Scott v Sun Alliance Australia Limited

[1993] HCATrans 76

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H7 of 1992

B e t w e e n -

NIGEL LIONEL SCOTT

Appellant

and

SUN ALLIANCE AUSTRALIA LIMITED

First Respondent

and

CUTHBERTSON BROTHERS PTY LTD

Second Respondent

Scott(2) 1 16/3/93

MASON CJ

BRENNAN J

DAWSON J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON TUESDAY, 16 MARCH 1993, AT 2.20 PM

Copyright in the High Court of Australia

MR H.J. KABLE:  May it please the Court, together with my

learned friend, MR G.C. WOOD, I appear for the

appellant. (instructed by Wallace Wilkinson &

Webster)

MR A.J. ABBOTT:  May it please the Court, I appear for the

respondents with my learned friend,

MR M.E. O'FARRELL.	(instructed by Dobson Mitchell
& Allport)

MASON CJ: Yes, Mr Kable.

MR KABLE:  May it please the Court, I hand to the Court

eight copies of the outline of argument. The

outline of argument commences by identifying the

scheme of the Tasmanian Workers Compensation Act

1988, and that Act has been made available to each

of Your Honours in the bundle of materials provided

prior to the Court sitting.

Section 25 of that Act creates an entitlement

to receive workers compensation in circumstances

variously identified in that section; and the
entitlement pursuant to that section is expressed

on the basis that there is a liability on the

employer in the events described in that section to

pay compensation in accordance with the Act. That

compensation may take the form of weekly payments
of compensation pursuant to section 69, which is

the section that is under discussion in this appeal

and to which I will come back later, and/or a lump

sum for a specified injury pursuant to section 71

or 72, and/or medical or other benefits pursuant to

Division 2 Part VI of the Act.

The scheme of the Act in so far as weekly payments is concerned is that according to

section 69(6) which is to be found on page 46 of

the Act:

The total liability of an employer in

respect of compensation under this section

shall not, in any one case, exceed an amount

equal to 284 units calculated in accordance

with the basic rate applying at the date of

the occurrence of the injury.

In order to understand what is meant by "the basic

rate applying at the date of the injury", one has

to have regard to an amending Act, a copy of which

has been provided to Your Honours,

Act No 26 of 1991, which defines "unit", "basic

salary" and "relevant percentage".

How that scheme operates in practice is thus:

in order to ascertain the total amount of workers

Scott(2) 2 16/3/93

compensation which can ever be received by a worker

by way of weekly payments of compensation, one

multiplies the unit for the time being, pursuant to

section 65, by 284. That will give you a total

figure which may be consumed by the worker by way

of weekly payments of compensation and which, when

exhausted, represents the end of the entitlement to

weekly payments of compensation.

The maximum amount to which any particular

worker is therefore entitled bears no relationship

to the average weekly earnings or any other figure

relating to earnings of the particular worker. To

take the extreme example, and for ease of maths, if
the unit were to be, say, $100 and therefore the

maximum amount $28,400, and if there were a worker

receiving $14,200 per week, he or she would be

entitled only to two weeks compensation. If, on

the other hand, that person were receiving $100 per

week, they would be entitled to 284 weeks

compensation. The maximum amount of money

receivable by reference to the statute remains
constant, irrespective of the amount which is

payable per week, and irrespective of the earnings

of the particular worker whose claim.is being

considered.

TOOHEY J: If a base rate is adjusted from time to time does

the maximum increase correspondingly?

MR KABLE: Increases accordingly, yes, Your Honour.

TOOHEY J:  And what about redemption, Mr Kable? Does this

Act contemplate redemption of weekly payments?

MR KABLE: It does contemplate redemption. Section 89,

Your Honour, is the section which contemplates redemption, page 66. Just to take that one step

further by way of explanation, and the Court will

note that section 65 seems to indicate what, in

fact, occurs in practice, which is that the rate
increases about annually.	And I should indicate to

the Court that this aspect of the Act, this scheme

by which the maximum amount is calculated, was

present in the 1927 Act, so this does not represent

a change in the manner of calculation of the total

amount by way of weekly payments. Thus, the

figures have gone up annually, and there is a

different maximum each year.

That figure of 284, just to explain one other matter not strictly relevant but which may be

helpful, becomes important in section 71 when a

worker in Tasmania becomes entitled to a lump sum

payment of compensation which is not a redemption

and which is not referable to weekly payments,

because the lump sum is calculable pursuant to

Scott(2) 3 16/3/93

section 71 by reference to the percentage of the

figure appearing in the right-hand column; and one

can see that a total loss of both eyes gives you

284, but if you go down to the "total loss of a

joint of any other toe", item 41, it gives you 4.

That is how lump sums are calculated in this State.

That is not strictly relevant to this case, but I

mention that to show the operation of the

figure 284 which might be thought to be an unusual

figure, and as to how it is relevant in the

operation of the Act.

BRENNAN J: Mr Kahle, I notice that 69(6) speaks of a "basic

rate", but "basic rate" no longer appears in 65.

MR KABLE:  Your Honour, my Act certainly does not disclose

whether the rate was amended to mean salary.

"Unit" is defined as basic salary in 65.

BRENNAN J: Section 65 now reads -

In accordance with the Amending Act -

does it not?

MR KABLE:	Yes, Your Honour.
BRENNAN J:	And no longer contains a definition of "basic

rate".

MR KABLE:  That is correct. Now, whether there been

a consequential - - -

BRENNAN J: But 69(6) still speaks of a basic rate.

MR KABLE: That would seem to be the case.

BRENNAN J: Well, how does it work?

MR KABLE: In practice, the terms are used interchangeably.

BRENNAN J: The interesting thing is that in the old 65

"unit" was defined as -

the amount ..... of the basic rate -

which may have some significance I know not for the

construction of 69(1).

MR KABLE:  The submission would be that it would not have,

Your Honour, because the same scheme as I have just

indicated was the scheme by which the maximum was

calculated, and that scheme has been constant

throughout the legislation. That is the best

answer I can give, Your Honour. I know of no

suggestion that it is relevant and that is the way

Scott(2) 4 16/3/93

the scheme has been interpreted. That is the

answer I can give Your Honour as to that.

Having identified the scheme and the maximum

payments, I now take the Court to section 69 for

the purpose of disclosing that that is the section

which prescribes the basis upon which weekly

payments of compensation are to be calculated for

all workers, including part-time or casual workers,

irrespective of whether the said worker is the

subject of a total or partial incapacity. So 69

expressly deals with total or partial incapacity,

and that is the section which is the section

pursuant to which one calculates the amount of

compensation in respect of all workers.

Section 69(1) identifies that it is a section

ie, that that -

applying in respect of total or partial incapacity. claimants,

incapacity is supported by a certificate in

the prescribed form -

and then subsection (a) deals with total incapacity
and subsection (b) deals with partial incapacity.

As my purpose at this stage is merely to identify the scheme I will not go to the heart of

the argument just for a moment, except to emphasize
that section 69(l)(a) does deal only with total

incapacity for work; and to point out that

section 69(l)(a) prescribes that the greater of the

two alternatives articulated therein will be the

figure which is the amount of compensation to be

received by the worker. Thus it is the total

destruction of the capacity for work which creates

the entitlement pursuant to section 69(l)(a) and,

secondly, the legislation is silent as to part-time

or casual workers.

Section 69(l)(b) deals with partial incapacity

and, importantly, directs that the compensation

entitlements of such persons are calculated, inter

alia, by reference to average weekly earnings, that

section having no part similar to 69(l)(a)(ii).

That particular development is important, I

will be submitting, because ultimately my

submission will be that if the Court gives

69(l)(a)(ii) the interpretation for which I

contend, there is no manifest injustice, to use

that word generally, because it is a section

relating to the total destruction of a working

capacity, not a partial, and that that distinction

has been made clearer in the 1988 Act than in any

of its predecessors. And it is for that reason

Scott(2) 5 16/3/93

that I have made available to the Court copies of

the legislation preceding the current Act in order

that the changes effected by the current Act can be

identified.

Your Honours should have in the materials that

have been provided a number of pages, the middle of

the first page of which has "Schedule l" written

upon it.

MASON CJ: Yes, we have that.

MR KABLE: That is the schedule to the Workers Compensation

Act 1927, which was repealed by the 1988 Act. In the 1927 Act it was the schedule containing rules

which performed the function of section 69 and the

succeeding sections and, if I can invite

Your Honours to turn to the third page of the

schedule, Your Honours will find rule 3 commencing
in the middle of the page reading:

Amount of compensation in case of incapacity -

being the footnote on the side of the rule.

Immediately one will note that rule 3(1) deals

with -

total or partial incapacity for work -

and that rule (lA) is relevantly identical, or if

not almost identical, with section 69(l)(a) and

section 69(2).

The importance of that is that under the 1927

Act rule (lA) applied to both total and partial

incapacity for work. The words -

whichever the greater -

were there. The words that are the subject of the

question for this Court in this case -

the ordinary time rate of pay of the worker

(as expressed by reference to a week) -

were there. "Whichever is the greater" was there.

But the method of calculation prescribed by

section (l)(a) related to those who were either

totally or partially incapacitated. So it can be

seen that the 1988 Act changes the method of
assessment of weekly payments for those who are
partially incapacitated, but does not change the

method of assessment of weekly payments for those

who were totally incapacitated.

Scottf2) 11 MR KART.F. 111/1/g.3

Rule (lA) and rule (1) were enacted by

Act No 58 of 1972, which should also be in

Your Honours' materials.

MASON CJ: Yes, we have that.

MR KABLE:  Under that should be No 94 of 1963. If

Your Honours would go to Act No 94 of 1963 and to

the First Schedule contained therein, at page 687

in the top right-hand corner Your Honours will find

that the rule for the calculation of compensation

is set out as it was enacted in 1963, and which

rule clearly was neither designed to nor did seek

to compensate those who were either totally or

partially incapacitated on the basis of full

recovery of the wages they were earning or the

extent of their capacity to earn. Given that this

is an appeal I am not going to read all those rules

to the Court but, clearly, those rules effect a

scheme whereby a worker in receipt of weekly

payments did not receive an amount equal to that

which he was earning as at that time.

The importance of that in the ultimate scheme

of things is that Act 58 of 1972 introduced rules

(1) and (lA), introduced the notion of "whichever

is the greater" of the two alternatives, thus

recognizing there will be more than one way to

assess weekly payments and directing that the more beneficial of the two ways is the appropriate way.

Then in 1988 that beneficial section which

contained the reference to "whichever is the

greater" remained. However, its operation was

limited to those who were totally incapacitated for

work, and it no longer applied to those who were

partially incapacitated for work, except in certain

defined circumstances which I will refer to

shortly.

Having taken the Court through that, my

purpose in showing Your Honours the legislative

history after the scheme is to identify that this

Act, as distinct from many other Acts, does not

seek either as a matter of principle or practice to
decrease the weekly amount that a person receives

when they are totally incapacitated. Its

limitation upon the moneys received is to be found

in subsection (6) which limits the total amount.

Many of the pieces of legislation that one could

look at articulate alternatives, and then prescribe

that the worker receive whichever is the lesser.

Might I now take the Court to

section 69(l)(a)(ii) which is the section the

subject of interpretation, and might I firstly

submit that the words are to be interpreted in

their primary and natural sense, not decided by

Scott(2) 7 16/3/93

assumptions of what Parliament's purpose was, but
by its intention as expressed in the language it

has used.

The submission I make, and I propose to deal

with this section in a little detail and to go away
from the written outline for the moment, is that

the words -

(as expressed by reference to a week) -

must be given a meaning in relation to the ordinary

time rate of pay of the worker. It is important to

note that subsection (ii) makes no reference to the
hours actually worked by the worker, it contains no
reference to the extent of the employment of the

worker, and it comprehends a rate and a period of

time to which the rate should be applied. The

first step, however, is to identify the work in

which the person was engaged and then to undertake

those two tasks.

What is important to note, I submit, as to the

phrase - ·

(as expressed by reference to a week) -

firstly is that it is "a week", not "the week",

"his week" , "his normal week" or "the ordinary

week"; secondly, that that phrase -

ordinary time rate of pay of the worker (as

expressed by reference to a week) -

is repeated in section 69(3) which particularly
deals with the position of a person in receipt of

weekly payments, or better put, I am sorry, a

person during whose incapacity -

the ordinary time rate of pay of the worker

(as expressed by reference to a week) for any

work in which he was engaged immediately

before the commencement of that period
increases or decreases, the compensation

payable to him shall correspondingly be

increased or decreased.

It is our submission that in order for that section to make sense it is necessary for the meaning that

we submit is appropriate to subsection (ii) to be

given because that meaning will apply in both

subsection (a)(ii) and subsection (3).

If I can just give an example of how that

section might operate.	Remembering that of
subsection (a), (i) and	(ii) talk about "whichever
is the greater", it may	be that a worker had the

Scott(2) 8 16/3/93

average weekly earnings of $300 per week; that

their ordinary time rate of pay at the time of the accident was $290 per week; that they were totally

incapacitated which meant they were going to

receive workers compensation for about three years,

and that six months after the accident "the

ordinary time rate of pay", if it means what we

submit it means, that is -

the ordinary time rate of pay (by reference to

a week) -

pursuant to the award, increased to $320. So at

the time of the accident they would receive average

weekly earnings because that was a greater amount
than the ordinary time rate of pay, but with the
effluxion of time and the necessary increase in

wages and costs if the award went up, then their

weekly payments would be calculated pursuant to

subsection (ii), and the submission is that there

is nothing extraordinary in that because it enables

the weekly payments to keep pace with all other

matters.

The fact that this section is referable to

total capacity for work becomes important when you

have regard to section 69(4)(c). That section

predicates that the benefits receivable by somebody

who has had a total destruction of earning capacity

may or are likely to be more beneficial than those
receivable by somebody who has a partial loss of

earning capacity, and that section creates a

circumstance where a person partially incapacitated

for work can apply to the Commissioner for an order deeming that the capacity is a total incapacity for

work, thus entitling them, prima facie, to an

assessment pursuant to section 69(l)(a)(ii).

That again is not surprising if the meaning of

"total incapacity for work" is as we submit, that

is, that the capacity for work is destroyed.

Therefore, the more beneficial method of assessment

should prevail.

It is to be noted that section 69(4) overrides

section 69(l)(b), thus a finding pursuant to 69(4)

that there was a total incapacity for work

immediately authorizes the calculation in

accordance with 69(l)(a). It is likely that when

someone has suffered a total destruction of working

capacity, that their compensation will be
calculable by reference to a week and it is

particularly likely when there is no legislation

dealing with part-time or casual employees because,
for reasons which I will submit later, the total

destruction of earning capacity is not merely the

Scott(2) 9 16/3/93

inability to earn wages but is the inability to

sell one's labour.

BRENNAN J: But say the capacity to work is limited so that

perhaps the worker cannot work for more than, say,

10 hours a week, what happens then?

MR KABLE:  If there be a finding that that person has

suffered a total incapacity in consequence of the incident giving rise to the entitlement, then the person becomes entitled to be compensated in

accordance with 69(a)(ii) and to an award

calculated in the way we submit.

BRENNAN J:  So that having, before the accident, been able

to work for only 10 hours a week, they then become

entitled to some larger number of hours a week?

MR KABLE: That is a necessary consequence of the

interpretation. Your Honour, there can be isolated

examples both ways as to how this section may

operate. Could I just give one example either way. Take the case of the person working 10 hours a week

who is actively seeking work and finds themselves

able to work for two days a week and spends the

remaining time seeking work but has not become

involved in a contract, does not have a job, and

their earning capacity is totally destroyed. That

person, we would submit, fits one side where the

total destruction of their earning capacity may

have been entirely productive of financial loss of

a far greater moment, given the existence of the

incapacity, than the two days a week that they were

working.

That is a factual example which can show how

the section, interpreted the way we submit, would

operate fairly to that person. An example can be

given the other way, which was in the special leave

application: suppose somebody is only working the

10 hours a week and exercises a choice not to work

to any greater extent or that there is no greater

amount and they are not looking for work, then yes,

it does follow that they would be compensated to a

greater degree than the amount they were earning.

TOOHEY J:	On your argument, Mr Kable, you really start with paragraph (ii), do you not, in the case of total
incapacity, whether the person is a full-time or a part-time employee and each receives the same
amount, but then paragraph (i) might enable
someone, presumably a full-time employee, to
establish average weekly earnings in excess of that
provided by paragraph (ii).
MR KABLE:	Yes, that is correct; I concur in that,

Your Honour. Answering Your Honour Justice Brennan

Scott(2) 10 16/3/93

further, one can identify factual scenarios which

at first blush seem to be inconsistent with what

might have been thought to be the case. The

important point I make is that there has been a

consistent approach by the legislature of this

State to the beneficial compensation of those who

have suffered the total loss of capacity rather
than the partial and that that can be extracted as
a matter of policy in the legislative history of

the section.

As to some of the other policy arguments, I

will leave those until I deal with the judgments of
Their Honours in the Full Court, because one of

Their Honours there certainly said, "Well, this can

be a matter for social security", and we submit

that that is not an appropriate response when the

total loss of earning capacity has occurred arising

out of and in the course of the employment as
required by section 25.

Your Honours, in the second paragraph on page 3 of my written submissions under the

subheading 3, I submit that section 69 should be

interpreted bearing in mind that the employment of

most workers is governed by industrial awards or

agreements and that that fact was observed by two

of Your Honours present and Justice Gaudron in

Catlow's case which I will come to in just a

moment. The use of the phrase "by reference to a

week" recognizes this, I submit, as does the phrase

"ordinary time rate of pay".

Might I invite Your Honours to examine

Catlow's case.	I do not propose to read large
passages.

BRENNAN J: Before we get to that, Mr Kable, what meaning do

you give to each of the elements in (l)(a)(ii)?

What do you say in that context "ordinary time

rate" is?

MR KABLE:  "Ordinary time rate of pay" is the ordinary time

rate of pay pursuant to the contract of employment or, if there is not one, the award. "As expressed by reference to a week" is the calculation

undertaken once one has identified the ordinary

time rate of pay because that must relate to the

contract or the award, but I say you - - -

BRENNAN J: For how many hours?

MR KABLE:  An ordinary week before one gets into penalty or

overtime. The phrase "ordinary time rate of pay"

connotes the ordinary working week pursuant to the

relevant award.

Scott(2) 11 16/3/93

BRENNAN J:  How does that work in the case of a casual

worker?

MR KABLE:  In the case of this casual worker, it works -

because the award identifies the ordinary hours,

that is the times defining the ordinary hours - - -

BRENNAN J: For a casual worker?

MR KABLE:  Yes, Your Honour, between certain times, after

which - say between six and six - the casual worker

becomes entitled to payment at a different rate.

BRENNAN J:	What are the hours, six and six each day?
MR KABLE:	Yes.
BRENNAN J:	How many hours of the week then are the ordinary

working hours of a casual worker?

MR KABLE: Pursuant to this award, 38 hours, Your Honour.

BRENNAN J: For a casual worker?

MR KABLE:	No.
BRENNAN J:	We are talking about a casual worker.
MR KABLE:	The award prescribes the method of payment for a

casual worker. It does not identify ordinary hours

with respect to a casual worker, but it does
prescribe that if a casual worker works outside the

defined ordinary hours, they get paid at a time and

a half or some other more beneficial rate.

BRENNAN J:  How do you express "by reference to a week", on

your argument, the hours of a casual worker?

MR KABLE:

On my argument, Your Honour, you do not express

them by reference to the casual worker; you express

them by reference to the award pursuant to which

the casual worker is employed. That is the

distinction. My submission is that "as expressed

by reference to a week" is not the worker's week or

the actual week; it is the week ordinarily worked.

That is the crux of this argument.

BRENNAN J: Under the award?

MR KABLE:	Under the award.
BRENNAN J:	So you are saying 38 hours.
MR KABLE:	Yes.
BRENNAN J:	What rate of pay; casual rate or non-casual

rate?

Scott(2) 12 16/3/93

MR KABLE:	The ordinary time rate is the casual rate, yes.
BRENNAN J:	Why?
MR KABLE:	Because that is the ordinary time rate of pay of

that worker as expressed by reference to a week

meaning an objective week, not his own personal

week.

BRENNAN J:  You are sliding between the objectivity of the

award in determining the number of hours and the

subjectivity of the worker in relation to the rate

of pay, why is that?

MR KABLE:  I submit, with respect, I am not. What I am

doing is that I am identifying the work in which he

was engaged, as in the third line of section 69,

because that is the starting point:

the work in which he was engaged immediately

before the period of incapacity -

Having identified that, I am then, as to the other

matters, identifying his ordinary time rate of pay

and following the statutory imperative that that be

then calculated by reference to a week, not his

week.

BRENNAN J:  I just do not understand how you express it "by

reference to a week" when you are dealing with a

casual rate of pay.

MR KABLE:  I cannot give Your Honour a better answer than I

have, except perhaps if I can take Your Honour

through the cases that I say authorize that

finding, then show how Justice Zeeman found. If

that phrase had been "his week", "the week",

"ordinary week" or "normal week", then there may be

an argument that the phrase "as expressed by

reference to a week" ought to apply to the actual week. The kernel of the argument in this case is

whether "a" means actual.

BRENNAN J:  I will just put my difficulty to you. I can see

an argument which looks solely at the award and

says, "Here's a 38 hour week award, the rate of pay

being X dollars a week or, if you like, Y dollars
per hour for the worker who is employed for 38

hours. That is the figure that we're looking at

and that is the one that we use." I can understand

that one might say, "For a casual worker, we take

the number of hours he works at the rate of pay he

gets and we use that", but I do not understand how

you slide between the two.

MR KABLE:  The only basis I can answer Your Honour as a

matter of syntax is that it is "the" worker and "a"

Scott(2) 13 16/3/93

week, as distinct from "his" week. So the

statutory imperative is: identify the ordinary

time rate of pay, whatever that means, of this man

as expressed by reference to a week, as distinct

from "his week" or "his normal week" or the other

phrases. That is the best answer I can give

Your Honour. The submission I make is that that

answer is not only the primary and natural meaning

that I submit the words have, but is also

consistent with the principle to be extracted from

the cases that I am now about to refer the Court

to.

If I may take the Court to Catlow's case,

167 CLR 543. As I indicated, I do not propose to

read large passages. Could I take the Court to

Justice McHugh's judgment at page 557. Might I say

by way of introduction that both Catlow's case and

Kezich's case, to which I will refer in a moment,

deal with the circumstance where a worker worked a

greater number of hours per week than the award

minimum requirement.

There has not been any case that I have

located where the issue which is being agitated in

this Court today has been considered by either this

Court or any superior court. At page 557

Your Honour Justice McHugh at the top paragraph

identified the question in Catlow's case, having

set out the section that was under consideration,

and I remind the Court that at the bottom of

page 556, the phrase that was under discussion in

Catlow was:

ordinary time rate of pay for the worker's

normal number of hours per week.

Your Honour at page 561, commencing in the last

line of 560, having mentioned that awards are of

particular relevance and noting that in that case

the phrase "ordinary time rate of pay" was conceded

not to include overtime rate, Your Honour noted:

Against the industrial background of

awards and agreements fixing a number of
ordinary hours per week, it seems natural to
read the expression "calculated at the
worker's ordinary time rate of pay for the
worker's normal number of hours per week" as a
reference to the ordinary time rate of pay for
the worker's standard or ordinary hours per
week as fixed by award, agreement or contract.

Your Honour in the next paragraph indicated that the decisions of the Industrial Commission of New

South Wales in John A. Gilbert and in Goodyear

Scott(2) 14 16/3/93

supported the conclusion, and at 563 at the bottom

of the page, Your Honour wrote:

Accordingly, the ordinary meaning of the

phrase "normal number of hours per week" read

in its context, the industrial background of

the legislation, the judicial exposition of

similar phrases, and the history of the

legislation all point to the phrase meaning

the ordinary or standard hours fixed by the

terms of employment.

It is my submission that the word "normal" is a

word which is closer to actual than is the drafting

of the section in hand which refers to "by

reference to a week" because there is nothing in the section at hand which speaks of normality or which sheets home that notion to the actual worker.

But that submission is not essential.

Justice Deane agreed with Your Honour's reasoning

in the case and Your Honour Justice Dawson at 555,

having indicated your agreement with

Justice McHugh, noted at the bottom:

The appellant concedes that the "ordinary

time rate of pay" is the rate of pay for the
standard hours worked, the standing being

fixed objectively in some manner such as by an

award or industrial agreement. In making such

a concession the appellant seems to me to

concede the argument in relation to both

s 94(10) ands 95(1), for the formula for

calculating weekly earnings proceeds upon the

basis, which is axiomatic, that if there is to

be an ordinary time rate of pay it must be

ordinary in relation to something. Clearly
the thing selected is the normal, or standard,

number of hours worked per week.

Then Your Honour proceeded to deal with the

question of overtime. It is my respectful

submission that the principles to be extracted from

that case support the interpretation that I am

seeking to place on those words.

If I can ask Your Honours to have a look at

Kezich's case, (1974) 131 CLR 362, the phrase under discussion in Kezich's case was the "ordinary wage for the ordinary hours he would have worked". And

a unanimous decision of this Court decided that

that phrase was to be interpreted having regard to

the particular worker. But the passage that I rely

upon, which whilst it might be said by some to be

obiter, in my submission is important, is in fact

the very last paragraph of Your Honour the Chief

Justice's judgment, which appears at page 369.

Scott(2) 15 16/3/93

Where in reaching the view that the phrase the

"ordinary wage for the ordinary hours he would have

worked" applied to the actual worker's weekly work,

Your Honour indicated that in reaching that conclusion you were influenced by the fact that:

clause 2 refers to the amount of the "ordinary
wage or salary" which the worker would have

received, that is, the aggregate amount of

wage or salary payable for a weeks work. It

makes no reference to ordinary rates of pay, a

concept which lies at the foundation of the

respondent's argument.

In my respectful submission that distinction having been drawn in that passage is of relevance

in the present case.

The next cases to which I refer Your Honours

are the two cases of Steggles v Vandenberg, 163

CLR, and Arnotts Snack Products v Yacob. The

reason that I refer to these two cases is because

in the Full Court of the Supreme Court of Tasmania,

two of Their Honours seemed to regard a case of

Anslow v Cannock Chase Colliery as important and,

in my submission, it is contrary to the

observations of this Court in each of these cases.

The precise passages I will not read aloud, but

they appear in Steggles case at 325, at the bottom

of the page, and the critical sentence is about six

lines from the top.

In the result, a majority of the Court in

Thompson affirmed the proposition that a

worker who is physically incapacitated for

work can recover compensation, although his

incapacity does not result in loss of wages

under the contract of employment.

That observation, in my submission, is of

particular importance when one has regard to the

joint judgment of Your Honour Chief Justice,

Justices Wilson, Deane and Dawson, in Arnotts Snack

Products v Yacob, 155 CLR 171, particularly at 177

and 178. The passage that I specifically rely upon

is at page 177. In the middle of the page

Your Honours referred to Thompson and indicated the

ratio to be extracted from that case and then

observed:

That "incapacity for work" means a

physical incapacity for actually doing work,

resulting from injury (or disease) and that,

subject toss 11 and 13, compensation is

awarded for that incapacity where it reduces

the employee's ability to sell his labour in

Scott(2) 16 16/3/93

the open market, is brought out in the

judgments of the majority.

It is my submission that that recognition that

incapacity for work not only has the effect of

reducing the ability to earn wages, given that one

was working at the time, but also the reduction in

ability to sell labour on the open market. It is

that recognition that I submit discloses that the

Parliament of the State, particularly having regard

to the words "whichever the greater", has

recognized that there is to be a beneficial

approach to a totally destroyed earning capacity.

My submission is, therefore, that there is

no - the section is difficult. A reading of the

workers compensation decisions that I have already
referred to discloses that in each of them there
are anomalies to a greater or lesser extent flowing
from the decision of either the majority or not.

And, in my submission, if the Court were to be of the view that this was truly ambiguous and that my

primary submission is wrong, then for the reasons

articulated in the final paragraph on page 3, the

construction which is beneficial to the worker

should be applied.

I do not propose to take Your Honours to

Gilbert's case or Goodyear Tyre. Your Honour

Justice McHugh referred to them in Catlow and I

have referred Your Honours to Robinson and made a

copy available and I have identified the precise

passage I rely upon and I do not propose to read
that. Robinson followed Catlow and, in my

submission, is a case which supports the conclusion

for which we contend. It is the passage

beginning - the very last paragraph of the

judgment.

The history of the proceedings and the

findings of fact appearing in the decision of the

Workers Compensation Commission are at the precise

passages I have identified in paragraph 1 under No

5 are relied upon. The ordinary time rate of pay

of the worker, I submit, as expressed by reference to a week is to be ascertained by reference to the

award and the award is to be found in the appeal

book and it is to be found from pages 28 to 80.

And perhaps I might just take the Court briefly to

some sections of that document.

The Court will remember that for nearly two

years after the accident this appellant was paid in
accordance with section 69 for a considerable
period of time - I thought it was two years - but

for a very long time he was paid, this issue being

raised by an application to reduce the payment

Scott(2) 17 16/3/93

after the incapacitated worker had been being paid

for some time.

Clauses 19 and 20 of the award appear at

page 39 of the appeal book. They actually start at

page 38. Your Honours will note at the bottom of

page 38(b) it identifies that in absent overtime:

not more ..... than eight hours ..... shall be

worked in one day -

and then the ordinary hours of employment are

identified. Clause 20 deals with the ordinary 38

hour week and clause 24, at page 41, deals with the

question of overtime. Your Honours will note that

each of these clauses is not limited or expressed

not to apply to casual workers. In particular,

certainly as to clause 19, it does not apply to

shift workers and so articulates.

Agreed fact No 7, which appears at page 6 of the appeal book, discloses that:

At all material times other than when being

paid workers compensation the worker was

employed and paid pursuant to the terms of the

Award.

What happened before the learned Workers

Compensation Commissioner was that the parties

agreed a number of facts but, in addition to the
agreed facts, there was some oral evidence and the

Workers Compensation Commissioner's findings were

based on both sources.

Now, as I have said, clauses 19, 20 and 24, in

my submission, all apply to casual workers and the

combined effect is that outside the defined hours

casual workers will be paid at the prescribed rates

for those overtime hours. Clause 13 is the clause

which defines casual workers and which prescribes

the method of payment. That is at page 37.

Clause 10 is the section which sets the rates as at

the time of publication of the award. Any attempt

to multiply the various figures and reach the

figures referred to in the exhibits is fraught with

difficulty and it is for that reason that at all

stages of these proceedings the argument has been

conducted in principle, leaving it to the parties

to agree on the rate because, of course, the

figures contained in clause 10 would have changed

necessarily from 1987 and so we do not need to go

through the maths.

For the purpose of this appeal, the decision of the Workers Compensation Commissioner is

acknowledged as correct, as is the decision of the

Scott(2) 18 16/3/93

learned primary judge and, in particular, if I can
take Your Honours to pages 103 and 104, not to read

them to Your Honour but to adopt the totality of

pages 103 and 104 as part of my argument, which is

the reasoning of the learned primary judge as to
reaching the conclusion he did, which was the

conclusion overturned in the Full Court.

It seems to me that it is unnecessary for me

to address this Court as to the correctness or

otherwise of His Honour's, what I called,
embellishment of the agreed facts, because that

embellishment is not germane to His Honour's

decision. I will refer to it in relation to

Mr Justice Underwood's decision. So I adopt the

reasoning in toto of Mr Justice Zeeman on those

pages.

The submission I then make is that, for the

reasons that I have sought to articulate, and in

particular for the reasons that His Honour has

articulated, His Honour is correct and the

submission we make is correct.

Of more importance, however, is to take the

Court to the judgment of the Full court. At 114 it

commences, the judgment of His Honour

Mr Justice Underwood, and I just wish to make some

brief submissions as to His Honour's process of

reasoning to identify the basis whereby His Honour

reached the result he did. At 115 His Honour

refers to His Honour Mr Justice Zeeman's changing
of the facts, that is from lines 8 to 20 and

observes that no complaint is made in the notice of

appeal. Well, of course, it was not the now

appellant who was appealing, so it is hardly likely

that it would have been.

At the top of page 117, His Honour in the top

line observes:

The primary weekly entitlement during total

incapacity is the receipt of "average weekly

earnings -

That, with respect to His Honour, can not be a

correct statement of law because the section

articulates two bases upon which those weekly

payments may be calculated and there is nothing

within the section that authorizes, in respect to

total incapacity, one to be given primacy over the

other. And it is His Honour's characterization of

average weekly earnings as the primary, which I respectfully submit, leads him to the erroneous

conclusion.

Scott(2) 19 16/3/93

His Honour then quotes from Anslow v Cannock Chase Colliery Co. Ltd, (1909) AC, which is the

last of the cases that I made available to

Your Honours. It is a short judgment of the House

of Lords. The case has got, with respect,

absolutely nothing to do with ordinary time rate of
pay. It is a case in which the House of Lords was

interpreting the phrase "average weekly earnings",

and to the extent that His Honour and

Mr Justice Wright relied upon the observation at

page 437, which reads:

The object of the Act broadly stated is to

compensate a workman for his loss of capacity

to earn, which is to be measured by what he

can earn in the employment in which he is,

under the conditions prevailing therein,

before and up to the time of the accident.

Such an observation, in my respectful opinion, is

inconsistent with the passages I have read from

Arnotts, and cannot be said to be law applicable to workers compensation cases in this country.

His Honour Mr Justice Underwood proceeds, in

His Honour's judgment, to talk about the philosophy

of workers compensation Acts and then, in a passage

commencing at line 22 of page 117, makes the first

of three references to legislation other than our

own, His Honour having noted that:

There is no uniformity of expression -

and that is an understatement, and that -

the terms of some are such as to defy

comprehension by the average reader -

then says: 

However, the concept common to all is that

ordinarily, upon suffering a compensable
injury, the worker will suffer to diminution
in the weekly amount he was ordinarily earning

in his employment.

With respect to His Honour, that is not a concept

common to the legislation. In fact, the

legislation in a number of States requires that the

amount of weekly payments be lessened, particularly

after in some cases 26 weeks and in some other

States 39.

His Honour then refers to legislation which is

specifically directed to part time and casual

employees, which is of no significance in the

present case, and then, at the passages I have

Scott(2) 20 16/3/93

referred to at paragraph 2 of page 5 of my written

submissions, again talks about this common

philosophy in legislation.

My respectful submission is that if there is

anything that is common to the workers compensation

legislation, it is a disparate approach to the
entitlement of people who are totally

incapacitated.

Now, the crux of His Honour's decision is to

be found on page 119 where, at line 16 His Honour

says that - he was referring to the award:

Clause 19 ..... had no application to the

respondent as he was a casual worker.

The submission is that that is not correct, and

His Honour then says:

The respondent's week, within the meaning of

s.69(l)(a)(ii) was fixed by an express term of

the contract -

and, for the reasons that I have already indicated,

we submit that is not the case. The agreed fact,

if it is relevant, and it appears at page 5:

It was agreed the worker would work for

sixteen hours per week for the employer -

does not have after it, "no more or no less", and I
have referred Your Honours to the Workers

Compensation Commissioner.

As to Justice Wright's judgment - there is an

error in paragraph 1, that should be page 123 not

page 133 - His Honour at page 123, lines 12 to 15 indicated that:	Unaided by authority I would have had little
difficulty in concluding that the relevant
formula applicable to the instant case should be 1/38th of the ordinary time rate ..... being
the hours per week for which the
respondent ..... No perceived injustice would
arise on this interpretation.

I draw issue with that and for the reasons that I

gave in the factual example to Justice Brennan,

that there may be a very grave injustice to be

drawn from such an interpretation:

The respondent would be entitled during his

incapacity to the same payment as that to

which he was entitled whilst working.

Scott(2) 21 16/3/93

That is to equate, in my respectful submission,

incapacity for work with wages actually earned, and

that, for the reasons I have already submitted, is

an impermissible comparison.	And then His Honour
indicates:

Unless he was engaged in other part-time or casual work, he would not be entitled to

payments of the kind specified in s.70(2)(c)

of the Act in reliance upon the "average

weekly earnings" formula, but no doubt he
would still be entitled to some form of Social

Security benefit to supplement his income and bring it up to the level of an unemployment of

sickness benefit. It is a little difficult to

see why his employer should be required to

compensate him at the same level as he would
be required to compensate a full time

employee.

With respect to His Honour, that fails to recognize

that the incapacity is total, that the employer has

caused its destruction, and that therefore it is

not at all difficult to see why that consequence

ought to lead to a person being -

DAWSON J: Well, except for the wording of the particular

provision. If you take the words "as expressed by

reference to a week", that merely means, "per

week".

MR KABLE:  Yes.

DAWSON J: And if you take "ordinary time" meaning

"excluding overtime", the rate of pay per week of

this worker for the work in which he was engaged

was a rate of pay which was really referable to two

days. He did not express it per week. He worked

for two days and got x dollars so that he got

x dollars per week, and that excludes overtime.

Now, looking at the wording that way, how do you

get around it?

MR KABLE:  Because the reference to "as expressed by

reference to a week" is not the worker's week.

DAWSON J:	Why not?
MR KABLE:	Because - I do not mean that - - -

DAWSON J: It just simply said - I thought you agreed - it

meant per week, and the ordinary rate of pay of the

worker - and you have got to give emphasis to the
words "of the worker" - per week, was so much per

week.

Scott(2) 22 16/3/93

MR KABLE:  Because if it was meant to be the week of the

worker, on two other occasions the factors

identified being personal to the worker, that

factor would have been identified.

DAWSON J: It says -

the rate of pay of the worker (as expressed by

reference to a week) -

that is, the rate of pay of the worker per week.

MR KABLE:  The answer that I would give to Your Honour is

that the words "ordinary time rate of pay" are

exactly that. They identify the rate.

DAWSON J: Well now, "ordinary time" means "not overtime"

does it not?

MR KABLE:	Yes.
DAWSON J:	We can put that on one side.  So we are talking

about the rate of pay of this worker, "as expressed

by reference to a week", that is "per week".	And
you look at it.

MR KABLE:	Can I answer Your Honour this way: if we take out ordinary time, the non-overtime rate of pay of the
worker, by reference to a week, not his week, not
the normal week -

DAWSON J: It does not say that. It is the pay of the

worker, the worker, as expressed by reference to a

week, that is, the pay of the worker per week.

MR KABLE:  I suppose the only answer that I can give

Your Honour is this: it all depends on whether "a"

is to be left as "a", or is to mean "his" or

"normal" or some other word, because if it is "a

week" there is nothing to sheet it home to the

particular worker, and for the reasons that I have

sought to explain - - -

DAWSON J:  You seek to read it not the rate of pay of the

worker, but the rate of pay prescribed by the award

per week. It does not say that, that is all I am

saying.

MR KABLE:  It is his rate of pay because 10 people might

have 10 different rates of pay and they might work

two, three, five or four days. The rate must be

for that person, but if we are going to compensate

them for total incapacity, we are going to pay them

in respect of a week, not just the two days. That

is the answer I give Your Honour to that question.

That is to give the word "a" its normal meaning.

If Parliament had wanted to limit it then it could

Scott(2) 23 16/3/93

have done, and I come back to what I said before,

but I do not mean to be - well I suppose I do mean

to be repetitive, but I do not want to be tedious.

DAWSON J: Well, you must then be reading it: the rate of

pay per hour, or some such thing, "as expressed by

reference to a week".

MR KABLE:  I aII). obliged for that observation, because I

meant to say this earlier. The ordinary time rate

of pay in an award might be per hour, or per day,

or per week. So we use the first words to identify

the rate of pay, but when we come to quantify what

is to be paid to this worker, if it be per hour,

per day or per week, we find "a" week not "his"

week, to reach the conclusion.

McHUGH J: But, do you not get much assistance from

subsection (3), where it indicates that the

expression "ordinary time rate of pay (as expressed

by reference to a week)" must be impersonal and

objective? Otherwise in subsection (3) you would

get the absurd result, or argument anyway, that if

somebody was employed to do the same sort of work

that you did for 38 hours a week, you would get an

automatic increase. Or if you have another casual
worker who was employed for three shifts of eight

hours, you would get an automatic adjustment

compared to what you have here.

MR KABLE:  I do rely on subsection (3) and I submit that the

syntactical differences between subsection (3) and the paragraph under discussion drawn by His Honour

Mr Justice Wright just do not stand up and that

subsection (3) and subsection (a)(ii) must be

interpreted identically, and that subsection (3)

supports the argument for which I

contend.Your Honours, I was just dealing with - - -

BRENNAN J:  I am sorry, I am not following the difference

between (3) and (l)(a)(ii).	What is the
difference?

MR KABLE: Perhaps the best way - can I take Your Honour to

page 124 of the appeal book, and I do not say there

is any, but His Honour Justice Wright said there

was and found it to be important.

BRENNAN J: Is there any relevant difference?

MR KABLE:  My answer to Your Honour is, no. The word "work"

is preceded by "any" in subsection (3), not "the".

But in real terms my submission is the sections are

on all fours and that any difference is merely a

matter of grammar not substance, and that any

difference does not authorize the giving of

different interpretations.

Scott(2) 24 16/3/93

BRENNAN J: Is there any difference between (ii) in material respects, other than the word "any" in place of the

word "the".

MR KABLE:  I think His Honour found a comma. The answer to

Your Honour's question is no, not for those words,

and section 69(3) is a very important section in

the overall structure of the Act. While we have

section 69 open, can I refer Your Honours to

section 69(8) to (12). The reason I am doing so is

that His Honour Mr Justice Wright found these

sections to be of importance in his interpretation

of section 69.

Now, section 69(8) to (12) represent sections

which were not previously in any of the workers

compensation legislation in this State, firstly,

and in particular, section 69(10) must be

cautiously used because "the principle" stated

therein is not a principle of workers compensation

at all and that is why it was necessary to enact

that articulated in 69(10), and the fact that

69(10), and I submit that assists my argument. as

the Parliament for the purpose of the collection of

section 69(8) to 69(12) saw the need to enact

69(10) is the best. The books show it is not a

principle but in any event show Parliament applied

its mind to it there. Now, had it wanted to reach

the same result under 69(l)(a)(ii), then the
draftsman has applied his mind to the issue in the

very section and not tried to do so.

BRENNAN J: Again, I am not following you, I am afraid. Why

is it that that "principle" as there expressed does

not inform the construction of 69(l)(a)(ii)?

MR KABLE:  Because section 69(10) only applies, because of

its drafting, to a hearing under 69(9), the section

immediately above it, and the only use for

section 69(9) is to consider an application under

69(8).

BRENNAN J:	I can understand that you say (10) is inserted there specifically to deal with the determination under (9), but is it not, as a matter of grammar, expressing a principle of general application and
directing the application of that principle to a
subsection (9) determination?
MR KABLE:	My answer would be the converse, because it never

has been a principle of work.	The "principle"
articulated as a principle - - -

BRENNAN J: There is not much purpose talking about whatever

has been because we have statute here which - - -

Scott(2)	25	16/3/93
MR KABLE:	I am sorry, Your Honour.	The reason that I

mentioned what has been is to show there was a need

for this statutory imperative to govern an

application under 69(9) because absent 69(10) no
such principle could ever have been applied.

Therefore it was necessary for 69(10) to be enacted

for the sole purpose of directing the conclusion

under 69(9) and it does not purport to be a wider

application because it specifically contains within

it the limitation in determining the amount of

weekly payments under (9), which can only ever be

under 69(8). There is no basis in the Act that you
can have a determination under 69(9) unless you

have acted under 69(8). There are other

provisions, if I might inform the Court, by which

you can go to the Workers Compensation Commissioner

to obtain a variety of orders to review weekly

payments to reduce them. 69(9) is solely to do

with the factual circumstances articulated under

69(8) and cannot therefore, I submit, have any

greater application and is expressed in order that

it does not.

The final submission that I have made is that

His Honour Mr Justice Wright says of the conclusion reached by Justice Zeeman, that it was strange and at odds with the philosophy, and for the reasons

that I have sought to argue with respect to total

incapacity, not partial incapacity, and to what it

means, and particularly given that this legislation

in Tasmania requires that you look at the greater

entitlement - for those reasons I submit that the

decision of the learned primary judge was correct.

McHUGH J: Well, the statement of Lord Loreburn I would have

thought was long and no longer represents the

philosophy of the Act and disappeared three decades

ago. Most partial incapacity compensation

provisions are expressed in terms of earned or is

able to earn.

MR KABLE:  I am obliged, and I say that is important because

we are dealing with the total incapacity and with
the partials - if the view be held that a person

with a partial incapacity for work is receiving too

much, to use a non-legal term, then you test it by

ttis able to earntt. If, however, you have totally

destroyed the earning capacity, then my submission

is, where the legislation says "whichever is the

greatertt, there is nothing at all unreasonable in

fully compensating. They are the submissions, may

it please Your Honours, that I put in support of
the appeal, and I submit - I do not read the

grounds - if those submissions are correct the

grounds lead to the result sought.

MASON CJ: Yes, thank you, Mr Kable. Mr Abbott.

Scott(2) 26 16/3/93

MR ABBOTT:  If it please the Court, I have handed an outline

of submissions to the Court Crier.

MASON CJ: Yes, we have that.

MR ABBOTT:  The Court may care to consider the outline

before I commence.

MASON CJ: Yes, Mr Abbott.

MR ABBOTT: If it please the Court, our fundamental

submission is based on the proposition that it is

indeed, as my learned friend, Mr Kable, has pointed

out the intention of the Act to compensate a worker

who is totally incapacitated on the basis that he

be no better off but no worse off than he was prior

to the occurrence of the incident giving rise to
the right to compensation. However, the measure of the compensation to the worker in that circumstance

is calculated by reference to past events, and in
general not to the future. This is true both in
relation to average weekly earnings, and in
relation to the ordinary time rate of pay, and is

qualified only to the extent that section 69(3)

provides for an increase to occur in circumstances

in which the ordinary time rate of pay has

increased at some time after the incident giving

rise to the liability to pay compensation.

The individual nature of the calculation, that

is, the fact that the calculation is individual to
the worker is illustrated by reference to the
provisions concerning average weekly earnings,
referring as they do to the average weekly earnings
of the particular worker during the relevant period

prior to the occurrence of the incident.

That goes so far, and I would refer to section 70(2)(b) to circumstances in which it is

impossible to calculate the average weekly earnings

for the particular worker to require a comparison

to be made with another worker employed -

in the same grade ..... by the same employer,

or if there is no such person so employed, by

a person in the same grade employed in the

same class of employment in the same district.

So the intention of the Act is directed to the
individual worker, and in particular to determining
the financial loss suffered by that worker by
reference to events which have occurred prior to

the incident primarily.

TOOHEY J:  Why do you say that, Mr Abbott? No doubt that is

the conclusion for which you contend, but what is

Scott(2) 27 16/3/93

the basis of the submission in the case of total

incapacity?

MR ABBOTT:	In relation to average weekly earnings - - -
TOOHEY J:	Can I just interrupt you - is average weekly

earnings a concept relevant to total incapacity?

MR ABBOTT:  Yes, Your Honour, because there is the

alternative means of calculating the loss suffered

by the worker in the sense of the extent to which

he is to be compensated for that loss.

Mr Justice Underwood put it this way: he said

primarily you go to the average weekly earnings,

and for that purpose one has to inquire over a

period of 12 months prior to the date of the

incident.

My learned friend, Mr Kable, may be right when

he says that there is no warrant for the word

"primarily" or for saying that primarily you go to

average weekly earnings, but it is accurate to say

that there is an alternative calculation method

prescribed and that the worker is entitled to the

benefit of the greater of the two. That is, under

section 69(l)(a)(i), one has regard first to the

average weekly earnings - and it may well be that

Mr Justice Underwood meant no more than this, that

is, one calculates it first because it appears

first in section 69 - and then one has also to have

regard to -

the ordinary time rate of pay of the worker

(as expressed by reference to a week) for the

work in which he was engaged immediately

before the period of incapacity,

whichever is the greater -

My learned friend points out that this means that

the worker is entitled to the benefit of whichever

calculation produces for him the better result.

But in both cases, the calculation is made by reference to that which has occurred up to and

including the date of the incident, and not after

that date.

TOOHEY J:  I put my question to you badly, I think, because

clearly the average weekly earnings is relevant

under paragraph (i).

MR ABBOTT:  Yes.

TOOHEY J: Perhaps what I should have put to you, is there

anything which ties compensation in the case of

total incapacity to average weekly earnings?

Scott(2) 28 16/3/93

MR ABBOTT:	Not itself, Your Honour, because the section plainly requires that the inquiry should be two-
fold, and to look to average weekly earnings and to the ordinary time rate of pay. Nevertheless it is the ordinary time rate of pay at the date of the
incident which is the relevant rate. I am sorry,
it is in fact at the date of the incapacity, but it
will, of course, commonly be the case that the incident giving rise to the right to compensation and the incapacity will occur at the same time, so often there is no distinction in that regard. Nevertheless, in both cases, one has regard to what
has occurred, not what may occur in the future.
The essence of the submission being put, as I understand it, is that because the worker may have
worked for more than the 16 hours to which he
contracted, then he is entitled to be, as it were,
compensated at the full-time rate to take into
account the fact that he has lost capacity to work
not only for the 16 hours, but for more than those
hours. I may have, perhaps, simplified my learned
friend's submission, but that appears to be the
substance of it.

We say this is fundamentally wrong, because

the Act itself provides for the measure of

compensation to be determined by, on the one hand,

the earnings of the worker over the period of

12 months prior to the accident and, on the other,

what the worker was earning at the date of the

accident, whichever is the higher.

DAWSON J:  You can test it, can you not, by taking the words

in brackets and saying "as expressed by reference

to an hour"?

MR ABBOTT:  Yes, Your Honour.

DAWSON J:  You must be able to do that, if you can express

it by reference to anything, you can express it by

reference to an hour, and if you do that, then it

cannot mean what is said.

MR ABBOTT: In the sense of not yielding a - - -

DAWSON J: Well, in the sense if you say that he is entitled

to the ordinary time rate of pay of the worker,
that is, the worker's rate of pay as expressed by

reference to an hour, for the work in which he was

engaged, you necessarily confine it to the work

which he was doing.

MR ABBOTT:  Yes, Your Honour. I agree with that, with

respect.

Scott(2) 29 16/3/93

McHUGH J: Well, on that view, if the worker's average

weekly earnings for a year were $200 a week, but he

happened to work 70 hours a week, in the week

immediately preceding his accident, do you pay him

an ordinary time rate at 70 hours for the week?

MR ABBOTT:  Yes, Your Honour, subject to the award.

McHUGH J: Well, having had some experience of this

jurisdiction over the years, it is the first time I

have ever heard it suggested that you would work

out or determine worker's compensation on the basis

of ordinary time rates of pay by referring to

70 hours per week - - -

MR ABBOTT: Well, Your Honour, we are engaged - - -

McHUGH J:  - - - without reference to overtime payments. I

mean that is usually picked up under averaging

provisions, such as you have got in paragraph (a).

MR ABBOTT:  Yes, Your Honour. I was going to say that we

are, perhaps engaged in an inquiry into the arcane mysteries of the Tasmanian Act. Nevertheless, the

point that Your Honour has just made in relation to

a worker who works for 70 hours per week, that is

open on our construction; that is, the construction

for which we contend. We would say that, in that

circumstance, the worker is better off by virtue of

the construction for which we contend than he is

under the construction for which Mr Kable contends,

difficult section and it must be conceded to be ambiguous, therefore it must be construed in the

and that that means that it is not open for Mr

way for which I contend, because that is beneficial

to the worker".

The answer to that is "Not

necessarily".

I had in fact intended, Your Honour, to take

the Court to an example which occurs in one of the
decided cases in this jurisdiction, in which Mr

Justice Seaman deals with a worker who may, or may

not, depending on how the facts were ultimately

found by the Commissioner, have worked for 56 hours

per week for the sum of $1000. The decision, a

copy of which I have handed to you - and it may be

convenient to go to this decision immediately, so

that this aspect of the matter can be dealt with

now - has been handed to the Crier and it is Wayne

David White v F.A.I. General Insurance and it is an

unreported judgment No 29 of 1991.

If I can take the Court to page 13 of the

reasons for judgment, I can indicate that the mark

which appears by way of a circle on that page is

the passage to which I will refer. It actually

Scott(2) 30 16/3/93

commences at the top of that page and those words

commencing "I conclude", are in fact, the words

referred to by Mr Justice Underwood in the

Full Court - so this is the decision from which he was quoting in his reasons - and he gives the

example of:

56 hours per week at a rate of $1000.00 per

week -

Now, His Honour says that if it is 56 hours per

week at an agreed rate of $1000 per week, then the

ordinary time rate of pay expressed by a week, is
$1000. But, His Honour goes on to say, if it is

simply the case that the agreed number of hours is 56 hours per week, then one drops down to 38 to be

the relevant number of hours in that week, and

multiplies that by the basic hourly rate of pay.

Now, we say this illustrates itself that the construction contended for, with respect to His

Honour, is anomalous, because in both cases, the week of the worker, and that is that to which

attention is directed by the section, plainly is

56 hours.

McHUGH J: But leads to the extraordinary result that in

that particular week, if he has happened to work
the 56 hours per week, we compensate him, perhaps for the rest of his life, on the basis of $1000 a

week, even though his average weekly earnings might have been $300 a week, and even though the ordinary

time rate for a 38 hour week was $300 a week, or

$200 a week.

MR ABBOTT:	And a beneficial result for the worker.
McHUGH J: It certainly is.
MR ABBOTT:	Of course, this case before the Court does not

concern - I am simply referring to this as an

illustration and it is convenient to mention it

now. What we have now is a casual worker, and I

would make two points about that: the first is

that my learned friend has said that he relies on
the judgment of the learned judge on appeal at

first instance at pages 102 and 103, and there is

one fundamental difficulty with the judgment

appearing on page 103, we say, which is that at

about line 38 His Honour says:

Two days' work during the course of a week

does not amount to a week's work.

We say, with respect, if you have a casual worker

it may well be a week's work, and it was here,

because a week for this worker was 16 hours, eight

Scott(2) 31 16/3/93

of which were worked on Wednesday and eight of

which were worked on Friday. So when one

undertakes the inquiry required by section 69 in

the relevant section the reference to "week" is

indeed, for this worker, 16 hours.

McHUGH J: But once you accept that you get compensated for

incapacity and not for lost wages, it is easy to

accept Mr Kable's construction. It may be in his

case it works to his benefit, and perhaps even on

one view unfairly or unjustly to the insurer, but

it is certainly consistent with the philosophy that

you get compensated for incapacity and not for lost

wages.

MR ABBOTT:	I respectfully agree with that, but the method by which our Act proceeds to do that looks to the
past and not to the future; that is, the man was
working 16 hours a week, not 38 at the time of the
incident, and there is no provision in our Act by which the amount of a weekly payment may be
increased by reference to circumstances arising after the incident except section 69(3) which
refers to "the ordinary time rate of·pay" for any
work in which the worker was engaged.
McHUGH J:	Mr Abbott, is there any standard hours'

legislation in this State, that is, a 40 hour week,

a 38 hour week or anything of that nature, or is it

all done by way of awards?

MR ABBOTT:  My understanding, Your Honour, is that it is all

done by way of awards. I do not think there is a

general Act which prescribes anything in

particular, indeed, and I think it would not be in

dispute that there are contracts of employment in

this State in the strict sense of that term that

are not governed by awards.

DAWSON J: There is something to be said, if this is right,

for Mr Kable's point of view, if the worker -and

correct me if I am wrong - had another job or

another three jobs during the week. He could not

recover compensation from the other employers

because he was injured in the employ of one

employer, and yet he would lose his week's
remuneration made up of remuneration from different

employers.

MR ABBOTT:	Yes, I respectfully agree with that.
McHUGH J:	No, you would not accept that, would you?

MR ABBOTT: Well, it is picked up -

Scott(2) 32 16/3/93

McHUGH J:	Would you not say in his case you would work out his average weekly earnings, and if that is higher
he comes under subparagraph - - -
MR ABBOTT:	Yes, Your Honour, that is what I was going -

DAWSON J: But I do not know - can you take the average

weekly earnings with other employers?

MR ABBOTT: Yes, Your Honour, you can, particularly where

the shortness of the time of the employment is such

that there are difficulties, then the legislation

facilitates that very process and I did refer to

those provisions a moment ago under section 70.

DAWSON J: That does not tell in favour of Mr Kable's

argument then.

MR ABBOTT:  No, Your Honour. I did not mean to make a

concession, Your Honour, and I withdraw it if I

did.

MR BRENNAN: 

Mr Abbott, I am a little puzzled - you said the

ordinary time rate of pay at the time of the
incident, but it is not the time of the incident,

is it? It is the time immediately before the

period of incapacity.

MR ABBOTT:  Yes, Your Honour. I did say earlier in my

submissions that strictly that is correct. Often

it will be that the incapacity and the incident

occur on the same date, and I was simply addressing

that as a matter of convenience. But Your Honour

is quite right, with respect, that it is the date

of the incapacity which is the material date.

BRENNAN J:  When one contemplates that the incapacity might supervene upon an injury after a lapse of some

time, it does rather indicate that the whole
purpose of 69 is to compensate for loss of

capacity, does it not?

MR ABBOTT:  I have no difficulty with that proposition,

Your Honour and, indeed, the Act is intended to

provide for, as it were, full compensation as at

the date of the incapacity, but none the less it

looks prior to rather than after that date for the

purposes of calculating the amount to be paid.

McHUGH J: But does not point that Justice Brennan just made

tell very heavily against you? Take this case:	a
worker is injured;	he is partially incapacitated,

and he then works perhaps on the basis of only

20 hours a week, or 10 hours a week. While he is

partially incapacitated he is being compensated

under (b) but, on your theory, the moment he

becomes totally incapacitated he is compensated

Scott(2) 33 16/3/93

only at the rate of the actual hours he was working

immediately before the period of incapacity, even

though at the time of the injury he might have been

on 38 hours a week.

MR ABBOTT:	Yes, but in that circumstance the provisions in relation to partial incapacity may well be called
in aid by the worker, and I am just trying to think
how that may work in the present circumstances. If
he had been on partial incapacity for a long period
time~ I would like to give that some
consideration, Your Honour, because the partial incapacity provisions work in a significantly
different way to the provisions for total
incapacity to the extent that they can deem a
worker who is partially incapacitated to be totally
incapacitated in the manner that has been referred to by my learned friend, Mr Kable.
McHUGH J:	I do not know what the position is here in

Tasmania, but for example, it is common enough in

New South Wales to have what employers like to call

sheltered workshops in which a partially

incapacitated worker might work for 15, 20 hours a

week and then ultimately he has to go off totally

incapacitated.

MR ABBOTT:  Yes, my understanding is that generally that

applies here as well. The New South Wales Act, I

did look at it for the purposes of submissions in relation to the meaning of our section because as

Your Honour is no doubt aware, the section makes it
very clear what is contended here, that is, a

week's work is to be one week's work. I had handed

to the Court a copy of section 42 of that Act which

makes that plain as part of a submission in my
written submissions the substance of which is that

so far as other legislation around the country is

relevant to the present purpose, and also in New

Zealand, where the legislature means that a

part-time worker is to be treated as a full-time

worker when the averaging process is undertaken, or
when the rate is determined more accurately, it

says so by specific words.

The New South Wales provision, of course,

contains a safeguard which, for practical purposes,
disentitles the worker to recover at the full rate
if his average weekly earnings are less, and

limited to average weekly earnings. I am sure

Your Honour Justice McHugh will be more familiar

with that than I, but that seems to be the

substance of it.

In New Zealand, so far as I am aware, there is

a provision which does not exist in any other

legislation in the Commonwealth under which a

Scott(2) 34 16/3/93

part-time worker would be paid according to a full week's earnings in the manner contended for by the

appellants in this appeal. I have provided the

Court with a copy of the relevant New Zealand

legislation. The relevant section is section 15,

and it stands in sharp distinction to the drafting
of the section presently in issue. That does not
take the case very far, of course, but I put those

cases to the Court as an illustration of how

legislation may be clear as to this aspect of the

matter.

TOOHEY J: But ordinarily, Mr Abbott, the sequence would be

total incapacity followed by partial incapacity.	I
suppose it is possible to imagine the situation with an accident followed by partial incapacity
with total incapacity supervening later.

MR ABBOTT:  Yes.

TOOHEY J: In that event, I am not sure how you identify for

the purposes of paragraph (a) the work in which he

was engaged immediately before the period of

incapacity, because that is talking about the

period of total incapacity. Fortunately, that is

perhaps a problem we do not have to worry about.

MR ABBOTT:  No, although it may be one answer to the

question that was posed a little earlier by

Justice McHugh, because it appears that there may

well be in that circumstance an extreme difficulty

in applying that part of the definition at all.	It
may well be that in that circumstance it is only

average weekly earnings that is relevant, and which

will determine the quantum of the weekly payment

made to the worker.

BRENNAN J:  Mr Abbott, is there any work for

subparagraph (ii) to do, except in the case of a

worker who was working part time?

MR ABBOTT:  I think carefully about that, Your Honour,

because in general the answer would be no, in my

respectful submission, but it may well be that it

would apply in some circumstances, for instance
where - I take the example of an award specifying

38 hours per week and the parties, for instance,

determining between themselves that more hours

would be worked for a sum certain which is itself independent of the award. Now that must occur on

some occasions. Now, if that had occurred just

prior to the incident, it may well be that worker

would be able to rely upon subparagraph (ii) and

obtain weekly payments in excess of the amounts

that would be paid to the worker as average weekly

earnings.

Scott(2) 35 16/3/93

BRENNAN J: At least so far as employees under an award are

concerned, the only occasion for (ii) to have any

work to do would be in case of a part time worker,

would it not?

MR ABBOTT:  I hold back from conceding that altogether,

Your Honour, because it may well be that even in

that circumstance, depending on the construction of
the award itself, there might be a circumstance in

which that limb could be relied upon by a worker to

obtain a larger weekly payment.	I cannot think of
one in an ordinary case.	It may well be that where

the ordinary rates are increased, it is of some

relevance; that is under a different section, of

course. It is hard to see how it could be of

direct relevance in the first instance.

McHUGH J: This section 69, indeed the whole Act, is very

artificial, Mr Abbott. I mean, take this very

case; no doubt this worker has got to rely on the

ordinary time rate of pay, because his average

weekly earnings over the previous 12 months is

lower than that particular figure - - -

MR ABBOTT:  One assumes so, Your Honour, yes.

McHUGH J: One assumes so. But, notwithstanding the fact

that he has only worked 16 hours for this employer,

if he had been doing that for, say, a month before

he was injured, but his average weekly earnings

over the previous years were $1000 a week, then the

employer has got to pay at a rate of $1000.

MR ABBOTT:  Yes, Your Honour, there is no doubt about that.

But, never the less -

McHUGH J: That seems to me to provide a fairly clear answer

to what Mr Justice Wright said about the rate would

be substantially higher and it could be expected

there would be an action for negligence.

MR ABBOTT: There is some difficulty with His Honour

Mr Justice Wright's view about negligence,

Your Honour, and I would, with respect, place no

reliance on what His Honour says about common law

damages cases. Other than that I do adopt

His Honour's reasons, but there is some difficulty

with that, Your Honour. If certain assumptions are

made, His Honour is correct and not otherwise.

In the example just put by Your Honour, it

would never the less be in a case that the capacity
for work had been exercised by the worker prior to

the incident and had yielded to him that amount of

income pursuant to which he would have his

entitlement under the Act. So, to harken back to

my central submission to the Court, it does look to

Scott(2) 36 16/3/93

the past and it tries to determine a fair figure,

if I can use a general term, by reference to the

past: firstly, by way of average weekly earnings;

secondly, by way of the ordinary time rate of pay

at the date of the incident. Now, I cannot really

put it higher than that in the sense of, that is

the general construction of the Act. We do say

that, reading section 69(l)(a), the inquiry

required is to determine:

weekly payments equal to -

and I leave out subparagraph (i).

(ii)   the ordinary time rate of pay of the

worker as expressed by reference to a

week -

and I leave out the brackets. The ordinary time

rate of pay, being a rate, must be multiplied by

something in order to yield a weekly figure and it

must be remembered that a weekly payment is that

which must be derived. The proper construction of

that section, we say, is that "week" must refer to

the week of the worker, because "the worker"

qualifies the words in brackets.	And after the
brackets it says:

for the work in which he was engaged

immediately before the period of

incapacity.

So it is wholly subjective, as is the philosophical

inquiry required under the Act in a general way,

namely, the determination of the weekly sum which

will fairly compensate the worker in respect of the

exercise by him of his capacity for work at a date

prior to the date of the incapacity.

As to my learned friend's submissions about

section 69(10), we say that the principle therein

set out is referred to as a general principle.	The
words of the Act are:

the Commissioner shall have regard to the

principle that a worker should not receive,

during a period of incapacity, weekly payments

greater than the payments the worker would

have received if he had worked in his usual

employment during that period.

Now, my learned friend says this is limited to the consideration by the Commissioner of an application

to reduce, one would assume, payments to that sum.

It does not appear on its face to be so limited.

These sections, as my learned friend rightly points out, were inserted - when the 1927 Act was replaced

Scott(2) 37 16/3/93

by the 1988 Act, those sections were inserted, and

there is a reference there to the principle. So we

refute the suggestion that it is not of general application and that, indeed, it may be used to

inform the construction of the earlier sections -

of the section of which it forms a part.

It may be noted that the employer involved in

this litigation is listed as the only respondent in

Tasmania to the Tanning Industry Award - this appears. at page 80 of the appeal book - and it

appears from the evidence that there was only one

other casual worker employed by Cuthbertson

Brothers at any material time and the evidence is

that he was employed at the same time as the

present appellant, but that by the time the case

got to the Commissioner he was not so employed.

Now that is where the evidence starts and stops,

Your Honour, so I cannot take it further as to when

he left or whether he was doing exactly the same
work and so forth.

It is hard to see how the principle in

section 69(10) could be applied in the circumstance
where the particular employer has only one worker,

the earnings of whom are in issue because, unlike
the averaging provisions contained in

section 70(2), the section does not permit, on its

face, reference to any other employer. The point I

make about this is that it would be anomalous if

the earnings of other employees could be considered

under section 70 and they could not be considered

by a strict application of the provisions to

circumstances in which the employer had only one

worker, who was a casual worker, and who could be compared with a person claiming compensation. It

does not take the case very far, Your Honours, but

I simply note that that is a factual circumstance

that needs to be taken into consideration in

considering the construction of the section.

So far as ambiguities in statutes are

concerned, we submit that the meaning for which we

contend is the proper construction of the section

and that the process of construing the Act requires

that the plain words be considered before any

principle concerning ambiguity is applied. That

proposition, we submit, is well established by

authority. My learned friend, I believe, has

handed to the Court the decision in Wilson v

Wilson's Tileworks, in which Mr Justice Fullagar

made the statement relied upon by my learned

friend, the substance of which is that, in a

beneficial statute of this nature an ambiguity is

to be construed in favour of the worker. It is

significant to note, in our submission, that

Mr Justice Fullagar was in dissent in that case and

Scott(2) 38 16/3/93

that the Chief Justice Mr Justice Dixon and

Mr Justice Menzies both approached the task of

construing what admittedly in that case was a very

difficult question of construction by looking at

the Act itself, and they found themselves able to

resolve what, on the face of it, was a direct

conflict between two provisions of the legislation,

without reference to the principle that was

referred to by Mr Justice Fullagar, and in that case.

Likewise, in Catlow, there was a difficult

question of construction there, but the Court was

able to resolve that difficult question by

reference to the statute itself. We say in

relation to Catlow that it is distinguishable from

the present circumstances because there the

legislation was cast in very different terms and

the definition in the legislation of a full time

worker referred specifically to the normal hours

worked by a full time worker under an industrial

award or agreement. We say that the passage from

the judgment of Mr Justice McHugh that was read by

my learned friend, Mr Kable, is consistent with our

construction of our Act, because we would say that

the "week" here is the week of the worker in the

sense of being 16 hours as agreed between the

worker and his employer; that being possible under

the award. Now, I do not take that further, save

to say that the legislation, of course, in Victoria is markedly different to the present legislation in

the sense that it contemplates at least part time

workers and there is a specific provision which

deals with the possibility of the hours being less than that prescribed under the industrial award or

agreement.

judgment of Mr Justice Gibbs in Kezich for the In the present case we would rely on the

proposition that reference to extrinsic material to
construe the statute, as distinct from to

determine, for instance, the case after the

construction has been determined, is impermissible

and remains impermissible. There is no reference

in our Act at all to industrial awards or

agreements, and certainly there is no reference in

these provisions that fall for consideration

presently to industrial awards or agreements.	So
we would respectfully rely on what was said by

Mr Justice Gibbs in that case. If it please the

Court, those are the submissions for the respondent.

MASON CJ:	Thank you, Mr Abbott.	Mr Kable.
Scott(2)	39	16/3/93
MR KABLE:	May it please, Your Honours.	Firstly I submit

that if the meaning for which my learned friend

contends is applied, then a difficulty will occur

in identifying which week is the week to use, and

that will mean that there is uncertainty with

respect to which week is to be applied, and that

will mean that inevitably there will be significant

litigation because of that uncertainty; we will not

be able to ascertain which week. That has the

potential - the Workers Compensation Commissioner said himself that would create a lottery, at page

91, and that has the potential to be unfair and

cause unnecessary litigation.

The words "the worker" in section 69 qualify

ordinary time rate of pay, and not the words as

expressed by reference to a week.

McHUGH J:	How do you determine "a week"?
MR KABLE:	By reference to the award, if there is one, or the contract of employment if there is not.

McHUGH J: That seems to me to get you into immediate

difficulties.

MR KABLE:  I would submit that the approach His Honour

Mr Justice Zeeman took in White's case is correct

where, if you go to "a week", the legislation is

predicated on the basis of the award system. Now

that would mean that there may be occasions, and in

fact in White's case there was - there was an

argument that the contract superceded the award,

because it was even more generous than the award,

but His Honour found it was not. So my submission

is you determine a week be reference to the award

or the contract and you use exactly the process

that Justice Zeeman did at page 13 of White's case.

McHUGH J: But you may have one award which says 35 hour

week, another one 38 hour week and now in these

days of restructuring, that people can enter into

industrial agreements and so on, one may have a

15 hour week. Do you say it is 5 cents an hour by

15 hours for the week?

MR KABLE:  I say that you determine the ordinary time rate

of pay and then you look at the contract as to what "a week" is, not the worker's week. As Your Honour

said in Catlow, this legislation, when enacted, was

predicated on the existence of an award system.

McHUGH J:  The world has moved on since 1989. The award

system dominated in those days; it does not now.

MR KABLE:  My answer to Your Honour is that when this Act

was enacted in 1988, certainly that was an accurate

Scott(2) 40 16/3/93

observation and that was the time at which

Your Honour penned Your Honour's judgment. If

there have been subsequent changes, they are not

going to change the interpretation of that section

and if it is seen that that section creates an

injustice for those reasons, then the remedy lies

elsewhere.

McHUGH J: But supposing there is just one contract of

employment under which the person is engaged for

15 hours a week, do you say 10 cents an hour for

15 hours, that is his ordinary time rate of pay as

expressed by reference to "a week"? It is more

likely to be a "her" when you are talking about it

in those circumstances.

MR KABLE:  I just did not hear Your Honour, I am sorry.

McHUGH J: If you have got a contract of employment to clean

a house, employed to do it for 15 hours a week, $1

an hour, does that mean the ordinary time rate of

pay of that worker as expressed by reference to a

week is $15?

MR KABLE:  If there is no award and if the contract is not

contrary to an award, then you may have to go to

that stage. And that is the important matter that

was mentioned by the learned primary judge in his

judgment and in White's case, that provided any

agreement is not contrary to an award. Now the

various permutations in the various States, of

course, as Your Honour is well aware, are very

different as to whether there is a bottom line even

in the restructuring in the various matters to

which Your Honour refers. That is the best answer

I can give Your Honour.

My friend concludes his written submissions

with some examples which are designed to disclose
"unfairness" to the employer, the insurer.	Can I

just cite two the other way, because I submit it is

important: firstly, someone working casual part

time, but has a full time job starting the next

day, and they are injured with a total destruction

of earning capacity and they are about to embark,

the only way that person can be compensated, if my

friend is correct, is by reference to the part

time; we submit that is an example that assists us.

A casual employee injured in the first weeks and

their hours vary from week to week, but cannot be

ascertained and they are likely to improve, and of

course, the evidence in this case was, and it is at

page 10 and I do not pause to read it, but the

agreed fact was that this man was to work 16 hours;

not, as I said earlier, no more or no less, and the

sworn evidence which the Commissioner acted on was

Scott(2) 41 16/3/93

that there was a potential for increased number of

hours.

White's case provides an example of the

employer, in fact, being advantaged in consequence

of the interpretation that we put forward. As to

average, the section 70 "relates solely to average

weekly earnings" does not apply to ordinary time

rates of pay and as such becomes relevant to people

who are partially incapacitated for work until any

incapacity for work is total.

BRENNAN J:  Mr Kable, say there are two people who did

cleaning work and one does it for an employer who

is not covered by an award; one does it for an

employer who is. They both work the same number of

hours, but the award provides not only for part

time, but for full time workers. Does that mean

the employee who is employed under the award is

better off than the employee who is not employed

under the award?

MR KABLE:  The answer is that the legislation is silent as

to part time or casual. The task of interpreting

section 69(a)(ii) requires you to look at the work.

On the interpretation that we put you look at by

reference to "a week". Provided that week is not

inconsistent with an award it may be that that

person is treated differently. It is not necessary

BRENNAN J:	The one who is not under the award.
MR KABLE:	Not under the award, yes.
BRENNAN J:	And the reason why the one who is under the

award is better off is because that award also

covers full time employees who have set number of
hours.	I am thinking, for example, of a hospital
award.

MR KABLE:  Yes. Well no, the reason why that person may be

described as "would be better off" is because there

is in respect of their employment an ordinary time

rate of pay which can be ascertained by reference

to "a week", not their week, and that that is the

imperative.

BRENNAN J: That is back to where I started with, I think,

on this - - -

MR KABLE:  I am sorry.

BRENNAN J: But if we take the case of a lady who does

cleaning of a house for somebody not under an

award, she works say, 8 hours a week, and she gets,

let us say, $30 an hour. Then you have got

Scott(2) 42 16/3/93

somebody who does the same sort of work in a

hospital; they work part time, they get casual
rates which turn out to be $30 an hour, they do 8

hours there. So they are both receiving the same

amount per week. But it so happens that the

hospital award provides for full time employees as

well, who get only $25 an hour for a 38 hour week.

On your argument, the one who is employed in the

hospital under the award would be better off,

because that award provides for cleaning work to be

done by full time employees over 38 hours.

MR KABLE:  On the assumption there was no award which

covered the person working in the private

circumstances, that would follow, on that

assumption.

BRENNAN J: Yes.

MR KABLE:  One of Your Honours - and I am sorry, I do not

remember which - raised the question of concurrent

contracts of service. They are covered with

respect to average weekly earnings, but there is no reference anywhere with respect to this second limb

of section 69. And in section 70, the question of

concurrent contracts of service is dealt with in

section 70(2)(c). Now that is relevant as far as

average weekly earnings are concerned, but can have

no part to play in respect of ordinary time rate of

pay. My argument is not dependent upon that; it is

to paint the picture or to show that the

legislation deals with that issue where average

weekly earnings is in issue. There are no other

matters that I would seek to - - -

McHUGH J: Well, could I just ask you this one thing and it

is about partial incapacity. On your argument, a

worker who is totally incapacitated, that is a
worker in the circumstances of your client who is

totally incapacitated, is a lot better off than if

that worker is say, 90, per cent partially

incapacitated, because in the case of partial

incapacity, average weekly earnings is the ceiling,

is it not?

MR KABLE: That is subject, Your Honour, to

subsection (4)(c) and that is why I raised that

section to Your Honours, because the 90 per cent

person, if we are going to deal with a precise

example, has a greater likelihood of bringing him

or herself within 69(4)(c), than does the 15 per

cent incapacitated. And section 69(4)(c) creates

the opportunity for that person to have that

90 per cent partial incapacity characterized as a

total incapacity thus reaching that result. And

that was the reason why earlier in my argument I

sought to emphasize that the Act recognize it. If

Scott(2) 43 16/3/93

there were no difference in the manner of treatment

between those totally and partially incapacitated

for work, there would be no practical benefit to a

person utilizing section 69(4)(c), because

section 69(b) would apply, if they were able to

earn nothing so would flow their remedy, but

section 69(4)(c) recognizes that those whose

earning capacity is totally destroyed are treated

more advantageously and therefore creates the

opportunity of a partially incapacitated person to

bring themselves within that advantageous area of

treatment, and I submit, if I did not do so with

clarity before, that the existence and operation of

section 69(4)(c) supports the contentions that I

put for those reasons. They are the matters, may

it please Your Honours, that I would raise by way

of reply.

MASON CJ:  Thank you, Mr Kable. The Court will consider its

decision in this case.

AT 4.33 PM THE MATTER WAS ADJOURNED SINE DIE

Scott(2) 44 16/3/93