WorkCover Corporation of SA v Warren No. Scgrg-97-1239 Judgment No. S6761

[1998] SASC 6761

WORKCOVER CORPORATION OF SOUTH AUSTRALIA V WARREN

Full Court
Coram:  Cox, Mullighan and Williams JJ

Cox J

Appeal from the Workers Compensation Appeal Tribunal.

The respondent was permanently injured in an accident at work and duly received weekly payments of income maintenance. The Corporation decided to assess the worker’s loss of future earning capacity as a capital loss pursuant to s42A of the Workers Rehabilitation and Compensation Act 1986. It made an interim assessment which assumed the availability of suitable employment for the respondent. It notified the respondent of its determination. The respondent challenged the assessment but the Review Officer upheld it. However, the respondent’s further appeal to the Workers Compensation Appeal Tribunal was successful and the interim assessment was set aside. Central to all of the decisions was the proper interpretation of s42A and about this there was much dispute. The Corporation was given leave to bring the matter to this Court. We heard the parties’ submissions and reserved our decision.

I need to say more about the facts than that. The accident happened on 20 August 1991. The respondent was working as a rigger. He lost the top of his left index finger when his hand was caught between two steel beams. The injury left him incapacitated for work as a rigger and he was put onto weekly payments for his disability under s35 of the Act. For the most part it was a matter of making up the shortfall (or, after the first year, 80 per cent of it) in the earnings he received from different jobs that he did after his injury had healed.
On 28 March 1986 the Corporation’s agent wrote to the respondent as follows -

“NZI Worker’s Compensation has decided to make an assessment for your loss of future earning capacity pursuant to Division 4B of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) on the following basis:

1...... On 20/8/91 you sustained a compensable disability namely ‘an amputated left index finger’.

2...... You have remained incapacitated for work as a result of the compensable disability for a period exceeding two years.

3...... Pursuant to Section 42A of the Act it is determined that this is an interim assessment only for a period of 12 months from 20/04/96 to 18/04/97.

4...... It is considered that your incapacity for work is partial only based on the following information:  A prescribed medical certificate dated 8/9/95, completed by your General Practitioner, Dr T Likos, has cleared you for alternative duties.  He has stated that you are fit to work full time subject to the avoidance of heavy and repetitive work with the left hand.

5...... It is therefore assessed that you are suited for employment which you have a reasonable prospect of obtaining as a console operator based on the above information, such employment in fact being available or alternatively taken to be available for the purpose of this assessment pursuant to Section 42A(3)(d).

6...... It is further considered that you could earn an average weekly income of 496.00 in such employment based on the following information: the casual award rate for a console operator is $12.40 per hour.  For a working week of 40 hours this equates to $496.00 per week.  This rate is obtained from the Vehicle Industry (S.A.) Repairs Service and Retail Award.  This is a State award.

7...... Pursuant to Section 42A(2)(b) of the Act your interim assessment for the period referred to in paragraph 3 above is assessed in the sum of $2602.22 calculated as follows:-

A	100% notional weekly earning	$584.78
B	Minus estimation of tax	$107.12
C	Multiplied by a 3% discount   factor for one year (51)	$24360.66
D	Earnings worker could earn in suitable employment	$496.00
E	Minus estimation of tax	$82.12
F	Multiplied by a 3% discount factor for one year (51)	$21107.88
G	100% capital loss payment	$3252.78
H	80% capital loss payment	$2602.22

Pursuant to Section 42A(6) & (7) of the Act you are hereby notified that weekly payments of income maintenance will cease at the expiration of 21 days from the date of receipt of this determination namely 20/04/96.

As this is an interim assessment, NZI Worker’s Compensation should make a further assessment prior to the expiration of this assessment.”

The respondent, as I have indicated, was dissatisfied with that decision and applied to have it reviewed.  The basis of the Corporation’s case before the Review Officer was that the respondent was fit to work as a console operator.  It tendered a written statement under the letterhead of Mobil Underdale describing the usual duties of a console operator at that service station and it also relied on a classification of “console operator” in the Vehicle Industry (SA) Repairers Service and Retail Award prescribing a casual award rate of $12.40 an hour.  The respondent said in evidence that he had never worked as a console operator but that he had seen advertisements for such a position at the Commonwealth Employment Service.  He had had various jobs since the accident and he thought that he could carry out the functions of a console operator as described in the Mobil Underdale job description.  He did not want to do night work.  The evidence before the Review Officer did not show that there was actually a vacancy anywhere for a position of console operator that conformed with the Underdale job description or with the Award designation.  The Review Officer considered that such an occupation existed and found that there were vacancies for console operators and that the respondent was capable of doing the work.  She upheld the Corporation’s determination.

The learned Deputy President who heard the appeal to the Workers Compensation Appeal Tribunal saw the matter differently. He noted that the Corporation was relying on a medical certificate of the respondent’s general practitioner, Dr Likos, on 8 September 1995 which said that the respondent was fit for full-time work although he had a permanent disability and would have to avoid heavy and repetitive work with his left hand. However, the certificate was given in response to the Corporation’s asking Dr Likos whether the respondent was fit to set up gym equipment in people’s homes (as he had been doing), not whether he could work as a console operator. Furthermore, his Honour noted that the job description supplied by Mobil Underdale was not directed specifically to the respondent’s situation; indeed, the mere existence of an item designated “console operator” in an industrial award did not establish that any such occupation actually existed. If the Corporation wanted to rely on s42A it had to prove that there was a job in existence in which the respondent could be suitably employed and which the respondent had a reasonable prospect of obtaining. See subs(2)(b) of s42A. The evidence upon which the Corporation relied before the Review Officer was not adequate to establish the facts upon which it needed to rely. The learned Judge therefore upheld the respondent’s appeal and returned the matter to the Review Panel for rehearing.

Before examining the text of s42A it is desirable to look at s35 (weekly payments). Some of the legislative expressions that have caused difficulty in this case are common to both of those sections. It is convenient to start with the relevant parts of s35 in the form in which they appeared in the original Act of 1986 -

“(1)   Subject to this section, where a worker suffers a compensable disability that results in incapacity for work, the worker is entitled to weekly payments in respect of that disability in accordance with the following principles:

(a)     if the period of incapacity for work does not exceed one year -

(i).... the worker is, if totally incapacitated for work, entitled for the period of incapacity to weekly payments equal to the worker’s notional weekly earnings;

(ii)... the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to the difference between the worker’s notional weekly earnings and the weekly earnings that the worker is earning or could earn in suitable employment;

(b).... if the period of incapacity for work exceeds one year, the worker is entitled to weekly payments determined in accordance with paragraph (a) for the first year of the period of incapacity and thereafter -

(i).... the worker is, if totally incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the worker’s notional weekly earnings;

(ii)... the worker is, if partially incapacitated for work, entitled for the period of incapacity to weekly payments equal to 80 per cent of the difference between the worker’s notional weekly earnings and the weekly earnings that the worker is earning or could earn in suitable employment that the worker has a reasonable prospect of obtaining.

(2)    For the purposes of subsection (1) -

(a).... a partial incapacity for work over a particular period shall be treated as a total incapacity for work over that period unless the Corporation establishes that suitable employment for which the worker is fit is reasonably available to the worker in respect of that period (but where the period of incapacity extends beyond a period of two years, this paragraph does not apply to a period commencing after, or extending beyond, the end of the second year of incapacity);

and

(b).... the following factors shall be considered, and given such weight as may be fair and reasonable, in making an assessment of the prospects of a worker to obtain employment -

......... (i)     the nature and extent of the worker’s disability;

......... (ii)    the worker’s age, level of education and skills;

......... (iii)   the worker’s experience in employment; 

......... and

(iv)   the worker’s ability to adapt to employment other than the

employment in which he or she was engaged at the time of the occurrence of the disability.

”

In Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR 414; on appeal (1992) 57 SASR 365, this Court held that payments under s35(1)(b)(ii) for partial incapacity were to be made on the basis of work which was actually available and which the worker would obtain almost immediately if he or she applied for such employment. The factors specified in par(b) of subs(2) were not exhaustive. Any assessment of a partially incapacitated worker’s prospects of obtaining employment had to take into account the state of the labour market. A worker did not have a reasonable prospect of obtaining suitable employment if such employment was not available. Under par(a) of subs(2), the onus of establishing that suitable employment was reasonably available rested on the Corporation for the first two years of the worker’s incapacity.

Section 42 of the original 1986 Act provided that a liability to make weekly payments could be commuted on the application of the worker, but there was no provision for commutation at the instance of the Corporation and without the worker’s consent. However, in 1992 the Act was amended (by Act No. 84 of 1992) by the addition of s42A -

(1)    Where a worker suffers a compensable disability that results in incapacity for work for a period exceeding two years, the Corporation may assess the worker’s loss of future earning capacity as a capital loss.

(2)    In making the assessment, the following principles will be applied:

(a)     the worker’s notional weekly earnings (less an estimation of income tax) will be projected forward over the remainder of the worker’s notional working life;

(b)     in the case of partial incapacity, the amount the worker could earn in suitable employment that the worker has a reasonable prospect of obtaining by way of average weekly earnings (less an estimation of income tax) will be projected forward over the remainder of the worker’s notional working life and subtracted from the amount projected under paragraph (a);

(c)     the worker’s capital loss will be taken to be 80 per cent of the present value of the loss indicated by the above projections (and in determining the present value of that loss a prescribed discount rate must be applied).

(3)    For the purposes of subsection (2) -

(a)     the projections referred to in that subsection will be made on the basis of rates of earnings current at the date of the assessment and without regard to possible future changes in those rates;

(b) the worker’s notional working life is the period over which the worker would have worked assuming that he or she had not been incapacitated and that period will be assessed having regard to the contingencies and vicissitudes of life that might in any event have prevented the worker from continuing in employment but the period will not, in any event, be taken to extend beyond the date on which weekly payments would (assuming no assessment of capital loss were made under this section) cease to be payable (see section 35(5));

and

(c)     in assessing what a partially incapacitated worker could earn in suitable employment, the following factors must be considered, and given such weight as may be fair and reasonable:

(i)     the nature and extent of the worker’s disability;

(ii)    the worker’s age, level of education and skills;

(iii)   the worker’s experience in employment;

(iv)   the worker’s ability to adapt to new employment.”

It will be seen that the draftsman has picked up the expression “suitable employment that the worker has a reasonable prospect of obtaining” from s35, which is not surprising in the light of the common subject matter of the two sections. The four factors to be considered under s35 when making an assessment of the prospect of a worker to obtain employment have been repeated in subs(3)(c) of s42A but for a purpose that is stated in a slightly different way, namely, for assessing under subs(2) what a partially incapacitated worker could earn in suitable employment. The onus of proof was not dealt with as explicitly as in subs(2)(a) of s35.

Then, in 1995, s35 and s42A were amended along parallel lines (by Act No.35 of 1995 and Act No.56 of 1995 respectively). Paragraph (c) of subs(3) of s42A was amended by making the four stipulated factors relevant to the suitability of employment, rather than to the amount the worker could earn in such employment, so that the headwords now read -

“(c).. the following factors must be considered (and given fair and reasonable weight) in assessing what employment is suitable for a partially incapacitated worker -”

and a further paragraph was added to subs(3) as follows -

(d)     if      -

(i).... suitable employment is in fact not available to a partially incapacitated worker when the assessment is made;  and

(ii)... the worker establishes that the worker is, in effect, unemployable because employment of the relevant kind is not commonly available for a person in the worker’s circumstances irrespective of the state of the labour market,

the worker’s partial incapacity for work will be treated as total incapacity, but otherwise an assessment of the weekly earnings the worker could earn in suitable employment must be made on the basis that employment of the relevant kind is available to the worker and will continue to be available to the worker for the whole, or - in the case of an interim assessment - the relevant portion, of the worker’s notional working life.”

Practically identical amendments were made to subs(2) of s35. The result is that the words “suitable employment that the worker has a reasonable prospect of obtaining” remain in subs(2) of s42A but the thrust of the subs(3)(c) factors has moved away from the “reasonable prospect” notion to the mere identification of suitable employment, while a double deeming clause has been added with respect to the availability of “employment of the relevant kind.”
......... Both counsel in the present appeal sought support in the legislative history of s35 and s42A. Mr Stanley, for the Corporation, submitted that the operation of subs(2) of s42A is governed by the operation of subs(3). The latter provision, reversing the decision in James, requires the worker to prove that suitable employment is in fact not available to him, and in the absence of such proof suitable employment is deemed to be available to him. The Corporation having determined in this case the facts relevant to its assessment, including the question whether the respondent had a reasonable prospect of obtaining suitable employment, it was for the respondent to satisfy the Review Officer that the Corporation was wrong. If a worker is unable to satisfy the first part of par(d), so that “employment of the relevant kind” is deemed to be available to him, he has for practical purposes no hope of discharging that onus, for, having in mind the policy of the statutory scheme, “those two concepts found discretely in subs(2)(b) and subs(3)(d)” - that is, I take it, the concepts of suitable employment that the worker has a reasonable prospect of obtaining and suitable employment that is available and will continue to be available to the worker - “are essentially identical.” Mr Kourakis QC, on the other hand, insisted on the primacy of the subs(2)(b) requirement that there be identified suitable employment that the worker has a reasonable prospect of obtaining. If a worker has not brought himself within the first presumption in subs(3)(d), the only way the Corporation may avoid having to assess the capital loss simply on the footing of the worker’s notional weekly earnings, projected in accordance with subs(2)(a), will be by proving the existence of some employment which is suitable work and also work that the worker has a reasonable prospect of obtaining. That last expression in subs(2)(b) would have no work to do (it was said) if the Corporation’s construction of s42A were adopted. Both counsel took us to the judgments of the Workers Compensation Tribunal in Adams v WorkCover Corporation/NZI Workers Compensation (SA) Ltd (W B & S M Doser) (No. 157 of 1996), 13 March 1997;  on appeal, 20 August 1997, in which these opaque provisions of the workers compensation legislation are helpfully discussed. 

......... I do not accept either of these submissions in its entirety.  Obviously suitable work, identified in accordance with subs(3)(c), could be available to a worker yet the evidence show that the worker has no reasonable prospect of obtaining it.  The two notions used in subss(2)(b) and (3)(d), then, are not identical and should not be applied as though they were.  One therefore starts with subs(2)(b).  However, it cannot have been intended that the question of a worker’s reasonable prospect of obtaining suitable employment should be considered independently of the statutory presumption, which will generally apply under subs(3)(d), as to the present and continuing availability to him of employment of the relevant kind.  Common experience shows that, if there is suitable work that a partially incapacitated worker can do, the major impediment to his obtaining such work will usually be his need to persuade a cautious employer to prefer him when he is competing against others who are able bodied.  However, the effect of subs(3)(d), in its usual application, is to remove the factor of job competition, leaving the worker in question as the only applicant.  Whatever the actual state of the labour market may be, he is to be supposed to have the very great advantage of continuous work availability.  His prospect of obtaining suitable employment will therefore in most cases be excellent.  His application for a suitable vacancy could only fail if the employer were willing to leave the job unfilled rather than employ someone who, though in fact qualified to do it, has a disability history.  The worker could still be rejected because of that history or his partial incapacity or his age or his lack of experience or his lengthy absence from the workforce or for some other reason, but where he is to be treated as in effect the only applicant for a vacant position most employers, one would imagine, would prefer to take a chance with him rather than simply appoint no-one.  However, it remains a question of fact that will have to be decided on the evidence in each case.  On that view of the matter, the words “that the worker has a reasonable prospect of obtaining” in subs(2)(b) still have some work to do but their impact is greatly lessened in practice by the deeming provision that was added in 1995.

......... The learned Deputy President from whom this appeal comes really decided the case, I think, on the ground that the evidence was insufficient to support the Corporation’s determination.  However he noted the submissions made by counsel as to what was decided in James and as to the effect of the 1995 amendments.  He said -

“The amendments to the Act which were directed to overcoming James’ Cases, concern the onus of proof on the question of availability of the nominated work. That much is clear. However the amendments left untouched Section 35(1)(a)(ii) and 42A(2)(b). Hence the construction given to ‘suitable employment’ in James’ Cases is available as a guide in construing Section 42A(2)(b). That is to say that matters personal to the worker must be considered when setting the average weekly earnings figure.”

He concluded that the Corporation was obliged to identify employment “specific to the individual”, and not merely an occupation at large, before it could be said to satisfy the requirements of s42A(2)(b). Later in his judgment his Honour observed that the only comparable decision on s42A was Adams’s Case.  At that stage Gilchrist DP had published his first instance judgment in Adams but the appeal to the Full Tribunal had not been decided. His Honour remarked that he had the misfortune to differ from Gilchrist DP’s views although the s42A(2)(b) point (with respect to suitable employment and average weekly earnings) did not seem to have been extensively argued before Gilchrist DP.

Adams related to the Corporation’s interim assessment of a partially incapacitated worker’s loss of earning capacity under s42A. The worker challenged the Corporation’s assessment and the matter went to arbitration and then to the Workers Compensation Tribunal. An important issue was the proper application of the words “suitable employment that the worker has a reasonable prospect of obtaining” in subs(2)(b). Gilchrist DP held that the 1995 amendments had fundamentally changed the focus of the expression with the result that the principles declared in the James cases no longer governed the interpretation of s42A. His Honour held that it was reasonable to moderate a worker’s weekly payments of income maintenance if the compensating authority could identify work which was suitable, having regard to the factors stipulated in par(c) of subs(3), unless the worker could bring himself within the first of the par(d) presumptions. There was a problem about the expression “reasonable prospect of obtaining” in subs(2) - if availability was not an issue, there was no apparent work for the expression to perform - but his Honour thought that the expression did no more than explain why it was that a worker’s partial incapacity would be treated as total incapacity in a case where the worker succeeded in proving the two conditions to the operation of the first presumption. As for the material necessary to support a determination by the Corporation under s42A, it was no longer necessary to identify an actual job answering the descriptive words of par(b) of subs(2) -

“   I do not think that there is any obligation on the part of the Corporation to identify an actual position.  All that is required is the identification of a particular occupation which is sufficiently specific to enable one to determine the worker’s suitability to perform it.  I accept that the degree of specificity required might vary from case to case.”

The members of the Full Bench of the Tribunal who decided Adams on appeal were divided in their interpretation of s42A. Jennings P agreed with Gilchrist DP in rejecting the James cases as decisive of the issue. If a worker could not bring himself within the first par(d) deeming provision he was to be deemed to be in suitable employment for the purpose of subs(2)(b). The majority of the Tribunal, Cawthorne DP and Parsons DP, took a different view. In their joint judgment they observed that the 1995 amendments to s35 and s42A were probably designed to limit the influence of the state of the labour market in making assessments either of weekly payments or loss of earnings after two years of incapacity, but

“it remains essential to the formula for assessing the worker’s capital loss to identify and determine the amount that the worker could earn in suitable employment that the worker has ‘a reasonable prospect of obtaining’.

Because this expression maintains its central position as one of the components of an assessment of the partially incapacitated worker’s capital loss, the first step in the process of making an assessment is to identify the amount the worker could earn in such employment.  The effect of the final deeming provision in the section, by which such employment is deemed to be available, does not replace the need to identify and make an assessment based on such employment.  Rather it is the next step in the process.  That is, once the amount that the worker can earn in suitable employment that the worker has a reasonable prospect of obtaining has been identified and the amount he could earn in such employment assessed, then the deeming provision ensures that such employment is deemed to be available.  The result is that far from having no work to do the relevant expression remains central to the making of an assessment and without an assessment being established the arithmetical calculation of the capital loss cannot be made.”

As I have indicated, I do not think that subs(2)(b) and subs(3)(d) are to be applied in this disjunctive way, as though the availability of work has nothing to do with a worker’s prospect of obtaining work.  It has everything to do with it and, in my opinion, the purpose of adding par(d) was to ensure that, exceptional odd-lot type cases apart, the test required by par(b) of subs(2) would be applied on the footing that suitable work will always be available to the worker in question.  Thus the practical effect of the 1995 amendment is to make a considerable inroad into the methodology explained in James.  The state of the labour market, strongly competitive in times of unemployment, is no longer a relevant factor.  I respectfully disagree with the reasoning of the majority in Adams. 

There was some debate about the expression “employment of the relevant kind” that occurs in sub-par(ii) of par(d), and also in the concluding part of par(d), of subs(3).  Is it a reference to the “suitable employment that the worker has a reasonable prospect of obtaining” in subs(2) or is it just another way of referring to the “suitable employment” that is the subject of subpar(i)?  Possibly the draftsman considered that it would not be appropriate to use the expression “suitable employment” in subpar(ii) because the expression had just been used specifically of a particular partially incapacitated worker - the worker referred to in subpar(i) - , whereas “employment of the relevant kind” in subpar(ii) is used not with reference to that worker but more generally to “a person in the worker’s circumstances.”  However, grammatical niceties apart, it means in substance “suitable employment”, as it certainly does in the second part of par(d).  But I do not think it greatly matters which view one takes about this aspect of the deeming provisions.  What is important is that par(d) - which, it will be noted, only exists “For the purposes of subsection (2)” - is to be given its full effect when the estimate is made, in accordance with par(b) of subs(2), of “the amount the worker could earn in suitable employment that the worker has a reasonable prospect of obtaining.”  The two provisions should operate on the evidence together, not separately and successively.

The Corporation complains that the Tribunal in this case erred in holding that the James cases determine the proper interpretation of par(b) of subs(2) of s42A and that a distinction exists between the suitable employment which the worker has a reasonable prospect of obtaining in that paragraph and the availability of suitable employment in par(d)(i) of subs(3). It is not entirely clear to me what view the learned Judge took about the effect of the 1995 amendments. He referred in the passage I have quoted to their effect on the onus of proof as to the availability of work. Of course, par(d) of subs(3) does more than alter the onus of proof on that question. It raises in most cases an irrebutable presumption on a matter that is fundamental to par(b) of subs(2). It is only in a qualified sense that one may say (as the learned Judge did) that the construction given to “suitable employment” in James is available as a guide in construing par(b), or that matters personal to the worker have to be considered when setting the average weekly earnings figure.  So they do, but one such matter that was treated prominently in James was the worker’s present and future ability to obtain work, and the way in which that is now to be considered in making a s42A assessment has been heavily limited. There must be evidence (if it is not notorious) of the existence in the work force of a particular form of occupation in which the worker could be suitably employed, and of the average weekly earnings that a worker so employed will earn, but (unless it goes to prove the first par(d) presumption) evidence about the availability of suitable employment, in the form of present or future job vacancies, will be irrelevant. If this is what the learned Judge had in mind when he spoke of the need for evidence of employment “specific to the individual”, I respectfully disagree with him. However, the learned Judge’s references to James, and indeed to the judgment of Gilchrist DP in Adams, lend themselves to more than one interpretation.  I think he may well have been indicating a view of the section that was subsequently reflected in the joint judgment in Adams , but I cannot be sure of that. 

The Corporation also complained about the learned Deputy President’s rulings on the onus of proof in the proceedings before the Review Officer.

It will be recalled that the Corporation’s agent, in its determination of 28 March 1996, made certain decisions on the s42A issues - that the respondent was suited for employment as a console operator, that such employment was available and the worker had a reasonable prospect of obtaining it, and that he could earn $496 a week in such employment - and these decisions formed the basis for its interim assessment of $2 602 for the period 20 April 1996 to 18 April 1997. The Review Officer, after receiving documentary evidence of which the most important were the medical reports and the Mobile Underdale statement of duties, and after hearing evidence from the respondent, made certain findings of fact. The most important findings were that the respondent was capable of doing the job of a console operator and that there were vacancies for console operators. She accepted the evidence or statements with respect to the Award and there was no suggestion of the respondent bringing himself within the first part of par(d) of subs(3) of s42A. She upheld the Corporation’s interim assessment. On the appeal from the Review Officer the learned Deputy President held that, although the state of the labour market no longer had to be taken into account when assessing the prospect of the respondent obtaining employment, it was for the Corporation to prove the matters that were personal to the respondent - the fact of suitable employment, that he had a reasonable prospect of obtaining it, and the average weekly earnings that he could expect to earn in such employment. He rejected the Corporation’s argument that it was for the worker to prove those matters. As I have said, his Honour held that the evidence before the Review Officer did not support her findings.

There was some discussion about the factual situation that faces the Corporation when making an assessment under s42A. It is not sitting as a court or tribunal, so one would not appropriately speak of a party or potential party having an onus of proof to discharge at that stage. It is for the Corporation to make its assessment on the information that is reasonably available to it, and that would ordinarily include any relevant information that it has sought from the worker, if need be by means of a s42B notice. Compare the recent decision in WorkCover Corporation of South Australia v Gray, Full Court, 17 June 1998, unreported, per Perry J. It will be for the Corporation to make its assessment under s42A on such facts as are established to its reasonable satisfaction. The matters that it will have to consider will include, of course, any evidence that might bring the worker within the first statutory presumption in par(d). Unless the worker satisfies the Corporation on that score the Corporation will be entitled, for the reasons that I have given, to ignore the state of the labour market in reckoning the worker’s prospect of obtaining suitable employment.

The respondent’s application for review of the Corporation’s determination was referred to a Review Officer in accordance with the scheme then in force.  See old s95.  The Review Officer was obliged to make a fresh determination of the matters to which the Corporation’s decision related.  See old s96.  The nature of the proceedings before the Review Officer were described thus in Santos Limited v Saunders (1988) 49 SASR 556, per von Doussa J at 568 -

“A review is not an appeal.  Section 96(2) requires that the review officer shall make “a fresh determination of the matters to which the decision subject to review relates” and s88 requires that in doing so he “shall act according to equity, good conscience and the substantial merits of the case”.   The review officer is required to consider the matter de novo and to arrive at a decision independently of the process of reasoning and the decision of the Corporation.  It is proper that he note the decision and the reasons of the Corporation for, after all, he is reviewing that decision.  After considering the views of the Corporation, he must form his own opinion, and in doing so, is not bound by the views of the Corporation:  Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 FLR 469 at 473. If the review officer differs in any respect from the views of the Corporation, he must substitute his own views. He must do so even where it is not possible for the applicant to demonstrate a particular error in law or in fact by the Corporation. The review officer must arrive at a decision which, on the merits of the case and having regard to the matters properly to be taken into account, he considers to be the proper decision in all the circumstances.”

See also Cristea v Workers Rehabilitation and Compensation Corporation (1993) 61 SASR 487, at 489. This would seem to mean that in the present case the Corporation was obliged, by evidence or admissions, to satisfy the Review Officer of the soundness of its assessment. However, Mr Stanley submitted that the worker respondent bore the onus of proof in this case. He relied upon the following passage in the judgment of Duggan J in Simpson Limited v Arcipreste (1989) 53 SASR 9, at 21. Speaking of the proceedings before the Review Officer in that case, his Honour said -

“In Santos Ltd v Saunders (1988) 49 SASR 556, it was held that such proceedings constitute a hearing de novo. Whether or not the worker has been given a determination in his favour by the Corporation, he is still required to establish his right to compensation before the Review Officer and both parties have the right to call all relevant evidence in the course of those proceedings. If they do not then their entitlement to adduce additional evidence as of right (my emphasis) before the Tribunal will depend upon their ability to satisfy the strict requirements imposed by s97(4e).”

Support was also sought in the Full Court decisions in SA Mental Health Services Inc. v Margush, 8 September 1995, unreported, and WorkCover Corporation v Summers (1995) 65 SASR 243.

In all of those cases the worker was seeking on review to establish an entitlement to compensation that had been rejected wholly or in part by the Corporation. The situation in the present case was fundamentally different. The respondent’s entitlement to compensation under s35 was conceded from the outset and, so far as appears, the amounts to which he was entitled from time to time by way of weekly payments were not in issue. What was in issue was the soundness of the Corporation’s assessment of the compensation payable to the respondent under s42A. The “matters to which the decision subject to review relates” (old s96) were the facts and computations set out or implied in the Corporation’s letter to the respondent of 28 March 1996 which the respondent, by his solicitors’ extravagantly worded application for review of 16 May 1996, was challenging. The Corporation’s decision to make an interim assessment was not reviewable, and so far as appears the assessment (whether justifiable or not) was validly made, so that, subject to compliance with subs(6) and (7) of s42A, the respondent ceased to be entitled to weekly payments. Nevertheless it was for the Corporation, in my opinion, to justify its assessment before the Review Officer. That conforms with the principle underlying the passage from Simpson Ltd v Arcipreste that I have quoted.  The parties before the Review Officer in effect start again.  This is not necessarily inconsistent with the giving of appropriate procedural or evidential directions that are designed to dispose of the review efficiently and fairly and speedily.

That means that, generally speaking, if the Corporation in a s42A review fails to establish on the evidence anything more than, say, the worker’s notional weekly earnings, the Review Officer will simply reassess on the basis set out in par(a) of subs(2). It will be for the Review Officer to judge the adequacy of the evidence offered with respect to other relevant matters - suitable employment and so on -, with the worker, exceptionally, bearing the onus of proof under par(d) of subs(3) and being faced with an irrebutable presumption of law if he does not discharge it.

It follows that I do not accept Mr Stanley’s submission as to the onus of proof.  The cases upon which he relies did not establish a principle that the worker always bore the onus of proof on a review under old s95.  That depended on the nature of the issue that the Corporation had decided in the particular determination under review.  Margush and Sommers were really cases about the proper construction of s30(2a) of the Act. The worker bore the onus in those cases because the subject of the Corporation’s determination was the entitlement of the worker to compensation. In the present case the onus was on the Corporation in the review proceedings because the issue was the correctness of the Corporation’s assessment of the worker’s capital loss.

The main grounds of appeal in this case related to the present meaning and operation of the words “that the worker has a reasonable prospect of obtaining” in subs(2) and to the onus of proof before the Review Officer. I have rejected the appellant’s argument on the latter subject. As I have indicated, I have some uncertainty about the learned Deputy President’s position with respect to the effect of the 1995 amendments to s42A and the degree to which the principles established in the James cases still apply to a s42A assessment. In the end, however, that does not matter. The appeal is not against his Honour’s reasons but against his order. As I read his judgment he allowed the respondent’s appeal against the Review Officer’s determination because he considered that the evidence was insufficient to establish the Corporation’s case. That is not a matter with which this Court is concerned. I think it tolerably clear that his Honour’s order was not affected by whatever views he had about the effect of the 1995 amendments. I would therefore dismiss the appeal to this Court.

Mullighan J

I agree that the appeal should be dismissed and I agree with the reasons of Cox J.

Williams J

I agree.