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High Court of Australia |
FRAHER v. WUNDERLICH LTD. [1963] HCA 53; (1963) 110 CLR 466
Workers' Compensation (Vict.)
High Court of Australia
Dixon C.J.(1), Taylor(2), Menzies(3), Windeyer(4) and Owen(5) JJ.
CATCHWORDS
Workers' Compensation (Vict.) - Compensation - Assessment - Injury consisting in part of Table injury and in part of other injury - Whether right to compensation under Table in addition to other compensation - Workers Compensation Act 1958 (Vict.), ss. 9*, 11**.
HEARING
Melbourne, 1963, February 28, March 1, 4, 5;DECISION
November 20.2. Section 9 (2) provides that except as is provided in s. 11 of this Act, where the worker's total or partial incapacity for work results from or is materially contributed to by the injury the compensation shall be a weekly payment during the incapacity in accordance with the provisions of the appended clauses unless the Board in its absolute discretion, upon the application of either party in any proceedings before the Board relating to the compensation, awards a lump sum in redemption of the employer's liability for future weekly payments. In the present case the appellant suffered some injury to his back which occasioned a still continuing incapacity, even considering him as a one-legged man. It has been held that in view of the additional injury sustained at the time of the loss of twenty-five per cent of the use of his leg, no part of his compensation is to be ascertained under the Table. This is put on the ground that none of the injuries set out in the Table is to be compensated under the Table unless that injury represents the entire injuries suffered on the occasion. In this view I cannot agree. It appears to me that the provisions of the Act are carefully framed to prevent this result. When s. 11 (1) begins with the words "Notwithstanding anything in the foregoing provisions of this Act as to the rate of compensation, but subject to the following provisions of this section, the amount of compensation payable for any injury mentioned in the first column of the Table appended to this sub-section shall . . . be the amount set out opposite such injury in the second column", it appears to mean exactly what it says and by the word "notwithstanding" to guard the provision from implications made by reference to the previous provisions of the Act. The only question that appears to me to be possible is whether from some source or other an implication should be made that the injury referred to in the Table should be the only injury. For myself, I can see no source from which such an implication can be drawn or made. It is clear enough as a matter of reason that when the compensation set out in the Table is awarded or obtained for an injury specified, it covers all the consequences of that injury. If an amount of compensation payable for the total loss of an only eye is awarded or obtained, that covers all the effects of the consequent blindness. But subject to that observation, there appears to me to be no reason why s. 9 (2) should not operate to give the worker compensation for all incapacities not covered by the injury specified in the Table. When sub-s. (2) of s. 9 says "Except as is provided in section eleven of this Act", it appears to me to mean exactly what it says. All you do is to look to s. 11 to see what is provided. What is provided is compensation for the injuries set out, not compensation for additional injuries. The governing provision of the Act is s. 5 which says that "If in any employment personal injury arising out of or in the course of the employment is caused to a worker his employer shall subject as hereinafter mentioned be liable to pay compensation in accordance with the provisions of this Act". There the word "injury" is used in its defined sense to mean any physical or mental injury or disease and to include the aggravation acceleration or recurrence of any pre-existing injury or disease, (s.3 (1)). The words "personal injury" there cover all the injuries a man sustains on a particular occasion. For the purposes of ss. 9 (2) and 11 the word "injury" is used in one case to cover everything and in the second case to cover particular specified forms of injury to the human frame. It seems to me that the intention is sufficiently evidenced of giving to the injured worker who suffers any of the scheduled or Table injuries the compensation specified for the particular loss specified in any given case. I think if the words of the Act are steadily adhered to, little difficulty need be experienced. Once they are departed from and phrases not used in the Act are substituted, difficulties begin to be seen. I think the less said about the topic the clearer is the result. If implications are to be made they ought not to cut down the application of s. 11 but to affect the operation of this or that detailed provision which appears to be inconsistent with something that s. 11 does. The operation of s. 11 (1) may be seen by taking any illustration from the Table. Take the case of the total loss of the hearing of one ear; 560 pounds. A man who suffers that in an accident is not to receive for the partial deafness that results and the incapacities which that may involve any compensation under s. 9. But if at the same time he receives other injuries not included in the Table or under it, I cannot understand why he should not be compensated therefor under s. 9 not do I see why, if he has received other injuries, he has any the less sustained the total loss of the hearing of one ear. (at p474)
3. The present case is somewhat complicated by the use of the Table as a basis for compensation fixed under the clauses which succeed the Table defining twenty-five per cent of the loss of a limb. We are not concerned with the correctness of what the Board did in this detail and I think for the purpose of considering the Act it may be ignored and the case treated as if we were dealing with one of the items of the list of injuries given in the Table. (at p474)
4. In my opinion the appeal should be allowed. (at p474)
TAYLOR J. On 14th February 1958 the appellant suffered personal injury arising out of or in the course of his employment with the respondent. He was absent from work until 4th September 1958 and during the period of his absence he was paid weekly payments of compensation at the rate fixed by the Workers Compensation Act 1958 (Vict) for total incapacity. However, as appears from the case stated which raised questions of law for the opinion of the Supreme Court, the plaintiff's injuries had "cleared up" by the last-mentioned date, except in two respects. He had suffered a fracture of the right patella and this had been surgically removed with the result that his right leg was rendered unstable. The Workers' Compensation Board found that no significant improvement or deterioration could be expected after that date and that he had suffered a permanent partial loss of the use of the right leg. The degree of loss was assessed at twenty-five per cent. Further, the appellant had suffered compression fractures of the thoracic spine which by 4th September 1958 had resulted in "permanent loss of movement over the affected area and pain which would continue and become worse over the years due to osteoarthritic changes". This impairment was also found to be of a permanent character and each of the impairments was said to be of such a kind as to make it impossible for the appellant to carry on his previous work or many other kinds of work. Because of either impairment the wages that could be earned by the appellant in suitable employment were lower than in his pre-accident employment. (at p475)
2. In these circumstances the appellant, on 4th July 1961, made an application in which he claimed compensation pursuant to s. 9 of the 1958 Act in respect of the incapacity resulting from his spinal injury and, pursuant to s. 11 in respect of the permanent partial loss of the use of his right leg. In other words, he claimed compensation for his leg injury as a Table injury under s. 11 and, in respect of the incapacity resulting from his spinal injury, a weekly payment calculated in accordance with clause 1 (b) of the clauses appended to s. 9. (at p475)
3. The difficulties of assessing compensation in this fashion for "mixed injuries" was adverted to in The Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403, at pp 416,417 though, for reasons which were peculiar to s. 12 of the Commonwealth Employees' Compensation Act and which I endeavoured to explain in that case, I took the view that when an employee had sustained "mixed injuries" which included a scheduled injury he was entitled to have compensation under the Act in question assessed partly by reference to the Third Schedule and partly by reference to the provisions of par. 1 (c) of the First Schedule. But no such special reasons exist for accepting the appellant's contentions in the present case. Indeed, although in general form there is some similarity between the provisions of s. 12 of the Commonwealth Act and s. 11 of the Act now under consideration, there are significant differences including a marked absence from the provisions of s. 11 of the very factors which led to the conclusion in Matheson's Case [1955] HCA 24; (1955) 93 CLR 403 that s. 12 operated notwithstanding that the respondent had sustained injuries additional to a scheduled injury. Matheson's Case ([1955] HCA 24; 1955) 93 CLR 403 , therefore, by no means governs the present case. Indeed, I venture to think that if s. 12 of the Commonwealth Act had been in the same form as s. 11 of the Victorian Act the case would have been decided otherwise. (at p475)
4. When one comes to examine the provisions of the Act now under consideration there are to be found a number of indications why s. 11 should not be held to apply where a worker has sustained mixed injuries. Some of these are of a more or less general character, though nevertheless cogent, and they were the subject of a very full discussion in Sheppard v. United Stevedoring Pty. Ltd. (1954) VLR 257 . But what is more important is that not only is there nothing in the language of s. 11 to give rise to any countervailing indication but upon a close examination of that section and its history there are to be found some indications confirmatory of the decision in Sheppard's Case (1). (at p476)
5. Section 9 (2) of the Act provides that except as is provided in s. 11 of the Act, where the worker's total or partial incapacity for work results from or is materially contributed to by the injury the compensation shall be a weekly payment during the incapacity in accordance with the provisions of the clauses appended to that section. Section 9, therefore, has nothing to say with respect to compensation where the case falls within s. 11 unless, of course, the Board, upon either of the grounds appearing in sub-s. (4) of the latter section, decides to award compensation pursuant to provisions of s. 9 (2) without regard to the provisions of s. 11 and the Table which forms part of that section. This, however, was not such a case and we may pass over the provisions of sub-s. (4). (at p476)
6. In examining s. 11 it is convenient in the light of the observations made in Sheppard's Case (1954) VLR 257 to start with the provisions of sub-s. (3) which provides that nothing in the foregoing provisions of the section or in the Table shall limit the amount of compensation payable for any injury during any period of incapacity due to illness resulting from that injury, and the amount of compensation payable pursuant to the foregoing provisions of the section and the Table shall be payable in addition to any weekly payments payable in respect of incapacity due to that illness. The history of this section is set out in Goold and Porter Pty. Ltd. v. Cleveland [1961] HCA 47; (1961) 107 CLR 129, at pp 137-139 and it will be seen that the progenitor of sub-s. (3) contained in the 1915 Act provided that nothing in the schedule contained in that Act should limit the amount of compensation recoverable for any such injury (i.e. a scheduled injury) during any period of total incapacity due to illness resulting from that injury but any sum so received should be taken into account in estimating the compensation payable in accordance with the said schedule. That is to say, that in assessing compensation under the schedule for any scheduled injury there should be taken into account any sum received by way of compensation during any period of total incapacity due to illness resulting from that injury. It will be observed that this sub-section was incapable of application and, it seems to me, was never meant to apply, where weekly payments of compensation had been received by a worker during a period of total incapacity due to illness resulting from "mixed injuries" which included a scheduled injury. Nevertheless it appears, clearly enough, that the provision was intended to be capable of application whenever compensation was assessed under the schedule. To my mind this provides a sufficient reason for thinking that sub-s. (1), as it then stood, was limited in its application to injuries which were exclusively scheduled injuries. The same situation existed under the 1928 Act and continued until 1946 notwithstanding the provision which the amending Act of 1936 made for the exclusion of the sum of twenty-five pounds from the amount of compensation already received when assessing compensation under the schedule. The provision in the present Act was first enacted in 1946 and it makes plain that which would, in its absence, be far from clear, that is to say, that in the case of a Table injury a worker is to be entitled, in addition to any payment prescribed by the Table, to any compensation payable (under s. 9) in respect of any period of incapacity due to illness resulting from that injury. As was said in Goold and Porter Pty. Ltd. v. Cleveland [1961] HCA 47; (1961) 107 CLR 129 : "In the earlier Acts it (i.e. 'incapacity due to illness resulting from that injury') was used in a context which showed that a Table payment was to be in substitution for the right to any weekly payments including those already made whilst in 1946, and again in 1951, it appears in a context which is capable only of meaning that a Table payment is to be in addition to any right to receive weekly payments for incapacity due to sickness resulting from an injury" (1961) 107 CLR, at p 141 . But while sub-s. (3) is the product of the changes mentioned the leading provision which is contained in s. 11 (1) has remained substantially the same and the question is whether that sub-section applies not only where the worker's injury is constituted solely by a Table injury but also where he has sustained "mixed injuries". For my part I entertain the view that the provisions of the progenitors of sub-s. (3), which were intended to be applied in the assessment of schedule compensation for any injury falling within sub-s. (1), and which were capable of application only where the injury consisted solely of a scheduled injury, provide sound grounds for thinking that the progenitors of the present sub-s. (1) were intended to apply only to injuries which were constituted solely by a scheduled injury or injuries. And since sub-s. (1) of s. 11 appears in the present Act in substantially the same form as its progenitors it should, in my view, receive the same meaning. Particularly is this so when it is seen that it was re-enacted in its present form after the decision in Sheppard's Case (1954) VLR 257 . (at p477)
7. Some qualifications should, however, be made to the proposition that s. 11 applies only where the injury in respect of which compensation is sought is exclusively a Table injury. But these are of minor account only though, in the course of making them, a further ground will appear immediately which tends to support the general conclusion to which I have come. First of all sub-s. (3) makes it clear that the Table is to be regarded as applicable notwithstanding that the Table injury has resulted in a period of illness causing incapacity and which, in itself, constitutes an injury as defined by the Act. This, I think, again tends to the conclusion that it is intended that this should be the only type of case, other than the very special type of case covered by sub-s. (2) (a), where, notwithstanding the occurrence of some injury additional to a Table injury, compensation for an injury specified in the Table may be assessed thereunder. Secondly, cl. (a) appended to the Table operates to extend the provisions thereof but this, in a sense, is done by way of definition so that, for example, the permanent total loss of the use of a leg is to be treated as though the worker had suffered a loss of the leg itself. (at p478)
8. Finally, we come to the provisions of s. 11 (2) which have given rise to some independent difficulties in the case. It is in the following terms: "Where a worker suffers any injury - (a) which as to the major part thereof consists of an injury for which compensation is payable under the said Table; or (b) which consists of a lesser but substantial degree of any injury for which compensation is payable under the said Table - the injury shall, subject to the following provisions of this section, be regarded as an injury for which compensation based on the said Table shall be payable, and the Board may award as compensation such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered". The sub-section is supposed to owe its origin to the decision in Arnold v. Bartling (1919) VLR 293 notwithstanding the fact that it seems to have taken a considerable time after that decision to find its way into the Act. But in any event it is clear that the provision was intended to make the general provisions of the section applicable in some cases where the injury complained of is not one which is precisely and accurately described in the Table. For instance, "total loss of a leg" is a Table injury but a partial loss is not. Nevertheless by virtue of sub-s. (2) (b) the partial loss of a leg or the permanent partial loss of the use thereof is to "be regarded as an injury for which compensation based on the said Table shall be payable" and the appropriate award is that amount which "appears to be just and proportionate to the degree of injury suffered". Likewise the "total loss of a foot" is a Table injury but the total loss of a foot together with a small part of the leg is not a Table injury but, nevertheless, it may be regarded as an injury "which as to the major part thereof consists of an injury for which compensation is payable under the said Table". But the question has been debated whether sub-s. (2) applies in the case of "mixed injuries" of which a Table injury may be said to constitute the major part. My view is that it does not. Once it be established that initially, that is to say, when regard is had to sub-s. (1) alone, the section is intended to apply only in any case where the injury consists exclusively of a Table injury, sub-s. (3) reveals itself as what may, perhaps, be described as a "more or less" clause intended to operate in cases where a specific injury does not, by reason of some deficiency or, conversely by reason of some excess, precisely answer any description contained in the Table. In other words sub-s. (2) was intended in aid only of sub-s. (1) and was not intended to apply in the case of "mixed injuries" where some injury or injuries which the worker has sustained bear no relation whatever to any accompanying Table injury. That this is so is, I think, clear and this view is fortified by consideration of the "just and proportionate" basis prescribed for the assessment of compensation under sub-s. (3) for it would be quite impossible to assess compensation on that basis for injuries bearing no relationship whatever to Table injuries. (at p479)
9. For these reasons the appeal should, in my opinion, be dismissed. (at p479)
MENZIES J. The fundamental legal problem to which this appeal by special leave gives rise is the application of ss. 9 (2) and 11 of the Workers Compensation Act 1958 (Vict.) in a case where the injury which a worker has suffered is a "mixed injury", to use a common phrase, which his Honour Judge Stretton in Buchanan v. Women's Hospital (1952) WCBD 618 has described as "one which consists of two or more particular states of impairment, all of which contribute to the general condition of compensable impairment, and one or more of which, viewed alone, are Schedule injuries", "Schedule" there meaning falling within the Table appended to s. 11 (1). The essential character of a mixed injury is perhaps even more clearly brought out by following the language of s. 11 (2) and describing it as an injury consisting in part of an injury for which compensation would, if it were the only injury, be payable under the Table and in part of some other injury. This problem I propose in the first place to consider without reference to authority because, as will later appear, I do not consider that such authorities as there are provide an answer to the problem that is binding upon this Court. (at p480)
2. Section 9 provides generally for the compensation to be paid when there is liability to pay compensation under s. 5 of the Act when a worker suffers personal injury - be it one or more - arising out of or in the course of his employment and sub-s. (2) thereof deals with the assessment of compensation when total or partial incapacity for work "results from or is materially contributed to by the injury" - again be it one or more. There is, however, in s. 9 (2) express recognition that s. 11 makes different provision for compensation for some injuries for which any incapacity resulting therefrom would otherwise be compensable under the sub-section and its opening words "Except as is provided in section eleven of this Act" make it plain that no compensation for any incapacity resulting from or materially contributed to by an injury for which compensation is payable under s. 11 is to be assessed under s. 9 (2) except to the extent authorized by s. 11 itself. Section 11 begins with the words "Notwithstanding anything in the foregoing provisions of this Act", showing unmistakably that it is to be applied according to its terms notwithstanding anything in s. 9 (2) or in any other earlier provision that might be regarded as limiting its full operation. There are, however, provisions in s. 11 itself which show that compensation for incapacity resulting from or contributed to by an injury to which s. 11 applies can in particular cases, and only in such cases, become payable under s. 9 (2). First, there is s. 11 (3) which provides that, in addition to any payment for an injury for which the Table provides, weekly payments assessed under s. 9 (2) are to be paid "during any period of incapacity due to illness resulting from that injury". Then by virtue of s. 11 (4), in cases (a) where compensation under the Table would be substantially less than what would be payable under s. 9 (2) if compensation were assessable thereunder and (b) where because of special circumstances compensation under the Table would be inadequate, then instead of awarding compensation under the Table the Board may assess it under s. 9 (2). Finally, there is s. 11 (2). Because I regard it as of critical importance in the interpretation of s. 11, I set it out verbatim: "Where a worker suffers any injury - (a) which as to the major part thereof consists of an injury for which compensation is payable under the said Table; or (b) which consists of a lesser but substantial degree of any injury for which compensation is payable under the said Table - the injury shall, subject to the following provisions of this section, be regarded as an injury for which compensation based on the said Table shall be payable, and the Board may award as compensation such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered." It is to be observed from this sub-section that there may be injuries within an injury because an injury, as defined in s. 3 of the Act, may consist as to part of an injury for which compensation is payable under the Table (which I shall call "the Table part") and as to part of an injury for which compensation is not so payable (which I shall call "the non-Table part"). These parts together form "the injury" which, when the Table part is the major part, "shall . . . be regarded as an injury for which compensation based on the said Table shall be payable". It is therefore always necessary in a case of a mixed injury for it to be determined whether the Table part is the major part, for, if it is, compensation for the injury as a whole must be awarded under s. 11, so that no compensation can be assessed under s. 9 (2) except pursuant to s. 11 (3) unless the Board so awards under s. 11 (4) which is made applicable by the words "subject to the following provisions of this section" in s. 11 (2). On the other hand, when there is a mixed injury but the Table part is not the major part, the injury as a whole cannot be regarded as an injury for which compensation under or based on the Table is payable. In the case of such an injury it would conceivably be possible to treat the minor part as compensable under the Table and the major part as compensable under s. 9 (2), but I find in s. 11 (2) a very strong indication that a mixed injury is to be regarded as a whole and it is only when s. 11 (2) (a) applies that any compensation therefor is payable under s. 11. This construction of s. 11 would leave compensation for a mixed injury of which the Table part is a minor part to be assessed under s. 9 (2) and for this construction I find in s. 9 (2) itself the strongest possible support, for its provisions are not adapted to the assessment of compensation for part of an injury which as a whole results in partial incapacity for work. (at p481)
3. Section 9 (2) requires, in the case of partial incapacity for work, a
calculation of the worker's "loss of weekly earnings" by
subtracting
from "the
average weekly earnings of the worker before the injury" the "average weekly
amount which the worker is earning
or is able
to earn in some suitable
employment or business after the injury" and then an assessment of
compensation according to
the formula
-
Loss of weekly earnings Amount of weekly paymentNo other calculation under 1 (b) (ii) of the clauses appended to s. 9 is permissible and I reject the contention advanced on behalf of the appellant that some other method of assessing weekly payments for partial incapacity is feasible. If, for instance, a worker partially incapacitated for work by a mixed injury has returned to work, the only figure that can be taken to determine the critical amount - that is, his "loss of weekly earnings" - is his "average weekly earnings", an actual amount to be calculated from wages earned, and it seems to me quite impossible to substitute for his real "loss of weekly earnings" a hypothetical and lesser amount calculated by reference to an estimate of the average weekly earnings he would have been able to earn had he not suffered the Table part of the incapacitating injury. When an injury results in partial incapacity consisting in part of a Table injury and in part of a non-Table injury, I have not been able to find any way of calculating in accordance with the Act the compensation to be paid for incapacity resulting from the non-Table part by itself and, as I have read s. 11, there is no reason why there should be a way of doing this because the Table amount or amounts or, if the case falls within sub-s. (2), an amount "just and proportionate to the degree of injury suffered" determined having regard to the provisions of the Table, is the only compensation payable without resort to sub-ss. (3) or (4). (at p482)
---------------------- if worker were to tally
Average of earnings X incapacitated.
before injury
4. I find the schemes of the two sections both reasonably intelligible and workable. Where there is a single injury which is wholly or to a substantial degree a Table injury or where there is a mixed injury of which the major part is a Table injury, compensation for the injury is payable under s. 11 unless an award under s. 9 (2) is made pursuant to sub-s. (4) of s. 11: accordingly, no compensation for incapacity resulting from any such injury is payable under s. 9 except by virtue of s. 11 (3). Compensation for all other injuries not being provided by s. 11 falls to be assessed under s. 9 (2) for the incapacity for work resulting therefrom or materially contributed to thereby. To restrict s. 11 (2) (a) to a case where not only is the Table part of an injury the major part but the minor part is not more than a little extension of the major part would seem to me both to go beyond construction of Parliament's enactment and to defeat the legislative scheme for dealing with the difficulty occasioned by mixed injuries. (at p482)
5. At this point it is desirable to consider how the authorities have dealt with the problem I have been discussing by reference to the statutory provisions alone. (at p482)
6. The first case is Arnold v. Bartling (1919) VLR 293 where the Full Court of the Supreme Court of Victoria decided that the amounts of compensation provided by the Fourth Schedule to the Workers' Compensation Act 1915 - which with s. 8 corresponded with s. 11 of the Workers Compensation Act 1958 - applied only when the worker's injuries "fall expressly and literally within the provisions of the Schedule itself" (1919) VLR, at p 295 , to quote the language of Irvine C.J., with which Hodges and Cussen JJ. agreed. I have no doubt this decision was correct but, when it was decided, there was not in the Act any provision corresponding with s. 11 (2) of the Workers Compensation Act 1958 and it is to be observed that s. 11 (2) (b) would now require an award based upon the Table where the facts are as they were in Arnold v. Bartling (1919) VLR 293 unless resort were to be had to s. 11 (4). (at p483)
7. The next case is Sheppard v. United Stevedoring Pty. Ltd. (1954) VLR 257 where the Full Court of the Supreme Court of Victoria decided with respect to s. 11 of the Workers' Compensation Act 1951 - which in all material respects is the same as s. 11 of the Workers Compensation Act 1958 - applied only where all the injuries sustained by the worker came within the Table appended to the section so that compensation for a mixed injury could not be awarded thereunder. The main line of argument which led the Court to this conclusion was based upon the provisions of s. 9, which I have already discussed, and it seems that s. 11 (2), instead of being regarded as a sure indication that, except as therein provided, s. 11 did not cover mixed injuries, was treated as creating difficulty. The Court said: - "We may add that s. 11 (2) has caused us some difficulty. One may suppose that it owes its origin to the case of Arnold v. Bartling (1919) VLR 293 , and in that case 'injury' would be intended to correspond with 'physical impairment'. As 'injury' has undoubtedly been used in the Act with two different meanings, we should find no difficulty in so reading it, and we think it should be so read. However, even if 'injury' in the sub-section must be read as the totality of the physical impairments suffered, the 'injury' for which s. 5 provides that compensation must be paid, that is no help to an argument that one physical impairment may be considered under s. 11 and another under s. 9" (1954) VLR, at p 267 . On the view I take there is no such difficulty. I think the word "injury" in s. 11 is always used in the sense defined in s. 3, but sometimes as in both paragraphs (a) and (b) it is used with an express qualification - that is, "for which compensation is payable under the said Table". If the Court regarded "physical impairment" as something less than the definition, I cannot agree. I am satisfied that the words "the injury" immediately following par. (b) refer back to "any injury" in the opening words which in turn relate back to "injury" in s. 5, so that the injury for which compensation based on the Table is made payable is, where s. 11 (2) (a) applies, an injury consisting of two parts, a Table part and a non-Table part. I consider Sheppard's Case (1954) VLR 257 correctly decided that when on one occasion a worker suffers personal injury consisting of a number of injuries, it is not possible to award compensation under s. 11 for one or more of the injuries which, with others, make up the whole injury, but whether on the facts of that case the award should have been made under s. 9 or s. 11 depended upon whether or not the case fell within s. 11 (2) (a) - a determination that was not made. There is one other observation to be made about Sheppard's Case (1954) VLR 257 . The Court, in answering that the worker was entitled to compensation pursuant to s. 5 and the Second Schedule - corresponding with s. 9 of the 1958 Act - for and in respect of all incapacity for work resulting from his injuries, qualified its affirmative answer by adding "unless he" (the worker) "is prepared to limit his claim to injuries mentioned in the Fourth Schedule" (1954) VLR, at p 268 - corresponding with the Table appended to s. 11 (1) of the 1958 Act. In so answering the Court followed an observation made by Irvine C.J. in Arnold v. Bartling (1919) VLR, at p 295 , but, whatever may have been the position in the absence of the provision now to be found in s. 11 (2), it is now clear that no question of limiting a claim can arise. The mixed injury as a whole must be dealt with under s. 11 (2) (a) where it applies and I have already expressed my view that it cannot be dealt with to any extent under s. 11 unless this is the case. (at p484)
8. The next case to be considered is The Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403 - a decision of this Court upon the Commonwealth Employees' Compensation Act. The decision was that the application of s. 12 of that Act and the Third Schedule thereto - corresponding with but different from s. 11 of the Act now under consideration - is not confined to the case where the total effect of an accident satisfies a description to be found in one of the items of the Schedule. Kitto J. expressed this conclusion as follows: - "I agree with my brethren that the application of s. 12 and the Third Schedule is not confined to the case where the total effect of an accident satisfies a description found in one of the items of the schedule. If by an accident an injury is sustained which causes any such loss as is mentioned in the schedule or in sub-s. (5) or sub-s. (6) of s. 12, and the other conditions of that section are satisfied, a lump sum becomes payable by force of the section; and it is irrelevant that by the same accident the employee may have sustained another injury which itself has caused a loss specified in the Third Schedule, or in respect of which compensation has become payable under s. 9 and the First Schedule, or in respect of which no compensation at all is payable" (1955) 93 CLR, at p 415 . This decision would mean that if the present appellant's claim had been under the Commonwealth Act and not the Victorian Act, he would have been entitled to a Table amount and a weekly payment as well. The Commonwealth Act is, as I have said, different from the Victorian Act. The Table is less comprehensive and there is no provision corresponding with s. 11 sub-ss. (2), (3) and (4), to which I attach great importance. A decision under one Act can be applied to a different Act only with great circumspection and, because of the differences between the two Acts, I am not prepared to apply the decision in Matheson's Case [1955] HCA 24; (1955) 93 CLR 403 to the Victorian Act. (at p485)
9. There are two decisions of the Workers' Compensation Board (Vict.) to which I want to refer because in them I have found powerful statements of the conflicting views about the application of s. 11 to mixed injuries. The first is Gilder v. Kelly (1950) 2 WCBD 202 where the judgment delivered by his Honour Judge Gamble was to the effect that, where the injury which a worker has suffered is a mixed injury, the part falling within the Table description is compensable thereunder and compensation for incapacity for the remainder of the injury is to be assessed under provisions corresponding with what is now s. 9. In so deciding his Honour considered s. 8 (2) of the Workers Compensation Act 1946 - which corresponds with s. 11 (2) of the 1958 Act - and said: - "The difficulty arises in the construction of s. 8 sub-s. (2). Historically this sub-section was introduced by way of amendment for prior to the amendment it had been held that a worker whose injury was a little more or a little less than that defined in the Fourth Schedule could not recover under the provisions of that Schedule. For example if instead of losing one joint of his finger he had lost one-and-an-eighth joints or seven-eighths of a joint he was unable to claim under the Schedule. In the great majority of such cases this operated to his financial detriment and the anomalous inequality so created was regarded as an injustice. In our view the amendment was not intended to deal with two separate and distinct injuries viewed in relation to each other (particularly where one of them fell within the Schedule and the other under s. 7) and though the word 'injury' would include the plural 'injuries' this, in the context means, that the several inquiries, if there be more than one, are to be regarded singly and not in relation to each other. This seems clear to us when it is realized that the sub-section provides for measuring the degree of injury in relation to its own parts and not in relation to some other and different injury. The latter would in most cases of course be impossible. We are therefore of opinion that sub-s. (2) of s. 8 has no application to the facts of this case and in particular does not require or enable the Board to determine in relation to the two injuries in the present case which is the major or lesser injury or to deal with the two injuries as a composite but single injury using the Fourth Schedule as a guide to the amount of compensation" (1950) 2 WCBD, at p 207 . I have found myself unable to accept this view because sub-s. (2) (a) is plainly dealing with the case where there is but one compensable injury of which the major part consists of a Table injury and the minor part does not. I do not follow his Honour's statement that "though the word 'injury' would include the plural 'injuries' this, in the context means, that the several injuries, if there be more than one, are to be regarded singly and not in relation to each other". The intention of the legislature is to be gathered from the words it has used and it seems to me that every word in sub-s. (2) (a) is directed towards regarding a mixed injury to which it applies as a whole and not towards regarding each part singly, as his Honour seems to suggest. Moreover, for his Honour to say that one injury falls within the Schedule and the other under s. 7 seems to me to disregard the very difficulty with which his Honour was dealing. His Honour's judgment also directs attention to the difficulty, as he saw it, of awarding compensation based on the Table for a mixed injury of which one part cannot be related to an injury for which a particular sum is provided in the Table, but it seems to me that the Board is given a very wide discretion to "award as compensation such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered" and this sets it very much at large within the limit of 2,800 pounds and with the guidance of the amounts that have been fixed for some forty specified injuries. The making of such an award does not seem to me to present difficulties of the order that would be involved in determining a weekly payment for a hypothetical part of an existing partial incapacity whilst adhering to the direction given in cl. 1 (b) (ii) of the clauses appended to s. 9. (at p486)
10. The second case is Buchanan v. Women's Hospital which is identifiable merely as being case 618 of 1952, of which there is a print, where the judgment delivered by his Honour Judge Stretton was to the effect that, in the case of a mixed injury, an applicant cannot be awarded compensation both under s. 9 and s. 11. The judgment sets out fourteen propositions which state his Honour's views of the problem before him. Referring to what is now the Table to s. 11 (1) as "the Schedule" and to what are now the provisions to s. 9 as "the general provisions", his Honour traced parallels between the two indicating that they are separate and distinct and he treated the Schedule as providing for the "arbitrary redemptions of weekly payments which absolve the parties of the necessity of calculating the appropriate rate of compensation, the degree of incapacitation and its probable duration". His Honour noticed that under each set of provisions there is the same maximum provided and said "It would be very odd indeed if it did not do so". Two of his propositions I desire to set out verbatim: - "5. The main operative section of the general provisions provides for liability to pay compensation for the case of 'personal injury by accident' being caused to a worker. Personal injury by accident is the general state of disabling impairment which the worker suffers. That general state of impairment may comprise several particular states of component injuries, one or more of which may be Fourth Schedule injuries. 14. In the case of 'mixed' injury, the Schedule cannot be used. A 'mixed' injury is one which consists of two or more particular states of impairment, all of which contribute to the general condition of compensable impairment, and one or more of which, viewed alone, are Schedule injuries. Because such an 'injury by accident' can not constitute a Schedule injury (Arnold v. Bartling (1919) VLR 293 ) it can not be viewed as the exception which falls within the Schedule and must be dealt with under the general provisions, unless, perhaps, the claim is limited to the Schedule injuries (vide judgment of Irvine C.J. in Arnold v. Bartling, (1919) VLR 293 )." The conclusion expressed in proposition 14 is that which was adopted by the Full Court in Sheppard's Case (1954) VLR 257 in preference to that expressed by Judge Gamble in Gilder v. Kelly (1950) 2 WCBD 202 . Judge Stretton did not advert to what is now s. 11 (2) and it seems to me his fourteenth proposition is, to the extent to which that subsection requires the award of compensation based on the Table for a mixed injury, too widely expressed. Except for this I agree with his Honour. (at p487)
11. A number of other Australian and New Zealand authorities were referred to in argument but I have not found in them any guidance upon the problem now under consideration. (at p488)
12. As I have already indicated, the authorities do not bind this Court to adopt any particular construction of s. 11 and for the reasons I have given I consider that, except to the extent required by sub-s. (2) thereof, compensation for mixed injuries is not payable under the section nor is compensation for that part of the mixed injury which, were there no other part, would be compensable thereunder. I read the words "for any injury mentioned in the first column of the Table" in the first part of s. 11 (1) as meaning when the injury is mentioned in the first column of the Table, and this is, I think, the same construction as that adopted originally in Arnold v. Bartling (1919) VLR 293 - a construction for which I think later amendments to the Act have provided strong support. I regard s. 11 (2) as necessary to bring within the ambit of s. 11 any claim where the personal injury for which compensation is payable under the Act is not exactly within a description in the first column of the Table but is either more or less. (at p488)
13. The facts of the present case are that the appellant was a roof fixer employed by the respondent who, while working on a roof, fell some thirty feet to the ground and suffered a number of injuries which totally incapacitated him for work for nearly seven months. During this time he was paid weekly payments of workers' compensation appropriate to a condition of total incapacity for work. On 4th September 1958 he returned to work with the respondent and has since been employed first as a labourer, then as an inspector and finally as a warehouse foreman. He still suffers from two injuries of a permanent and incapacitating character - an injury to the right knee and compression fractures of the thoracic spine. The Board found that by 4th September 1958 the injury to the right knee had reached a condition where no significant improvement or deterioration could be expected and there was a permanent partial loss of use of the right leg of 25 per cent. This, by reason of the provision at the foot of the Table "the total loss of a limb . . . shall be deemed to include the permanent total loss of the use of such limb" and of s. 11 (2) (b) - a difficult provision which I do no more than assume was applicable - was found to be "identifiable as an injury described in the Table appended to s. 11 of the Act". As to the fractures of the thoracic spine, the Board found that they "resulted in permanent loss of movement over the affected area and pain which would continue and become worse over the years due to osteoarthritic changes of such a kind that there is a possibility that eventually the wearing of a brace or surgical intervention may become necessary". It was also found that the thoracic spine injuries were not an injury falling within the Table appended to s. 11 and that the only relation between the knee injury and the spine injury is that they resulted from the one accident. The Board made the following further findings: "Because of the said injury to the thoracic spine the wages that can be earned by the applicant in suitable employment would be lower than those in his pre-accident employment" and "Because of the said injury to the applicant's right leg, the wages that can be earned by the applicant in suitable employment would be lower than those in his pre-accident employment". Compensation for his incapacity to work was calculated under the clauses appended to s. 9 of the Act as a weekly payment of 2 pounds 10s. 0d. The appellant, in addition to claiming weekly payments, had sought compensation to be assessed under s. 11 of the Act in respect of the injury to his right leg. This part of his claim was dismissed. The decision of the Board awarding a weekly payment of 2 pounds 10s. 0d. for partial incapacity arising from both injuries and dismissing the claim for a Table amount was based upon Sheppard's Case (1954) VLR 257 and, when a case stated by the Board came before the Full Court, the earlier decision was followed and the questions asked were answered accordingly. (at p489)
14. It may be that an order remitting the case to the Workers' Compensation Board to determine which part of the appellant's mixed injury is the major part ought strictly to follow from the views I have expressed. However, because I am, except as to the meaning of s. 11 (2), in substantial agreement with the Full Court and because it seems clear that the injury to the thoracic spine is the major part of that mixed injury, I think an order simply dismissing the appeal is warranted. (at p489)
WINDEYER J. In this case we have to consider the effect of the Victorian Workers Compensation Act 1958 when a worker has suffered what has been called a "mixed injury", that is an injury compensable according to the Table to s. 11 (1) and also other injuries, so that, for the purpose of the Act generally, "the injury" which he had was the total result of the "table" injury and other hurts. The answer to the question must be reached by a consideration of ss. 9 and 11. Decisions upon the provisions of other Acts which resemble, but are not the same as, those of the present Victorian Act can only be helpful if used with a discerning caution. (at p490)
2. Both parties argued the matter on the basis that the worker had suffered a hurt to his leg of a kind that, had it been the whole extent of his injuries, would have brought the case directly within s. 11. This the Board found to be so. It is a finding that must depend upon s. 11 (2), for it does not follow from s. 11 (1) alone. The Table lists a number of specific injuries. Some are described as total losses, e.g. "total loss of a leg", "total loss of the great toe of either foot". Some are injuries, or consequences of injuries, described as partial losses, e.g. "partial loss of the sight of one eye". Then there is a provision as follows: "For the purposes of this Table the total loss of a limb hand foot finger thumb toe or joint or any part thereof shall be deemed to include the permanent total loss of the use of such limb hand foot finger thumb toe joint or part". The meaning and purpose of this are obvious. If a limb or other member be lost, in the sense of removed by the accident or amputated as a consequence of it, the sum stipulated in the Table becomes payable as compensation. And further, if a limb or member, the total loss of which is provided for in the Table, is not lost (in the sense of removed) but is rendered permanently useless, then the same amount is payable as if it had been physically lost. This applies also in the case of the total loss of the use of a part of a member, where the Table provides for the total loss of such part, e.g. "total loss of the lower part of the leg". The effect of the footnote is thus notionally to write into the Table after each item of total loss of a member or part the words "or the permanent total loss of the use thereof". (at p490)
3. What happened here was this, as appears in the case stated: "The fracture of the applicant's right patella necessitated the surgical removal of the said patella rendering the right leg unstable and resulting in a permanent partial loss of the use of the right leg of 25%". And the Board in the reasons for its decision that, whether properly or not, were annexed to the case stated, said "the parties have agreed that the injury constitutes an anatomical loss of 25% of the use of the right leg". Now, as I have said above, s. 11 (1) (including the Table and footnote) expressly makes the loss of the use of a limb or a part thereof equivalent to the loss of such limb or part. And that is reasonable. But the section does not make the partial loss of the use of a whole limb equivalent to the loss of part of a limb. That would be unreasonable, both logically and anatomically. Here the appellant suffered a total loss of part of his leg, namely the patella, which was removed. But the Table contains no reference to the patella. It does not mention the knee joint at all. For these reasons the Board's statement that "the injury to the applicant's right leg is identifiable as an injury described in the Table" can only be supported by reading s. 11 (2) with s. 11 (1) and the footnote to the Table. Their combined effect is then said to arise as follows: Section 11 (2) applies "where a worker suffers any injury which consists of a lesser but substantial degree of any injury for which compensation is payable under the Table". This perhaps was originally enacted to overcome the consequences of the decision in Arnold v. Bartling (1919) VLR 293 . But it is apparently generally considered that, read with the footnote, it means that any injury which can be said to be a "lesser but substantial degree" of the permanent total loss of the use of a limb "shall (by virtue of s. 11 (2)) be regarded as an injury for which compensation based on the said Table shall be payable". If then a permanent reduction by twenty-five per cent of the anatomical effectiveness, strength or practical usefulness of a limb be regarded as a "lesser but substantial degree" of the "permanent total loss of the use of that limb", the impairment of usefulness is treated as compensable by reference to the Table. I am not convinced that this is a correct application of s. 11 (2). But it is the approach to the question that the Board adopted. The parties accept it. I shall therefore consider the case on the basis that the appellant's leg injury, if it stood alone, would be a table injury and assessed pursuant to s. 11 (2); but that his back injury is not a table injury. (at p491)
4. For the respondent it was argued that, in the case of a "mixed injury", s. 11 is to be disregarded and compensation assessed solely under s. 9. The decision in Sheppard v. United Stevedoring Pty. Ltd. (1954) VLR 257 was relied upon. The starting point of the argument was the words in s. 9 (2) "Except as is provided in section eleven of this Act . . . the compensation shall be a weekly payment during the incapacity". But I read that as meaning "except to the extent that s. 11 provides for the compensation, it shall be a weekly payment during the incapacity". Section 11 (1) states categorically that the Table applies for any injury mentioned in it, "notwithstanding anything in the foregoing provisions of this Act as to the rate of compensation". It is conceded that, if the appellant had only suffered the leg injury, he must have got a lump sum under s. 11, whether or not he was incapacitated in the sense of not being able to earn the wages he had earned before the accident. But it is said that, because he hurt his back, he cannot have the lump sum that the Table provides for his leg injury. The proposition is on the face of it surprising; and, despite the refined ingenuity of the argument based on the precise sense or senses that the word "injury" has in different parts of the Act, I cannot accept it. The man hurt his leg. This, it is agreed, was in itself "an injury mentioned in the first column of the Table" within the meaning of s. 11 (1). I cannot see that it ceased to be so because he also hurt his back. No doubt there are anomalies in the Workers Compensation Act, which is, in many respects, a troublesome piece of legislation. But it would be strange indeed if its meaning were that a man might, because he was more grievously injured, become entitled to less compensation. And I do not think that is the natural meaning of the words of the Act. I adopt, at this point, the reasoning in The Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403 . That case arose under another Act. Its terms are not identical with those of the Victorian Act, and the differences are not insignificant. But in principle the decision seems to me applicable. One passage from the judgment of Williams J. is apposite. Speaking of a section similar to s. 11, he said: "The section is mandatory. It requires compensation to be determined in accordance with its provisions in all cases where the employee sustains any of the injuries specified in the first column of the Third Schedule. It is immaterial whether the injury is the only injury received in an accident or whether other injuries are received as well. What is material is that the sole injury or one or more of several injuries should be identifiable as an injury to the part of the body specified in the Third Schedule. The injury to the respondent's left leg is such an injury" (1955) 93 CLR, at pp 412, 413 . (at p492)
5. As I do not accept the respondent's view that s. 11 is to be ignored and the compensation for the total effects of the mixed injury assessed under s. 9, I pass now to consider the consequences of applying s. 11 in this case. (at p492)
6. The question is: the appellant being entitled to compensation under s. 11 because his leg was injured, is he entitled to some further sum because his back was injured? For the appellant it was argued that, having had the stipulated lump for his leg injury, he should then be treated as if he were a whole man apart from his back injury, and given compensation calculated under s. 9 for incapacity for work resulting from his back injury. That proposition seems to me to be as erroneous as that put forward by the respondent. The appellant suffered multiple injuries. They could be separately described in anatomical terms, but together they constituted "the injury" referred to in s. 9 (2). Under that section he was entitled to have compensation for his incapacity for work resulting from "the injury". Such compensation is assessable in accordance with the appended clauses, "except as is provided in s. 11". Now s. 11 provides, in cases to which it applies, an arbitrary quantification or assessment of compensation for certain injuries that it is assumed must necessarily reduce a worker's capacity for work by limiting the activities in which he can engage or by impairing in some degree his skill. In the present Victorian Act, unlike some other workers' compensation legislation, the two sets of provisions - s. 9 and its clauses, s. 11 and its Table - are not complete alternatives. But it does not follow from this that they are wholly cumulative in effect. They are, in purpose and by their very words, interrelated and interlocked. To the extent that the appellant became entitled to a lump sum under s. 11, he was compensated for the consequences of "the injury". If, relying upon actual incapacity assessable under s. 9, he then sought compensation under that section and its clauses, his lump sum entitlement under s. 11 would simply have to be brought into account as the opening words of s. 9 (2) appear to me to contemplate. It would be, pro tanto, a statutorily compelled redemption, as it has been called, by the employer of his liability to make weekly payments. The employer would be entitled to have it so treated, for the simple reason that it was paid as compensation for an injury that was a component part of "the injury" to which s. 9 refers. In some cases the sum payable under s. 11 might exceed the total of the sums payable under s. 9, and thus be the total measure of the employer's liability. But if a worker suffers any injury compensable under s. 11 read as a whole, he must, in my opinion, get at least the amount to which under the provisions of that section he is entitled. (at p493)
7. I have not overlooked the provision of s. 11 (2) dealing with the situation "where a worker suffers any injury which as to the major part thereof consists of an injury for which compensation is payable under the said Table . . . ". It is, I think, a question of fact for the Board to determine whether, in a particular case, this provision applies. I do not think it could do so in this case, because I read it as relating only to cases in which it can be predicated that the worker's injury (singular) answers one of the descriptions in the Table but is accompanied by other hurts clearly minor. But where a man is badly injured in several respects when, for example, he suffers injuries to his head, to a limb and to some internal organ, it may well be impossible to say which is the major part of his total injury. It is not even clear whether or not the question of relative importance, majority or minority, depends upon ultimate bodily consequences or upon the effect on wage-earning capacity. But in this case as I see it the question does not really arise. (at p494)
8. I would allow the appeal and answer the questions in the case stated as follows: (i) No. (ii) (a) Yes. (b) No. Compensation for the total injury causing incapacity should be assessed pursuant to s. 9 of the Act and the clauses appended thereto, credit being given for any sum assessed pursuant to s. 11. (at p494)
OWEN J. The appellant suffered injury arising out of or in the course of his employment with the respondent and as a result he became permanently partially incapacitated for work. He has permanently lost 25% of the use of his right leg and in addition has a permanent limitation of the movement of his back. Each of the injuries is an incapacitating one but neither of them is associated in any way with the other except that both resulted from the same accident. He claimed compensation from the respondent. For the leg injury he sought a capital payment assessed under s. 11 of the Workers Compensation Act 1958 (Vict.) and for the back injury he sought payment of a weekly sum assessed under s. 9 of the Act. The Workers Compensation Board refused to order the capital payment but made an order for weekly payments calculated under s. 9, taking into account the incapacity caused by both injuries. Upon a case stated to the Full Supreme Court of Victoria, that Court, applying an earlier decision in Sheppard v. United Stevedoring Pty. Ltd. (1954) VLR 257 , held that the Board had rightly assessed compensation under s. 9 and this appeal is brought to test that decision. (at p494)
2. For the appellant it was submitted that the proper method of assessing the compensation to which the appellant was entitled was to award a lump sum under s. 11 for the incapacity arising from the leg injury and then to turn to s. 9 and, treating the appellant as a man suffering only from the back injury, award a weekly sum calculated in accordance with that section. For the respondent it was contended that in a case such as this the whole of the compensation must be assessed under s. 9. (at p494)
3. Section 9 (2) provides that, "except as is provided in s. 11 of this Act," where total or partial incapacity for work results from or is materially contributed to by the worker's injury the compensation shall be a weekly payment during the incapacity assessed in accordance with the clauses appended to the section. Clause 1 (b) (ii) is the appended clause which sets out the method of calculating the amount to be paid in the case of partial incapacity. It is to be a weekly payment of such amount "as bears the same ratio to the amount of the weekly payment which would be payable if the worker were totally incapacitated for work as the worker's loss of weekly earnings bears to the amount" of his average weekly earnings before the injury. It is plain, I think, that when s. 9 (2) speaks of "the injury" it is referring to all the infirmities or impairments arising out of or in the course of his employment which have produced the worker's incapacity for work. And I think it equally plain that s. 9 (2) is to be applied in all cases except those for which s. 11 provides. (at p495)
4. It is necessary then to go to s. 11. Section 11 (1) provides that "Notwithstanding anything in the foregoing provisions of this Act as to the rate of compensation, . . . the amount of compensation payable for any injury mentioned in the first column of the Table appended to this sub-section shall, subject to the said Table, be the amount set out opposite such injury in the second column of the said Table." And, by s. 11 (2), "Where a worker suffers any injury - (a) which as to the major part thereof consists of an injury for which compensation is payable under the said Table; or (b) which consists of a lesser but substantial degree of any injury for which compensation is payable under the said Table - the injury shall, subject to the following provisions of this section, be regarded as an injury for which compensation based on the said Table shall be payable, and the Board may award as compensation such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered." The Table sets out a number of injuries including "The total loss of a leg". Foot Note (a) to the Table states that for the purposes of the Table "the total loss of a limb hand foot finger thumb toe or joint or any part thereof shall be deemed to include the permanent total loss of the use of such limb hand foot finger thumb toe joint or part". The appellant has not suffered the total loss of a limb or part thereof nor has he permanently totally lost the use of a limb or part thereof. What he has lost is 25% of the use of the whole limb. But had the only incapacitating injury been the leg injury, I think he would have been entitled to be compensated under s. 11 since Foot Note (a) has the effect of adding the words "or the permanent total loss of the use thereof" to the item "Total loss of a leg". It could then be said that s. 11 (2) (b) applied since the loss of 25% of the use of the leg would be a "lesser but substantial degree" of an injury for which compensation was payable under the Table. In the present case, however, the question is whether s. 11 can apply to a case in which the incapacitating injury includes an injury which is in no way related to the Table. The answer seems to me to depend upon the meaning to be given to s. 11 (2) which appears to have been introduced into the law relating to worker's compensation as a result of the decision of the Full Court of the Supreme Court of Victoria in Arnold v. Bartling (1919) VLR 293 . That case was concerned with the Act of 1915 in which "Table injuries" were dealt with by s. 8 and the Fourth Schedule. Section 8 (1) corresponded with s. 11 (1) of the present Act but there was then no provision corresponding with the present s. 11 (2). In that case the worker had lost two joints of the middle finger of his right hand. The Fourth Schedule provided for the amounts of compensation to be paid for the total loss of one joint of a finger and for the total loss of a finger but made no provision for the loss of two joints. The worker claimed that he was entitled to twice the amount payable for the loss of one joint, but his claim was rejected on the ground that s. 8 and the Fourth Schedule applied only in those cases in which the injury suffered fell precisely and literally within one or other of the descriptions of injuries in the Table. The amount of compensation was therefore to be assessed under a provision which corresponded with s. 9 of the Act of 1958. It is clear that s. 11 (2) of the present Act would now apply to such a case. A worker who has lost something less than the whole of a finger and something more than one joint of it would be entitled to be awarded "such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered". But does s. 11 (2) (a) have any application to a case where part of the injury to the worker consists of an injury falling within the Table and part of it has no relation at all to any of the "Table injuries"? The conclusion to which I have come is that the sub-section does not apply to such a case. It is designed to deal only with an injury which, while not literally one or other of the injuries described in the Table, is one of a kind described in the Table but involving the loss of something more or something less than the injury described. Section 11 (2) (b) is confined in its application to a "lesser but substantial degree" of any injury described in the Table and this can only refer to an impairment such as the Table describes but less in extent than that described. Section 11 (2) (a) should, I think, also be read so as to apply only to an injury of a kind described in the Table but greater in extent than that described and not so as to cover the case where the worker has suffered injury, part of which is of a kind described in the Table and part of which is entirely unrelated to the Table. I find support for this view in the way in which s. 11 (2) directs that the amount of compensation shall be assessed. It is to be an amount which, having regard to the provisions of the Table, appears to be just and proportionate to the degree of injury suffered and I find it difficult to see how it can be determined in the case of a worker who has, for example, lost a finger and had his skull fractured in the same accident what amount, having regard to the Table, is "just and proportionate" to the degree of injury suffered. The Table affords no guidance whereby to assess the amount to be awarded for the fractured skull. (at p497)
5. Counsel for the appellant pressed us with the decision of this Court in The Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403 which, he submitted, was in point and decisive of the present case. It was a decision on provisions of the Commonwealth Employees' Compensation Act bearing a resemblance to ss. 9 and 11 of the Victorian Act but differing in material respects. In particular it contained no provision similar to s. 11 (2) and it is the wording of that sub-section that leads me in the present case to take the view that I have expressed. Accordingly, and assuming it to have been rightly decided, I do not think that it should be regarded as an authority governing the construction of ss. 9 and 11 of the Victorian Act. In the result I am of opinion that in a case in which the worker's injury comprises two or more components only one of which is a "Table injury" the amount of compensation payable is to be assessed in accordance with the directions set out in s. 9. Where, however, his injury consists solely of a "Table injury" the amount payable is to be fixed under s. 11 unless, by the operation of s. 11 (3) or s. 11 (4), the provisions of s. 9 are applicable. (at p497)
6. In my opinion the appeal should be dismissed. (at p497)
ORDER
Appeal dismissed with costs.
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