Martin v Better Floors Pty Ltd
[1989] TASSC 50
•20 September 1989
Serial No 48/1989
List "A"
CITATION: Martin v Better Floors Pty Ltd [1989] TASSC 50; A48/1989
PARTIES: MARTIN, Frederick William
v
BETTER FLOORS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: WC 292/1985
DELIVERED ON: 20 September 1989
JUDGMENT OF: Neasey J
Judgment Number: A48/1989
Number of paragraphs: 10
Serial No 48/1989
List "A"
File No WC 292/1985
FREDERICK WILLIAM MARTIN v BETTER FLOORS PTY LTD
REASONS FOR JUDGMENT NEASEY J
20 September 1989
In this workers' compensation action, the plaintiff alleges that he suffered injury by accident which occurred on 17 September 1981, arising out of and in the course of his employment while he was lifting a piece of scaffolding. He claims to have injured his neck, to have suffered soft tissue injuries in the cervical and upper thoracic spine, and accompanying disabilities. It is common ground that the plaintiff was paid workers' compensation payments by the defendant up until 14 October 1981. The defence admits that the accident alleged did happen on the day in question, and arose out of and in the course of employment. However, the defendant claims that the plaintiff has not been entitled to any payments of compensation under the Act since 14 October 1981. Paragraph 7 of the defence makes an additional claim that since the said 14 October 1981 or thereabouts the plaintiff has not resided in Tasmania, and since that date has not complied with the requirements of s25 of the Workers' Compensation Act 1927. Accordingly, it says, the plaintiff has not since he ceased to reside in Tasmania been entitled to receive payments of compensation under the Act.
At a pre–trial conference held in the action, Underwood J made an order in the following terms:–
"Subject to any order of the trial judge, the issue raised by paragraph 7 of the defence be tried before any other issues raised on the pleadings."
The action has been before me for determination of that preliminary point. I decided it was not appropriate to hear and determine the matter in accordance with the precise terms of the order made by Underwood J and accordingly made an amending order in the following form:–
"That the issue be tried before any other issue in this case, whether, having regard to the agreed fact that on a date unspecified, on or after 4 September 1982, the plaintiff ceased to reside in Tasmania, the plaintiff, in the light of the other agreed facts, ceased to be entitled to weekly payments of compensation after the said date on which he ceased to reside in Tasmania, pursuant to the provisions of s25 of the Workers' Compensation Act 1927."
Section 25 of the Act in its present form provides as follows:–
"25 Where a worker who is in receipt of a weekly payment ceases to reside in this State, he is entitled to receive quarterly the payments accruing due in the preceding quarter so long as he proves, in such manner and at such intervals as may be prescribed –
(a) his address and identity; and
(b) the continuance of the incapacity in respect of which the payment is payable."
The legislative history of the ancestor of this provision is that it was first enacted as s15 of the Workers' Compensation Act 1910 of this State, that provision being modelled upon s18 of the 1906 Workmen's Compensation Act of the United Kingdom. Section 15 of the 1910 Tasmanian Act provided as follows:–
"15 If a worker receiving weekly payments ceases to reside in this State, he shall thereupon cease to be entitled to receive any weekly payment, unless the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature. If the medical referee so certifies, the worker shall be entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as he proves in such manner, and at such intervals as may be prescribed by Rules of Court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable. Any question arising under this paragraph shall, in default of agreement, be determined by a Commissioner."
In the Workers' Compensation Act 1918 of Tasmania, the section was re–enacted in similar terms.
After the 1918 Act came the Workers' Compensation Act 1927, which remained in force until it was recently repealed, and a new scheme substituted. Under the 1927 Act, s25, until it was amended in 1966, provided as follows:–
"25 – (1) Where a worker in receipt of a weekly payment ceases to reside in this State, he shall cease to be entitled to such payment unless a medical practitioner has certified –
(a) that the incapacity in respect of which such payment is made is likely to be permanent; or
(b) that it is essential to the health of such worker that he should reside elsewhere than in this State –
and such certificate has been lodged with the Chief Inspector.
(2) The Chief Inspector shall file and record every certificate so lodged with him, and shall notify the employer of the receipt thereof.
(3) In any case where such certificate has been filed the worker shall be entitled to receive quarterly the payments accruing due in the preceding quarter so long as he proves in such manner and at such intervals as may be prescribed –
(a) his address and identity; and
(b) the continuance of the incapacity in respect of which the payment is made."
In 1966, s25 was amended to the form which applied at the time the accident in this case occurred. The amended terms of s25 are:–
"25 Where a worker who is in receipt of a weekly payment ceases to reside in this State, he is entitled to receive quarterly the payments accruing due in the preceding quarter so long as he proves, in such manner and at such intervals as may be prescribed –
(a) his address and identity; and
(b) the continuance of the incapacity in respect of which the payment is payable."
Thus it will be seen that the effect of the 1966 amendment was to modify the section substantially in favour of the worker, by deleting from it reference to cessation of entitlement to workers' compensation payments once the worker ceases to reside in the State, unless certain conditions were fulfilled. Under the pre–1966 section, only when the conditions were fulfilled was the worker entitled to receive quarterly the payments accruing due, upon further conditions as to proof. Thus, the substantial effect of the 1966 amendment was to remove the condition upon continued entitlement, once the worker ceased to reside in Tasmania, that the incapacity be permanent or that it be essential for the worker to reside out of Tasmania.
However, Ms Mills for the plaintiff argued that the defendant's case on the disputed point failed because s25 in its specific terms applies "where a worker who is in receipt of a weekly payment ceases to reside in this State, .......", whereas it is an agreed fact that the worker was not receiving weekly payments of compensation at the time he left Tasmania; which is the earliest time at which he could have ceased to reside in the State. An agreed statement of facts put before me confirms, inter alia, that the defendant paid weekly payments of compensation to the plaintiff from 17 September 1981 to 14 October 1981, that the plaintiff travelled to Victoria on about 4 September 1982, and that he now resides in Western Australia. The agreed statement also sets out that the plaintiff made no claim for further workers' compensation benefits after 15 September 1982, until 13 September 1983. On the latter date the plaintiff's solicitors wrote to the defendant's insurer asserting his claim. In addition, paragraph 5 of the defence alleges that the plaintiff has not been entitled to any compensation under the Act since 14 October 1981.
The position thus appears that the plaintiff's claim to workers' compensation entitlement was denied by the defendant as from 14 October 1981, which was nearly a year before he left Tasmania. The plaintiff cannot be said to have been a worker who was in "receipt of a weekly payment", within the meaning of s25 of the Act, at any time after 14 October 1981. The meaning of "who is in receipt of a weekly payment" in s25 is quite clear, in my view. It simply means, in ordinary English, a worker who is at the particular time receiving weekly payments under the Act; that is, a person whose entitlement to weekly payments has been acknowledged by his employer, and who is in fact receiving them at the particular time. The expression certainly does not mean or include, as counsel for the defendant argued, a person who is entitled to receive weekly payments, whether or not his entitlement has been acknowledged by the employer or whether he has been receiving weekly payments up to the time in question. In the present case, the plaintiff's entitlement to weekly payments after a certain date well before he left Tasmania is denied on the pleadings, and there is no agreed fact to the contrary.
The relevant provision in the Workers' Compensation Act in this State has always been in substance the same as it is now, in respect of the point which I have just been discussing. Section 25 or its equivalent always has applied only to a worker whose entitlement to weekly payments under the Act had been acknowledged and who was in fact receiving payments at the time he ceased to reside in the State. By "receiving" them, I mean that in general terms the payments were being made to him in the ordinary course up to the time he ceased residing. The object of the section was, until 1966, to provide that such payments should cease except under certain conditions. From 1966 onwards, the object of the section has been, not to provide for cessation, but to set up conditions under which the payments will be continued. In my opinion s25 or its equivalent never did have anything to say about the position of a worker who had ceased to reside in Tasmania, and whose claim to be entitled to payments of workers' compensation under the Tasmanian Act was being denied by the employer. The plain fact is that s25 is of no assistance to the defendant in this case because the preliminary condition, that the worker be in receipt of weekly payments at the time he ceased to reside, is not fulfilled.
Having tried the specific issue ordered, as amended by me and set out earlier, I declare as follows:
"That the plaintiff did not cease to be entitled to weekly payments of compensation under the Workers' Compensation Act 1927, pursuant to the provisions of s25 thereof, at or at any time after he ceased to reside in Tasmania."
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