McCoy v Administration of Norfolk Island
[2004] NFSC 2
•26 July 2004
SUPREME COURT OF NORFOLK ISLAND
McCoy v Administration of Norfolk Island [2004] NFSC 2
EMPLOYMENT – partial incapacity under worker’s compensation legislation.
Social Security Act 1991 (Cth)
Norfolk Island Act 1979 (Cth)
Employment Act 1988 (NI)Arnotts Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171 followed
Ball v William Hunt & Sons, Limited [1912] AC 496 applied
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 distinguishedROBERT McCOY V ADMINISTRATION OF NORFOLK ISLAND
SC 1 OF 2004
CORAM: BEAUMONT CJ.
PLACE: SYDNEY
DATED: 26 JULY 2004
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 1 OF 2004
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
IN THE MATTER OF:
ROBERT McCOY
AppellantAND:
ADMINISTRATION OF NORFOLK ISLAND
RespondentCORAM: BEAUMONT CJ.
PLACE: SYDNEY
DATED: 26 JULY 2004THE COURT ORDERS THAT:
1.The appeal be dismissed, with costs.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 1 OF 2004
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
IN THE MATTER OF:
ROBERT McCOY
AppellantAND:
ADMINISTRATION OF NORFOLK ISLAND
RespondentREASONS FOR JUDGMENT
BEAUMONT CJ:
26 July 2004INTRODUCTION
This appeal from the dismissal of a complaint by the Employment Tribunal arises in the following circumstances:
By his complaint dated 24 September 2003 made to the Employment Tribunal (‘the Tribunal’) the appellant made the following claims:
·He sustained injuries on 11 April 2002 during the course of his employment with Max Darset Services.
·Liability of payment of compensation pursuant to Part 3 of the Employment Act 1988 (NI) (‘the Act’) was accepted.
·He was in receipt of compensation in respect of his incapacity pursuant to s 30 of the Act.
·Further and in addition, he was in receipt of compensation for medical treatment pursuant to s 37.
·Compensation was ceased, effective from 25 July 2003, on the basis that he left Norfolk Island. It is his submission that there was no entitlement to cease compensation benefits on this basis.
·He lodged a complaint with a member of the Employment Board. The result of the enquiry led to the reinstatement of benefits for a brief period. A Certificate of Result was attached to the complaint.
·This Certificate was received on 18 September 2003.
·He sought the reinstatement of his benefits pursuant to the Act.
In Summary:
Part 3 of the Act (ss 26 – 47) provides for compensation for work-related accidents. Section 30 provides for compensation for total or partial incapacity.
Section 37 provides for compensation for medical treatment where compensation is payable under Part 3.
Part 5 of the Act (ss 65 – 94) deals with Conciliation, Adjudication and Review.
Division 1 (ss 65 – 77) of Part 5 deals with Conciliation. By s 77(1)(a), the Employment Board shall endeavour to resolve a complaint brought before it by conciliation.
Division 2 (ss 78 – 90) of Part 5 deals with Adjudication. By s 78, the Court of Petty Sessions (referred to as the Employment Tribunal) has the adjudication functions conferred upon it by Part 5. In the present matter, the appellant’s complaint, in the form of an application for review, was dismissed by the Tribunal.
Division 3 (ss 91 – 94) of Part 5 provides for Review by appeal to this Court. By s 92(1) it is provided that, subject to s 92(2), this Court has general jurisdiction to hear and determine an appeal on any question, whether of fact or law, relating to the Tribunal’s determination or order. (Section 92(2) limits the appeal to a question of law where the matter in issue in an appeal amounts to, or is of the value of, $2,500 or less.)
THE TRIBUNAL’S DECISION
In dismissing the appellant’s application for review, the Tribunal gave the following reasons:
‘The Applicant sustained injuries during the course of his employment and as a result received benefits under the … Act … .
The Applicant departed the Island on the 6th July, 2003 and inter-alia, as a consequence of his departure from the Island the payments of the benefits were suspended. He now claims the reinstatement of the payment of those benefits. Section 32 of the Act provides for the Medical Superintendent to assess the employee. The Applicant sought orders that the Medical Superintendent delegate his assessments to someone in Australia.
Crown Counsel submitted that section 5 of the Act limits the Act to Norfolk Island and does not extend it to Australia. He argued that monitoring of the employee needed to be performed on Norfolk Island.
The applicant had not been referred to Australia for medical reasons. Evidence was submitted where he was approved to perform light duties work. He had not made himself available to seek employment of the nature assessed as being suitable for him by listing on the Employment Register.
The Tribunal considers that arguments put were not strong enough to side with an aforementioned delegation under section 32. The Tribunal could find no specific adequate mechanism in the Act to provide for such a situation where the applicant could be monitored off Island.
Conclusion
The Tribunal considers that the application for a review is dismissed. Should Mr. McCoy return to the Island he can request another assessment.’THE PROVISIONS OF THE ACT REFERRED TO BY THE TRIBUNAL
Section 5 of the Act (which appears in Part I (entitled ‘Preliminary’)) provides:
‘Application
5. (1) Subject to this section, this Act applies where work is carried out by an employee in Norfolk Island, whether a contract was entered into or not, and whether the contract, if any, was entered into in Norfolk Island or elsewhere.
(2) Where an employer is not ordinarily resident in Norfolk Island, an agent, officer or employee ordinarily resident in Norfolk Island of that employer is deemed, for the purposes of this Act, to be the employer where the agent, officer or employee –
(a)is ordinarily in charge of the employer’s business in Norfolk Island; or
(b)has entered into a contract on behalf of the employer in Norfolk Island.
(3) This Act applies where a contract for work to be carried out elsewhere than in Norfolk Island –
(a)is made in Norfolk Island; and
(b)the employer and employee under the contract are ordinarily resident in Norfolk Island.
(4) Where a person is employed to carry out work in Norfolk Island under a contract made in a place elsewhere than Norfolk Island and the person performs no duties under the contract on land in Norfolk Island except duties that are incidental to the performance of the principal duties of the person under the contract, this Act does not apply.’
Section 32(1) and s 32(2) (appearing in Part 3) provide:
‘Assessment of permanent loss or impairment of function
32. (1) Subject to subsection 32(2), where an employee who suffers incapacity does not completely recover from the incapacity –
(a)the Medical Superintendent; or
(b)a person appointed by instrument in writing signed by the executive member,
shall make an assessment of the employee in order to ascertain whether the employee has suffered permanent loss or impairment of bodily or mental function within the meaning of subsection 28(3) and the percentage, if any, of the loss or impairment.
(2) An assessment under subsection 32(1) shall be undertaken when the Medical Superintendent, or, where paragraph 32(1)(b) applies, a person referred to in that paragraph, considers that the degree of incapacity suffered by the employee has stabilised.’
(Section 28(3) stipulates that ‘[l]oss of amenities and of enjoyment of life because of permanent loss or impairment of a bodily or mental function of an employee … constitutes incapacity … whether or not the loss or impairment results in a loss or diminution of the employee’s capacity to earn’.)
THE APPELLANT’S GROUNDS OF APPEAL
By his notice of appeal, the appellant relies upon the following grounds:
‘(a)That the decision of the … Tribunal … was incorrect in a material manner.
(b)That the departure by the [a]ppellant from Norfolk Island was not a factor in assessing the [a]ppellant’s entitlements to compensation pursuant to the … Act.
(c)That s 32 of the … Act has no application to the determination of an award for weekly benefits of compensation.
(d)That s 5 of the … Act does not limit the employee to residence in Norfolk Island.
(e)That the … Act does not require the employee to be monitored in Norfolk Island to assess the [a]ppellant’s entitlements to weekly benefits of compensation.
(f)That the [a]ppellant’s failure to register himself on the Employment Register is not a relevant factor in assessing the [a]ppellant’s entitlement to weekly benefits of compensation.’
The appellant then seeks orders from this Court (inter alia) as follows:
·That the respondent has jurisdiction to determine the appellant’s entitlements to compensation pursuant to the Act.
·That the appellant is to be paid compensation pursuant to s 30(4) or s 30(6) of the Act. (Section 30(4) and s 30(6) make provision for the payment of compensation where an employee suffers total or partial incapacity respectively.)
·In the alternative, that the complaint be remitted to the Tribunal by way of hearing as to quantum in accordance with the judgment and directions of this Court.
THE APPELLANT’S SUBMISSIONS IN SUPPORT OF THE APPEAL
In order to understand the nature of the issues which arise in the appeal, it will be necessary to summarise the respective contentions of the parties, as follows:
In support of ground (a)
In support of ground (a), above, the appellant submits that the Tribunal fell into error in making findings which were not supported by the provisions of the Act in respect of these material matters: (i) the relevant effect on the appellant’s benefits upon his leaving Norfolk Island; (ii) the interpretation of s 5 of the Act and its bearing on Part 3; (iii) the inference that the Island does not form part of Australia and the application of that inference to the facts found in deciding the case; (iv) the finding that, because the appellant did not place himself on the Under Employment Register, he had not made himself available to seek employment; and (v) the finding that the Act provided no specific adequate mechanism to provide for a situation where the appellant could be monitored off the Island and that this was a material fact disentitling the appellant to compensation.
It followed, the appellant contends, that the Tribunal’s reasons for its decision demonstrated that the appellant’s case was not properly considered in such circumstances that the hearing itself miscarried.
In support of grounds (b) and (d)
The appellant submits the Act is designed to provide more than a mechanism for payment of workers’ compensation alone. The long title of the Act identifies the provisions to include the establishment of minimum wages, working conditions, compensation, safe work practices, conciliation, adjudication and review. Compensation for work-related accidents is one discrete section and is confined to Part 3 (only).
Section 5 does nothing, it is contended, more than prescribe the jurisdictional limits of the terms of engagement between a worker and his employer, possibly under a specific contract. This provision seeks to identify the employment relationship as the threshold which must exist for the Act, in all of its facets, to have any application. The original enlistment for work must have taken place in the Island (as this did). But s 5 does not limit the terms by which compensation is payable.
Although the respondent’s submissions to the Tribunal suggested that the Island is not part of Australia, however, the Island remains under the authority of the Commonwealth of Australia. The Norfolk Island Act 1979 (Cth) (‘the Island Act’) conferred a degree of internal self-government, but in no way altered the Island’s status as an integral part of the Commonwealth. The preamble of the Island Act declared the Island to be a Territory of the Commonwealth. This Court has confirmed that the Federal Parliament had power under s 122 of the Australian Constitution to make laws for the government of the Island (citing Newbery v The Queen (1965) 7 FLR 34). Indeed, had the appellant remained on the mainland, he was probably entitled to institute proceedings in an Australian State outside the Island (citing John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503).
In support of grounds (c) and (e)
The appellant submits that the relevant provisions of Part 3 are these:
·‘Incapacity’: means (a) personal injury by reason of a work-related accident suffered by the employee as a result of which there is a loss or diminution of the employee’s capacity to earn (s 28(1)).
·‘Partial Incapacity’:section 30(1) requires the employer to pay compensation where the employee’s partial incapacity (temporary or permanent) is due to a diminution of the employee’s capacity to earn. (It is common ground that before he left the Island, the appellant was partially incapable.)
·Section 30(6) provides for payment to an employee who suffers from partial incapacity at the rate for total incapacity less a proportion equal to the employee’s capacity to earn had he not been affected by incapacity.
·Section 30(7) provides that compensation for partial incapacity is payable until the employee ceases to suffer partial incapacity.
·Section 30(8) provides for the payment of partial incapacity up to the date of the employee’s death or after the expiration of two years of compensation for partial incapacity, whichever date first occurs.
In further support of these grounds, the appellant contends that the Act represents the codification of the law relating to compensation benefits. There is nothing within the Act that disentitles a worker to continuing payments of compensation benefits by reason of his leaving the Island. There is no common law principle disentitling a worker to compensation benefits where he leaves the Island’s boundaries. In the Tribunal’s reasons, it was said of and concerning s 32 that ‘[t]he Tribunal could find no specific adequate mechanism in the Act to provide for such a situation where the Applicant could be monitored off Island’. But this conclusion wrongly assumes that ‘monitoring’ is mandatory. Section 32 has no application to entitlement to ‘partial’ compensation, and neither was it part of the original complaint filed on behalf of the appellant. The matter for consideration by the Tribunal was only in respect of compensation payments to be paid to the appellant under s 30, unqualified by s 32. Section 32 refers to Assessment for Permanent Loss of Impairment of Function. No such claim was made and the Tribunal was wrong in accepting a submission on behalf of the respondent that the appellant’s incapacity for work had to be monitored by the Medical Superintendent or his appointee.
In support of ground (f)
The appellant contends, in respect of ground (f), that the Tribunal took into account, as a significant matter, the circumstance that he should register with the Under Employment Register in order that employment be obtained and that the appellant did not register. But the Act and the Employment Regulations make no provision for the Under Employment Register. There is no connection with any register in the assessment of a worker’s claim. Moreover, the Tribunal failed to have regard to the unchallenged evidence of the appellant that he had sought light duty work including an application made to his employer, without success.
THE RESPONDENT’S SUBMISSIONS
This Court’s jurisdiction
The respondent submits that the orders now sought by the appellant do not relate to the determination of the Tribunal and are really an attempt to invite the Court to embark upon an independent fact-finding exercise which is beyond the Court’s jurisdiction (citing Grace Gullo v Comcare [1997] FCA 662). The question on the appeal must be limited to the determination of the Tribunal and, in this regard, the issue is limited to a consideration whether the Tribunal erred when it dismissed the application to review the delegate’s decision to cease the payment of compensation to the appellant under s 30 of the Act, because he departed Norfolk Island, other than on a temporary basis (citing s 92(1) of the Act; and referring to Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1). But the appellant has not sought orders to this effect. This Court does not have jurisdiction to make the orders now sought, given the operation of s 92(1).
The Island’s status
The respondent submits that the Island is an external Territory of Australia. The Island Act provides for the internal self-government of Norfolk Island as a Territory and reserves to the Island government certain exclusive powers in relation to the making of laws in respect of certain items, listed in Schedule 2 to the Island Act, and certain non-exclusive powers in relation to the making of laws in respect of certain items, listed is Schedule 3 (citing the Island Act, ss 19, 20 and 21).
The Act does not form part of the laws of Australia.
Commonwealth Acts have no force in the Island, unless expressed to extend to it (citing the Island Act, s 18).
Unless the appellant can show some connection between his claim and another jurisdiction in which it is proposed to bring the claim, the relevant Court for the hearing of this appeal is this Court (citing the Act, s 92(1)).
The appellant cannot establish any such connection. The Act forms part of the laws of the Island; it does not form part of the laws of Australia or any State or Territory of Australia. The decision, the subject of this appeal, was made in the Island. The only relevant jurisdiction to govern this appeal is the Island. Section 92(1) of the Act applies.
The approach taken in the Tribunal’s reasons
The respondent submits that the Tribunal was not required to mention every fact or argument relied on by the appellant as being relevant to an issue.
To suggest that a Tribunal, or other arbiter, has not properly considered a party’s case is a serious charge and should be accepted only when the record of the trial or hearing or other evidence persuasively suggests that the Tribunal failed to discharge that duty (citing Whisprun Pty Limited v Sonya Lea Dixon (2003) 200 ALR 447).
The record of the hearing by the Tribunal does not persuasively suggest that the Tribunal failed to discharge its duty to properly consider the appellant’s case.
The respondent then addresses the appellant’s specific grounds of appeal as follows:
In answer to grounds (a) and (f)
The respondent contends that it was open to the Tribunal to find, in accordance with the Act that the appellant was not entitled to compensation payments for incapacity once he departed Norfolk Island, other than on a temporary basis, and to affirm the delegate’s decision and to dismiss the application accordingly.
If this finding is correct, the respondent submits that whether other matters were raised by the Tribunal in the course of its reasons is immaterial to that finding. In any event, those other matters support the requirement that the appellant be physically present in the Island to receive compensation payments.
Although the appellant refers to a ‘failure’ by the Tribunal to take into account evidence that the appellant sought light duty work, including an application made to his former employer, other than being evidence as to the fitness of the appellant for (some) work duties, it is immaterial to the determination of the Tribunal or to the matters in issue before this Court that the appellant sought light duty work, including an application made to his employer, without success.
In answer to grounds (b) and (d)
The respondent submits that the Act will apply only where the work is conducted in the Island and/or where the employee and/or employer are ordinarily resident there (citing the Act, s 5).
The Act does not extend to Australia; once the appellant left the jurisdiction, the Act had no further application or jurisdiction in this respect.
If it is a requirement under the Act that an employee submit to ongoing medical assessment, or medical monitoring, to continue to receive compensation payments, such requirement is unenforceable as against that employee, once the employee leaves the jurisdiction of the Island.
There are no reciprocal arrangements between the Island and Australia, or between the Island and any State or Territory of Australia, relating to the payment of compensation benefits for injury or to the payment of social security benefits generally.
A person who ordinarily resides in the Island is not an Australian resident for the purposes of the Social Security Act 1991 (Cth) (‘the Commonwealth Act’) and is not entitled to receive certain compensation payments, including the disability support pension (citing the Commonwealth Act, s 7). (There is as exception, for the purpose of Part 2.2 (age pension), Part 2.3 (disability support pension), Part 2.7 (bereavement allowance) and Part 2.8 (widow B pension) of the Commonwealth Act, but only to the extent that residence in the Island of a claimant under the Commonwealth Act is taken not to interrupt the continuity of residence of the claimant in Australia where length of Australian residency is a factor in assessing entitlement.)
A person who ordinarily resides in Australia is not ordinarily resident in the Island. The same basis for disentitling claimants under the Commonwealth Act from compensation for injury and incapacity when they move overseas, on other than a temporary basis, applies.
Once an employee leaves the jurisdiction of Norfolk Island, it is not possible to ascertain whether that employee: (i) has obtained paid employment in Australia or elsewhere; or (ii) is in receipt of any Australian (or other) social security benefits.
In answer to grounds (c) and (e)
The respondent contends that s 32 of the Act is relevant for assessing incapacity, partial or otherwise. It covers those situations where an employee does not cease to suffer from an incapacity and stipulates what steps must be taken to assess the employee for permanent, and if so, what percentage, loss or impairment of bodily or mental function.
The respondent relies on s 32(1) and s 32(2), set out above, and on s 26(1) of the Act (dealing with ‘interpretation’) which sets out the relevant definitions, including:
‘Medical Superintendent means the person appointed to be the Medical Superintendent within the meaning of the Norfolk Island Hospital Act 1985 and includes the Deputy Medical Superintendent.’
It is implicit in s 32 that, to be assessed by the Medical Superintendent or, where the Medical Superintendent is of the view that he or she is not qualified to make an assessment, to enable the Medical Superintendent to come to that view, the employee must be resident in Norfolk Island.
Section 32, and no other section, prescribes the process for ongoing medical assessment. It does not provide a process for off-Island monitoring. Where ongoing medical assessment or monitoring is required, reference must therefore be made to the process set out in s 32.
The respondent’s submissions on the specific issue of ‘monitoring’
The respondent submits that s 30(6) of the Act provides that compensation shall be payable, in the case of partial incapacity, at a rate that is calculated by subtracting from the rate for total incapacity a proportion of that rate which is equal to the proportion by which the employee’s capacity to earn is not affected by the incapacity. It is inherent in s 30(6), and conceded for the appellant before the Tribunal (a ‘concession’ which the appellant disputes) that, in order to calculate the rate of compensation payable, the employee must be medically assessed or medically monitored to assess the proportion of incapacity. The process for medical assessment is set out in s 32 of the Act, and in no other section.
The respondent then sets out s 30(7) as follows:
‘30(7)Subject to subsection 30(8), compensation under subsection 30(6) is payable until the employee ceases to suffer partial incapacity.’
Section 30(8) stipulates that compensation is not payable after the death of an employee or after the expiration of two years of compensation payments. It is implicit in s 30(7) of the Act that, in order to determine whether an employee ceases to suffer partial incapacity, the employee must be assessed or ‘monitored’ by way of medical examination, unless the employee makes, by voluntary admission, a declaration that he or she no longer suffers from partial incapacity. Where that assessment, or monitoring, concludes that the employee ceases to suffer partial incapacity, or where that employee declares that he or she no longer suffers from partial incapacity, compensation will no longer be payable. Where that assessment, or monitoring, concludes that the employee does not cease to suffer that partial incapacity or suffers that partial incapacity, but in a different proportion, compensation payments will continue or will continue but at a different rate, as the case may be.
Where ongoing monitoring or assessment is required, s 32 will apply to the extent that it sets out the process for medical assessment.
The Act does not, and cannot, contain any mechanism to compel an employee to submit to medical assessment or medical monitoring where that employee no longer resides in the Island. Without this mechanism, it is impossible to assess whether an employee, who no longer resides in the Island, is entitled to continuing compensation payments, in accordance with s 30(7).
Further, the respondent contends, the Act sets out in s 37(3) a process for compensating an employee for the reasonable costs of his or her medical treatment.
Section 37(3) is in the following terms:
‘37(3)For the purposes of subsection 37(1), the reasonable cost of medical treatment is –
(a)the cost of medical treatment carried out in Norfolk Island with the approval of the Medical Superintendent;
(b)where the Medical Superintendent considers it necessary for medical treatment to be carried out in a place other than Norfolk Island - the reasonable cost of that treatment to the extent that the employee is not entitled to receive free or subsidised treatment at that place;
(c)the reasonable cost of transporting the employee, and, if necessary, an escort or escorts, to and from a place referred to in paragraph 37(3)(b);
(d)the reasonable cost of accommodating an escort referred to in paragraph 37(3)(c) at or near a place referred to in paragraph 37(3)(b); and
(e)the reasonable cost of rehabilitation services within the meaning of section 38; and
(f)such other reasonable cost as is considered appropriate by the executive member in the circumstances of the case.’
The recoverable costs are those costs incurred in respect of medical treatment carried out in the Island, or carried out in a place authorised by the Medical Superintendent.
The respondent contends that by omitting to include in the Act: (i) a mechanism for the assessment or monitoring of employees who no longer reside in the Island; or (ii) a process for calculating the reasonable cost of medical treatment, other than the cost of medical treatment carried out in the Island or incurred elsewhere, subject to the approval of the Medical Superintendent, the Legislature intended that: (a) compensation benefits (and compensation for medical treatment) would not be payable to a person not ordinarily resident in the Island; and (b) compensation benefits would cease to be payable once an employee departed the Island, other than on a temporary basis.
The appellant departed Norfolk Island on a permanent basis on 6 July 2003 (citing a departure form then executed by the appellant stating that he was departing ‘temporarily’, for a period of ‘3 months’, together with a statement that he would not be returning to the Island within the next 180 days).
Finally, the respondent submits that the appellant has been in receipt of a single parent allowance, now that he resides in Australia, and that he would not be entitled to those benefits if he resided in the Island.
THE APPELLANT’S SUBMISSIONS IN REPLY
In response to the respondent’s submissions, the appellant makes the following submissions in reply:
Contrary to the respondent’s contention, that the appellant did not ‘depart[ ] Norfolk Island, other than on a temporary basis’, his departure form was marked as a ‘temporary’ (rather than ‘permanent’) departure only.
The appellant has never asked the Court to carry out ‘an independent fact-finding exercise’.
The unchallenged evidence of the appellant (citing from his affidavit sworn 20 October 2003, read to the Tribunal) was that, with his disability, he could find no suitable work in the Island. He then left to find a job in Australia. Were he to have stayed on the Island, he would have had a larger claim available to him because his capacity to earn income in the Island was nil, so that he would then have been entitled to the maximum compensation weekly rate under s 30(4) and s 30(6) (see below for their terms). This is an anomaly which, the appellant submits, the Legislature could not have contemplated.
(Section 30(4) provides:
‘(4) Where an employee suffers total incapacity, compensation shall be –
(a)payment as if the period of incapacity were a period of absence from duty under section 18 by reason of ill health –
(i)in respect of the 5 working days next following the commencement of the incapacity; or
(ii)where a written contract entered into in pursuance of section 10 provides for a longer period – in respect of that period; and
(b)after the expiration of the period referred to in paragraph 30(4)(a), fortnightly payments of an amount equal to –
(i)the prescribed amount; or
(ii)the amount the employee would have received had the employee not been suffering incapacity where that amount is less than the prescribed amount.’
Section 30(6) provides:
‘(6) Where an employee suffers partial incapacity, compensation shall be paid at a rate calculated in accordance with subsection 30(4) as if the employee had suffered total incapacity, less the proportion of that rate that is equal to the proportion by which the employee’s capacity to earn is not affected by the incapacity.’)
If the Legislature intended an employee to become disentitled upon leaving the Island, s 7 would have so provided and it does not. Moreover, the whole of Part 3 is a code for compensation purposes.
(Section 7 provides:
‘Persons to whom Act does not apply
7. (1) This Act does not apply to –
(a)members of the Police Force;
(b)offices or employees of the Commonwealth; or
(c)subject to subsection 7(2), persons holding office or appointments under a law of Norfolk Island, the Commonwealth or a State or Territory.
(2) Subject to subsection 8(2), this Act applies to officers or employees of the Administration or a Territory authority.’)
The appellant had a duty to mitigate his loss. He had no choice but to leave the Island to achieve this.
The Tribunal gave no reasons why the appellant was obliged to register himself with the Under Employment Register.
There was no evidence before the Tribunal to justify its finding that there was no specific adequate mechanism in the Act to provide for a situation where the appellant could be monitored off the Island.
The respondent’s contention, that it is immaterial that the appellant sought light work in the Island without success, ignores the circumstance that the Tribunal had an obligation to assess partial incapacity under s 30(6) of the Act.
Sections 30 and 32 are independent; and s 32 places no limitation on s 30. Any requirement to submit to a medical assessment is limited only to claims made pursuant to s 32 and is relevant only to a claim for permanent loss or impairment of function (i.e. lump sum entitlements). The appellant’s claim is for partial incapacity only. The respondent’s (inferential) claim, that an employee has to submit to ongoing medical assessments and medical monitoring to receive compensation, is not required by Part 3.
If the appellant succeeds in this appeal, he will be obliged to refund to the Commonwealth the value of any benefits received under the Commonwealth Act.
Section 32 refers only to lump sum benefits, but no such claim is made here.
The implication sought to be drawn by the respondents from s 30(7) is not open. The respondent may arrange for a medical examination of the appellant in any part of the world.
CONCLUSIONS ON THE APPEAL
The issues which arise in the appeal are, in my view, questions for construction of the Act, which should be approached upon a consideration of the whole of the statute.
In approaching the proper construction of the Act it is helpful, in my view, to consider the general principles which have been applied in the interpretation of similar legislation.
In Ball v William Hunt & Sons, Limited [1912] AC 496, an employee, an edge tool moulder, lost the sight in his left eye, but continued to work at his old rate of wages. Many years afterwards he met with a second accident to his left eye which necessitated its removal. He was unable to obtain work in his employment, in consequence of his being manifestly a one-eyed man, though his ability to work remained exactly as it was before. It was held by the House of Lords that he was entitled to compensation under the Workmen’s Compensation Act 1906 (UK).
Earl Loreburn LC said (499 – 500):
‘In my opinion, if the county court judge thinks these facts are established (as I gather he did think) he ought to award compensation on the footing of total or partial incapacity, according as he may find. By the first section of the Workmen’s Compensation Act compensation is to be paid for personal injury by accident within the terms of the Act. What the schedule does is to fix the scale and conditions. In the ordinary and popular meaning which we are to attach to the language of this statute I think there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.’ (Emphasis added)
Ball was considered by the High Court of Australia in Arnotts Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171 by Mason, Wilson, Deane and Dawson JJ at 178 – 179:
‘… the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. (Emphasis added)
…
…the references in the judgments to an incapacity for work which reduces the employee’s ability to sell work for wages on the open market have had as their purpose the rejection of the erroneous view that a worker is not partially incapacitated if he can do all the things that he could do before the injury. So, in Ball …, the worker, who had been blind in the left eye, sustained an injury requiring removal of the eye. Although he was able to do all that he had done before the injury, employers were unwilling to employ him. It was held that he was partially incapacitated by injury. It is illegitimate therefore to use the references to reduced ability to sell work for wages as an argument for diminishing the content of incapacity for work.’
In my opinion, this reasoning is applicable here. The question is addressed by reference to a reasonably accessible employment market. There is nothing in the Act which negates the principle that an employee cannot proceed beyond the Island to claim for partial incapacity. This may work for or against an employee. If the employee is unable to obtain work in the Island (being the only reasonably accessible market) by reason of partial incapacity, he may be able to claim as if this were a total incapacity, at least for the time being.
There is nothing in ss 5, 7, 30, 32 or any other provision of the Act which suggests that this well-established principle cannot apply here. The result is that when the appellant decided to depart the Island of his own accord, he lost then the right to claim for partial incapacity as he moved away from the place where he might reasonably be expected to work.
I should add that I agree with the Tribunal that, at this point, the appellant must be treated as having ‘departed’ the Island.
Reliance was also placed by the appellant upon John Pfeiffer. However, in my view, this case cannot assist here. The High Court was there considering the general law of tort. As I have said, the present question turns on the true construction of the Act.
It should be mentioned that the appellant sought leave to tender in the appeal a report dated 30 December 2003 by Professor Sonnabend of Royal North Shore Hospital, Sydney, confirming that the appellant was still (in effect) suffering from a partial incapacity. The report was not, of course, before the Tribunal at its hearing on 10 November 2003.
In any event, counsel for the appellant indicated that the report would be relied on if the Court were to address quantum issues. On no view, would this be, in my opinion, an appropriate topic for this Court.
ORDERS
Accordingly, it must follow that the appeal should be dismissed with costs.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Beaumont.
Associate:
Dated: 26 July 2004
Counsel for the Appellant:
Mr H J Halligan
Solicitor for the Appellant:
Beilby Poulden Costello
Counsel for the Respondent:
Crown Counsel
Solicitor for the Respondent:
Administration of Norfolk Island
Date of Hearing:
16 July 2004
Date of Judgment:
26 July 2004
0
6
0