Re Heath, Ronald John

Re HEATH (1981) 61 FLR 13
Workers' Compensation - Statutes

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Fox(1), Franki(2), Northrop(3) JJ.

CATCHWORDS

Workers' Compensation - Commonwealth employee - Weekly payments for partial incapacity - Redemption sought of payments - Commissioner on own initiative determining lump sums payable for schedule injuries - Whether redemption of weekly payments then precluded - Commonwealth Employees' Compensation Act 1930, (Cth), s. 12 - Compensation (Commonwealth Government Employees) Act 1971 (Cth), ss. 5, 20, 27, 29, 39, 42, 46, 49, 50, 51, 53, 54, 92, 94A.

Statutes - Literal interpretation - When departure justified - Acts Interpretation Act 1901 (Cth), s. 15AA.

HEADNOTE

An employee having suffered personal injuries arising out of or in the course of his employment with the Commonwealth received weekly payments of compensation on the basis of being partially incapacitated for work under s. 46 of the Compensation (Commonwealth Government Employees) Act 1971 (the Act). The employee sought redemption of these payments under s. 49 of the Act. At that date he was still partially incapacitated for work. The chief delegate of the Commissioner for Employees' Compensation made a determination dated 30th November, 1978, that pursuant to s. 39 of the Act the amount of lump-sum compensation payable to the employee totalled $5,212.50 but refusing a lump-sum payment under s. 49 because the employee had no entitlement to weekly payments of compensation under s. 46 after 30th November, 1978, following the determination under s. 39 of the Act. The employee having applied to the County Court of Victoria for judicial review of the determination, that court referred certain questions of law to the Federal Court.

Held: Per Fox and Franki JJ., Northrop J. dissenting: (1) If s. 39 of the Act were applicable at the time of the Commissioner's determination, the Commissioner did not have any discretion whether or not to apply it. The effect of its application was (because of the provisions of s. 46 of the Act) to preclude the making of further periodical payments for partial incapacity for work in respect of the particular injury.

(2) Once the necessary facts referred to in s. 39 of the Act had occurred and a determination made that an amount was payable under that section, a right to payment for partial incapacity in respect of that injury was lost.

Per Franki J. It was not appropriate to depart from the literal construction of s. 39.

Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981), 55 ALJR 434, referred to.

Per Northrop J. dissenting: (3) Amounts of compensation payable under ss. 39 and 46 of the Act are cumulative. Section 39 is designed to confer benefits upon employees by way of payments of compensation for loss resulting from injuries.

HEARING

MELBOURNE, 1981, May 14, 15, 18; June 3; August 19. #DATE 19:8:1981

REFERENCE OF QUESTIONS OF LAW.

In proceedings in the County Court of Victoria to review a determination under the Compensation (Commonwealth Government Employees) Act 1971 certain questions of law were referred to the Federal Court.

D. Ashley, for the applicant.

M.R. Hickey, for the Commonwealth.

Cur. adv. vult.

Solicitors for the applicant: Slater & Gordon.

Solicitor for the Commonwealth: B. J. O'Donovan, Commonwealth Crown Solicitor.

T.J.GINNANE

JUDGE1

AUGUST 9.

The following written judgments were delivered. FOX J. A question of law has been referred to the court under s.94A(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) by the County Court of Victoria, being a prescribed court under that section which is hearing an application for judicial review under s. 92 of the Act of a determination of the chief delegate of the Commissioner for Employees' Compensation (the Commissioner) regarding the entitlement to compensation of Ronald John Heath. The Chief Judge has directed, pursuant to s. 94A(3) of the Act that the court be constituted by three judges. (at p14)

Mr. Heath (whom I will call the applicant) suffered a series of compensable injuries, on 13th November, 1969, 12th August, 1970, 24th August, 1973 and 20th June, 1974. As well as involving incapacity for work, these resulted in twenty per cent permanent loss of the efficient use of the left leg at or above the knee and twenty-five per cent permanent loss of the efficient use of the right leg at or above the knee. The applicant received weekly payments for total incapacity from 30th August, 1974, until 23rd October, 1974, and from 8th January, 1976, to 11th February, 1976. Weekly payments for partial incapacity were made from 24th October, 1974, until 7th January, 1976, and from 5th February, 1976, until 1st July, 1976. By letter dated 4th September, 1975, the applicant sought redemption under s. 49 of the Act of his entitlement to weekly payments for partial incapacity. The next event was that the delegate of the Commissioner on 1st July, 1976, made a determination pursuant to the provisions of s. 39 of the Act that the applicant had suffered the loss of the use of his legs to which I have already referred, although he made no finding as to incapacity to work; and determined that the applicant was entitled to amounts referable thereto, totalling $5,718.75. No determination was made under s. 49. (at p15)
Subsequently, on 16th November, 1976, the delegate determined that the amount thus awarded be reduced by $506.25, which had been paid to him under an earlier determination of 20th March, 1972, presumably made pursuant to s. 39, in respect of what was then assessed to be a five per cent loss of the efficient use of the left leg at or above the knee. This assessment was made before the last two injuries occurred. (at p15)
The determination of 1st July, 1976, was reviewed by the County Court on application made to it, and in a decision of 30th May, 1978, the judge held that the application under s. 49, which was treated by consent as having been on foot on 1st July, 1976, had not been dealt with by the Commissioner. He set aside the award and remitted the matter to the Commissioner. (at p15)
The payments for partial incapacity were continued from 1st July, 1976. On 30th November, 1978, another determination was made, this time by the chief delegate. It is apparent from the formal determination, from the reasons given therefor, and from the letter of the same date accompanying it, that the chief delegate did not accept the reasoning of the County Court judge given in his judgment. For the purposes of the determination of November 1978, the application of 1975 under s. 49 was regarded as still subsisting, and continuing partial incapacity was accepted as a fact. The award of the chief delegate was for partial incapacity until 30th November, 1978, and for a lump sum under s. 39 of $5,212.50 ($5,718.75 less $506.25, the figures already mentioned) but it was determined that no right arose under s. 49, and no further payments were to be made. The formal determination, which was preceded by lengthy reasons, was as follows: "I hereby determine: (1) the personal injuries sustained by the said Ronald John Heath on 13th November, 1969, 12th August, 1970, 24th August, 1973 and 20th June, 1974, resulted in twenty-five per cent permanent loss of the efficient use of his right leg at or above the knee and twenty per cent permanent loss of the efficient use of his left leg at or above the knee; (2) in accordance with the provisions of s. 39 of the Compensation (Commonwealth Government Employees) Act 1971, as amended, and in force immediately before 16th November, 1974, compensation in the sum of $2,718.75 is thereby payable to the said Ronald John Heath in respect of twenty-five per cent permanent loss of the efficient use of his right leg at or above the knee; (3) in accordance with the provisions of s. 39 of the Compensation (Commonwealth Government Employees) Act 1971, as amended, and in force immediately before 1st September, 1976, compensation in the sum of $3,000 is thereby payable to the said Ronald John Heath in respect of twenty per cent permanent loss of the efficient use of his left leg at or above the knee and that amount shall be reduced by the amount of $506.25 awarded in the determination of 20th March, 1972 (in respect of five per cent loss of efficient use of his left leg at or above the knee) leaving a balance of $2,493.75 now payable in respect of his left leg; (4) the total amount of compensation payable under s. 39 to the said Ronald John Heath in accordance with pars. 2 and 3 immediately above is therefore $5,212.50; (5) having regard to the provisions of s. 51(1) of the Compensation (Commonwealth Government Employees) Act 1971, as amended, s. 46(5) of the Act does not operate to prevent weekly payments of compensation to the said Ronald John Heath in respect of his partial incapacity for work from 1st July, 1976; (6) the amount of the average weekly earnings of the said Ronald John Heath before the injury, as adjusted to 1st July, 1976, was $209.97 and this amount was further varied to $213.12 from 19th August, 1976, $217.81 from 25th November, 1976, $223.51 from 31st March, 1977, $227.30 from 26th May, 1977, $231.85 from 1st September, 1977, $235.33 from 22nd December, 1977, $237.88 from 2nd March, 1978 and $240.97 from 8th June, 1978; (7) from 1st July, 1976, the said Ronald John Heath was able to earn, in some suitable employment or business, a weekly amount of $159.50 and this amount has varied to $162 from 19th August, 1976, $165.56 from 25th November, 1976, $168.48 from 27th January, 1977, $174.18 from 31st March, 1977, $177.49 from 26th May, 1977, $181.03 from 1st September, 1977, $183.75 from 22nd December, 1977, $186.30 from 2nd March, 1978 and $188.72 from 8th June, 1978; (8) in accordance with the provisions of s. 46 of the Compensation (Commonwealth Government Employees) Act 1971, as amended, the said Ronald John Heath is thereby entitled to the payment of compensation at a weekly rate of $50.47 from 1st July, 1976, $51.12 from 19th August, 1976, $52.25 from 25th November, 1976, $49.33 from 27th January, 1977, $49.81 from 26th May, 1977, $50.82 from 1st September, 1977, $51.58 from 22nd December, 1977 and $52.25 from 8th June, 1978, until and including the date of this determination; (9) having regard to the provisions of s. 46(5) of the Compensation (Commonwealth Government Employees) Act 1971, as amended, compensation is not payable to the said Ronald John Heath under s. 46 of the Act in respect of any period occurring after the date of this determination; (10) since there is no entitlement to payments of compensation under s. 46 of the Compensation (Commonwealth Government Employees) Act 1971, as amended, after the date of this determination, it follows that there is no liability on the part of the Commonwealth that can be redeemed by the payment of a lump sum under s. 49 of the Act; (11) consequently, I have no option but to refuse the request for a lump-sum payment by way of a redeption pursuant to s. 49 of the Compensation (Commonwealth Government Employees) Act 1971, as amended, contained in the letter of 4th September, 1975, from the solicitors acting for the said Ronald John Heath." (at p17)
As at 30th November, 1978, it was unlikely that the applicant would become totally incapacitated for work as a result of his injuries, or any of them, and it seems a reasonable inference from the facts as stated that the various occurrences did not, as at that date, have any incapacitating consequences other than those directly flowing from the loss of use of his legs to which I have referred. (at p17)
The view contended for by the Commonwealth in this case is that once the condition of an employee has stabilized sufficiently to enable a delegate to make a determination that there has been the loss of a limb (or part of the body) or the permanent loss of its efficient use, or one of the other losses dealt with in s. 39, entitlement to periodical payments ceases, even if incapacity for work is a consequence of the loss. There is therefore nothing to be redeemed under s. 49. The Commonwealth further contends that the Commissioner can take action in such a case, at any time, of his own motion. (I treat the Commissioner as a person, but for some purposes he is a corporation sole - see the definition of the Commissioner in s. 5 and s. 9.) (at p17)
Although both aspects of the argument are related, it is convenient to consider first this last-mentioned matter, namely the role of the Commissioner under the Act. For the purposes of this case it is only necessary to do so in relation to the question whether the Commissioner, although not requested to do so, can make a determination under s. 39. (at p17)
The Commissioner is not in the same position vis-a-vis a Commonwealth employee as are the Workers' Compensation Board of Victoria and the Workers' Compensation Commission of New South Wales in relation to applicants, nor is he in the same or a similar position to a compensation officer of an employer organization. The Commissioner is appointed to administer an Act, the fundamental purpose of which is to give employees rights to compensation against the Commonwealth in a variety of situations. Under s. 20(1) the function of the Commissioner is "to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function". He is to be guided by "equity, good conscience and the substantial merits of the case without regard to technicalities" (s. 20(2)(a), and in determining a matter he is to give any person directly affected by his determination "a fair opportunity of presenting his case". Reconsideration may be requested by the claimant or the Commonwealth (s. 20(4)(b)). (at p17)
The claimant presents his case to the Commissioner, but not as an adversary. His claim is against the Commonwealth. Notice of injury is mandatory under s. 53(1) (see reg. 15), and notice of the continuation of a disease or of its aggravation or acceleration, as the case may be, is required under s. 53(2). "Injury" is not in general defined to include a disease but "disease", and its aggravation, acceleration and recurrence are by s. 29 put on much the same footing as an "injury". Notices are to be served on the Commonwealth. Notice of an accident involving damage to an artificial limb is required under s. 53(3). "Claim(s)" are frequently referred to in the Act (Pt IV is headed "Making and Determination of Claims"), but the only specific provision dealing with making them is s. 54(1), which requires service on the Commissioner of a claim in writing, as a pre-condition to payment. Times for making claims are prescribed (in general six months) but not forms, or contents. There is no "application for determination"; it is assumed, I think, that the employee will in his writing be able to make sufficiently plain the nature of his claim, and what, or for what, he expects to be paid and it also seems to be assumed that the appropriate delegate of the Commissioner will have, or can readily get, relevant information. By way of contrast, s. 49 stipulates for a request in writing. Indeed, as relevant to the Commissioner's discretion to make or refuse to make a lump-sum payment under s. 49, the employee for redemption must specify the manner in which he "intends to use the lunp sum if the request is granted". A similar request is not necessary to bring s. 39 into operation. Section 49 is not of course giving a further right to compensation; it enables that right to be brought to an end by redemption (subject to total incapacity supervening, see s. 50). Section 45 deals with compensation for total incapacity for work and s. 46 with compensation for partial incapacity for work, and no initiating machinery (beyond the notice of injury, or disease) is requisite in either case. Section 58 gives the Commissioner power to require a medical examination, and in doing so, sub-s. (1) draws the distinction between a notice of injury (or disease) required by s. 53, and a claim for compensation. (at p18)
The Commissioner has the responsibility of administering the Act according to its terms. Section20(1) gives him full power to do this, but not more. The discretions left to him are few, and limited in scope. If, in events which have happened, s. 39 is to be applied, then he is to apply it, that is, to make a "determination" under it. There is no provision that a claim needs to be made in order that the section should operate. The Commissioner may be obliged to give the employee an opportunity to present a case that events have not brought the section into operation, either under general principles or pursuant to s. 20(2)(b), but that is a different matter. (at p18)
Although the Commissioner's determination, the subject of these proceedings, was made after the applicant's request for redemption under s. 49, I do not think that too much should be made of the time relationship. The question is one as to whether s. 39 was applicable at that time; if it was the Commissioner did not have any discretion whether or not to apply it. In the circumstances of this case, the effect was to preclude the making of further periodical payments for partial incapacity for work in respect of the particular injury. This limitation arises from the section giving the right to compensation for partial incapacity for work:s. 46. Subsection (5) of this section is as follows: "Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." The definition of injury in s. 5(1) is as follows: "'injury' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease." (at p19)
One accident can result in more than one injury, all, or one only, being within the table to which s. 39 applies (see Commonwealth v. Matheson (1955) 93 CLR 403 and Fraher v. Wunderlich Ltd. (1963) 110 CLR 466, at pp 473, 475, 479, 481, 484, 492, 495-497 ). This concept of "double" or "mixed" injuries is accepted by counsel on both sides in this case, and it helps in a better understanding of the provisions of the Act, and makes them more sensible and equitable. (at p19)
The question is one as to when and in what circumstances s. 39 operates, and in particular whether it does so when there is, as in the present case, a continuing partial incapacity for work. In terms the section is not very helpful on this score. This is in strange contrast to its precursor, s. 12 of the Commonwealth Employees' Compensation Act 1930-1970 (Cth), which, as the Act stood in 1950, was dealt with in Commonwealth v. Matheson. Sections 25 to 52 are in Pt III of the Act, under the heading "Compensation". Section 39 deals with specified losses to the body resulting from injuries, and provides for lump-sum payments in respect of them. The losses must be permanent (s. 39(15);s. 5(1)) and loss of efficient use of a named part is compensable according to the assessed percentage of loss. The losses suffered by the applicant come within the section. (at p19)

Section 39(1) provides that where an injury results in a specified loss, the compensation payable in respect of that injury is as provided in the section. This language suggests at least some degree of exclusivity about its operation. The same words were given this effect in Matheson's case. The impact of s. 27(4), which I will discuss later, has still to be assessed. In order that the section be applied, it is plain enough that it has first to be determined that the necessary facts have occurred; in the case of the loss of the efficient use of a limb or limbs, such as the present applicant suffered, it is necessary to be able to say that there is a loss of a certain degree, and that it is permanent. It is also necessary to be satisfied, in accordance with the terms of sub-s. (14) that total incapacity for work has not resulted and is not likely to result. It may be some time after the occurrence of the injury before these matters can be determined. Compensation is also not payable if death results from the injury "or another injury sustained at the same time". It may be some time before this position is clear. To say that the section cannot operate until the necessary events have occurred is not of course to say that it should then be applied. The opening words of the section, to which I have already referred, suggest that it should be, and, s. 46(5) provides that payments are not to be made for a period of partial incapacity for work occurring after a determination under s. 39. A similar provision in relation to payments for total incapacity under s. 45 is found in sub-s. (9) of that section. (at p20)
It seems quite clear that once the right to a payment for an injury under s. 39 has accrued, and a determination has been made that an amount is payable under the section, a right to payment for partial incapacity in respect of that injury is lost. Although no payment can properly be made under s. 39 if there is a likelihood that there may be total incapacity for work, the right under s. 45 to payments for total incapacity after that date is lost by a determination under s. 39. If, contrary to expectations, total incapacity due to the same injury does supervene, compensation is regulated by s. 50. The logic of all this is contrary to any notion that a s. 39 entitlement is cumulative, and I do not think that view was pressed on us. (at p20)
It was submitted, however, that partial incapacity for work, while it continues, precludes the operation of s. 39, even although it can be determined that there is a loss within that section. This submission seems to me to fly in the face of the scheme of the Act, as sufficiently made apparent by the sections to which I have referred. That scheme, it seems to me, is that injuries, that is to say, separate discrete injuries which result in losses of parts of the body, or function, to which s. 39 applies, are to be compensated by the lump sums therein provided, unless there is, or is likely to be, total incapacity. The amounts selected are arbitrary, and those at present payable are not as valuable in real terms as the amounts provided for several years ago. Arbitrary limits are not however new to compensation legislation, enacted by the Commonwealth (or, for that matter, to other similar legislation). Section 13 of the 1930 Act provided for an overall limit of $750, except in cases of total and permanent incapacity. Counsel for the Commissioner agreed that s. 39 could operate harshly against employees, but even the enactment of s. 15AA of the Acts Interpretation Act 1901-1981 cannot result in us ignoring its terms. In Matheson's case (1955) 93 CLR 403 s. 12 provided for lump-sum payments for losses of, or impairments to parts of the body, as set out in a schedule. In a number of ways it is comparable with s. 39. Taylor J. said, after referring to an aspect not material here: "This conception is, it seems to me, carried forward into s. 12 which, it may perhaps be said, provides a broad and ready estimate for partial incapacity supervening upon any of the injuries specified in the Third Schedule" (1955) 93 CLR, at p 416. (at p21)
Reliance is placed on the use of the word "occurring" in the phrase "being a period occurring after the date of the making of the determination" (that is, under s. 39) appearing in s. 46(5). It is argued that this shows that the right to partial incapacity compensation terminates, not with a determination under s. 39, but when (if ever) partial incapacity, current at the time s. 39 could otherwise be applied, ceases. The subsection would then operate to prevent any further payments under s. 46. This would be an eccentric result to attribute to the legislature, but in any event it fails to give adequate effect to the opening words of s. 39, and indeed to the whole purpose of that section. Its purpose is to supplement the partial incapacity entitlement to the date at which the section can be applied (cf. per Dixon J. in Fraher's case (1963) 110 CLR, at p 473 ). The mere fact that s. 45(9) and s. 46(5) appear in the provisions dealing respectively with total incapacity and partial incapacity entitlements, and not in s. 39, appears to me to be a significant pointer to the operation of the last-mentioned section. It is noteworthy too, that s. 50(1) refers to an employee being at any time after payment of, inter alia, a lump sum under s. 39, totally (and indefinitely) incapacitated for work and that s. 50(2) refers to amounts that would have been payable under s. 46, but for a s. 39 payment, in respect of the period commencing on the date the Commissioner made the s. 39 payment. (at p21)
Section 27(4) has also been referred to. It is in the following terms:

"An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury." (at p21)

It cannot be said that a s. 39 entitlement is cumulative on one under s. 45. This would be opposed to s. 46(5), whatever reasonable interpretation that subsection be given. It would also be opposed to the operation of s. 49(5) and of s. 50. I do not see how otherwise it can assist the employee. It may be that it helps to the conclusion that payments already made for total or partial incapacity do not have to be refunded, but there is in the present Act no provision that they should be, and no claim by the Commissioner that this should happen. Section 27(4) has ample work to do without having any operation in the circumstances of this case. Compensation payments under s. 40 (loss of sexual capacity) and s. 41 (facial disfigurement) are, for example, additional benefits, where death does not result. It is significant that s. 46(5) does not include any reference to ss. 40, 41 and 42. (at p22)

I am therefore of the view that in the circumstances the Commission was entitled and bound to make a determination under s. 39 notwithstanding continuing partial incapacity. The effect of such a determination is that there is no right to periodical payments which can be redeemed under s. 49. (at p22)
In my view the questions submitted should be answered as follows: (at p22)
QUESTION 1: Whether the compensation payable on 30th November, 1978, to the applicant in respect of the injuries sustained by him: (a) which at that date have resulted in twenty per cent permanent loss of efficient use of the left leg at or above the knee and twenty-five per cent permanent loss of efficient use of the right leg at or above the knee; (b) each of which losses is described in s. 39 of the Act; and (c) which did not on 30th November, 1978, result, nor were they on that date likely to result, either in whole or in part, in the applicant becoming totally incapacitated for work but which did on that date result and which were on that date likely to continue to result, either in whole or in part in the applicant being partially incapacitated for work as an airport fireman, was: (i) the amounts of compensation prescribed by s. 39 for the relevant losses specified in that section; or (ii) a weekly payment for partial incapacity for work under s. 46; or (iii) both. Answer: The compensation payable to the applicant on 30th November, 1978, was the amount prescribed by s. 39 of the Act for the relevant losses specified in that section. (at p22)
QUESTION 2: Whether on 30th November, 1978, it was open to the Commissioner to determine that the compensation payable was the amounts specified by s. 39 for the relevant losses described in that section. ANSWER: Yes. (at p22)
QUESTION 3: Whether the determination of 30th November, 1978, awarding compensation under s. 39 brought to an end any entitlement of the applicant under s. 46 to weekly payments for partial incapacity for work resulting from the relevant injuries. ANSWER: Yes. (at p22)
QUESTION 4: Whether on 30th November, 1978, it was open to the Commissioner to refuse the applicant's request under s. 49 that the liability of the Commonwealth to make further payments under s. 46 be redeemed by the payment of a lump sum to the applicant. ANSWER: Yes. (at p22)
The question of costs has not been argued. I agree with the order in that connexion proposed by Franki J. (at p22)

JUDGE2

FRANKI J. It is unnecessary for me to refer to the facts in this appeal since they are fully set out in the judgment of Fox J. I refer to Mr. Heath as the applicant. The applicant's arguments were based on the proposition that, when a worker was in receipt of weekly payments and had otherwise satisfied the requirements of s. 49 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the Act) and had made a request for redemption properly before the Commissioner, it was not open to the Commissioner, in a case of continuing incapacity, to avoid the consequence of s. 49 by reference to s. 39. The Commissioner's arguments were based on the proposition that the Commissioner must apply the Act and, if he was satisfied in a particular case that the provisions of s. 39 were appropriate, he must apply that section with the consequential result that s. 46(5) denied further payment for partial incapacity. (at p23)

In my opinion the decision of the Commissioner to determine on 30th November, 1978, that a lump sum was payable to the applicant under the provisions of s. 39 of the Act was correct. It was also correct to decide that once this determination had been made, s. 46(5) prevented the payment of any further amount under s. 46 in respect of a period of incapacity for work resulting from that injury, being a period after the date of that determination. (at p23)
In reaching this conclusion I have paid particular regard to the following matters: 1. Although s. 39(11) commences with the words "The compensation payable under this Act . . .", I do not regard those words themselves as excluding the payment of compensation under any other section of the Act. Sections 40(1), 41(1) and 42(1) and (2) commence with the same words and it was common ground that amounts payable under these sections were additional to amounts payable under any other section. I consider that this follows from the words of s. 27(4) which provide: "An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury." I am satisfied that such a contrary intention is clearly expressed in s. 46(5) which reads, so far as is relevant: ". . . where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that caused a loss referred to in that section . . . compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." 2. One accident may result in more than one injury although the problem does not arise in this appeal (see generally Commonwealth v. Matheson (1955) 93 CLR 403 ). 3. Section 46 deals with the case of an employee "being partially incapacitated for work". Section 39 does not use the words "incapacitated for work" except in s. 39(14), where it is provided that compensation is not payable under s. 39 so long as an employee is, or is likely to become, totally incapacitated for work where such incapacity results, or, if it occurs, will result, in whole or in part from that injury. However, the amount of compensation payable in respect of a partial loss of the efficient use of a part of the body under s. 39 is not totally unrelated to the effect of the injury upon the employee's capacity for work. The amount of the compensation in respect of an injury resulting in partial loss by an employee of the efficient use of a part of the body specified in the table in s. 39(4) is based upon a percentage which is the greater of the percentage by which the injury resulted in the efficient use of a part of the body being reduced or a percentage by which the injury resulted in the efficient use of that part of the body being reduced ". . . for the purposes of the employment of the employee immediately before the injury . . .". It appears therefore that the compensation properly to be awarded under s. 39 bears some relation to the effect of the injury upon the efficient use of the part of the body affected by the injury in relation to the pre-accident employment of the employee. (at p24)
I agree with the views expressed by Fox J. concerning the requirements for giving notice of the injury and for making claims. The applicant had sought redemption under s. 49 but it was common ground that no specific claim for the application of s. 39 had been made by the applicant. However, in my opinion, once as a result of an injury, "a partial loss by an employee of the efficient use of a part of the body specified in sub-section (4) of this section or of the efficient use of such a part of the body for the purposes of the employment of the employee immediately before the injury" has taken place then s. 39(11) fixes the measure of compensation under that section. By virtue of s. 39(15) and s. 5(1) "loss" means loss likely to continue indefinitely and therefore until this position is reached the Act itself ensures that s. 39 is not applicable. However, once the position of a partial loss is reached, s. 39 provides for compensation which is to be in addition to any other amounts of compensation payable under any other provision of the Act in respect of that injury unless the contrary intention appears. Redemption under s. 49 depends upon the Commonwealth being liable to make further payments under s. 46. Section 46(5) clearly provides that no compensation is payable under that section after a determination has been made under s. 39 in respect of a period of incapacity for work resulting from the same injury being a period occurring after the date of the making of the determination. (at p24)
It was conceded by the respondent that this result could produce a harsh result and indeed that in the present case it would require a much lesser amount to be paid to the applicant than he would receive were he entitled to continuing payments under s. 46. (at p25)
I have carefully considered whether this is not a case where it would be appropriate to depart from the literal construction of s. 39. As a result of a determination under s. 39 the respondent may well receive only a fraction of the amount he would be likely to receive under s. 46. (at p25)
I have considered the reasons for the judgments in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1981) 55 ALJR 434. In that case the High Court considered the question of the interpretation of statutes. I quote a passage from the joint judgment of Mason and Wilson JJ.:

"On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. "Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended" (1981) 55 A.L.J.R., at pp. 443-444. (at p25)

The construction which I have placed on ss. 39 and 46(5), produces a result which might be regarded as less fair than a construction either that s. 39 could not be applied unless the applicant so requested or that s. 39 did not preclude payments under s. 46(5). However, I consider that it has a powerful advantage in "ordinary meaning and grammatical sense" and I do not think that this interpretation is unintended. (at p25)

The Statute Law Revision Act 1981 (Cth) was not in force when the matter was argued before us and no submissions were made that it was relevant. (at p25)
I would answer the questions in the same way as Fox J. (at p25)
If the respondent seeks costs I would order than an application be made in writing to the court, addressed to the Deputy Registrar within fourteen days in Melbourne and served on the applicant. If the applicant wishes to oppose any such application he shall file and serve any submissions within fourteen days of the date the application is served on him. (at p26)

JUDGE3

NORTHROP J. In the exercise of powers conferred by s. 94A of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the Act) the County Court of Victoria, being a prescribed court under the Act, at the request of the Commonwealth, has referred questions of law arising in a proceeding before that court to the Federal Court of Australia for decision. Under s. 94A(3) the Chief Judge of the Federal Court has directed that for the purpose of the determination of those questions, the Federal Court be constituted as a Full Court. Under O. 50 of the rules of the Federal Court, the questions referred are in the form of a special case. Reference is made in particular to O. 50, r. 1(2) and (3). (at p26)

The facts stated disclose a confused and lengthy history involving injuries to Ronald John Heath (the employee) an employee under the Act, occurring in circumstances where the Act imposes a liability on the Commonwealth to pay compensation to him. A statement of the facts is set out in the judgment of Fox J. and need not be repeated in full. For present purposes it is sufficient to say that on three separate occasions, namely 13th November, 1969, 12th August, 1970, and 24th August, 1973, respectively, personal injuries arising out of or in the course of the employment of the employee by the Commonwealth were caused to the employee, s. 27(1) of the Act. As a result of the injuries, the employee was not fit to perform his normal duties and was placed in alternative employment with the Commonwealth in a classification which attracted and continues to attract a rate of pay less than that of his classification at the time of the occurrence of the last of the three injuries. (at p26)

The employee was receiving payments of compensation on the basis of being partially incapacitated for work, s. 46 of the Act, the amounts of the payment being calculated according to the provisions of that section and being based on the difference between the rate of pay he would have been entitled to in his former classification and the rate of pay he was receiving in his new classification. He had been paid that compensation for a continuous period of not less than six months. He exercised the privilege conferred upon him by s. 49 of the Act and requested the Commissioner for Employees' Compensation (the Commissioner) in writing that the liability of the Commonwealth to make further payments to him under s. 46 be redeemed by the payment to him of a lump sum. Thereafter the chief delegate to the Commissioner made a determination dated 30th November, 1978, which in substance determined: 1. That the personal injuries sustained by the employee resulted in twenty-five per cent permanent loss of the efficient use of his right leg at or above the knee and twenty per cent permanent loss of the efficient use of his left leg at or above the knee and that, accordingly, pursuant to s. 39 of the Act, the amount of compensation payable to the employee totalled $5,212.50. 2. That the injuries resulted in the employee being partially incapacitated for work from 1st July, 1976, being the date of an earlier determination, and that pursuant to s. 46 of the Act amounts of compensation calculated as indicated above were payable to him up to and including the date of the determination, namely 30th November, 1978. 3. That since the employee has no entitlement to weekly payments of compensation under s. 46 after 30th November, 1978, there is no liability on the part of the Commonwealth that can be redeemed by the payment of a lump sum under s. 49 of the Act. 4. That the request by the employee for a lump-sum payment under s. 49 be refused. (at p27)
The employee was not on 30th November, 1978, nor was he likely on that date to become totally incapacitated for work as a result, either in whole or in part, of the injuries suffered. On 30th November, 1978, the employee was partially incapacitated for work in his former classification as a result either in whole or in part of the injuries suffered and was likely to continue to be so incapacitated. (at p27)
Under s. 63 and s. 90 of the Act the employee applied to the County Court for a judicial review of the determination dated 30th November, 1978, and on 9th February, 1981, the questions of law were referred to the Federal Court. The questions in substance raise an issue to the time when the Commissioner is able to exercise the powers conferred by s. 39 of the Act. Put in a more graphic form, the issue is whether the powers under s. 39 of the Act can be exercised by the Commissioner at a time when an employee is partially incapacitated for work in circumstances where he is entitled to receive and is receiving and is likely to continue to receive weekly payments of compensation under s. 46 of the Act thereby relieving the Commonwealth of its liability to make further payments of compensation with respect to the period of incapacity for work occurring after the making of the determination under s. 39, see s. 46(5). (at p27)
It is necessary to make reference to some of the provisions of the Act. It came into operation in 1971 and replaced the Commonwealth Workmen's Compensation Act 1912 and the Commonwealth Employees' Compensation Act 1930-1971, see s. 4(2). Those two Acts were in a form markedly different from the Act of 1971. Reference will be made hereafter to some of the provisions of the earlier Acts. Under the Act of 1971 the Commissioner is constituted a corporation sole, s. 9, and by s. 24 he has power to delegate to persons within specified classes all or any of his powers or fuctions under the Act except the power of delegation. Section 20(1) provides: "Subject to this Act, the function of the Commissioner under this Act is to determine all matters and questions arising under this Act and the Commissioner is empowered to do all things necessary for the carrying out of that function." (at p28)
In determining the matters and questions arising under the Act, the Commissioner is required to comply with the requirements of s. 20(2). Under s. 20(3) the determination by the Commissioner must be in writing. It is accepted that the document on which that writing appears is called a determination. (at p28)
Part III of the Act, comprising ss. 25 to 52, is headed "Compensation" and contains provisions relating to the liability of the Commonwealth to make payments of compensation, the type of compensation payable, the basis of calculating the amount of compensation payable and the persons to whom compensation is payable. Section 27 is of crucial importance, and sub-s. (1) and (4) are set out:

"27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act. . . .

(4) An amount of compensation payable under a provision of this Act in respect of an injury is, unless the contrary intention appears, in addition to any amounts of compensation paid or payable under any other provision of this Act in respect of that injury." (at p28)

The word "injury" is defined in s. 5 as meaning: ". . . any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease." The word "disease" likewise is defined in s. 5, while ss. 29 and 30 contain special provisions relating to diseases. For present purposes it is not necessary to make further reference to those provisions. It is to be noted, however, that the word "injury" when used in the Act can have different meanings. It can mean all injuries sustained on a particular occasion. It can mean the effects of those injuries in the sense of specified forms of injury to the human frame. What is clear is that in the phrase "personal injury" appearing in s. 27(1) the word "injury" is used in the sense of meaning all the injuries sustained on a particular occasion and the subsection then specifies the circumstances which give rise to the liability of the Commonwealth to pay compensation for those injuries. Subsection (4) makes it clear that unless a contrary intention appears, the amounts of compensation payable under the Act are to be cumulative. (at p28)

Sections 28, 32 to 36 and 38 contain a number of provisions which are not relevant for present purposes. Under s. 37 compensation is payable in respect of medical expenses incurred by an employee in the circumstances therein specified. This type of compensation is referred to as compensation payable in respect of medical expenses. Section 39 makes provision for the amount of compensation payable in respect of certain losses. Section 39(1) and (2) provide:

"39. (1) Subject to this section, where an injury to an employee results in a loss specified in the next succeeding sub-section, the compensation payable in respect of that injury is $28,000 or such higher amount as is prescribed, and that compensation is payable to the employee.

(2) The losses referred to in the last preceding sub-section are as follows:

(a) loss of, or total loss of sight of, both eyes; and

(b) loss of, or total loss of sight of, a useful eye, the other being blind or absent." (at p29)

The court was informed that for the purposes of s. 39(1) there has been prescribed the amount of $32,500. For present purposes, the relevant parts of sub-s. (3) are as follows: "Subject to this section, where an injury to an employee, not being an injury . . . results in a loss specified in the next succeeding sub-section, the compensation payable in respect of that injury is an amount equal to such percentage of ($32,500) as is specified in the next succeeding subsection in relation to that loss, and that compensation is payable to the employee." (at p29)

Subsection (4) contains a table comprising two columns, one headed "Nature of Loss" and the other headed "Percentage". Some illustrations are given:

Nature of Loss Percentage Loss of, or total loss of sight of an eye 40 Loss of arm at or above elbow 80 Loss of thumb 30 Loss of forefinger 20 Loss of little finger 13 Total loss of movement of joint of thumb 14 Loss of distal phalanx or joint of thumb 16 Loss of two phalanges or joints of forefinger 12 Loss of distal phalanx or joint of forefinger 10 Loss of leg at or above knee 75 Loss of leg below knee 65 Loss of great toe 20 Loss of phalanx or joint of any other toe 6 (at p30)

Subsections (5) to (15) contain provisions relating to the application of the earlier subsections. Subsections (12), (13), (14) and (15) are set out:

"(12) A reference in this section to the loss by an employee of a specified part of the body shall be read as including a reference to -

(a) the total loss of the efficient use of that part of the body; and

(b) the total loss of the efficient use of that part of the body for the purposes of his employment immediately before the injury that resulted in the loss.

(13) This section does not apply in relation to an injury resulting in a loss where that injury or another injury sustained at the same time results in the death of the employee.

(14) An amount of compensation referred to in this section is not payable in respect of an injury so long as the employee is, or is likely to become, totally incapacitated for work where the incapacity for work results, or, if it occurs, will result, in whole or in part from that injury.

(15) In this section, 'loss' means a permanent loss." (at p30)

It is of importance to note that the liability of the Commonwealth to pay compensation under s. 39 does not depend upon the injury resulting in an employee being incapacitated for work either totally or partially. An employee may be paid compensation under s. 39 even though he has not been incapacitated for work for any period. (at p30)

Under ss. 41 and 42, compensation in the form of a lump sum is payable to an employee in respect of injury: 1. that results in the loss of the genitals or the total and permanent loss of the capacity to engage in sexual intercourse; 2. that results in severe permanent facial disfigurement; and 3. that results in the total and permanent loss of the sense of taste. (at p30)
Each of those sections contains a subsection, namely s. 40(2), s. 41(13) and s. 42(11) respectively, in a form similar to s. 39(13), but the death of the employee must occur within three months after the date of the injury or injuries. Again it is of importance to note that the liability of the Commonwealth to pay compensation under ss. 40 to 42 does not depend upon the injury resulting in the employee being incapacitated for work. (at p30)
Section 43 provides that where an injury results in the death of the employee, compensation is payable in accordance with the provisions of that section and to the persons specified in that section. Subsection (9) makes it clear that amounts of compensation paid or payable to an employee before his death are not affected by the other provisions of that section. (at p30)
Section 45(1) provides: "Where an injury to an employee results in the employee being totally incapacitated for work, the succeeding provisions of this section have effect." (at p30)
Under sub-s. (2), compensation in the form of weekly amounts is payable to the employee during periods of total incapacity. The amount of the weekly payments is determined in accordance with the provisions of the section. There is no limitation upon the total of the amounts of compensation payable under s. 45. Section 45(9) provides: "Subject to sections 47 and 50 of this Act, where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that resulted in a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under section 46 of this Act in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." (at p31)
Section 46(1) provides: "Where an injury to an employee results in the employee being partially incapacitated for work, the succeeding provisions of this section have effect." (at p31)
Under sub-s. (2) compensation in the form of weekly amounts is payable to the employee during periods of partial incapacity. The amount of the weekly payments is determined in accordance with the provisions of the section. There is no limitation upon the total of the amounts of compensation payable under s. 46. Section 46(5) provides: "Subject to the next succeeding section, where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that caused a loss referred to in that section or a determination is made that the liability of the Commonwealth to make further payments to the employee under this section in respect of an injury is to be redeemed, compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." (at p31)
Section 47 makes special provision for payments of compensation to an employee under s. 45 or s. 46 where, after a determination is made under s. 39, the employee undergoes medical treatment in relation to the injury resulting in the loss. Compensation is payable for incapacity for work resulting from that medical treatment or while undergoing that treatment. Section 50 makes special provision for payment of compensation to an employee who, having been paid a lump sum in pursuance of s. 39 or s. 49, becomes totally incapacitated for work by reason of the relevant injury and that incapacity is likely to continue indefinitely. Later in these reasons a more detailed reference will be made to the provisions of s. 50(2). (at p31)
Section 48 provides for compensation payable to an employee when, as the result of injury, he requires the constant help or attendance of another person. (at p31)
Section 49 is of importance. That section does not make provision for the payment of compensation. It confers a discretion on the Commissioner. It confers a discretion on the Commissioner to relieve the Commonwealth from its liability to make future weekly payments of compensation to an employee under s. 46 of the Act if certain conditions apply. Section 49(1) is as follows: "Subject to this section, where payments of compensation in respect of an injury have been made to an employee under section 46 of this Act for a continuous period of not less than six months, the employee may request the Commissioner in writing that the liability of the Commonwealth to make further payments to the employee under that section be redeemed by the payment to the employee of a lump sum." (at p32)
This subsection confers a privilege on an employee who has been in receipt of weekly payments of compensation under s. 46 for a continuous period of not less than six months. From later provisions of the section it is to be implied that the partial incapacity for work which imposes the liability on the Commonwealth to pay compensation under s. 46 must be in existence and be likely to continue for some period after the employee exercises his privilege and makes a request. It is clear that the legislation treats the request as being different from a claim for compensation, since under s. 61(6) and s. 62(2) a request under s. 49(1) is to be treated as a claim for compensation in which the person making the request is treated as a claimant. (at p32)
Subsection (3) imposes a duty upon the Commissioner to determine the request:

"(3) Where a request is made under sub-section (1), the Commissioner shall, unless the employee has, by notice in writing to the Commissioner, withdrawn the request, determine -

(a) whether the liability of the Commonwealth is to be redeemed by the payment to the employee of a lump sum; and

(b) if he determines that the liability is to be so redeemed - the amount of the lump sum." (at p32)

The Commissioner shall not make a determination relieving the Commonwealth of liability to make further payments under s. 46 unless he is satisfied of the matters referred to in that subsection:

"(5) The Commissioner shall not make a determination that the liability of the Commonwealth to make further payments to an employee under section 46 of this Act is to be redeemed unless he is satisfied that -

(a) the injury is not likely to result in the employee becoming totally incapacitated for work;

(b) the employee intends to use the lump sum in a manner that is particularly advantageous to the employee; and

(c) in all the circumstances it is desirable in the interests of the employee that the liability of the Commonwealth be redeemed." (at p32)

Subsection (4) specifies the matters to be taken into consideration by the Commissioner when determining the amount of the lump sum to be paid: "(4) The amount of the lump sum is the amount determined to be the value, as at the date of the determination by the Commissioner that the liability is to be redeemed, of the right of the employee to receive further payments of compensation under section 46 of this Act and, in the determination of the value of that right, regard shall be had to the nature of the injury to the employee, the age and occupation of the employee and any other relevant matters." (at p33)

Subsection (6) confers a privilege on an employee to withdraw his request even after a determination has been made by the Commissioner, provided the provisions of that subsection apply. (at p33)
Section 51 contains machinery provisions applying where a determination made by the Commissioner pursuant to s. 39 or s. 49 is revoked by the Commissioner or set aside by the Commonwealth Tribunal or court. Section 52 contains special provisions which are not relevant for present purposes. (at p33)
Before considering the provisions contained in Pt III, reference should be made to ss. 53 and 54. Under s. 53 the Act does not apply in relation to an injury caused to an employee unless notice in writing was served as prescribed on the Commonwealth. Under s. 54 compensation in relation to an employee is not payable under the Act unless a claim in writing for the compensation was served on the Commissioner within the prescribed period. Neither the Act nor the regulations made under the Act contain provisions to the effect that an employee is required to make a separate claim or request for each type of compensation claimed. Section 49 cannot be brought into operation until a request has been made by an employee. Apart from that section the Act appears to be based upon procedures whereby a general claim for compensation must be made under s. 54. That claim must be made within the short time limits prescribed by s. 54. Thereafter the Commissioner is required to exercise the powers conferred upon him by the Act. I adopt what I said in Re Portelli (1981) 53 FLR 78 : ". . . the position is that when an employee serves the requisite notice of injury and claim for compensation under s. 53 and s. 54 respectively, the Commissioner is required to determine 'all matters and questions arising under the Act' relating to that claim in accordance with the provisions of the Act, s. 20. The Act does not specify that a separate claim must be made for each item of compensation for which the Commonwealth may become liable to pay to or on behalf of a claimant. In practice it may be advisable for a claimant to make requests to the Commissioner for particular types of compensation as this could initiate action by the Commissioner. Under the Act, the Commissioner, subject to any limitations expressly or impliedly affecting the exercise of his powers, is required to determine, in the sense of making a decision, on all matters and questions relating to the general claim made under s. 54 of the Act. He gives effect to his decision by making a determination in writing, s. 20(3), and it is that determination which determines the liability of the Commonwealth to pay compensation, the nature of the compensation to be paid and the amount of that compensation. Subject to the Act and to general principles of law, any matter which is relevant to the claim made is relevant for the Commissioner to consider in determining 'all matters and questions arising under the Act'. Of necessity, matters for consideration include, for example, whether an injury resulted to an employee, whether the injury arose out of or in the course of the employment of the employee by the Commonwealth, the nature of the injury, the consequences and effect of the injury, whether the employee is or was incapacitated for work as a result of the injury and, if so, whether totally or partially, and for what periods of time, what compensation arises, the amount of that compensation, and all of the many other matters arising under the Act. All of these are relevant to the making of a determination by the Commissioner" (1981) 53 FLR, at pp 85-86. (at p34)

Prima facie, the amounts of compensation payable under ss. 39, 40, 41, 42 and 46 are cumulative, s. 27(4). Each section is mandatory in the sense that each section provides that in the events specified compensation is payable to the employee. No compensation is payable under ss. 39, 40, 41 and 42 where the injuries suffered result in death, in the latter three sections, within three months after the date of the relevant injury. There is no time specified in s. 39(14). Thus it can be implied that the Commissioner should not make a determination under ss. 40, 41 or 42 until at least three months after the date of the relevant injury. No such limitation can be implied with respect to the making of a determination under s. 39. (at p34)
The purpose and object of making weekly payments of compensation under s. 45 is to enable the employee to receive compensation in lieu of loss of wages during periods of total incapacity for work. The purpose and object of making weekly payments of compensation under s. 46 is to compensate the employee for loss of earnings resulting from his partial incapacity for work. These payments are in the nature of continuing payments and there is no limitation upon the total amounts of compensation that can be made. (at p34)
The substance of the contentions made on behalf of the Commonwealth was that s. 46(5) of the Act constitutes a contrary intention under s. 47(4) and that a determination under s. 39 brings into effect s. 46(5) thereby relieving the Commonwealth of its liability to make payments of compensation under s. 46. In the present case the court is not concerned with what is described as a "mixed injury", meaning "one which consists of two or more particular states of impairment all of which contribute to the general condition of compensable impairment and one or more of which, viewed alone, are schedule injuries", "schedule" there meaning coming within the table to s. 39(4), see Fraher v. Wunderlich Ltd. (1963) 110 CLR, at p 479 per Menzies J. Reference will be made hereafter to problems associated with mixed injuries. (at p35)
As stated earlier, the crucial issue is to decide the time at which the Commissioner is required to exercise his power under s. 39. It is clear that he cannot exercise that power at a time when the employee is or is likely to become totally incapacitated for work as a result of that injury, s. 39(14). The section does not specify a time when that power is to be exercised. Is the Commissioner required to exercise that power at the time the employee ceases to be totally incapacitated for work? Section 47 gives some protection to an employee if subsequent incapacity results from medical treatment received as a result of that injury. Should the Commissioner wait until the injury has stabilized, and the loss has become permanent and the extent of the loss can be ascertained? This would require an implied limitation to be placed upon the exercise of the power conferred by s. 39. Should the Commissioner wait until the employee ceases to be partially incapacitated for work and ceases to be paid weekly payments of compensation under s. 46? Likewise, this would require an implied limitation to be placed upon the exercise of the power conferred by s. 39. (at p35)
As a first step it is necessary to consider the meaning of s. 46(5), being the provision which is said to show a contrary intention under s. 27(4). The relevant words of s. 46(5) are: ". . . where a determination is made that an amount of compensation is payable to the employee under section 39 of this Act in respect of an injury that caused a loss referred to in that section . . . compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury, being a period occurring after the date of the making of the determination." (at p35)
That provision refers to an injury that caused a loss referred to in s. 39. In s. 39(1) and (3) the word "injury" when used in the context of an injury resulting in a loss referred to in s. 39(2) and (4) respectively, means the specified forms of injury to the human frame resulting from all or any of the injuries sustained on a particular occasion. For present purposes the same meaning must be given to the word "injury" in so far as it is used in s. 46(5) in relation to determinations made under s. 39. Under s. 46(5), once a determination has been made under s. 39 with respect to an injury of that kind, apart from the words "being a period occurring after the date of the making of the determination" no compensation under s. 46 would be payable to the employee for any period of partial incapacity for work whether before or after the making of the determination under s. 39. This is made clear from the words "compensation is not payable to the employee under this section in respect of a period of incapacity for work resulting from that injury" (emphasis added). The subsequent words identify the relevant period of incapacity for work referred to in the section as being "a period occurring after the date of the making of the determination". In this phrase, the meaning to be given to the word "occurring" is of the utmost importance. (at p36)
In the Shorter Oxford English Dictionary the verb "Occur" is given a number of different meanings. The relevant meanings ascribed to it are "to present itself, to 'turn up' or appear, to happen, befall, take place". In my opinion the word "occur" when used in s. 46(5) is to be construed as meaning "coming into existence". It is used in relation to a period of incapacity for work. It suggests a new period of incapacity for work which did not exist at the time of the making of the determination under s. 39. The phrase refers to a period of incapacity which "turns up, appears or happens" after the making of the determination and not as part of an existing period of incapacity. The period of incapacity must be a new and discrete period coming into existence for the first time after the making of the determination under s. 39 and is not the continuation of a period of incapacity existing at the time of the making of the determination. (at p36)
A similar meaning is to be given to the phrase where it appears in s. 45(9). A determination under s. 39 cannot be made at a time an employee is totally incapacitated for work, s. 39(14). It follows that a period of incapacity under s. 46 (total incapacity) occurring after the making of a s. 39 determination must be separate and distinct from any earlier period of total incapacity. Likewise, of necessity, it must be separate and distinct from any earlier period of partial incapacity. (at p36)
To give effect to this interpretation of s. 46(5) an implied limitation must be imposed on the Commissioner with respect to the time at which he is authorized to exercise his powers under s. 39. Section 39(14) imposes an express limitation with respect to the time at which the Commissioner is authorized to exercise his powers under that section where the terms of that subsection apply. In my opinion consideration of the provisions of Pt III of the Act supports the existence of an implied limitation with respect to employees who are receiving weekly payments of compensation under s. 46 on the basis of being partially incapacitated for work as a result of an injury which results in a loss specified in s. 39. There is no limitation to be implied where an employee is not receiving payments under s. 46 of the Act but is likely to receive such payments at some time in the future. (at p36)
The terms of s. 39 do not by express words confer a power upon the Commissioner to release the Commonwealth from its liability to pay compensation to an employee under s. 46 of the Act. The liability to pay compensation under s. 39 is not dependent upon the employee being incapacitated for work. Section 49 contains express provisions under which the future liability of the Commonwealth to pay compensation under s. 46 may be redeemed upon the payment of a lump sum to an employee. A request must be made by the employee. The section makes it clear that the lump sum is to be paid only if the Commissioner considers that course to be in the best interests of the employee and that the employee will not suffer any detriment thereby. The section contains provisions to assist the Commissioner in determining the amount of the lump sum to be paid. Section 39 is designed to confer benefits upon employees by way of payments of compensation for loss resulting from injuries. It is not a section designed to deprive employees of benefits conferred upon them by other sections of the Act. (at p37)
The submissions on behalf of the Commonwealth assert that s. 39 confers a power to make a determination as soon as a loss referred to therein has stabilized and can be ascertained as being permanent. If by chance at that time the employee is receiving weekly payments of compensation under s. 46 as a result of the injury resulting in the loss, those weekly payments cease irrespective of any disadvantage that the employee may suffer thereby. The percentage of partial incapacity may be large and the weekly payments high. The employee may be young and may face many years of loss of earnings. For the purposes of s. 39, it was contended, all those matters are irrelevant. Likewise, all the matters referred to in s. 49 and directed to protect the employee, are irrelevant. (at p37)
These contentions on behalf of the Commonwealth are rejected. The existence of such a power in reality depends upon what can be described as a negative implied prohibition based upon the existence of s. 39(14). That subsection makes special reference to compensation payable in respect of total incapacity. It was contended that the power claimed was to be implied or was inherent in s. 39 where partial incapacity for work only existed and that incapacity was continuing. Otherwise, it was contended, why was it necessary for s. 39(14) to be in the Act? The result sought would, in my opinion, be contrary to the policy of Pt III of the Act. (at p37)
Further, amounts of compensation payable under ss. 40, 41, 42 and 46 are cumulative. Amounts of compensation payable under ss. 39, 40, 41 and 42 are cumulative. It would be a strange result if amounts of compensation payable under ss. 39 and 46 were not cumulative. (at p37)
In the present case, the injuries resulting in the losses referred to in the determination made under s. 39 are the same injuries resulting in the partial incapacity for work. Those injuries are likely to continue and the incapacity for work is likely to continue. On 30th November, 1978, the employee was receiving payments of compensation for that incapacity under s. 46 of the Act. It follows therefore that in my opinion the Commissioner did not on 30th November, 1978, have power to make the determinations under s. 39 of the Act. (at p38)
Cases may arise where an employee suffers multiple injuries in which one or more of those injuries may result in losses specified in s. 39 of the Act, but those injuries do not result in partial incapacity for work. Other of those injuries may not result in losses specified in s. 39 of the Act, but result in partial incapacity for work. In those circumstances even though difficulties may arise in deciding what can be done, considerations similar to those that were applied in Commonwealth v. Matheson (1955) 93 CLR 403 may permit one determination under s. 39 with respect to one or more of those injuries and a determination under s. 46 for weekly payments for partial incapacity for work resulting from other injuries. It is not necessary to decide that question in these proceedings. Each case must be decided on its own facts and with regard to the particular statutory provisions applicable: cf. Fraher v. Wunderlich Ltd. (1963) 110 CLR 466. Neither is it necessary to decide whether a determination made under s. 49 prevents the Commissioner from making subsequently a determination under s. 39 where the same injury results in partial incapacity for work and a loss specified in s. 39. In those circumstances after the s. 49 determination and payment of the lump sum therein referred to, weekly payments of compensation cease to be paid but the employee still suffers a loss specified under s. 39 as a result of the same injury. (at p38)
Section 50 makes provision for recurrent payments of compensation after determinations have been made under s. 39 or s. 49. The section imposes a fresh liability on the Commonwealth in the circumstances therein provided. The amount of the compensation payable is calculated in the manner provided by s. 50(2). One alternative includes the bringing into account of an amount calculated according to a formula which has regard to the sum of the amounts that would have been paid to the employee under s. 46 if no lump-sum payment had been made. The alternative is the payment of an amount prescribed for the purposes of s. 52. Amounts have been so prescribed. It may be said that the reference to s. 39 and the first alternative indicates that a lump sum can be paid under s. 39 at a time weekly payments are being made under s. 46. When a lump sum has been paid under s. 49 of the Act, of necessity consideration is given to the amount of future weekly payments that may be paid under s. 46 and this could be of relevance for the purposes of s. 50. Future payments are not taken into account under s. 39 and it is difficult to see how the first alternative, in logic, could apply where a lump sum has been determined under s. 39. The prescribed amounts overcome that problem. The provisions of s. 50 are not sufficient in my opinion to prevent the limitation being implied on the exercise of the power of the Commissioner under s. 39. (at p39)
A consideration of the earlier Acts strengthens the opinions already expressed. The 1912 Act by s. 4 imposed a liability on the Commonwealth to pay weekly amounts of compensation where total or partial incapacity for work resulted from the injury concerned. That Act contained no provisions similar to s. 39 of the 1971 Act. (at p39)
Under the 1930 Act, s. 9 imposed a liability on the Commonwealth to make weekly payments of compensation where total or partial incapacity resulted from the injury. Section 12 imposed a liability similar in some respects to that imposed by s. 39 of the 1971 Act. Section 12 provided: "12. Where an employee sustains, by accident arising out of and in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable under this Act shall, when the injury results in total or partial incapacity, be the amount specified in the second column of that Schedule opposite the injury so sustained, less any amount received by the employee under the First Schedule to this Act during any period of his total incapacity arising from his injury." The Third Schedule listed what can be described as s. 39 losses and specified lump sums of varying amounts to be paid in respect of the various losses. Section 13 made provision for the maximum amount of compensation payable. It provided as follows: "13. Notwithstanding anything contained in this Act, an employee shall not, in respect of one accident, except where the injury results in total and permanent incapacity, be entitled to receive as compensation under this Act an amount exceeding Seven hundred and fifty pounds in addition to such expenses as are awarded to him under section eleven of this Act." Under these provisions the payment of the lump sum depended upon the injury resulting in incapacity and, except where the injury resulted in total and permanent incapacity, the total amount of compensation payable was limited. The maximum amount mentioned in s. 13 was the same as the greatest sum mentioned in the Third Schedule for any one loss. These provisions were amended from time to time, but for the greatest part of the time they were in operation the two sums remained identical, and when they did differ for short periods the difference was not great. (at p39)
Sections 12 and 13 were amended in 1948 (Act No. 61). Thereafter the relevant provisions of the Act were:

"12. (1) Subject to this Act, where an employee sustains, by accident arising out of or in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule opposite the specification of the injury in the first column.

(1A) Upon payment of an amount under this section the employee shall not be entitled to any payment (of weekly payments for partial incapacity) in respect of a period of incapacity for work resulting from the injury, but the amount payable under this section shall not be subject to any deduction in respect of any amount previously paid to the employee in accordance with either of those sub-paragraphs. . . .

13. (1) Notwithstanding anything contained in this Act, the amount of compensation payable in respect of an injury or injuries caused by any one accident shall not, except as provided by this section, exceed One thousand two hundred and fifty pounds.

(2) Where an injury results in the death or the total and permanent incapacity of the employee for work, sub-section (1) of this section shall not apply to limit the total amount of compensation payable under this Act.

(3) In the application of sub-section (1) of this section in relation to the total amount of compensation payable to an employee under section twelve of this Act the total amount of any compensation paid to the employee in accordance with (weekly payments for incapacity) previously to payment to him of the amount specified in the Third Schedule to this Act shall be disregarded." (at p40)

These provisions, apart from the maximum amounts of compensation payable, remained substantially the same until 1971. Compensation depended upon the injury resulting from incapacity for work. An upper limit was placed upon the total amount of compensation payable, but an employee received an added benefit when he was paid a lump sum under s. 12. These were the statutory provisions applicable at the time Commonwealth v. Matheson (1955) 93 CLR 403 was decided. That was a case concerning mixed injuries. There the injury to the employee's left leg resulted in some incapacity for work. Other injuries which did not come within s. 12 resulted in incapacity for work. With all the difficulties involved, the High Court held that two determinations could be made. Nevertheless, the limitation on the total amount of compensation payable remained. Under the First Schedule, cl. 11 provided a method by which the future liability of the Commonwealth could be redeemed by a lump sum payment to the employee. The amount of that lump sum was restricted by the limitation on the total amount of compensation payable. (at p40)

The 1971 Act did not contain either of the restrictions relating to the maximum amount of compensation payable or the lump-sum payment under s. 39 being made dependent upon the injury resulting in incapacity for work. It introduced new types of compensation, ss. 40, 41 and 42, which are payable in addition to s. 46 payments. It introduced s. 27(4). The then existing restrictions disappeared and were not included in the 1971 Act. There is no room for the introduction of restrictions by implication. (at p41)
I would answer the questions referred as follows: (at p41)
QUESTIONS: Whether, on a proper construction of the provisions of the Compensation (Commonwealth Government Employees) Act 1971 - 1. The compensation payable on 30th November, 1978, to the applicant in respect of the injuries sustained by him - (a) which at that date have resulted in twenty per cent permanent loss of efficient use of the left leg at or above the knee and twenty-five per cent permanent loss of efficient use of the right leg at or above the knee; (b) each of which losses is described in s. 39 of the Act; and (c) which did not on 30th November, 1978, result, nor were they on that date likely to result, either in whole or in part, in the applicant becoming totally incapacitated for work but which did on that date result and which were on that date likely to continue to result, either in whole or in part in the applicant being partially incapacitated for work as an airport fireman, was (i) the amounts of compensation prescribed by s. 39 for the relevant losses specified in that section; or (ii) a weekly payment for partial incapacity for work under s. 46; or (iii) both. 2. On 30th November, 1978, it was open to the Commissioner to determine that the compensation payable was the amounts specified by s. 39 for the relevant losses described in that section. 3. The determination of 30th November, 1978, awarding compensation under s. 39 brought to an end any entitlement of the applicant under s. 46 to weekly payments for partial incapacity for work resulting from the relevant injuries. 4. On 30th November, 1978, it was open to the Commissioner to refuse the applicant's request under s. 49 that the liability of the Commonwealth to make further payments under s. 46 be redeemed by the payment of a lump sum to the applicant. (at p41)

ANSWERS: 1. Not necessary to answer. 2. No. 3. Not necessary to answer. 4. Subject to the proper exercise of the discretion conferred upon the Commissioner by s. 49 of the Act, No. (at p41)

ORDER

I would remit the case to the County Court of Victoria for determination in accordance with the answers given and order the Commonwealth to pay the costs of the reference.

[1981] FCA 139

19 AUGUST 1981