Peter Joseph O'Callaghan v Tiger Waste Control Pty Ltd [1987] ACTSC 39 (11 June 1987)

SUPREME COURT OF THE ACT

PETER JOSEPH O'CALLAGHAN v. TIGER WASTE CONTROL PTY LTD
S.C. No. 1715 of 1986
Workmen's Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Workmen's Compensation - appeal against refusal of award - nature of appeal under s.26, Workmen's Compensation Ordinance 1951

Workmen's Compensation - claim for total and partial incapacity by a workman employed by the respondent and engaged as independent contractor at the same time - injury in course of employment by the respondent - relevance of earnings as ar. independent contractor

Workmen's Compensation Ordinance 1951 (A.C.T.)

Selleys Chemical Company Pty Limited v. Graham (SC No.4 of 1986, delivered 8 October 1986)

Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531

AMP Society v. Chaplin & Anor (1978) 18 ALR 385

Dietrich v. Dare (1980) 30 ALR 407; (1979) 26 ALR 18

Christofis v. Tomazos Bros Pty Limited [1986] NTSC 4; (1986) 38 NTR 8

Palese v. Ciba-Geigy Australia Ltd (1973) 1 NSWLR 146

Hill v. Bryant (1974) 2 NSWLR 423

Johnston v. Commissioner for Railways (1973) 1 ALR 481

HEARING

CANBERRA
11:6:1987

ORDER

That the appeal be dismissed.

DECISION

This is an appeal from a decision made on 8 October 1986 by Magistrate Ward sitting as the Magistrates Court pursuant to the Workmen's Compensation Ordinance 1951 (the Ordinance) and the Fourth Schedule thereto, refusing an award for compensation.

2. The claim for compensation was for total incapacity from the date of the subject accident, namely 20 July 1984, to 20 February 1985, and for partial incapacity thereafter until the date of hearing of the application. The Court declined to make any order in relation to the claim for compensation at total incapacity rates on the grounds that there was no evidence as to whether or not the applicant was entitled to sick leave payments. In relation to the claim for compensation at partial incapacity rates, he purported to apply the formula set out in cl.1(c)(i) of the First Schedule to the Ordinance, and concluded that the appellant was not entitled to any compensation for partial incapacity.

Nature of the appeal

3. Before dealing with the substance of the appeal it is desirable to refer to the nature of an appeal to this court pursuant to the Ordinance. Section 26 of the Ordinance provides:

"26.(1) Where a committee or the court gives a
decision or makes an order or award with respect to any

matter which may be or is required to be settled by
arbitration under this Ordinance, any party to the
arbitration may appeal from the decision, order or
award to the Supreme Court.
(2) Part XIXA of the Court of Petty Sessions
(Civil Jurisdiction) Ordinance 1982 applies in relation
to an appeal under sub-section (1) -

(a) as if it were an appeal from a judgment or order

of a kind specified in sub-section 282C(2) of that
Ordinance; and

(b) in the case of an appeal from a decision, order or

award by a Committee - as if the decision, order
or award was a decision, order or award of the
Court."

4. Section 282C(2) of the Magistrates Court (Civil Jurisdiction) Ordinance 1982 provides that an appeal may be brought as of right from a judgment or order in which the matter in issue amounts to, or is of the value of, $2,000 or more.

Section 282G is in the following terms:
"282G. In an appeal, the Supreme Court shall have
regard to the evidence given in the proceedings out of
which the appeal arose, and has power to draw
inferences of fact and, in its discretion, to receive
further evidence."

5. In Selleys Chemical Company Pty Limited v. Graham (SC No. 4 of 1986, delivered 8 October 1986) Miles C.J. considered the nature of an appeal to this court pursuant to the above provisions and concluded that something more than an appeal in the strict sense is provided. After reviewing the authorities he adopted the established principles laid down by the High Court in Warren v. Coombes [1979] HCA 9; (1979) 142 CLR 531 where at p 551 the majority (Gibbs ACJ., Jacobs and Murphy JJ.) said:

"Shortly expressed, the established principles are, we
think, that in general an appellate court is in as good
a position as the trial judge to decide on the proper
inference to be drawn from facts which are undisputed
or which, having been disputed, are established by the
findings of the trial judge. In deciding what is the
proper inference to be drawn, the appellate court will
give respect and weight to the conclusion of the trial
judge, but, once having reached its own conclusion,
will not shrink from giving effect to it."

I respectfully agree with the Chief Justice's observations as to the nature of an appeal to this court pursuant to the Ordinance. On the hearing of the present appeal there was no submission to the contrary.

The Court's findings of fact

6. The undisputed findings of fact by the Court were as follows. Prior to 20 July 1984 the appellant held down two jobs. From 4.30 am to about 8.30 am he worked as a garbage runner with the respondent, and when he knocked off he went to work with a firm known as Belconnen Home Improvements as a carpenter until about 5.00 pm. He earned about $290 per week gross in each of these jobs. On 20 July 1984, whilst working for the respondent, he was injured in a freak accident when the cabin of the garbage truck in which he was travelling flipped forward. He injured his back. He suffered a compression fracture of the fifth thoracic vertebra.

7. The appellant was totally incapacitated for all forms of employment from 20 July 1984 to 1 January 1985. On the latter date he resumed employment with the respondent but after a few weeks he found the work too difficult and he obtained a job with the Department of Housing and Construction as a maintenance carpenter. He never resumed work with Belconnen Home Improvements. As stated earlier, the claim for compensation for total incapacity is from the date of the subject accident to 20 February 1985 and for partial incapacity thereafter and continuing to the date of hearing of the application. In his job in the Department of Housing and Construction he is able to earn in current terms $367.99 per week gross.

8. For the period 20 July 1984 to 1 January 1985 the respondent paid the appellant compensation at the rate of the wages he would have received with the respondent had it not been for the accident, viz $290 per week gross. He was not paid anything for his loss of capacity to continue earning money with his other job with Belconnen Home Improvements.

Claim for total incapacity

9. The claim before the Court in respect of the period of total incapacity was for an amount of $580 per week gross, being the total that the appellant was earning at the date of the accident from the employment with the respondent and his other position with Belconnen Home Improvements.

Section 7(1) of the Ordinance provides:
"7.(1) Where a workman suffers personal injury
arising out of or in the course of his employment by
his employer, his employer shall, subject to this
Ordinance, be liable to pay compensation in accordance
with the First Schedule."

The First Schedule provides for the various amounts of compensation payable on death of the workman, total incapacity and partial incapacity. The formula for total incapacity is provided by cls. 1(b), 1A and 1B.

Clause 1(b) reads:
"1. The amount of compensation shall be -
. . .

(b) where the workman is totally incapacitated for

work by the injury - a weekly payment during his
incapacity of the sum of Fifty-seven dollars and,
in addition, the sum of -

(i) Fifteen dollars in respect of -

(1) the wife of the workman, if she was
married to the workman at the date of
the injury and is wholly or mainly
dependent upon his earnings; or
(2) if he has no wife, or if compensation is
not payable in respect of his wife - one
female, over the age of sixteen years,
who is wholly or mainly dependent upon
the earnings of the workman and was, at
the date of the injury, a member of the
family of the workman or caring for a
child who was at that date, and is,
under the age of sixteen years and
wholly or mainly dependent upon the
earnings of the workman;

(ii) Seven dollars in respect of each child,

whether born before or after the date of the
injury, who, not being a child of a marriage
contracted, or an ex-nuptial relationship
formed, after the date of the injury, is
under the age of sixteen years and wholly or
mainly dependent upon the earnings of the
workman; and

(iii) where the prescribed amount applicable to the

workman in respect of a week, being one of
the first twenty-six weeks of the period, or
of the aggregate of the periods, of the
incapacity, exceeds an amount calculated by
adding to the sum of Fifty-seven dollars the
amount or amounts (if any) payable to the
workman under sub-paragraphs (i) and (ii) -
the amount of the excess;"

10. It was common ground that the rate applicable to the appellant was the aggregate of the amounts referred to in cl.1(b). "The prescribed amount" is defined in cl.1A, which reads: "1A. For the purposes of sub-paragraph (b) of paragraph 1, the prescribed amount applicable to a workman in respect of a week is -

(a) in the case of a workman who is, during that week,

employed under conditions of employment providing
for sick leave payments - an amount equal to the
sick leave payment that he would receive in
respect of that week if, during that week, he were
entitled to, and were granted, sick leave on full
pay by reason of an illness that is not
attributable to an injury in relation to which
this Ordinance applies; or

(b) in any other case - an amount equal to the amount

of the earnings that would, but for the injury, be
payable to the workman in respect of that week."

11. As previously mentioned, the learned Magistrate declined to make any award for total incapacity because he found that there was no evidence of whether the appellant was or was not entitled to sick leave payments so as to give effect to cl.1A.

12. It was submitted on behalf of the appellant that the Magistrate should have found that the appellant was not entitled to any sick leave payments and that therefore in accordance with cl.1A(b) the prescribed amount applicable to the appellant was "an amount equal to the amount of the earnings that would, but for the injury, be payable to the workman" in respect of a week of incapacity for the first twenty-six weeks.

13. It was further submitted that that amount was the amount of all earnings that would, but for the injury, be payable to the appellant in respect of that week. In the present case the amount would include not only the sum of $290 per week gross which he was receiving from the respondent by way of earnings, but also the amount of $290 per week which he was receiving from Belconnen Home Improvements.

14. The contrary argument urged on behalf of the respondent was that on the whole of the evidence this court should find as a matter of inference that the appellant was employed under conditions of employment providing for sick leave payments within the meaning of cl.1A(a). Alternatively, if the appellant was not employed under conditions of employment providing for sick leave payments and hence cl.1A(b) applied, this court should find on the evidence that the appellant was engaged as an independent contractor with Belconnen Home Improvements and that his earnings from that source were not embraced by cl.1A(b).

15. It is necessary to make some findings of fact from the available evidence about whether the appellant was employed under conditions of employment providing for sick leave payments and whether he was employed by Belconnen Home Improvements or was in truth an independent contractor.

16. With regard to the conditions of employment with the respondent relating to sick leave, there was no direct evidence from the appellant. However, there was tendered in evidence before the Magistrate the appellant's wages record with the respondent (Exhibit 2). It records that for the period preceding the pay day 21 March 1984 the appellant was paid on the basis of 16 hours worked, sick leave 24 hours, and public holidays 12 hours. The figures have been transposed in the printed form but I think that it is a reasonable inference that the words and numbers "S/L 24" are intended to convey that the appellant was granted 24 hours sick leave in the period covered by the pay day 21 March 1984. There is a similar reference to the appellant having been paid 8 hours sick leave in the period covered by the pay day 6 June 1984.

17. Although the evidence is somewhat flimsy, I think it is sufficient to conclude that the appellant was employed by the respondent under conditions of employment providing for sick leave payments. Accordingly, he was entitled pursuant to cls.1(b) and 1A(a) to his ordinary sick leave payment during the period of total incapacity. The evidence is that he was paid that amount from the date of the accident to 1 January 1985. He is therefore not entitled to any further compensation in respect of that closed period.

18. In respect of the period from 1 January 1985 to 20 February 1985 when he was back at work with the respondent but not back in his position with Belconnen Home Improvements, I hold that he has no entitlement to compensation under the Ordinance. Any entitlement would only arise if cl.1A(b) were applicable to him and not cl.1A(a). The clauses are mutually exclusive. As I have already stated, the appropriate provision in the case of the appellant is cl.1A(a) and not cl.1A(b).

19. To the extent that it may be relevant, the appellant was not employed by Belconnen Home Improvements under conditions providing for sick leave payments. I find on the evidence that he was an independent contractor. He said in his evidence in chief before the Magistrate that he was employed by Belconnen Home Improvements as a carpenter, mainly involved in renovations and extensions to dwellings. The proprietor of that business directed the appellant what homes he was to work on and what hours to work. Some tools were provided by the appellant himself and some by the proprietor. The appellant said that he was paid at an hourly rate for the work he did. He changed that evidence in cross-examination when he said that he was paid an agreed amount of money for an agreed task completed. It was a profit sharing arrangement. (The Magistrate accepted that evidence and found it as a fact.) For taxation purposes, Belconnen Home Improvements would deduct 10 per cent from any amounts payable to the appellant and the appellant would pay the balance of his income tax himself. He prepared his own tax return and claimed depreciation of his tools and other expenses of the type normally claimed by self-employed people. He agreed that the returns he submitted were similar to those he had submitted when he was self-employed in Newcastle before coming to Canberra. The hours he worked with Belconnen Home Improvements varied but averaged about 30 hours per week. Sometimes he worked weekends and sometimes not, but was not paid overtime for the weekend work.

20. As the appellant was engaged as an independent contractor by Belconnen Home Improvements "conditions of employment providing for sick leave payments" (cl.1A(a)) from Belconnen Home Improvements would not arise (AMP Society v. Chaplin & Anor (1978) 18 ALR 385; Dietrich v. Dare (High Court (1980) 30 ALR 407; Federal Court (1979) 26 ALR 18). For a discussion of the indicia against there being a contract of service; see Christofis v. Tomazos Bros Pty Limited [1986] NTSC 4; (1986) 38 NTR 8). As previously mentioned, cl.1A(a) applies to the appellant and cl.1A(b) does not. Claim for partial incapacity

21. The formula for calculating the amount of compensation payable for partial incapacity is set out in cl.1(c) of the First Schedule to the Ordinance. It provides:

"(c) where the workman is partially incapacitated

for work by the injury - a weekly payment during
his incapacity -
(i) of the amount (if any) by which the weekly
amount that he is earning, or is able to earn
in some suitable employment or business,
after the injury is less than his weekly pay
at the date of the injury, or of the amount
of Fifty-seven dollars, whichever is the
less; or
(ii) of the amount (if any) by which the weekly
amount that he is earning, or is able to earn
in some suitable employment or business,
after the injury is less than the weekly
amount that would have been payable to him
under sub-paragraph (b) of this paragraph, if
he had been totally incapacitated."

22. Clause 4 is also relevant. It reads:

"4. For the purposes of this Schedule -
(a) "pay" means the salary or wages of the workman,
and includes -
(i) where at the date of the injury the workman
was engaged in part-time work for his
employer - his earnings from any other
employment; and
(ii) unless otherwise prescribed - any allowance
payable to the workman in respect of his
employment,
but subject to the regulations, does not include
any allowance which is intermittent or which is
payable in respect of special expenses incurred or
likely to be incurred by the workman in respect of
his employment; and
(b) any reference to the weekly pay of the workman at
the date of the injury means, if the rate of pay
of workmen of the same class is subsequently
varied by competent authority or following upon a
variation in the cost of living, the rate of pay
as so varied."

23. There was no dispute on the hearing of the appeal that the applicable provision is cl.1(c) (i). The formula for determining the amount of compensation is therefore his weekly pay at the date of the injury less the amount that he is earning or is able to earn in some suitable employment or business.

24. It was submitted on behalf of the appellant that his weekly pay at the date of the injury comprised his salary or wages from the respondent plus his earnings from Belconnen Home Improvements. The contrary submission on behalf of the respondent was that the appellant was employed full time by the respondent and that accordingly his weekly pay at the date of the injury was the salary or wages of the appellant from the respondent. It was submitted that his earnings from Belconnen Home Improvements at the date of the accident are irrelevant for the purposes of calculating the amount of compensation for partial incapacity.

25. The Magistrate found that the appellant's job with the respondent was a full time job. He said:

"By no stretch of the imagination, or torture of the
usual meaning of the phrase, could his work with the
respondent be described as 'part time employment'. By
use of the maxim 'expressio unius exclusio alterius',
it is clear that the legislature did not mean 'pay' to
include emolument from any other employment if the job
that he was engaged in when he was injured was a
full-time job. The meaning of the phrase 'part time
employment' in Clause 4 of the First Schedule is, in
my opinion, the meaning that has, over the years, come
to be attached to it in common parlance by virtue of
industrial awards. It is the antithesis of 'full time
employment'. The Macquarie Dictionary defines it as
'less than all normal working hours (opposed to full
time)'. The meaning of the phrase 'normal working
hours' varies industry to industry. Most industries
used to regard 40 hours per week as the normal working
hours. However, some jobs regard normal working hours
as considerably less than 40 hours per week,
particularly where shift work, or odd hours are
involved. Here, the applicant was paid as if he
worked 40 hours per week (Exhibit 2). In my opinion,
this makes it a full-time job, and not part-time
employment.
This means that, in my opinion, when determining
'b' in the formula, one takes into account only the
amount he is earning in the employment where he was
injured, unless that employment is part-time."

26. The Magistrate's finding of fact that the appellant's job with the respondent was a full time job was supported by the evidence. Although he only worked from approximately 4.30 am till 8.30 or 9.00 am on Monday, Tuesday, Thursday and Friday of each week, it is clear from the whole of the evidence that he was employed on a 40 hour week basis but was permitted to leave when the particular garbage run for the day was finished. The appellant himself conceded in cross-examination that he was classed as a full time garbage runner. If he was required to do a double run on any one day he was paid extra for that.

27. Accepting the Magistrate's finding that the employment was full time, cl.4(a) (i) has no application. The appellant was not "engaged in part time work for his employer". It is unnecessary, therefore, to determine whether his earnings from Belconnen Home Improvements are embraced in the word "pay" in the phrase "his weekly pay at the date of the injury" as it appears in cl.1(c)(i)." It follows in my view, that the appeal should be dismissed.

28. Clause 2(b)(i) of the First Schedule would also operate to bar the appellant's claims for compensation at total incapacity rates. It provides that, notwithstanding anything contained in para.1 of the First Schedule:

"(b) where the workman is totally or partially
incapacitated for work by the injury -
(i) no payment shall be made under sub-paragraph (b)
or sub-paragraph (c) of paragraph 1 of this
Schedule which will be in excess of the amount of
the weekly pay of the workman at the date of the
injury;"

29. Clause 2(b)(i) is consistent with the limitation imposed by cl.1(c) upon the amount of an award in the case of partial incapacity. That limitation looks to the difference between the actual weekly pay at the date of the injury and the amount that he is earning or the hypothetical amount that he is able to earn in some suitable employment or business. The apparent legislative intent is to impose a limitation upon the dimution of earning capacity measured by a comparison of actual earnings at the date of injury and actual or hypothetical earnings during the period to be covered by the award of compensation. The first or plus side of the formula takes actual earnings as the starting point. In this respect the legislation is to be contrasted to the provisions of s.11(1)(a) of the Workers' Compensation Act 1926 of New South Wales, which was considered in a number of decisions cited by counsel for the appellant. Section 11(1)(a) is in the following terms:

"(a) In the case of partial incapacity, the weekly
payment shall in no case exceed the difference between
the weekly amount which the worker would probably have
been earning as a worker but for the injury and had he
continued to be employed in the same or some comparable
employment, and the average weekly amount he is
earning, or is able to earn, in some suitable
employment or business, after the injury, but shall
bear such relation to the amount of that difference as
under the circumstances of the case may appear proper."

30. The decisions of the New South Wales Court of Appeal in Palese v. Ciba-Geigy Australia Ltd (1973) 1 NSWLR 146; Hill v. Bryant (1974) 2 NSWLR 423 and Johnston v. Commissioner for Railways (1973) 1 ALR 481 on the proper construction of s.11(1)(a) of the Workers' Compensation Act 1926 of New South Wales are of no assistance in the construction of the provisions of the First Schedule to the Workers' Compensation Ordinance 1951 of the Australian Capital Territory.

31. The appeal is dismissed. I shall hear counsel on the question of costs.