United Construction Pty Ltd v Rizzo

[2000] WASCA 207

UNITED CONSTRUCTION PTY LTD -v- RIZZO [2000] WASCA 207

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 207
Court:	THE FULL COURT (WA)
Case No:	FUL:167/1999	Heard:	13 APRIL 2000
Coram:	KENNEDY J MURRAY J ANDERSON J	Delivered:	7/08/00
No of pages:	5	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	UNITED CONSTRUCTION PTY LTD NATALE RIZZO
Catchwords:	Workers' compensation Worker aged 66 at time of disability Entitlement to weekly payments of compensation terminating one year after disability occurred Worker not limited to receiving supplementary payments
Legislation:	Workers' Compensation and Rehabilitation Act 1981, s 18, Sch 1, s 56, Sch 5, cl 2, s 84ZW
Case References:	Nil Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : UNITED CONSTRUCTION PTY LTD -v- RIZZO [2000] WASCA 207 CORAM : KENNEDY J

MURRAY J
ANDERSON J

HEARD : 13 APRIL 2000 DELIVERED : 7 AUGUST 2000 FILE NO/S : FUL 167 of 1999 BETWEEN : UNITED CONSTRUCTION PTY LTD

Appellant (Respondent)

AND

NATALE RIZZO
Respondent (Applicant)

Catchwords:

Workers' compensation - Worker aged 66 at time of disability - Entitlement to weekly payments of compensation terminating one year after disability occurred - Worker not limited to receiving supplementary payments

Legislation:

Workers' Compensation and Rehabilitation Act 1981, s 18, Sch 1, s 56, Sch 5, cl 2, s 84ZW

Result:

Appeal dismissed

(Page 2)

Representation:

Counsel:

Appellant (Respondent) : Mr G R Hancy
Respondent (Applicant) : Mr D R Clyne

Solicitors:

Appellant (Respondent) : McAuliffe Schwikkard
Respondent (Applicant) : Peter J Griffin & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328

(Page 3)

1 KENNEDY J: The essential facts, and the legislative provisions, are set out in the reasons for judgment of Murray and Anderson JJ, with which I am in agreement.

2 By s 18 of the Workers' Compensation and Rehabilitation Act 1981, subject to the Act, if a disability of a worker occurs, the employer is liable to pay compensation in accordance with the weekly rates of compensation set out in Sch 1 to the Act. By s 56, which is expressed to be subject to the exceptions in Sch 5, age limitations are placed upon the continuation of weekly payments of compensation. The relevant limitation in the case of the respondent is to be found in par (b) of s 56, which brings his entitlement to an end on the date one year after the disability occurred. The exception relied upon by the appellant is to be found in Sch 5, cl 2, which makes provision for what is termed a "supplementary amount"; but this clause cannot support the appellant's argument that the supplementary amount, which is much smaller, is payable in lieu of the weekly payments under Sch 1. The normal meaning of "supplement" is "something added to supply a deficiency". In other words, it must be supplementary to something else. Where there is an entitlement to a supplementary amount, it is supplementary to the weekly payments of compensation which would otherwise terminate at the times specified in s 56.

3 Clause 2 of Sch 5 is somewhat ambiguous, but by requiring the worker to show that he "would have" continued to be a worker after attaining the age of 65, in my opinion, it was not intended to supplement the compensation of a person in the position of the respondent, who had already attained the age of 65 at the time of the disability.

4 In my opinion, the respondent was not entitled to any supplementary payments. He was entitled to weekly payments for one year after sustaining his disability. The appeal should be dismissed.

5 MURRAY & ANDERSON JJ: This is an appeal by leave pursuant to s 84ZW of the Workers' Compensation and Rehabilitation Act 1981 against a decision of a Compensation Magistrate's Court upholding the decision of a Review Officer granting the respondent's application for compensation.

6 The respondent was born on 25 December 1931 and on 7 May 1998, when he was 66 years of age, he suffered a disability which rendered him totally and permanently incapacitated for work. He made an application for weekly payments of compensation for incapacity for work resulting from that disability. The liability of an employer to pay compensation in

(Page 4)

such circumstances arises primarily from s 18 of the Act which is in the following terms:

"18.Liability of employers to workers for disabilities

If a disability of a worker occurs, the employer shall, subject to this Act, be liable to pay compensation in accordance with Schedule 1."

7 Schedule 1 sets out the rates of compensation payable. A specific limitation of liability to pay compensation is contained in s 56. That section provides as follows:

"56.Entitlement to weekly payments ceasing on account of age

Subject to the exceptions in Schedule 5, an entitlement of a worker to weekly payments of compensation for incapacity for work resulting from a disability under this Act ceases -

(a) if the disability occurs on or before the date on which the worker attains the age of 64 - on attaining the age of 65; or

(b) if the disability occurs after the date on which the worker attains the age of 64 - on the date one year after the disability occurs."

8 It may be noted in passing that whereas s 18 speaks in terms of liability, s 56 speaks in terms of entitlement. Nothing turns on this in this case.

9 The Compensation Review Officer held that the provisions of s 56(b) entitled the respondent to compensation for one year from the date on which his disability occurred. This is because the disability occurred, in terms of s 56(b), "after the date on which the worker attains the age of 64 … ". The Magistrate upheld this decision.

10 In our opinion, there can be no denying the correctness of the decision. It is simply a matter of giving the words of the section their plain meaning.

11 On behalf of the appellant, it was submitted that the decision did not give proper effect to the qualifying words of s 56:

(Page 5)

"Subject to the exceptions in Schedule 5 … "

12 The exception which is said to be relevant to this case is the exception contained in Sch 5 cl 2, which provides as follows:

"Where the worker shows … that, if incapacity resulting from the disability had not occurred, he would have continued to be a worker after attaining the age of 65, he shall be entitled to the supplementary amount as a weekly payment during any period of total incapacity resulting from the disability in the time he would have been a worker, but in any case -

(a) not beyond the time when he attains the age of 70 years; and

(b) - "

13 The "supplementary amount" is a very much reduced weekly payment. In view of the fact that he was 66 at the time of the occurrence of the disability and would cease to be entitled to the supplementary amount on attaining the age of 70, if the respondent's entitlement was confined to that amount, he would receive far less than one year's compensation at the ordinary rate. Hence, it was his case that his entitlement was fixed by s 56(b) and not by Sch 5 cl 2.

14 In our opinion, Sch 5 cl 2 does not apply in the circumstances of this case. It is clearly intended to provide an extended entitlement to workers who are in receipt of compensation at the time they attain the age of 65 years and whose entitlement to weekly payments would otherwise cease on attaining that age. It is only such a worker who is in a position to "show" what Sch 5 cl 2 requires that he show; ie, that "if incapacity resulting from the disability had not occurred, he would have continued to be a worker after attaining the age of 65". That requirement cannot sensibly be applied to a worker who suffers a disability in the course of his employment after attaining the age of 65.

15 It may be that these provisions of the Act will produce anomalies in particular circumstances. However, we can see no sufficient reason not to read the provisions according to their natural meaning. In this case, to do so does not lead to any absurdity or to a result that the court can safely say parliament did not intend.

16 This appeal must be dismissed.