Scott v Sun Alliance Australia Limited

[1992] HCATrans 244

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No H2 of 1992

B e t w e e n -

NIGEL LIONEL SCOTT

Applicant

and

SUN ALLIANCE AUSTRALIA LIMITED

First Respondent

and

CUTHBERTSON BROTHERS PTY LTD

Second Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 1992, AT 9.37 AM

Copyright in the High Court of Australia

Scott 1 28/8/92

MR H.J. KABLE:  May it please the Court, I appear for the

applicant.	(instructed by Wallace Wilkinson &
Webster)

MR A.J. ABBOTT:	If it please Your Honour, 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 Your Honour, I have reduced a

number of the submissions I propose to make to

writing and hand those documents to Your Honour's

clerk, and would seek to amplify the various

paragraphs therein.

MASON CJ:  I always think, Mr Kable, when the first argument

put to the Court in support of the grant of an
application for special leave is that it provides
the Court with the opportunity for doing something,
that there are not any strong grounds to support

the application.

MR KABLE: There are, Your Honour.

MASON CJ: Yes.

MR KABLE:	May it please the Court, this application for special leave relates to the interpretation of
section 69(l)(a)(ii) of the Tasmanian Workers Compensation Act and, in particular - - -

MASON CJ:  We are familiar with the question. I think you

might devote your efforts initially to persuading

us that the Full Court was wrong.

MR KABLE:  Yes, may it please Your Honour. Can I take

Your Honours to the judgment of the Full Court and

to the affidavit commencing at page 43 of the
application book.	The phrase:

ordinary time rate of pay of the worker (as

expressed by reference to a week)

appears in section 69(l)(a)(ii) prior to the words

"whichever is the greater". That would be clear to

the Court from a reading of all the judgments

contained in the application book.

The scheme of the Act is to compensate the

worker as beneficially as appropriate in respect of a total incapacity for work. Section 69(l)(a) only deals with total incapacity for work, not with

partial incapacity for work, and that is an

important matter to bear in mind when having regard

Scott 2 28/8/92

to the reasoning of the Full Court and the basis

upon which it approached its task.

The Full Court, in approaching its task, did not extract any principles from either Kezich's

case, referred to in the affidavit, or Catlow's
case, referred to in the affidavit, both of which

are decisions of this Court and to which I will

refer in a moment.

His Honour Mr Justice Underwood in the

Full Court accepted that the judgment of His Honour

Mr Justice Zeeman in White's case - which was the

case preceding the judgment in the present case,

and which His Honour Mr Justice Zeeman followed in the present case - His Honour Mr Justice Underwood

accepted that White's case was correctly decided

and then proceeded at pages 25, 26 and 27 of the

application book, having accepted that White's case

was correctly decided in which His Honour held that

the phrase "ordinary time rate of pay of the worker

(as expressed by reference to a week)" related to

the award week, that is an ordinary week comprising

the ordinary number of hours worked by a worker in

the industry, an objective test rather than a

subjective test.

His Honour Mr Justice Underwood said that he

agreed with Mr Justice Zeeman in White's case.

However, His Honour then found that in the

particular case, that is Scott's case which we are

now dealing with, the principle in White's case had

no application. His Honour found that by

embellishing the agreed facts and evidence found at

first instance and not by dealing with any

principles which might have been extracted from

Kezich's case or Catlow's case.

MASON CJ: What do you mean by "embellishing" the findings

of fact made at first instance?

MR KABLE:  Can I take Your Honours to pages 3 and 4 of the application book where there are a number of agreed

findings of fact which were agreed at the hearing before the Workers Compensation Commissioner and,

in particular, fact two. Fact two notes that:

It was agreed that the worker would work

sixteen hours per week for the employer.

What His Honour.Mr Justice Underwood has done is added the words "and no more". The agreed facts do

not contain in any place an agreement that at all material times the extent of the work would be 16

hours only. It was agreed he would work 16 and the

learned Commissioner at first instance found that

there was an expectation that that number might

Scott 28/8/92

increase. Their Honours Mr Justice Zeeman and

Mr Justice Underwood, when referring to the agreed

facts, interpreted them as meaning 16 only and in

the paragraph appearing at line 20, at page 27,

His Honour notes that:

The respondent's week, within the meaning of

s 69(l)(a)(ii) was fixed by an express term of the contract of service namely, sixteen hours,
to be worked eight hours on each Wednesday and

eight hours on each Friday.

MASON CJ: So he was working under an agreement which

provided for 16 hours a week?

MR KABLE:  But not an agreement, according to the agreed

facts, which was 16 hours a week only, and the

distinction being that that number of hours may or

may not have increased depending on contingencies
thereafter. This man had been at work for two days

when this incident happened. The crux of the

argument, I put to the Court, is that where you

have a part-time or casual employee who is working

for a finite period of time, one or two days, and

they are totally incapacitated for work, then is
there compensation to relate to the incapacity for

work which prohibits them seeking further work and

in fact working to any greater extent, or is it

limited to the time in which they were precisely

engaged - but not excluding any additional work -

at the time of the incident.

MASON CJ:  But why does it make any difference whether the

agreement was 16 hours only or it was an agreement

for 16 hours?

MR KABLE:  Because His Honour Mr Justice Underwood finds

that the award in the relevant case prescribes that

the ordinary hours of work should be an average of

38 but that there was an express contract in this

case which meant that the award did not apply,

whereas the learned Commissioner, sitting in the

Workers Compensation Commission, had held that

according to the agreed facts the agreement was for

16 hours, there may or may not have been an

increase as time went on, and that the consequence

of that, when one has regard to the words "ordinary

time rate of pay" as expressed by reference to "a

week" rather than "the week" or "the normal week",

created an entitlement to be compensated by

reference to an incapacity for a week which was in

fact the incapacity suffered by the worker.

TOOHEY J: Well, how do you suggest paragraph 2 should be

read, Mr Kable?

Scott 4 28/8/92

MR KABLE:  I suggest that paragraph 2 - paragraph 2 of the

agreed statement of facts?

TOOHEY J: Yes. You are inviting us to read it as if it

read "it was agreed that the worker would work not

less than 16 hours per week", are you not?

MR KABLE: Sorry, Your Honour, no, I am not. I am inviting

you to read it as it is: that it was agreed that

the worker would work 16 hours per week.	If I then
take you to page 4 you will find that the

Commissioner, whose responsibility it was to

determine the facts in the case, notes at the

bottom, at line 26:

Perhaps I should stress at the outset my

conclusion that the worker was engaged as a casual worker according to the terms of the

Award. I felt that, at times during the

presentation of his argument, counsel for the insurer was slipping into the assumption that

the worker was specifically employed to work a

16 hour week as a term of his contract of

employment. That is not so according to the

evidence as I heard it. The worker was

employed as a casual labourer. The

expectation of the employer at the time of

engagement was that work for a 16 hour week

would be available with the hope of increased

hours in the future.

So the agreed facts do not detract from the

evidence heard. They document that at the time of

engagement there was to be 16 hours, but the

evidence was there was to be an expectation.	It is
not an agreed fact detracting from that. The Workers Compensation Commissioner was entirely

correct in both documenting the agreed fact and

noting that the potential for greater work existed.

Now, why I submit that that is relevant,

Your Honour, is that the Tasmanian Act, which says	that compensation can be calculated on alternative
bases, average weekly earnings or the ordinary time rate of pay of the worker", predicates that it is the greater of the two which the worker will
receive. So that if a worker was engaged in
limited work, such that average weekly earnings
would be an insignificant amount, and the ordinary
time rate of pay of the worker as expressed by
reference to a week were greater, then it is the
greater to which the worker would be entitled. Many workers compensation statutes in fact require
that it is the lesser of the alternatives which is
to be taken into account, and the submission I make
is that those words "whichever the greater" are of
importance, because they relate solely to totally

Scott 5 28/8/92

incapacitated people, not to partially

incapacitated people.

TOOHEY J:  On that argument, the worker would be placed in

the same position so far as compensation for total

incapacity if he were engaged to work for 16 hours

or for 40 hours?

MR KABLE: In terms of incapacity, yes.

TOOHEY J: In terms of total incapacity.

MR KABLE:  Yes, Your Honour, and it is that - so to take the

example of somebody who obtained this job for two
days and the next week was to start work in a

permanent employment for a 40 hour week and as a

result of the work induced injury their capacity

for work was destroyed, they would be compensated

on the basis of the destroyed capacity for work.

TOOHEY J: But I thought your argument went further than

that. If you had the situation of a worker working

16 hours a week over whatever period of time you

like, given total incapacity, the measure of

compensation would be by reference to the ordinary

rate of pay for the week, not the earnings of the

worker.

MR KABLE: That is correct. That is what His Honour the

trial judge held, and that is the submission I

make, because it is the destruction of the capacity

for work which creates the entitlement, and the legislation is silent as to casual or part-time

workers. It covers persons in concurrent contracts

of service and it covers other persons. So the

principle involved is whether, if a person is
working part time or casually, and they have a

~otal destruction of working capacity as a result of a work-caused injury, the obligation for their sustenance comes pursuant to the Workers

Compensation Act or, as His Honour

Mr Justice Wright said, the Social Security

provisions.

MASON CJ:  I follow that argument, but I cannot see why you

are concerned to challenge what

Mr Justice Underwood did in relation to the findings of fact, because it seems to me that on

the argument you present it would not really matter

whether the agreement was an agreement to work

16 hours a week or an agreement to work not more

than 16 hours per week.

MR KABLE:  If the agreement was such that it ousted the

provisions of the award, then - if it did not oust the provisions of the award then I entirely concur with Your Honour's observation, and because the

Scott 28/8/92

majority of cases and because the legislation is

enacted with the knowledge that there is an award

system, then that is why I submit His Honour is in

error because His Honour has not considered the

operation of the award in the circumstances and has

misinterpreted the clause, because the clause -

TOOHEY J: But what do you mean by "ousting the award",

Mr Kahle?

MR KABLE: Well, the award in the rel~vant case, as is

disclosed in the decisions, discloses that 38 hours

is the normal week and identifies the hours during

which those 38 hours will be worked. It then

provides for additional payments for work performed

outside those hours, thus the ordinary time rate of

pay, the argument runs, is for the 38 hours. If

there were some capacity to agree outside the

award, and I am not suggesting there is, then that

might mean that the phrase "ordinary time rate of pay of the worker (as expressed by reference to a week)", not "the week", might in some way be dealt

with separately.

MASON CJ: But we do not have any findings that would enable

us to determine whether or not the agreement took

the applicant outside the award.

MR KABLE:	That is why I answered Your Honour initially by saying that the agreed facts and the findings of
fact made by the Commissioner are not in dispute,
cannot be in dispute under the law of Tasmania because there is no power to appeal against any
findings of fact, but that when this matter came
before His Honour Mr Justice Zeeman there was the
addition of the words I mentioned in parentheses to
the agreed facts. There is no need - the facts
were agreed or found and according to section 63 of
the Workers Compensation Act of Tasmania which only
creates an opportunity to appeal in point of law,
cannot be the subject of an appeal. The question
then becomes: what is the legal principle to apply,
and that is where, in my submission, the judgments
in Catlow disclose that - - -

MASON CJ: Could I ask you this question: the Commissioner

said in his reasons that the applicant was employed

pursuant to the provisions of the award.

MR KABLE:  Yes.

MASON CJ: Now, was the case thereafter argued in the

supreme court on the footing that the applicant's

employment was covered by the award?

MR KABLE:	Yes, but - - -
Scott	28/8/92
MA.SON CJ: That was common ground?
MR KABLE:	Yes, I am instructed it was, Your Honour. And

the trial judge - that is perhaps not correct. The

judge at first instance commented in his judgment

as to what His Honour regarded as the inelegantly

drawn facts, but I am just submitting that that

becomes irrelevant because of the original findings

of fact. That is why I raised that matter. And

what I was proposing to do in answer to Your Honour

the Chief Justice's first question, was to take

Your Honours to Catlow and take Your Honours to

Kezich to seek to persuade the Court that an

application for a consideration of those cases

discloses that the reasoning of each of the two

majority members of the Full Court who have

produced reasons for their decision is not in

accordance with those cases. That must be the crux

of my argument as to why the Full Court was wrong.

TOOHEY J: Can I just ask you this question before you do	that, Mr Kable. On your argument, is the result
that at least up to an engagement for 38 hours a week the measure of compensation for total incapacity is the same for any worker employed for one or more hours up to 38 hours a week?

MR KABLE: Yes, pursuant to (l)(a)(ii), bearing in mind

there are two bases upon which it can be

calculated. Yes, that is my argument, that where

you have a - that the phrase "ordinary time rate of

pay of the worker (as expressed by reference to a

week)" rather than "as expressed by reference to

his normal hours", which was the phrase used in

Catlow, or the phrase used in Kezich, that that is

a clearly objective - posits an objective test and

calculation rather than to examine what the worker

has done himself. Now, if it were "whichever were

the lesser", the issue would not arise.

Perhaps if I can refer the Court firstly to

Kezich. That is referred to at 131 CLR 363. It

was a workers compensation case arising from an

appeal in Western Australia and in that case the

Court - the phrase under consideration was

"ordinary wage for ordinary hours he would have

worked", so the legislation made it clear that the

yardstick to which reference should be had was the

involvement of the particular worker in the

utilization of his skills. I refer Your Honour the

Chief Justice to the penultimate paragraph of

Your Honour's judgment at page 369 where, referring

to the decision Your Honour made, you observed:

In reaching this conclusion I am

influenced also by the fact that cl 2 refers

to the amount of the "ordinary wage or salary"

Scott 8 28/8/92

which the worker would have received ...•. It

makes no reference to ordinary rates of pay, a

concept which lies at the foundation of the

respondent's argument.

Now, in that case there was a person who was

working in excess of what I would call the award

hours and the Court held that the phrase "ordinary

wage for ordinary hours he would have worked"

authorized payments in excess of the payment which

would have resulted from the application of the

award. And it is the distinction that Your Honour

· draws that I submit is important because the

legislature in Tasmania has seen fit to draw that

distinction.

A similar theme was taken up by Your Honour

Justice Dawson, in fact, in Catlow's case, 167 CLR

543, and if I may refer the Court to the last line

of page 555 over to page 556. Catlow's case was

another case which involved somebody who was

working greater than what are award hours, and the

issue for the Court in that case was whether or not

the rate of compensation was to be reflected in

what would have been pay for an award week or

greater. Your Honour, at the bottom of page 555,

notes:

The appellant concedes that the "ordinary

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

And, of course, the word "normal" was the critical word in Catlow.

Taking that passage and applying it to

section 69, my submission would be that the

legislature has said that the ordinary time rate of

pay must be ordinary in relation to "(as expressed

by reference to a week)" rather than "the week" or

"the normal week" .

Justice McHugh, observing as to the same

concession at page 560, observed:

Scott 9 28/8/92

In this Court the appellant conceded that the phrase "the worker's ordinary time rate of

pay" ins 95(1) does not include any overtime

rate. He also conceded that, within the

meaning of s 95(3)(b), an ordinary time rate
of pay was fixed for his work under the terms

of his employment.

And, in the next paragraph:

In construing the terms of s 95(1), it is

helpful to bear in mind that the terms of

employment of most workers are governed by

industrial awards or agreements which provide

for an ordinary time rate of pay for a

standard or ordinary number of hours per week.

That the award system has such a place in

workers compensation legislation is recognized by

Their Honours Justices Brennan and Gaudron and that

becomes important in this case because the

Full Court paid no regard to the difference between a phrase such as that here,"the ordinary time rate of pay of the worker (as expressed by reference to

a week)". The undisputed evidence was that the

award in question created a 38-hour week with

designated hours, created that the hours outside

those times would be remunerated at a greater rate
than those hours, and in fact, if I can refer the

Court to page 4 of the application book,

Your Honours will note that agreed fact 7 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.

So that better answers a question that was posed

earlier.

DAWSON J: But Mr Kable, the difficulty is that with

paragraph (ii), all you get is a rate of pay, so

much per week. That does not carry the whole

distance you want to go, does it?

MR KABLE: Paragraph 2 of the agreed facts?

DAWSON J: No, of section 69(a)(ii).

MR KABLE:  I would submit that what paragraph -

DAWSON J: What I am putting to you is that you have to

apply a rate of pay to a period of time, and it

does not say what the period of time is.

Scott	10	28/8/92
MR KABLE:	No, because you then have to - sorry.	Could I

answer Your Honour this way. Paragraph (ii)

articulates the basis upon which a person is to be

compensated in respect of total incapacity. The

method of calculation is to be found in section 70

which sets out a number of rules as to how one

calculates average weekly earnings.	So there is
legislative assistance as to how -

DAWSON J:	We are not worried about average weekly earnings are we, because - - -
MR KABLE:	No, but there is nothing as to paragraph (ii).

There is no - - -

DAWSON J: All I am putting to you is that paragraph (ii)

enables you to arrive at a rate of pay, but a rate

of pay by itself does not mean anything; you then

have to apply it to a period in order to arrive at

a sum per week.

MR KABLE:  My answer to that, Your Honour, would be that the

words after the words in brackets, that is:

for the work in which he was engaged

immediately before the period of incapacity -

identify the work by reference to which the

ordinary time rate of pay - - -

DAWSON J: Which was two days a week.

MR KABLE:  Well, that depends on the meaning of the words:

(as expressed by reference to a week) -

whether those words mean "his week" or "a week".

DAWSON J:  But all that you can do with "(as expressed by

reference to a week)" is to say that that is a rate

of pay per week, but that does not tell you what

you have got to pay this man.

MR KABLE:  My answer to that is the same as His Honour

Mr Justice Zeeman's was, which is that the phrase

"ordinary time rate of pay of the worker (as

expressed by reference to a week)" is specifically

recognizing that there is an award system, that in

respect of any worker there will be an ordinary

time rate of pay, that where the award applies to the worker that ordinary time rate of pay will be calculated and must be calculated as expressed by

reference to a week, otherwise - - -

DAWSON J: That is right. Well, under the award a worker is

entitled to so much per week, but when you look at

this man, the work in which he was engaged

Scott 11 28/8/92

immediately before the period of incapacity, was

less than a week.

MR KABLE:	The work in which he was engaged was less than a week; the result of the incident was an inhibition
on working for any time at all; and the question
arises whether Parliament intended to fully
compensate a person whose capacity is destroyed for a finite or non-finite time. Otherwise it would -
if the words:

whichever is the greater -

were not there, and we had "average weekly earnings

or ordinary time rate of pay, whichever is the

lesser", then that would predicate that the

Parliament expected those who worked two days a

week to be compensated for a lesser a.mount.	The
phrase:

ordinary time rate of pay of the worker (as

expressed by reference to a week) -

in my submission posits an objective test because

it can be distinguished from the other phrases and

because - if we had "whichever is the lesser" the

issue would not arise, because the average weekly

earnings may or may not be calculable depending on

the shortness of time, but it is always going to be

whichever is the lesser. That is, whichever is the

lesser will be the determining factor. The fact

that Parliament has recognized that there will be

obviously a large number of occasions, rather than

isolated occasions, where you will get more than

your average weekly earnings, in my submission, is

what - that coupled with the objective meaning of

the words when compared to the other sections is

what led Their Honours into error - well, discloses

that Their Honours were in error rather than what

led them into error.

TOOHEY J:  I would have thought your answer to

Justice Dawson might be that paragraph (ii) is not

the starting point of any calculation; it is the

calculation itself, in that the a.mount of payments

for total incapacity, if you go back to

paragraph (a), are:

weekly payments equal to -

subparagraph (ii). In other words, you have to

find the answer within subparagraph (ii) itself,

and that you do so by looking at the ordinary time

rate of pay of the worker for that week, whatever

number of hours the worker happens to work. It is

only if the average weekly earnings exceed that

weekly rate that you then look to average weekly

Scott 12 28/8/92

earnings. I am not saying that is necessarily

right, but that is one way in which it might be

put.

MR KABLE:  No, I am conscious of then difference.

Certainly, Your Honour, I adopt that. But the

point I would make as to what - - -

DAWSON J: But it still does not carry you. What you are

entitled to is weekly payments equal to a rate of

pay, and you have got to apply the rate to

something.

MR KABLE:  I suppose the better answer to Your Honour would be this. In the materials I referred to - - -

TOOHEY J: Better than my answer, Mr Kahle.

MR KABLE: Far be it, Your Honour. Given that I am going to

refer to the unanimous judgments in Steggles v

Vandenberg and Arnotts Biscuits, but not in detail - Your Honour, those two cases which are

referred to in the affidavit are authority for the

proposition, and perhaps I will refer to just one

small passage - - -

MASON CJ: By all means refer us to a short passage, but it

is an application for special leave.

MR KABLE:  Yes, but I am trying to answer Your Honour as

best I can.

MASON CJ: Yes.

MR KABLE:  There is a passage, if you will just bear with me

a moment, which specifically refers to the selling

of labour, and that becomes important. The two

cases I am referring to are both referred to in the

'affidavit and the specific passage that I wish to

refer to is in the Arnotts Snack Products case where, although that case dealt with a partial

incapacity for work - page 177. In the joint	judgment of two of Your Honours and two other
Justices, Your Honours deal with Thompson's case and then, in the paragraph that I refer to:

The "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

the open market, is brought out in the

judgments of the majority.

Now, it is entirely likely that Parliament

recognized that it is the reduction of the ability

Scott 13 28/8/92

to sell his ability as an employee where someone is

totally incapacitated that will warrant them being

compensated at an objective weekly wage.

His Honour Mr Justice Wright in this case puts

it in a nutshell where His Honour says it is

unlikely that Parliament intended to provide

compensation for people who only work two days a

week and that the Department of Social Security's

system is designed and intended to fulfil that

supplementary role. His Honour, to some

significant extent, based his interpretation of the

section on that philosophical observation. My

submission is that nothing could be further - than

correct, that it is the reduction of the ability to

sell.

That is why I submit that if one follows

Your Honours' observations in Kezich, the

principles in Catlow that the phrase there referred

to the 38-hour week, if that was the time in the

case, and did not authorize the payment of greater,

there is no logical reason or reason in principle

when the phrase "ordinary time rate of pay of the

worker (as expressed by reference to a week)"

deliberately does not include any reference

personal to the worker such as "is normal", "is

ordinary", there is no reason at all in principle

why exactly the decisions I have referred to should

not apply, particularly having regard to the total

incapacity for work. That is why I would submit

the decision is wrong.

MASON CJ: There may be a reason in principle, and that is

the inadequacy of the language to bear the

construction that you are trying to place upon it.

It is a very badly expressed provision.

MR KABLE:  Your Honour, I would not limit that criticism to

the provision: we have had trouble with the Act.	I
acknowledge what Your Honour says, and the point I

make in answer to Your Honour is that when compared

to the other provisions which have received

authoritative interpretation in this Court, as

positing an objective test, these words are

distinctly more objective than any phrase using

such words as "the normal working week" or "the
normal earnings". That is the answer that I give

Your Honour as to that proposition. That, however

badly phrased it is, it does not seek to make the

yardstick personal to the worker.

MASON CJ: No, but the trouble is it does not pick up the

notion of ordinary hours of work. In other words,

it does not convert the ordinary time rate of pay

into an amount calculated by reference to the

Scott 14 28/8/92

ordinary hours of work for a week. Now that is the

real difficulty from your point of view.

MR KABLE:  And my answer to that difficulty is that because

the Act is enacted with the knowledge of an award

system, and because that has been recognized by

this Court in many decisions, and because that is a

proper basis to recognize that it is enacted with

that knowledge, that Parliament can be assumed to

know that there are awards. I am not suggesting,

as Mr Justice Wright said, that you can interpret

the words by reference to the award, and would not. They are the reasons why I submit that the decision

is wrong as distinct from the reasoning.	I do not
propose to go through the reasoning.

MASON CJ: No, there is no point in doing that.

MR KABLE: That is canvassed in the affidavits,

Your Honours. But it is primarily on the basis

that the decision cannot stand if appropriate

principles are extracted from Catlow and from

Kezich. They are the submissions I make.

MASON CJ: Thank you, Mr Kable. What do you have to say in

response to this, Mr Abbott?

MR ABBOTT:  In response, Your Honour, we say that it is a

clear case in which the decision of the Full Court is not attended by sufficient doubt to warrant the grant of special leave to appeal by this Court.

MASON CJ:	I do not know how the interpretation of this provision can be described as giving rise to a
clear construction.
MR ABBOTT:	No, Your Honour, but on the facts of the case,

what the Court has before it is the case of a

casual worker who was engaged to work for 16 hours

per week, and the circumstances in which the

Full Court has held that the worker is entitled to

workers compensation in respect of a rate

determined by reference to those hours. We submit,

Your Honour, that that finding by the Full Court is

consistent with the legislation and the scheme of

the legislation and with authority. If it was

otherwise, Your Honour, then as His Honour

Mr Justice Toohey pointed out a few moments ago, if

a worker was employed for one hour per week and the

appellant was correct in his argument, then he

would be entitled to workers compensation as if he
was a full-time worker engaged pursuant to the

award for whatever the award determined to be the applicable hours in that employment, for example,

38 hours per week.

Scott 15 28/8/92

TOOHEY J: But that is the point, is it not, Mr Abbott? The

case does not really turn on the facts at all, does

it? I mean, not on Mr Kable's argument. It is a

sheer question of statutory construction.

MR ABBOTT:  That is so, Your Honour, and we say that

question of statutory construction was resolved

correctly by the Full Court in summary. May I

make one point in relation to the question of
statutory construction: it is simply that the

argument that has been put by the appellant in these proceedings was urged upon this Court in Kezich and was rejected by the Court in that case,

inter alia, because as Your Honour

Mr Justice Mason, as Your Honour then was, pointed

out it contained a serious gap said by Your Honour

to be a "yawning chasm" if you tried to apply it to

casual workers, namely, it would have the result

that a casual worker would be treated for all

purposes as a full-time worker if the reference in

the equivalent section there to ordinary hours was

to be read otherwise than as a reference to the

hours ordinarily worked by the worker concerned.

Now, that yawning chasm in that case was

apparently recognized by counsel who was urging it

upon the Court, and counsel said that the result of

it was that you had to apply ordinary hours in that

context to mean the hours worked by the worker up

to the number of hours that were provided for by

the award. That yawning chasm exists again in this

case, Your Honour, and we say provides a
consideration which leans against the grant by the

Court of special leave to appeal, bearing in mind

that it is for the appellant to show that there are

special circumstances attending the case by reason

of which the leave ought to be granted.

If I could take Your Honours briefly to a

point in Mr Justice Zeeman's decision at first

instance - - -

DAWSON J: Before you go there, Mr Abbott, what work do the

words "as expressed by reference to a week"

perform?

MR ABBOTT:	We say, Your Honour, that they are subjective in the sense that they apply to the worker and refer
to the hours worked by the worker at the time of
the accident in the same manner that the Full Court
has interpreted the provision.

DAWSON J: Well, they cannot mean that, can they? Applying

to this case -

the ordinary time rate of pay of the worker -

Scott 16 28/8/92

well, that was so much an hour, let us say -

(as expressed by reference to a week) - you translate that into a weekly amount, so much

per week -

for the work in which he was engaged -

that is, the work of a labourer presumably -

MR ABBOTT:	Yes, Your Honour.
DAWSON J:	and if you look back he is to be paid -

weekly payments equal to -

so much per week.

MR ABBOTT: Yes, Your Honour. We urge that construction

upon the Court.

DAWSON J: Well, why does that not mean he gets a weekly

payment of so much per week which is calculated by

reference to paragraph (ii)?

MR ABBOTT:  It does so mean, Your Honour.

DAWSON J: Well then, why do you cut it down to the hours?

Where do get the words that cut it down to the hours which he actually worked?

MR ABBOTT:  Because the week for that worker, Your Honour,

is the number of hours that he works during a week.

That is the essence of the matter. In other words,

for this worker his week was 16 hours.	He used to
work on two days of the week.	So in order to

determine what the weekly rate is for this

worker - - -

DAWSON J: But you are not asked to determine the weekly

rate for this worker. You are asked to determine

the ordinary time rate of pay for the work in which

he was engaged as a labourer.

MR ABBOTT:  Yes, Your Honour, which is simply the dollar sum

per hour - - -

DAWSON J: Yes, which you then translate into a weekly sum?

MR ABBOTT: Yes, Your Honour.

DAWSON J: And the weekly payments are to be equal to that

weekly sum.

MR ABBOTT:  Yes, Your Honour. We have no difficulty with

that - - -

Scott 17 28/8/92

DAWSON J: But then you add something from words that do not

appear in the section to cut it down to two days,

not a weekly sum.

MR ABBOTT: Because, Your Honour, the worker does not work

for the whole of the week.

DAWSON J:  I know that, but that does not help you. That is

just a matter of fact.

MR ABBOTT:  Yes, Your Honour, but the section as expressed

by reference to a week - well, it may mean one of two things I dare say, but we urge upon the Court

that it is necessary to look at the week worked by

the worker; in other words, not some notional

week.

If I could perhaps explain it this way,

Your Honour: if a worker is employed on a

enough he will be required to work the number of full-time basis subject to the award, then clearly

hours set forth under the award, say, 38 hours per

week. Determining the ordinary time rate of pay

for that worker expressed by reference to a week is

a relatively easy task, in my submission. It

involves multiplication of the rate prescribed by

the award by the number of hours in the week for

that full-time worker. That will produce a number

which will be the weekly payment to which that
worker is entitled in respect of working for one
week for his employer.

We say, Your Honour, that here the Full Court

has said that the methodology is to be simply that
in relation to casual workers in relation to whom

the award does not prescribe any ordinary hours.

In other words, you cannot look to the award itself

to determine the number of hours required of this

appellant, and one must look to the arrangement

between the employer and the appellant to determine

the number of hours per week required of him in

order for him to be entitled to his remuneration.

TOOHEY J:  But Mr Abbott, on that basis would there be any

difference between the formula for ascertaining

compensation whether the incapacity was total or

partial? Does your argument not come close to

saying that whether the incapacity is total or

partial you look at the earnings of the worker and,

in effect, ascertain compensation by reference to

average weekly earnings?

MR ABBOTT:  I need to go back a step to answer Your Honour's

question. As to partial incapacity, Your Honour,

there is a different process of assessment than the

process for full-time workers, and it is provided

for under other sections of the Act. In summary,

Scott 18 28/8/92

the parties may argue or reach some agreement

either that the partial incapacity is constructive

total incapacity; or alternatively, that the

weekly payments to be made to the worker should be

reduced by reason of the partial incapacity.

TOOHEY J:  I did not really want to get involved in the

detail of it, but just as a matter of language it

seemed that what you were saying tended to equate

paragraph (a)(ii) with paragraph (b) in section 69.

MR ABBOTT:  I would submit that that is not so, Your Honour.

If I could just continue for a moment to develop

that theme. Where a worker is claiming weekly

payments for total incapacity the measure of those
payments is, broadly speaking, the amount he was

earning at the date of the accident. Now, the Act

does not provide a prospective measure for
determining what is to be paid to him in respect of

total incapacity. I say that, Your Honour, because

it is not quite the same in relation to partial

incapacity, because in relation to partial
incapacity there is some consideration

prospectively of the residual capacity for work of

the worker which may exist in the case of a

part-time worker, but is not relevant for the

reasons that I have just discussed.

In other words, Your Honour, in relation to a

worker who is totally incapacitated the task of the

court is to determine his ordinary time rate of pay

at the date of the incident, or his average weekly

earnings for the 12 months preceding the date of

the incident, and the task is not to look forward

to see what he could or may have done in some other

employment had he not been injured.

MASON CJ:- But the ordinary time rate of pay is not enough

of itself. It has to be applied to something, and

the question is whether it is applied to the hours

actually worked by the applicant or the ordinary
hours.	Now, one thing that is significant about

paragraph (ii) is that there is no reference to the

hours actually worked by the applicant, and that

seems to me to tell against the submission that you

are making.

MR ABBOTT: Yes, Your Honour, except that neither is there

any reference to ordinary hours. And in the

present context of the casual worker - - -

MASON CJ: No, but it may be that the expression "as

expressed by reference to a week" is a shorthand

reference to the ordinary hours of work.

MR ABBOTT: Perhaps the test for that, Your Honour, is that

in many circumstances there may not be ordinary

Scott 19 28/8/92

hours of work, and that would be the case where one had a casual worker who was employed otherwise than

pursuant to an award.

MASON CJ: But it has been common ground in this case that

the employment was pursuant to an award.

MR ABBOTT:  Yes, Your Honour. I am simply testing

Your Honour's proposition.

MASON CJ: Yes, I realize what you are doing.

MR ABBOTT:  And if the appellant is right in this argument,

Your Honour, it means that a casual worker is to be

treated for the purposes of workers compensation as

if he-was a full-time worker, and that is the

fundamental problem, we say, with the case being

pressed by the appellant. We would say,

Your Honour, in accordance with the judgment of

Mr Justice Wright, that it would be a strange

result if the legislature intended that a casual

worker employed for an hour be treated, upon being

totally incapacitated, as if he was being employed

as a full-time worker and received compensation

accordingly. Those are my submissions on the

special leave application, Your Honour.

MASON CJ: Thank you, Mr Abbott. The Court need not trouble

you further, Mr Kable. There will be a grant of

special leave to appeal in this matter.

AT 10.26 AM THE MATTER WAS ADJOURNED SINE DIE

Scott 20 28/8/92