Whitley, O.W. v Scobie, R - [1985] FCA 564

Re: ORO WESLEY WHITLEY
And: RICHARD SCOBIE
No. NTG 24 of 1985
Worker's Compensation
8 FCR 181

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Northrop(2) and Lockhart(3) JJ.

CATCHWORDS

Worker's Compensation - amount of entitlement - whether disabled worker "required to undergo treatment away from his usual place of residence" within para.11(1)(e) of Workmen's Compensation Act (N.T.) - worker receiving allowance for required "help or attendance of another person" within sub-s. 12(1) of that Act - amendment thereafter of Act from provision for fixed sum to rate fixed by Workmen's Compensation Tribunal - whether amendment applies when injury arose before it came into operation.

Workmen's Compensation Act (N.T.) s.7; para. 11(1)(e); sub-s.12(1).

Staska v. General Motors-Holden's Pty.Limited (1972) 123 C.L.R. 673 cons.

Fisher v. Hebburn Limited (1960) 105 C.L.R. 188 cons.

Geraldton Building Co.Pty.Ltd. v. May (1977) 136 C.L.R. 379 cons.

Workers' Compensation - Matters affecting calculations of entitlement - "usual place of residence" - Whether limited to residence at time of injury - Amending Act giving right to additional compensation - Injury prior to amending Act - Whether retrospective operation - Workmen's Compensation Act (NT), ss 7, 11(1)(e), 12(1).

HEADNOTE

Held: (1) The location of a workman's "usual place of residence", referred to in s 11(1)(e) of the Workmen's Compensation Act (NT) is not limited to the place of residence at the time of injury. It may vary from time to time, and is to be treated as the place where the incapacitated workman's usual place of residence is at the time he is required to have the treatment mentioned in the section.

(2) Section 12(1), of the Act, as amended by Act No 77 of 1978, may apply to injuries occurring before, as well as after, the commencement date of the section as amended.

(3)(a) Per Fox J: Section 12(1), as amended by Act No 77 of 1978, has only prospective operation. It deals with a situation which may occur at any time during incapacity and from time to time during incapacity. The advice of a medical practitioner is a condition of the operation of the section, as well as the circumstance which may initiate the entitlement.

(b) Per Northrop J: (i) The amended s 12(1) applies if a registered medical practitioner has given the advice referred to therein after the commencement date of the amended section. In this regard the word "where" in s 12(1) is to be read as meaning "if". On this basis the amended section has only a prospective operation. (ii) The entitlement to compensation under s 12(1) continues only so long as the medical practitioner continues that advice, but entitlement may re-arise on further advice being given.

(c) Per Lockhart J: The amended s 12(1) operates prospectively. It confers a right to additional compensation provided two statutory conditions precedent are satisfied: first, the sustaining of the injury caused by an accident arising out of or in the course of the workman's employment and, secondly, that the…

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.

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Details

Case: [1985] FCA 564
Decision Date: 11 NOVEMBER 1985

CaseChat Overview and Summary

In the case of Whitley, O.W. v. Scobie, R, the matter before the court concerned the calculation of worker's compensation entitlements for Oro Wesley Whitley, the appellant, following an injury sustained during employment. The dispute arose under the Workmen's Compensation Act, specifically addressing the interpretation and application of certain provisions regarding compensation rates and the requirement for treatment away from the worker's usual residence. The case was first heard in the Supreme Court of the Northern Territory and subsequently appealed to the higher court.

The central legal issues in this case were whether the amendment to the compensation rate applied retroactively to the date of the injury and whether the worker was entitled to compensation for needing assistance from another person. The appellant argued that the amendment to the compensation rate should not apply retroactively, while the respondent contended for its retroactive application. Additionally, the court needed to determine if the worker's need for attendance constituted a valid reason for compensation under the amended provisions.

The court, after thorough deliberation, found that the amendment to the compensation rate did not apply retroactively. It held that the compensation rate should be calculated based on the law as it stood at the time of the injury. Furthermore, the court confirmed that the worker's need for assistance from another person qualified him for additional compensation under the amended provisions. The court's decision was grounded in the statutory language and the principle that legislative changes should not affect rights accruing before their enactment. The outcome resulted in the reversal of certain orders of the Supreme Court, restoring the original compensation rate for a specified period and reinstating the costs order from the Workmen's Compensation Tribunal.

The final orders of the court mandated that the appellant receive compensation at the original rate until a specific date, followed by an increased rate thereafter. The court also directed that each party bear their own costs from the Workmen's Compensation Tribunal to the Supreme Court, while the respondent was to cover the costs of the appeal to the higher court. The court's decision ultimately provided clarity on the application of compensation rates and the entitlement to assistance-related compensation, affirming the principles of statutory interpretation and legislative intent.

Orders

Orders of the court

1. The appeal from the Supreme Court of the Northern Territory be allowed in part.

2. Order no. 5. of the Supreme Court, namely:-

"5. That the appellant pay such amounts by way of compensation to the respondent as were provided pursuant to s.12(1) of the Act from time to time until the 28th day of April 1977, and thereafter at the rate of $20 per week and that the claims of the appellant and the respondent in respect thereof be otherwise dismissed"

be set aside and in lieu thereof it be ordered that the respondent, Richard Scobie, pay such amounts by way of compensation to the appellant, Oro Wesley Whitley, as were provided pursuant to s.12 of the Workmen's Compensation Ordinance from time to time until the 26th day of October 1978 and thereafter until the 14th day of October 1982 at the rate of $20 per week and from the 15th day of October 1982 at the rate of $215 per week until further order of the Tribunal.

3. Order no. 8. of the Supreme Court, namely:-

"8. That the respondent pay the appellant's costs of appeal to be taxed"

be set aside and that in lieu thereof it be ordered that each party bear its own costs of the appeal from the Workmen's Compensation Tribunal to the Supreme Court.

4. Order no. 9. of the Supreme Court, namely:-

"9. That liberty be given to either party to apply as to the cost of the application before the Workmen's Compensation Tribunal"

be set aside and in lieu thereof it be ordered that the order for costs made by the Workmen's Compensation Tribunal in respect of the proceedings before it, namely, that the employer pay to the workman his costs of the proceedings before the Workmen's Compensation Tribunal, be restored.

5. The respondent pay to the appellant his costs of the appeal from the Supreme Court to this Court.

6. Otherwise the orders of the Supreme Court be confirmed.

(Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)

Appeal allowed in part.

Orders accordingly

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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