most socially and economically appropriate manner, suitable and just compensation in respect of persons injured or who die as a result of transport accidents;
(c)to determine claims for compensation speedily and efficiently;
(d)to reduce the incidence of transport accidents;
(e)to provide suitable systems for the effective rehabilitation of persons injured as a result of transport accidents.
The Act also states objectives of the respondent itself, in s 11, which is in these terms:
11 Objectives of the Commission
The objectives of the Commission are as follows—
(a)to manage the transport accident compensation scheme as effectively, efficiently and economically as possible;
(b)to ensure that appropriate compensation is delivered in the most socially and economically appropriate manner and as expeditiously as possible;
(c)to ensure that the transport accident scheme emphasises accident prevention and effective rehabilitation;
(d)to develop such internal management structures and procedures as will enable it to perform its functions and exercise its powers effectively, efficiently and economically;
As far as weekly payments of compensation are concerned, s 49 provides:
49 Total loss of earning capacity
(1)The Commission is liable to pay to an earner who, as a result of a transport accident—
(a)is injured; and
(b)suffers total loss of earning capacity—
a weekly payment in respect of that loss after the first 18 months after the accident or after the earner ceases to be entitled to payments under section 44 or 45, whichever last occurs, while that loss continues.
(2)Subject to subsection (3), the amount of the weekly payment under this section is—
(a)80 per centum of the earner's pre-accident earning capacity; or
(b)if the earner has no dependants—$270; or
(c)if the earner has dependants—an amount equal to the sum of—
(i)$270; and
(ii)$76 for one dependant; and
(iii)$25 for each other dependant—
whichever is the greater.
(3) A weekly payment under this section must not exceed—
(a)$504; or
(b)100 per centum of the earner's pre-accident earning capacity—
whichever is the lesser.
(4)A person who receives a weekly payment under this section in respect of a transport accident must, within two months after each anniversary of the date on which the person first received a payment under this section in respect of that accident, give the Commission a statement of earnings in the prescribed form with particulars about the person's earnings (if any) in the year preceding that anniversary.
(5) In this section—
earner includes a person injured as a result of a transport accident who, at the time of the accident, was not an earner, but has attained the age of 18 years after the accident;
pre-accident earning capacity in relation to an earner who suffers loss of earning capacity as a result of an injury in a transport accident, means the amount the Commission determines as the weekly amount the earner had the capacity to earn before the transport accident in employment reasonably available to the earner in view of the earner's training, skills and experience less such amount as the Commission reasonably considers to be the amount of income tax that would have been payable on that weekly amount under the Commonwealth Income Tax Assessment Act 1936.
(5A)If an amount cannot be determined in accordance with the definition of pre-accident earning capacity, the amount is deemed to be the amount which is equal to 80 percent of average weekly earnings of all employees for Victoria last published by the Australian Statistician.
(6)For the purpose of the definition of pre-accident earning capacity in subsection (5), if at the time of the accident, the earner was an apprentice or was employed under an award containing, or under conditions under which there were, at that time, different rates of pay for earners of different ages, the earner's pre-accident earning capacity shall be calculated—
(a)until the earner attains the age at which the highest rate is payable or 21 years, whichever is the earlier—as if, at the time of the accident, the earner had the capacity to earn at the rate applicable to the age of the earner for the time being; and
(b)on and after the earner attains the age at which the highest rate is payable or 21 years, whichever is the earlier—as if, at the time of the accident, the earner had the capacity to earn at the rate applicable to the highest of those ages or to age 21.
(7)For the purposes of subsection (6), if there is no rate applicable to an earner of or over the age of 21, the amount an earner of or over the age of 21 has the capacity to earn shall be deemed to be 80 per centum of $504.
(8)The amount of a weekly payment under this section to which a person is entitled on or after 1 July 2000 in respect of a transport accident that occurred before 1 July 2000 is increased by 4 percent.
(9)An earner's entitlements under this section are not affected by the earner starting or continuing paid employment if—
(a)he or she has a severe injury as a result of a transport accident; and
(b)he or she is participating in a supported employment program in respect of that employment; and
(c)he or she receives $120 per week or less as earnings from that employment.
Legislative history
The Transport Accident (Amendment) Act 2000 (‘the amending act’) inserted sub-ss (5A) and (8) and amended sub-s (5) of s 49.
Before the amending act took effect in 2000, sub-s (5) had been in these terms:
49. Total loss of earning capacity
(5) In this section— …
"pre-accident earning capacity" in relation to an earner who suffers loss of earning capacity as a result of an injury in a transport accident, means the amount calculated in accordance with the formula—
A x B
C
where—
A is the amount the Commission determines as the weekly amount the earner had the capacity to earn before the accident in employment reasonably available to the earner in view of the earner's training, skills and experience less such amount as the Commission reasonably considers to be the amount of income tax that would have been payable on that weekly amount under the Income Tax Assessment Act 1936 of the Commonwealth as amended and in force for the time being.
B is the latest average weekly earnings as at 15 June in the preceding financial year of all employees for Victoria published by the Australian Statistician in respect of the December quarter of that financial year.
C is the average weekly earnings of all employees for Victoria last published by the Australian Statistician before 15 June last preceding the accident in respect of the December quarter last preceding that date—
or, if an amount cannot be determined in accordance with that formula, means 60 per centum of average weekly earnings of all employees for Victoria last published by the Australian Statistician in respect of a quarter.
Explanatory memorandum
The explanatory memorandum in relation to the bill for the amending act stated:
Section 15 amends section 49 of the Act … . The section also increases the basis of calculation of loss of earning capacity in cases where the an amount cannot be otherwise determined from 60% of average weekly earnings to 80% of average weekly earnings.
Parliamentary debates
In the Legislative Assembly, the Minister for WorkCover, Mr Cameron, said of the proposed amendment to s 49:
Two important amendments are included in the bill for the benefit of minors. First the act will allow a minor who did not have a claim for compensation lodged on his or her behalf at the time of the accident an opportunity to lodge a claim in their own right upon reaching 18.
Secondly, the act changes the calculation of the entitlement of a minor to loss of earning capacity benefits by using a figure of 80 per cent of average weekly earnings instead of 60 per cent. This will increase the amount of this benefit payable for a minor after they turn 18.[3]
[3]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2000, 938 (Bob Cameron).
Mr Theophanous stated in the Legislative Council that:
The scheme currently provides that if the amount of loss of earning capacity cannot be calculated under the Act, 60% of average weekly earnings is used to establish the amount of compensation.[4]
[4]Victoria, Parliamentary Debates, Legislative Council, 21 November 2000, 1466 (Theo Theophanous).
Mr Theophanous then made a calculation of the effect of the amendment upon a minor:
That provision applies to minors and results in a payment of approximately $300 a week when the minor turns 18. That is 60% of average weekly earnings. The bill changes the basis of the calculation to 80% of average weekly earnings and results in an increase in the amount payable to a person with no work history to approximately $400 per week – an increase of $100.[5]
[5]Ibid.
How the respondent calculated the amount of the applicant’s weekly payments
The applicant was a student at the time of the accident and it was common ground that, therefore, his ‘pre-accident earning capacity’ could not be calculated by reference to ‘the weekly amount [he] had the capacity to earn before the transport accident’ under s 49 (5). Accordingly, sub-s (5A) applied.
In those circumstances, the respondent calculated the applicant’s weekly payment, under s 49(2), on the basis that the amount described as the applicant’s ‘pre-accident earning capacity’ was equal to 80 percent of the published figure for average weekly earnings. The respondent determined that the applicant was entitled to weekly payments of $576.19 (or 64 percent of the amount of average weekly earnings).
The VCAT challenge
The VCAT Member concluded that the principal object of the Act was the reduction of the cost of compensation for transport accidents in Victoria. He cited Transport Accident Commission v Lincoln[6] in which Winneke P said of the Act:
It is true that, over the years, courts which have been called upon to interpret compensation statutes have repeatedly said that the underlying scheme of those Acts is "beneficial" and ought to be interpreted broadly in favour of the applicant. In this State those words are achieving a "hollow ring" because one of the primary objects of the present legislation is to "reduce the cost to the Victorian community of compensation for transport accidents.[7]
[6](2003) 6 VR 199.
[7]Ibid [20] Winneke P (Batt JA and Warren AJA agreeing).
The Member thought it clear that sub-s (5A) was a deeming provision, operating to deem ‘pre-accident earning capacity’ when an amount could not be determined under sub-s (5). The words ‘the amount’ in sub-s (5A) clearly referred to the amount defined as ‘pre-accident earning capacity’. Once an affected earner’s pre-accident earning capacity was established, sub-s (2) would be applied to determine the amount of weekly payments. The respondent’s calculation of the amount of the weekly payments was correct.
Submissions
The applicant
The applicant submits that the literal, grammatical meaning of s 49(5A) supports the construction he urges. The term ‘pre-accident earning capacity’ is completely defined in sub-s (5). Unlike sub-s (6), sub-s (5A) does not include any reference to pre-accident earning capacity and that is because it does not add to or alter that definition. Sub-section (5A) provides an alternative method for determining the amount of weekly payments for a person suffering a complete loss of earning capacity.
The applicant contends that there should be no departure from that literal meaning to restrict the operation of this ‘beneficial legislation’. He relies upon the description of the applicable principle by Bongiorno J in State Trustees v Transport Accident Commission:[8]
The Transport Accident Act, which gives legislative authority to the AMA Guides, is beneficial legislation the purpose of which is to establish a scheme of compensation in respect of persons who are injured or die as a result of transport accidents. That such legislation should not be given a narrow interpretation is well accepted. As Kirby P (with whom Meagher and Cripps JJA agreed) said in J Odlin Shopfitting International Pty Ltd v Kaljanac ((1993) 29 NSWLR 632 at 639-40) in relation to a workers compensation statute which he was construing:
It happens that the construction which I favour is also that which avoids a diminution or reduction of a worker's rights under the statute. As it is beneficial legislation, anomalies and ambiguities should ordinarily be resolved in favour of achieving the social purpose of providing compensation to injured workers in full measure as provided by the Act.
… The legislation with which I am presently concerned is legislation of the same kind as workers compensation legislation. It exists to provide appropriate “no-fault” compensation to citizens injured in transport accidents. It should be construed similarly to the statutes with which Kirby P and Fullagar J were concerned.[9]
[8](2006) 6 VR 359.
[9]Ibid , 365-6, [25]. The applicant also cites: Bird v The Commonwealth (1993) 29 NSWLR 632, Bist v London South Western Railway Co [1907] AC 203, Dodd v Executive Air Services [1975] VR 668 and Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328.
The applicant maintains that there is an ambiguity as to the detail of entitlements under the Act and that it should be resolved in his favour.
He also argues that the legislative objective in s 8(a) (of reducing the cost of compensation for transport accidents) is achieved by limiting access to common law remedies and the provision of the alternative compensation system for those injured in transport accidents. He relies upon s 8(b) to argue that he should be justly compensated by weekly payments, calculated under sub-s (5A), which are equal to 80 percent of the figure for average weekly earnings. He cites the respondent’s s 11(b) objective of ensuring the delivery of appropriate compensation in the most socially and economically appropriate manner.
The applicant emphasises the statements of legislative intent to benefit minors in the Parliamentary speeches in relation to the bill for the amending act. He argues that it would be unjust if the effect of sub-s (5A) were that, for the rest of his life, he would receive less compensation because he was injured as a minor, rather when he was aged 18 or more, and employed. He maintains that the statements of Mr Theophanous, in particular, indicate a legislative purpose of the amending act to provide for a weekly payment of 80 percent of average weekly earnings, when no calculation of the amount of pre-accident earning capacity can be made under sub-s (5).
The respondent
The respondent urges the Court to apply the plain words of the text itself, citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[10] where Hayne, Heydon, Crennan and Keifel JJ said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[11]
[10](2009) 239 CLR 27 (‘Alcan’).
[11]Ibid, [47] (citations omitted).
The respondent contends that there is no ambiguity in s 49, once the general statutory purpose and context are taken into account. Sub-section (5A) deems the amount of pre-accident earning capacity, for the purposes of sub-s (2), when an amount cannot be determined under sub-s (5).
The respondent relies upon the passages I have quoted from the speeches of the Minister and Mr Theophanous. It also argues that, if sub-s (5A) were treated as a deeming provision relating to ‘pre-accident earning capacity’, its introduction would result in an increase of $100 in the weekly payment calculated under sub-s (2), as Mr Theophanous foreshadowed, given the published average weekly earnings at the relevant time.
Discussion and conclusion
The plain meaning of the text of sub-s (5A)
Sub-sections 49(2), (3), (4) and (8) all use the term ‘weekly payment under this section’ to refer to the weekly payment which the respondent is obliged to pay an earner injured in a transport accident under sub-s (1). Sub-section (5A) does not employ that term.
Sub-section (2) provides for the calculation of the amount of that ‘weekly payment under this section’. There are alternative bases for the calculation under sub-s (2). The amount will be the greater of 80 percent of the amount of the earner’s pre-accident earning capacity and a monetary sum determined with reference to whether or not the earner has dependants.
Sub-section (2) is expressed to be subject to sub-s (3), but not subject to sub-s (5A). Sub-section (3) limits the amount of a weekly payment under s 49 to the lesser of $504 and 100 percent of the amount of the earner’s pre-accident earning capacity.
Sub-section (5) provides for the calculation of the amount of the earner’s ‘pre-accident earning capacity’ to be used in the calculation under sub-s (2). The amount is to be that which the Commission determines the earner had the capacity to earn each week before the accident, less the estimated amount of income tax payable.
Sub-section (5A) applies if an amount cannot be determined in accordance with the definition of pre-accident earning capacity. It is ‘the amount’ (not ‘the weekly payment payable under this section’) which is deemed to be the amount equal to 80 percent of average weekly earnings. Giving the subsection its plain meaning, the deemed amount is the amount of the earner’s pre-accident earning capacity, which cannot be determined under sub-s (5). This will be the amount of pre-accident earning capacity for the purposes of the calculation under sub-s (2).
Sub-section (6) deals with the calculation of the ‘pre-accident earning capacity’ under sub-s (5) when the earner is an apprentice or is under an award, and is employed under conditions providing for differing rates of pay on the basis of age. In those circumstances, sub-s (6) requires that the amount of pre-accident earning capacity is to be calculated on the basis of the rate applicable to the earner for the time being. Once the earner reaches 21 or the age when the highest rate is payable, sub-s (6) provides that the earner’s pre-accident earning capacity is to be calculated on the basis of a capacity to earn at the highest rate.
Sub-section (7) follows. It operates when the earner is an apprentice, or is employed under an award, and is employed under conditions which do not provide a rate of earnings at or over the age of 21. Sub-section (7) deems the amount equal to 80 percent of $504 to be the amount which the earner has the capacity to earn after reaching the age of 21, or the age at which there is no applicable rate. That amount will then be used in the calculation of pre-accident earning capacity under sub s(5), in accordance with sub-s (6). It is the resulting figure for the amount of pre-accident earning capacity which will be used under sub-s (2) for the calculation of the weekly payment for which the respondent is liable under s 49.
The statutory purpose
The meaning of a statutory provision is to be determined in its legislative context which, as the High Court held in Alcan,[12] includes the provision’s general purpose and policy and the mischief sought to be addressed. Section 35(a) of the Interpretation of Legislation Act 1984 requires that preference be given to a construction promoting the purpose of the Act.
[12](2009) 239 CLR 27, [46]-[47].
The Act is to be characterised as beneficial legislation. It should not be interpreted narrowly and anomalies or ambiguities should generally be resolved in favour of fully compensating the victims under the no-fault transport accident scheme, in accordance with its provisions.[13]
[13]State Trustees v Transport Accident Commission (2006) 6 VR 359, 365-6, [25] (Bongiorno J).
The Act’s stated objects nevertheless include, as a primary purpose, the reduction of the cost of such compensation to the community (s 8(a)) and the provision of suitable and just compensation in the most socially and economically appropriate manner (s 8(b)). Winneke P has noted the conflict between the general approach to compensation legislation and the Act’s stated purpose of cost reduction.[14]
[14]Transport Accident Commission v Lincoln (2003) 6 VR 199, [20].
I am not satisfied that there is an anomaly or ambiguity requiring resolution in the applicant’s favour. I consider, too, that the purposes of the Act are promoted by interpreting sub-s (5A) as providing an alternative method of determining his pre-accident earning capacity.
It is permissible for the Court to take account of statements made in Parliamentary debates relating to the insertion of sub-s (5A). It does so in order to ‘ensure that to apply the ordinary and grammatical meaning of the words would not give the statute a meaning which was obviously not intended’.[15]
[15]Humphries v Poljak [1992] 2 VR 129, 136 (Crockett and Southwell JJ).
The explanatory memorandum relating to the bill for the amending act and the legislative history of the affected provisions are also relevant to the determination of the purpose of the sub-s (5A). The words of Parliamentarians may not, however, be substituted for the text of the law.[16]
[16]Re Bolton; Ex parte Bean (1987) 162 CLR 514 518 (Mason CJ, Wilson and Dawson JJ).
Before the amendment, sub-s (5) of the Act clearly provided for 60 percent of average weekly earnings to be the amount of an earner’s pre-accident earning capacity, if an amount could not be otherwise determined under the sub-section. In that context, the explanatory memorandum makes it apparent that the purpose of the amending act was to raise the percentage of average weekly earnings to be used in the calculation of the amount of pre-accident earning capacity, rather than provide an alternative means for arriving at the amount of the weekly payment payable under s 49 itself.
The statements by the Minister and Mr Theophanous are not as clear. Given their implicit references to sub-s (5) as it then stood, however, each may be taken to have expressed Parliament’s intention to raise the percentage used in the calculation of pre-accident earning capacity, rather than to provide an alternative means of determining the amount of the weekly payment under sub-s (2). I am not persuaded by reference to the Parliamentary debates that it would be inconsistent with the legislative intent of the amending act to construe sub-s (5A) in the way the respondent and the VCAT Member concluded it should be interpreted.
I agree with the respondent and the Member as to the plain and ordinary meaning of sub-s (5A) in its statutory context. Indeed, I think it would strain the language of sub-s (5A) to interpret it as the applicant argues it should be construed. The subsection applies when ‘an amount cannot be determined in accordance with the definition of pre-accident earning capacity’ by the Commission. It is sub-s (5) which defines pre-accident earning capacity as an amount to be determined by the Commission. Sub-section (2), on the other hand, provides for the amount of a weekly payment to be the greater of two amounts, and only one of them is to be ‘determined in accordance with the definition of pre-accident earning capacity’.
I will order that leave to appeal be granted and that the appeal be dismissed.
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