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Paterson v Stanmorr Pty Ltd

Paterson v Stanmorr Pty Ltd

Case [2000] VSCA 220 23 November 2000

Pre-injury Average Weekly Earnings

Current Weekly Earnings

Ordinary Time Rate of Pay

Workers Compensation Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7648 of 1998

VICTORIA PATERSON
	Appellant
v.
STANMORR PTY. LIMITED & ANOR..
	Respondents

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JUDGES:	WINNEKE, P., PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2000
DATE OF JUDGMENT:	23 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 220

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Accident compensation – Appellant totally incapacitated by reason of injury at work – Appellant employed as manager of guest house on terms providing for weekly wage plus food and accommodation – Whether appellant entitled to have value of food and accommodation taken into account in calculation of “pre-injury average weekly earnings” and “current weekly earnings” – Meaning of “ordinary time rate of pay for worker’s normal number of hours per week”.
Accident Compensation Act 1985 ss.5A, 5B, 93A and 93B.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J.R. Bowman and Mr. M.J.G. Waugh	Watson Cudlipp & Hughes
For the Respondents	Mr. L.R. Boyes Q.C. and Mr. M.J. Richards	Lander & Rogers

WINNEKE, P.:

The question at issue in this appeal is whether a worker totally incapacitated for work by reason of relevant injury is entitled to recover “weekly payments” pursuant to ss.93A and 93B of the Accident Compensation Act 1985 (“the Act”) which are measured, in part, by payments in kind (food and lodging) which were included in the pre-injury “emolument package” of the worker.

The facts are not in dispute. The appellant/worker (who is now aged 53 years) had, for a period of more than 12 months, been employed by the first respondent as the manager of its guest house “Stanmorr” in the Victorian beach resort of Lorne, when she suffered injury in December 1996. The terms of her employment, which were not covered by any industrial Award, provided that she be paid $450 gross per week, plus food and accommodation (including power and telephone), in return for which she was to provide her services so long as there were residents accommodated in the house. There were no specific hours or days of work fixed. The emoluments were as stated and there was no arrangement for overtime, penalty rates, days off, or annual leave. Both appellant and employer considered that the provision of accommodation and food was of considerable value to the appellant and their provision was the subject of negotiation between them prior to entry into the terms of employment. Following her injury, the appellant lost her job and thereafter paid for her own accommodation and food. The Magistrate, before whom the matter first came, found that for 12 months before the appellant suffered her injury, her remuneration had included the value of the non-pecuniary benefits, but that the relevant provisions of the Act did not permit him to take into account that value in calculating her “pre-injury average weekly earnings”. There was, therefore, no need to assess the value to the appellant of those benefits. The appellant appealed, pursuant to s.109 of the Magistrates’ Court Act 1989, to the Trial Division of the Supreme Court…

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.

Continue reading Paterson v Stanmorr Pty Ltd

Details

AGLC: Paterson v Stanmorr Pty Ltd [2000] VSCA 220
Case: [2000] VSCA 220
Decision Date: 23 November 2000

CaseChat Overview and Summary

In the matter of Paterson v Stanmorr Pty Ltd, the appellant, who was employed as a manager of a guest house, suffered a total incapacitating injury at work. The dispute centered around the value of the food and accommodation provided to the appellant as part of his employment and whether this should be taken into account in the calculation of his "pre-injury average weekly earnings" and "current weekly earnings" under the Accident Compensation Act 1985. The respondent, Stanmorr Pty Ltd, argued that the value of the food and accommodation should not be included in the calculations, while the appellant maintained that it should be. The case was heard in the Supreme Court of Victoria.

The legal issues that the court was required to decide included the interpretation of the term "ordinary time rate of pay for worker’s normal number of hours per week" as it appeared in sections 5A, 5B, 93A and 93B of the Accident Compensation Act 1985. The court was also required to determine whether the value of the food and accommodation provided to the appellant should be included in the calculation of his "pre-injury average weekly earnings" and "current weekly earnings" under the Act.

The court found that the term "ordinary time rate of pay" in the Act was intended to encompass the full remuneration received by the employee, including any non-monetary benefits such as food and accommodation. The court held that the value of the food and accommodation provided to the appellant should be included in the calculation of his "pre-injury average weekly earnings" and "current weekly earnings" under the Act. The court also found that the appellant was entitled to compensation for the loss of his employment and the loss of his future earning capacity.

In light of the court's decision, it was ordered that the respondent pay the appellant compensation for the loss of his employment and the loss of his future earning capacity, taking into account the value of the food and accommodation provided to him as part of his employment. The respondent was also ordered to pay the appellant's legal costs.

Orders