Menzies Property Services Pty Ltd v Sommerville

[2000] NSWCA 93

Reported Decision: [2000] 19 NSWCCR 589

New South Wales

Court of Appeal

CITATION:	Menzies Property Services Pty Ltd v Sommerville [2000] NSWCA 93 revised - 02/05/2007
FILE NUMBER(S):	CA 40014/99
HEARING DATE(S):	11/04/00
JUDGMENT DATE:	14 April 2000
PARTIES :	Menzies Property Services Pty Ltd (Appellant) Barbara Sommerville (Respondent)
JUDGMENT OF:	Sheller JA at 1; Fitzgerald JA at 2; Davies AJA at 23

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	21139/97
LOWER COURT JUDICIAL OFFICER :	Ashford J

COUNSEL:	Mr J.D. Hislop QC / F. Doak (Appellant) Mr A.J. Leslie QC / Mr J. Singh (Respondent)
SOLICITORS:	P.W. Turk & Associates (Appellant) Steve Masselos & Co (Respondent)
CATCHWORDS:	Worker's Compensation - Interpretation of s 38 of the Workers Compensation Act - whether Regulation 73N of the Workers Compensation (General) Regulations affects the operation of the time period in s 38. (D)
LEGISLATION CITED:	Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 1998
DECISION:	Appeal allowed, with costs. The award varied to delete the provision for the payment of compensation to the respondent after 52 weeks from 8 September 1997 and to provide as follows; $350 per week from 10 September 1997 to 15 November 1997, and $280 per week from 16 November 1997 to 9 September 1998, with credit for payments made.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40014/99
NSWCC 21139/97

SHELLER JA
FITZGERALD JA
DAVIES AJA

FRIDAY 14 APRIL, 2000

MENZIES PROPERTY SERVICES PTY LTD v SOMMERVILLE

JUDGMENT

1   SHELLER JA: I agree with Fitzgerald JA. 2   FITZGERALD JA: The respondent was employed by the appellant between 1994 and 8 September 1997. She was incapacitated for work as a result of injuries to her right arm and shoulder on 28 February 1996 and her back on 28 January 1997. 3 The respondent was totally incapacitated for work from 1 March to 23 June 1996 as a result of her first injury, and again for 3 weeks after her second injury. Otherwise, she was partially incapacitated for work throughout the period of her employment by the appellant after she was first injured. 4 The respondent was paid compensation under s 36 of the Workers Compensation Act 1987 (“the Act”) in respect of her periods of total incapacity and under s 40 of the Act in respect of her periods of partial incapacity between 28 January 1996 and 8 September 1997. 5 After she ceased to be employed by the appellant on 8 September 1997, the respondent continued to be partially incapacitated for work. 6 On 26 June 1998, the respondent applied for compensation in respect of her continuing partial incapacity under s 38 of the Act. 7 By virtue of subs 38(2) of the Act, the maximum total period for which a worker might be compensated under s 38 was then 104 weeks. 8 On 1 August 1998, the Act was amended by the Workers Compensation Legislation Amendment Act 1998 to reduce that period to 52 weeks. 9 On 18 September 1998, the Compensation Court awarded the respondent compensation under s 38 of the Act in respect of her partial incapacity for a period of 104 weeks from 10 September 1997. 10 By its appeal, the appellant contended that the respondent was entitled to compensation for partial incapacity under s 38 of the Act for only 52 weeks from 10 September 1997. 11 An application by the respondent for leave to cross-appeal out of time was abandoned in the course of oral argument in this Court. 12 The amendment to the Act which reduced the maximum total period for which a worker may be compensated under s 38 from 104 to 52 weeks also inserted the following transitional provision:

“5D ….
(2) Reducing maximum s 38 benefit from 104 weeks to 52 weeks. The amendments made by the 1998 amending Act to section 38 of this Act do not apply to any period of incapacity for work occurring before the commencement of those amendments. However, any such period of incapacity is not to be disregarded when determining the rate of compensation payable for the balance of any such period of incapacity occurring after that commencement. Accordingly, any such period of incapacity is to be taken into account in determining whether the worker has been compensated for the maximum period of 52 weeks in accordance with section 38 of this Act, as amended.”

13   At that time, the Workers Compensation (General) Regulations were also amended by the insertion of the following regulation 73N:

(1) The amendments made to s38 of the 1987 Act by the Workers Compensation Legislation Amendment Act 1988 do not apply to a worker in respect of any period of incapacity after the commencement of those amendments that results from injury before that commencement if the worker was in receipt of compensation in accordance with that section before that commencement for any period of incapacity resulting from that injury.
(2) Clause 5D(2) of Part 4 of Schedule 6 of the 1987 Act is subject to this clause.”

14 The parties agreed that the Compensation Court correctly held that (i) the respondent would be entitled to compensation for only 52 weeks were it not for Regulation 73N and (ii) Regulation 73N is valid. 15 The appellant submitted that the Compensation Court erred in holding that the respondent was entitled for compensation for 104 weeks by virtue of Regulation 73N because she was not at that time “in receipt of compensation in accordance with….” s 38 of that Act. 16 The respondent acknowledged that she had not commenced to be paid compensation under s 38 at the date when that section was amended but argued that she “was in receipt of compensation” within the meaning of Regulation 73N. It was submitted that, as the Compensation Court effectively held, Regulation 73N requires only that she was then entitled to receive compensation under s 38. 17 The foundation for the respondent’s argument was the accepted principle of construction that workers’ compensation legislation is remedial and should be constructed “beneficially”, not “in the spirit of meticulous literalism”, and, in the case of ambiguity, the construction favourable to the worker is to be preferred. [1] Reference was made to the definition of “compensation” for the purposes of the Act, and it was submitted that compensation includes an entitlement to a monetary benefit and that, at the date when the Act was amended, that entitlement had accrued to, i.e. been “received by”, the respondent. 18 In my opinion, the plain language of Regulation 73N is too specific and intractable to permit the construction advanced by the respondent to be accepted. 19 Accordingly, I consider that the Compensation Court erred and the appeal should be allowed, with costs. 20 The material part of the Compensation Court award was in the following terms:

“There will be an award for the applicant at the rate of:
$350 pw from 10 September 1997 to 15 November 1997,
$280 pw from 16 November 1997 to 15 November 1998,
and at the statutory rate for a worker with no dependants from 16 November 1998 to date and continuing all pursuant to s38.
I give credit to the respondent for payments made.”

21   Although the appellant criticised another aspect of the award in its oral argument, the appeal was limited to the single ground discussed above. 22   Accordingly the order sought by the appellant that the matter be remitted to the Compensation Court is unnecessary. The award should be varied to delete the provision for the payment of compensation to the respondent after 52 weeks from 8 September 1997; that is to say should provide as follows:

$350 per week from 10 September 1997 to 15 November 1997,

and

$280 per week from 16 November 1997 to 9 September 1998,

with credit for payments made.

23   DAVIES AJA: I agree with Fitzgerald JA.

End Notes
1. Bird v The Commonwealth (1988) 165 CLR 1, 6, 9

Revision Reasons
Hyperlinked End Notes added - 02/05/07