MHG Plastic Industries Pty Ltd v Zickar

[1999] NSWCA 366

CITATION:	MHG Plastic Industries Pty Ltd v Zickar [1999] NSWCA 366
FILE NUMBER(S):	CA 40066/99
HEARING DATE(S):	15 September 1999
JUDGMENT DATE:	8 October 1999
PARTIES :	MHG Plastic Industries Pty Ltd v Darrin Zickar
JUDGMENT OF:	Mason P at 1; Priestley JA at 28; Stein JA at 29

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 3212/89
LOWER COURT JUDICIAL OFFICER:	Geraghty J

COUNSEL:	A: SG Campbell, IA Todd R: P Webb QC, W Carney
SOLICITORS:	A: Curwood & Partners, Sydney R: Lewis & Fawkner, Wollongong
CATCHWORDS:	WORKERS’ COMPENSATION - Worker collapsed at work - Claim for compensation under Workers Compensation Act 1987 s66, s67 - Award of interest on compensation payments pursuant to s19A of Compensation Court Act 1984 - Impact of WorkCover Legislation Amendment Act 1995 - Whether interest had been claimed
ACTS CITED:	Workers Compensation Act 1987 Compensation Court Act 1984 WorkCover Legislation Amendment Act 1995
CASES CITED:	St Vincents Private Hospital v Maher (1996) 13 NSWCCR 118
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40066/99
CC 3212/89

MASON P
PRIESTLEY JA
STEIN JA

Friday, 8 October 1999

MHG PLASTIC INDUSTRIES PTY LTD v Darrin ZICKAR

JUDGMENT

1    MASON P: The respondent worker collapsed at work on 15 October 1987 after the rupture of a cerebral aneurism. He suffered severe brain damage with permanent consequences. 2    On 17 October 1989 he filed an Application for Determination in the Compensation Court. The details of the application are of relevance to the remaining issue in the appeal and I shall return to them. 3    After much litigation the worker established that he had suffered a personal injury within paragraph (a) of the definition of “injury” in s4 of the Workers Compensation Act 1987 (the 1987 Act) (see Zickar v MHG Plastic Industries Pty Ltd (1996) 187 CLR 310). 4 The orders of the High Court made on 14 November 1996 reversed the decision of the Court of Appeal in MHG Plastic Industries Pty Ltd v Zickar (1994) 34 NSWLR 617, thereby reinstating the award of his Honour Judge Thompson made on 12 September 1991. This was an award for weekly compensation and s60 expenses. Judge Thompson also ordered that the worker have liberty to apply in respect of s66 and s67 subject to a stay of proceedings put in operation pending the appellate proceedings which had obviously been foreshadowed. 5 On 14 August 1997 the parties filed terms of settlement in the Compensation Court. These finalised the worker’s entitlement to lump sum compensation under s66 and s67 on the basis of the maximum award then available. Liberty to apply in respect of interest was reserved. 6 That liberty was taken up by notice of motion filed on 17 June 1998 and heard on 12 October 1998. It culminated in orders made by Judge Geraghty on 18 December 1998 in favour of the worker. 7 The employer appeals against the award of interest. The appeal is relevantly limited to a question of law. 8 Section 19 of the Compensation Court Act 1984 gave that Court an unrestricted power to award interest. This was the situation at the time of the injury. Section 19 was repealed by the WorkCover Legislation Amendment Act 1995 (the WorkCover Act) which relevantly commenced on 1 January 1996. 9 In lieu of s19, a new s113 was inserted into the 1987 Act. It restated the Compensation Court’s power to award interest for the period before the order for payment, subject to limitations. Section 113(2) relevantly provided:

Interest cannot be ordered under this section:
(a) on any compensation payable under Division 4 of Part 3, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made … .

[Sections 66 and 67 are within Division 4 of Part 3 of the 1987 Act.]

10 Schedule 1, item [108] of the WorkCover Act added a new Part 11 to Schedule 6 (Savings, transitional and other provisions) of the 1987 Act. Clause 1 of Part 11 stipulated that the new s113(2) did not apply to the ordering of interest on compensation for injuries received before the insertion of that provision, but the following provisions did apply to the ordering of that interest:

(a) interest must not be ordered on any compensation payable under this Act for any period before a claim for the compensation was duly made or (where no such claim was duly made before the commencement of proceedings in the Court) for any period before the worker gave the employer particulars (including, in the case of a claim for compensation under section 66, a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of compensation claimed,
(b) the provisions of paragraph (a) extend to proceedings pending at that commencement but do not affect any order for interest made before that commencement.

11    This Court’s decision in St Vincents Private Hospital v Maher (1996) 13 NSWCCR 118 (Maher’s Case) explains the inter-relation of these and other provisions to situations (like the present case) in which proceedings for compensation under s66 and s67 in relation to an injury occurring before 1 January 1996 were pending as at that date. As Clarke JA explained it (at 126-7):

…section 19 of the Court Act continues to apply to proceedings which had been commenced prior to the operative amendments coming into force but, in so far as any such proceedings must necessarily involve claims for compensation for injuries received prior to the new provisions becoming law, the Court, in considering the award of interest on compensation in respect of those injuries, is bound to observe and apply the instruction in clause 1(a) of Part 11 of Schedule 6 to the Compensation Act. In effect, the latter provision modifies the continued operation of section 19 of the Court Act.

12    Section 113 of the 1987 Act was repealed by the Workers Compensation Legislation Amendment Act 1998 (No 95 of 1998). The Workplace Injury Management and Workers Compensation Act 1998, which came into force on 1 August 1998, replaced s113 by s109 which (as regards the present type of case) is in substantially identical terms. 13 The 1998 legislation left unamended Schedule 6 Part 11 of the 1987 Act. And it inserted a new Part 18A into that Schedule. Clause 2 of Part 18A contains a detailed savings clause. 14 In the Court below and this Court (for a time), the employer submitted that the worker’s right to have his claim for interest decided in accordance with Maher’s case had been taken away by the apparently uncompromising terms of s109 of the 1998 Act which, as previously indicated, commenced after the worker had filed a notice of motion claiming interest and before those proceedings were heard and determined. There were formidable difficulties with this proposition in the light of Part 18A of Schedule 6 of the 1987 Act and general principle (cfKraljevich v Lake View & Star Ltd (1945) 70 CLR 647). Judge Geraghty was correct to reject this submission and the appellant did not press it.

The remaining issue

15 The issue that was pressed was whether the ordering of compensation pursuant to s19 of the Compensation Court Act 1984 was precluded by clause 1(a) of Schedule 6 Part 11 (see Maher’s case). More particularly, the issue was whether, within the second part of clause 1(a), the period covered by the award of interest was the period after the worker gave “particulars (including, in the case of a claim for compensation under section 66, a supporting medical report) sufficient to enable the employer to ascertain the nature and amount of compensation claimed”. 16 Judge Geraghty awarded interest on the s66 and s67 payments from 24 May 1990. That was the date of a report of Dr Ernest Somerville. It was a report originally submitted to the employer’s solicitor but it had been re-served on the employer by the worker’s solicitor. The litigation proceeded on the basis that the report could be treated as having been given by the worker to the employer on the date it bears. 17 The report was one of several medical reports served on the employer in the context of the proceedings commenced in 1989. 18 Judge Geraghty held that there could be no doubt in the mind of the employer when armed with these reports that the worker’s claim would be grossly in excess of the maximum amounts available. He also held that there was no doubt that the employer was armed with sufficient information and particulars to ascertain that the worker’s claim under s66 and s67 would surpass, by a significant degree, the maximum amount able to be awarded. From the service of Dr Somerville’s report on 24 May 1990, and at least from that date, the employer could have been in no doubt as to the extent of the worker’s claim, as to the nature and quantity of it (par 43 of judgment). 19 I do not understand the employer to challenge this as a finding of fact. It is amply supported by the medical reports. Dr Somerville had concluded that the worker’s medical problems were left hemiplegia and incontinence. There was no useful function of the left upper limb. 20 What then is the remaining question of law? It is very difficult to perceive. The employer submitted that the reports were in effect no more than evidence which, if accepted, would have justified maximum awards. The service of the medical reports did not, it was submitted, constitute the provision of “particulars” of the relevant claims, notwithstanding that the information they contained was sufficient to enable the employer to ascertain the nature and amount of compensation claimed. It was submitted that the fatal deficit was that the worker did not in fact “claim” the relevant heads of compensation until he took up the liberty to apply by filing the notice of motion on 17 June 1998. 21 There is an air of total unreality about this submission when it is recognised that the reports were served as between solicitors appearing on the opposite sides of the record in pending proceedings in the Compensation Court; and that the evidence was clearly referable and referable only to claims under s66 and s67. 22 The essential fallacy in the employer’s position is that it ignores the context in which the reports were served. The worker had filed an application for determination on 17 October 1989. The issue of compensable injury was a live one which had to go as far as the High Court to be resolved. But it had been made more than tolerably clear to the employer that if liability were established, then the worker was claiming his maximum entitlement to compensation under the 1987 Act. 23 This becomes very clear when the application is closely examined. The worker’s solicitor used a printed form (form 1). The printed form speaks of the proceedings being:

In the matter of the Worker’s Compensation Act, 19… .

24    Item 11 of the printed form referred to “Particulars of compensation claimed”. The printed form includes reference to:

(b) s.16 lump sum $ …in respect of …
(c) s.10 expenses


Obviously, the form was prepared with primary focus upon the 1926 Act. Nevertheless, it was put to service in the present case, in which the application was prepared and filed in October 1989. Reference was made to the 1987 Act. Item (b) (“ s16 lump sum ”) was completed with the insertion of “ nya ” (not yet available or ascertainable) after the dollar sign and with “ loss of function of left arm and left leg ” inserted as the basis of the “ s16 ” claim.

The reference to the sections in the 1926 Act that correspond to s66 and s67 is an obvious and understandable falsa demonstratio based upon incomplete adoption of an old printed form.

25    The particulars of incapacity (item 7) were stated to be:

Total incapacity from 15th October 1987 to date and continuing.

26 The employer would have been in no doubt that the worker was intending to press his claim to the maximum and that this claim included claims under s66 and s67. The medical reports put this beyond doubt. The learned trial judge was correct to award interest for the relevant period. 27 The appeal should be dismissed with costs. 28 PRIESTLEY JA: I agree with Mason P. 29 STEIN JA: I agree with Mason P.

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