Sun Alliance Insurance Ltd v Scott - [1991] TASSC 93

86/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Sun Alliance Insurance Ltd v Scott [1991] TASSC 93; A86/1991

PARTIES:  SUN ALLIANCE INSURANCE LTD
  CUTHBERTSON BROS PTY LTD
  v
  SCOTT, Nigel Lionel

FILE NO/S:  LCA 84/1991
DELIVERED ON:  18 October 1991
JUDGMENT OF:  Zeeman J

Judgment Number: A86/1991
Number of paragraphs: 15

Serial No 86/1991
List "A"
File No LCA 84/1991

SUN ALLIANCE INSURANCE LTD & CUTHBERTSON BROS PTY LTD
v NIGEL LIONEL SCOTT

REASONS FOR JUDGMENT ZEEMAN J

18 October 1991

This is an appeal from a determination of the Workers Compensation Commissioner made in July 1991 whereby he dismissed an application by the appellants that a weekly payment of workers' compensation, being made to the respondent, be reduced pursuant to the provisions of s88(2)(a) of the Workers Compensation Act 1988 ("the Act") or, alternatively, under s69(8) of the Act. It was common ground before the learned commissioner that at all relevant times, the respondent was a worker within the meaning of the Act employed by the second appellant and that the first appellant was the licensed insurer of the second appellant.

Upon the hearing of the application the learned commissioner was told that the parties agreed on a number of facts. Those agreed facts were expressed as follows:

1On or about 6 September 1989 the respondent was employed by the second appellant.
2It was agreed that the respondent would work 16 hours per week for the second appellant.
3On or about 8 September 1989 the worker alleges that he was injured in the course of his employment with the second appellant.
4On or about 8 September 1989 the respondent made a claim for workers' compensation against the second appellant.
5The first appellant is the second appellant's workers' compensation insurer.
6The first appellant has paid the worker compensation for the alleged injury at a rate calculated pursuant to the Tanning Industry Award 1987 ("the Award") applicable to a full time labourer since 8 September 1989 to date.
7At all material times, other than when being paid workers' compensation, the respondent was employed and paid pursuant to the terms of the Award.

The agreed facts were expressed rather inelegantly. It was made clear before the learned commissioner and before me that some of them were not intended to be taken literally and that the first two paragraphs in fact ought to be construed as meaning the following:

1On or about 6 September 1989, the second appellant engaged the respondent as a labourer.
2At the time that the respondent was so engaged it was agreed between him and the second appellant that he be employed for eight hours on each of the Wednesday and Friday of each week.

The way in which the case was conducted before the learned commissioner was that it was common ground that the appellants had been paying to the respondent weekly compensation at a rate equivalent to the wage which would have been payable to the respondent had he been a labourer in the full time…

Grounds of appeal

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

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

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

Consideration

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

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

Keep reading for free

Create a free CaseChat account to read Sun Alliance Insurance Ltd v Scott and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] TASSC 93
Decision Date: 18 October 1991

CaseChat Overview and Summary

Sun Alliance Insurance Ltd and Cuthbertson Bros Pty Ltd appealed against a decision of the Workers Compensation Commissioner, who dismissed their application to reduce weekly workers' compensation payments made to the respondent, Nigel Lionel Scott. The Commissioner had found that Scott was not specifically employed to work sixteen hours per week, a finding the appellants contested. The appellants argued that the compensation payments made to Scott were excessive, as he was only contracted to work sixteen hours per week, but in fact, he worked eight hours on each of two days in each week. The appeal raised questions concerning the interpretation of sections 69(1)(a)(ii) and 88(2)(a) of the Workers Compensation Act 1988 and whether the Commissioner's finding was in error.
The Court held that the Commissioner's finding that Scott was not specifically employed to work a sixteen-hour week as a term of his contract of employment was not open to him. The agreed facts indicated that Scott was employed for eight hours on each of two days in each week, and it was not open to the Commissioner to find something contrary to the agreed facts. However, this did not affect the outcome of the case. The Court found that the ordinary time rate of pay, as expressed by reference to a week, was determined by the provisions of the relevant industrial award, which provided for a basic working week of 38 hours to be remunerated at a particular rate. This rate was the relevant rate for the purposes of section 69(1)(a)(ii) of the Act, regardless of the hours normally worked by the respondent. The Court concluded that there was no basis for the Commissioner to interfere with the rate of weekly compensation being paid to Scott. The appeal was dismissed.

No further orders were made.

Orders