Mitsubishi Motors Australia Limited v James Kelly Love No. SCGRG 92/849 Judgment No. 3715 Number of Pages 5 Workers' Compensation - [1992] SASC 3715

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), COX(1) AND MATHESON(3) JJ

CWDS
Workers' compensation - assessment and amount of compensation - weekly earnings - Workers Rehabilitation and Compensation Act 5.4(8) - only certain overtime to be taken into account - meaning of "component". Workers Rehabilitation and Compensation Acts.4(8).

HRNG ADELAIDE, 13 October 1992 #DATE 10:12:1992
Counsel for appellant:     Mr T J P O'Callaghan
Solicitors for appellant:    Piper Alderman
Counsel for respondent:     Mr A P Durkin
Solicitors for respondent: Duncan Groom Hannon

ORDER
Appeal dismissed.

JUDGE1 COX J The respondent suffered a compensable disability, as the WorkersRehabilitation and Compensation Act 1986 calls it, at work on Friday, 10 May, 1991 in the course of his employment by the appellant. As a result he was unable to work the next day. He returned to work on the following Monday. Had it not been for the disability he would have worked overtime on the Saturday. The question is whether the appellant, in assessing the respondent's claim for payments of income maintenance, was entitled to disregard the overtime that the respondent had worked prior to May 10 and would have worked on May 11. 2. The answer depends upon the proper interpretation of an amendment to the Workers Rehabilitation and Compensation Act that was made last year. However, it is instructive to consider first the situation with respect to overtime under the Act as originally passed. By s.35 a worker who suffered a compensable disability that resulted in incapacity for work was entitled to weekly payments in accordance with the principles set out in the section. The basis of the worker's compensation was to be his "notional weekly earnings" which, by virtue of the definition in s.3, usually meant his average weekly earnings. However, in accordance with sub-s.(8) of s.4 any "prescribed allowance" was to be disregarded for the purpose of determining the average weekly earnings of a worker, and s.3 defined "prescribed allowance" to mean any amount received by the worker "... (c) by way of overtime, other than amounts paid in respect of overtime worked in accordance with a regular and established pattern." 3. There was a corresponding provision with respect to weekly earnings in sub-s.(7) of s.35. 4. So overtime could be taken into account in the worker's favour provided that it was overtime worked "in accordance with a regular and established pattern." 5. Precisely what those words meant was considered in Francese v. City of Adelaide (1989) 51 SASR 522. In that case a worker who was employed as a caretaker and cleaner worked overtime in almost all of the fortnightly pay periods in the twelve months before he was disabled, but he did not work any set number of hours of overtime each week or fortnight or work overtime on any particular day or days of the week. He simply worked overtime when he was needed. The result was that the number of hours of overtime that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mitsubishi Motors Australia Limited v James Kelly Love No. SCGRG 92/849 Judgment No. 3715 Number of Pages 5 Workers' Compensation [1992] SASC 3715
Case: [1992] SASC 3715
Decision Date: 10 December 1992

CaseChat Overview and Summary

The Supreme Court of South Australia was presented with a case between Mitsubishi Motors Australia Limited and James Kelly Love. The dispute centered on the assessment and amount of compensation under the Workers Rehabilitation and Compensation Act, specifically regarding the inclusion of overtime in calculating weekly earnings. The central legal issue was whether the appellant employer could disregard certain overtime payments in determining the respondent's average weekly earnings for compensation purposes.

The court examined the statutory language of the Workers Rehabilitation and Compensation Act, focusing on the definition and treatment of "overtime" and "prescribed allowance." Initially, the Act allowed for the inclusion of overtime in the calculation of average weekly earnings if it was worked in a regular and established pattern. However, subsequent amendments introduced stricter criteria, requiring not only a regular and established pattern but also substantial uniformity in the number of overtime hours worked. The court interpreted the term "component" within the amended section to refer to identifiable portions of overtime that met the pattern and uniformity requirements, thus allowing for a more nuanced application of the law.

Ultimately, the court found that the respondent's regular Saturday overtime qualified as a component under the amended section, while irregular overtime did not. The decision upheld the review officer's and the Tribunal's determination that only the regular Saturday overtime should be considered in the compensation assessment. The Full Court dismissed the employer's appeal, affirming the lower court's decision.

Orders