J & H Timbers Pty Ltd v Nelson [1972] HCA 12; (1972) 126 CLR 625 (25 February 1972)

HIGH COURT OF AUSTRALIA

J. & H. TIMBERS PTY. LTD. v. NELSON [1972] HCA 12; (1972) 126 CLR 625

Workers' Compensation (N.S.W.)

High Court of Australia
Barwick C.J.(1), Menzies(2), Windeyer(3), Owen(4) and Gibbs(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Injury to worker - Partial incapacity - Weekly payment - Entitlement - Computation of amount - Onus of proof - Workers' Compensation Act, 1926 (N.S.W.), as amended, ss. 6 (5) (a) 9, 11, (1) (a).

HEARING

Sydney, 1971, March 29, 30;
Melbourne, 1972, February 25. 25:2:1972
APPEAL by leave from the Supreme Court of New South Wales.

DECISION

February 25
The following written judgments were delivered : -
Barwick C.J. The respondent was engaged by the appellant, which conducted a employment of the appellant under a contract of employment but by virtue by s. 6 (5) (a) of the Workers' Compensation Act, 1926 (N.S.W.), as amended, (the Act) and the facts found by the Workers' Compensation Commission (the Commission) he was deemed for the purposes of the Act to be a worker employed by the appellant. The Commission found that the respondent received an injury in the course of his deemed employment by the appellant. It also found that he suffered incapacity as the result of that injury. For a time the incapacity was total but after a time it became partial and continuing. The Commission made an award of compensation covering both the period of total incapacity and the period of partial incapacity. By an appeal brought to the Supreme Court of New South Wales (Court of Appeal Division) the appellant challenged the Commission's award insofar as it related to partial incapacity. The amount awarded for total incapacity had been paid by the appellant and the appellant sought to set aside the continuing award on account of partial incapacity and an order dismissing the respondent's application for compensation in respect of that partial incapacity. The Supreme Court by an unanimous judgment dismissed the appeal (1970) 92 WN (NSW) 629 . (at p628)

2. The appellant now appeals to this Court on the grounds, first that the Supreme Court was in error in holding that the onus was upon the appellant in the proceedings before the Commission to establish the extent of the dimunition of the respondent's earning capacity due to the injury he had received, and second that the Supreme Court was in error in holding that in the circumstance of the case the Commission was entitled to use its own experience and knowledge to find a difference between what the respondent earned prior to the injury and what he was earning or could earn after he became partially incapacitated due to the injury. (at p629)

3. The difficulties which arise in this case stem partly from the fact that the appellant was not an employee in receipt of wages and partly from the fact that the appellant worked in his business which was not confined either before or after his injury to hauling logs to the appellant's mill. Sawn timber was purchased and sold on his own account though according to the findings of the Commission "the greater part of the work was in the hauling of logs to" (the appellant's) "mill". The Commission described his business as "simply a man and a truck with a certain amount of timber dealing knowledge and experience". He was not a person "who really, from the way in which the business was conducted, was called upon in his business affairs to be precise as to figures and times". When he ceased to be totally incapacitated he was as the Commission said "partially incapacitated and has remained partially incapacitated up to the present time". The appellant was found by a medical board to have lost some ten per cent of the full efficient use of his right arm. "In a man dependant upon his labour for his livelihood" said the learned Commissioner "that it is not merely a medical or theoretical loss. It appears to me that it is an economic loss that has had its effect upon the applicant in the work he was doing and that it has restricted his earning capacity in the general labour market". The Commission found itself unable from the books and records kept by the respondent and from his oral evidence to determine what were the net gains of his business from timber hauling because of the intermingling in the dealings in sawn timber. The Commissioner concluded "it would be quite impossible to attempt to reach any view that I would be justified in acting upon as to any definite amount of money earned by" (the respondent) "from his work under" (the appellant). The Commission proceeded to say :

"Under s. 11 (1) (a) the normal procedure in looking to an
award of partial incapacity is to find the two sums, to the
difference between which one must have regard in approaching
the question of an apt award. In the present case it appears
to me in relation to the matter of average weekly earnings
after the injury that I should attend to what the applicant
has been able to earn in some suitable employment or business
and desist from the effort to reconstruct what in fact he has
earned. That is rendered all the more necessary in some
respects by his absences from work for the short periods
mentioned for other causes. In relation to the question of the
probable weekly earnings in terms of s. 11 (1), I have
considered
approaching the matter to endeavour to fix some
specific figure as representing that amount. This is the quite
exceptional case in which I feel driven back to approach the
matter from the different point of view of finding the difference
between the two amounts without finding what those amounts
really are. It appears to me that in the circumstances of this
case it is easier for me to do justice between the parties by
having regard to the effect of the disability from time to time
upon the earning power of a man in the position of the applicant
than it is for me to arrive at that difference by first ascertaining
separately the amounts, the finding of the difference between
which is the purpose of the exercise. (Cf. Hamilton v. Shelton
Co. Ltd.
(1926) 19 BWCC 475, at pp 495-496
I have considered the question whether in
relation to the award there is any reason why I should give
less than the amount of the difference as being appropriate in
the circumstances of the case. It does not appear to me that
there is any reason to give an amount less than the actual
amount of the difference." (at p630)

4. The Supreme Court in dismissing the appeal to that Court followed
a long-standing decision of Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 , affirmed in Australian Iron & Steel Pty. Ltd. v. Elliott (1966) 67 SR (NSW) 87 , in holding that where a worker establishes the receipt of an injury arising out of or in the course of his employment and some supervening incapacity caused thereby he is entitled to an award of compensation as provided by s. 9 of the Act and that it rests upon the employer to establish that the amount of compensation should be limited in terms of s. 11 of the Act. The Supreme Court concluded :

"The legal burden referred to by Jordan C.J. in Bryer v.
Metropolitan Water Sewerage and Drainage Board
(1939) 39 SR (NSW) 321, at p 332
has
remained throughout on the employer. On the findings of
the Commission, this onus was not discharged. Therefore the
Commission by implication went by its own experience and
knowledge as it was entitled to do".
(1970) 92 WN (NSW), at p 637
.

Consequently the Supreme Court refused to interfere with the award made by the Commission. (at p630)

5. In this Court it has been submitted that there was no material upon which the Commission could determine that the amount awarded namely $15 per week represented the diminution in the respondent's earning capacity due to the injury he had received whilst working in the engagement of the appellant. As to this amount the Commission said :

"Having regard to my view of the general course of" (the
respondent's) "recovery in the orthopaedic sense and taking
the period from 2nd June 1967" (the date of the temination
of total incapacity) "to date it appears to me that over that
period the probable extent of the difference referred to in
s. 11 (1) (a) is - and it is impossible to be dogmatic - is of the
order of about $15 per week. I make an award for the applicant
under s. 11 (1) (a) for $15 per week from 2nd June 1967 to
date and continuing." (at p631)

6. The decision of the Supreme Court in Bryer v. Metropolitan
Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 has also been challenged by the appellant and it has been submitted that on the proper view of the Act it rests upon the worker to establish both the extent of his incapacity and the amount expressed in money terms which should be awarded in respect of that incapacity. (at p631)

7. I turn first to the submission that there was no material before the Commission on which it could make the award for partial incapacity which it did. In my opinion there was material before the Commission on which it could decide by what amount the earnings which the respondent could obtain by his labour was reduced by the continuing effect of the injury he had received. He was a deemed worker though in fact he carried on a business on his own account ; but that does not mean that the net gain of the business he conducted relevantly constituted the earnings of the use of his labour. He worked himself in the business which he conducted both before and after the receipt of the injury. It is his earning capacity as a worker as it was before and after his injury which will determine the amount of his compensation. It is not claimed that his business was unprofitable or that it yielded less in net gain than the amount of wages appropriate to the physical work he performed in the business. The proper approach in my opinion to the determination of his earnings in the circumstances is to decide what his labour exercised in that business was worth ; that is to say what it would have cost him to employ somebody to do in the business what he himself did or was doing. An alternative approach would be to determine what his work would have been worth in wages if he had been employed by another to do the work, see Calico Printers Association Ltd. v. Higham (1912) 1 KB 93 and Paterson v. A. G. Moore & Co. (1910) SC 29 . In the former of the two approaches the differences between the worth of his labour before and after the injury would be measured by what it would cost him to supplement the labour which after the accident he could perform so as to achieve the physical work which he had been able to do himself before the injury. In the latter of the two approaches the question would be to determine what he could earn in wages in his incapacitated state as compared with what he could earn in his preinjury condition. (at p632)

8. The difference of which s. 11 speaks is not the difference between the net gains of the business before and after receipt of an injury but the difference in the appropriate remuneration for the physical labour of the worker in the business in the two periods of time. There being no claim that the business was run at a loss or that it produced less than the appropriate amount to be paid in wages for the respondent's physical labour in the business, it seems to me with due respect that in endeavouring to quantify the net gains of the respondent's business before and after the receipt of his injury the Commission was pursuing an irrelevant course. Apart from all else the net gains will be affected by many circumstances and will not necessarily reflect the difference in the respondent's earning capacity as a deemed worker. The Commission's task was to assess the diminution in earning capacity due to the injury, a diminution which would exist whether or not the respondent continued to conduct a business. (at p632)

9. In relation to that question the Commission had an account of what physical work the respondent performed in the business and was able to assess the wages which it would have been reasonably necessary to pay in order to procure its performance by another. It also had evidence as to the diminution of the respondent's physical capacity to do work due to the injury. The Commission concluded the loss of physical capacity would be reflected in the capacity of the respondent to earn wages ; it found that he had suffered an economic loss. It was well able in my opinion to assess the extent of that diminution. It could assess what the respondent with a ten per cent loss of the use of his arm was likely to command in the way of wages in the labour market. Accordingly in my opinion the appellant's primary submission as to the lack of material on which to found its opinion as to the loss of earning capacity is misconceived and ought to be rejected. (at p632)

10. I should add that in my opinion s. 11 (1) (a) does not require the Commission in all cases to fix a precise figure of the pre-accident earnings and a similar figure for post-accident earnings in order to be able to express a view as to the difference in earning capacity at the two periods of time. No doubt in the case of a worker employed for wages it can, and in general would, do so. But where as here the worker is not employed for wages becauses he is a deemed worker, pre-accident and post-accident values of his labour cannot be set with precision by reference to actual wages paid or payable. Of necessity the question is rather by how much, whatever his labour would formerly command, it has been diminished in value by the continuing incapacity. In such a case the difference of which s. 11 (1) (a) speaks, in my opinion, can be determined without precise figures as to the pre-accident and post-accident situation. However the value of described work in the labour market is a matter well within the general knowledge and experience of this Commission. Consequently in this case, the Commission would be able to assess what wages ought to be paid for the respondent's labour both before and after the injury. Thus in this case, within broad limits of estimation, a difference could be found. These reasons are sufficient to dispose of this appeal which in my opinion should be dismissed. (at p633)

11. However, as others may not share the views I have expressed, I should say something as to the validity of the propositions in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 on which the Supreme Court has acted and indeed upon which so far as I am aware the Commission has acted without challenge since 1939. I think it important in this connexion at the outset to point out that we are not here concerned with a case of a plaintiff seeking to establish a common law cause of action in respect of which it rests upon him to establish his damage. The Act embodying as it does a scheme of workers' compensation provides as I understand it, that a worker who receives an injury arising out of or in the course of his employment is entitled by the statute to an award in accordance with the Act - s. 7. If no incapacity has supervened upon the injury the award will be merely declaratory though I understand that the practice of making declaratory awards is not as common now as it was aforetime. Upon a worker establishing some supervening incapacity he becomes entitled, again by the statute, to compensation - see ss. 7 and 9. Jordan C.J. states this result in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 and in Aitkin v. Goodyear Tyre & Rubber Co. (Aust.) Ltd. (1945) 46 SR (NSW) 20, at p 22 . In Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321, at p 332 , Jordan C.J. refers to A. G. Moore & Co. v. Barkey (1923) AC 790, at p 795 and McCann v. Scottish Co-operative Laundry Association Ltd. (1936) 1 All ER 475 as supporting this conclusion. I have examined both cases and in my opinion though they are not specifically directed to the matter they warrant the conclusion his Honour draws from them. (at p634)

12. But apart from those decisions it is to my mind quite clear from an examination of the statute itself and the subject matter with which it deals that the conclusion is correct. Having proved a relevant injury and the resulting loss of capacity "to earn wages by working" the worker's application for an award for compensation could not in my opinion be dismissed. The statute says he is entitled to compensation. It seems to me that it cannot rest upon him to establish what he could get for work which he could perform with his diminished capacity. In this connexion it is to be noted that the Commission is given the task, amongst others, of determining whether an injury received by a worker entitles him to compensation under the Act and the existence and degree of incapacity for work by reason of an injury - see s. 36 (4). Whilst the Commission is a court of record and proceeds to hear claims for compensation by the adversary method of the common law courts, for the purpose of performing such tasks the Commission has the powers and authority of a Royal Commission under the Royal Commissions Act, 1923 (N.S.W.). Thus it cannot in my opinion non-suit a partially incapacitated worker for lack of adequate evidence as to the wages which he is able to earn in his incapacitated condition. Further the Commission's ability to draw on its general knowledge and experience to which Jordan C.J. refers in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW), at p 329 is significant in this connexion. (at p634)

13. The Commission is controlled by the statute as to the limits of compensation which may be awarded. Section 9 sets limits appropriate generally to total incapacity and s. 11 does so in relation to partial incapacity. But s. 11 has nothing to say as to the onus of proof of the earning capacity expressed in terms of money of a partially incapacitated worker. But significantly it places an obligation on the employer to provide suitable employment for his injured worker during that worker's partial incapacity to do the work he was doing in the employer's employ prior to the receipt of his injury. Failing the provision of such work the worker shall be deemed to be totally incapacitated. This provision may not cover all cases of partial incapacity but it is indicative of the policy of the Act ; the partially incapacitated worker is not to go empty-handed but is to be compensated. In my opinion the decision in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 is both consonant with the actual terms of the statute and with the practicalities of the situation. The employer is wellfitted to discharge the obligation of providing evidentiary material on which the Commission may determine what is the value in money terms of the worker's labour in his incapacitated condition. When it comes to a claim for compensation the employer is in reality and of necessity an insurance company with vast resources of information and of investigatory capacity : and as I have pointed out the employer has the ability to offer suitable employment thus obviating the need for payment of compensation whilst ever the worker is able to perform the proffered work. Consequently in my opinion Bryer v. Metropolitan Water Sewerage and Drainage Board (1) was well decided and in so far as any question of the onus of proof did arise in this case it was properly placed by the Supreme Court on the appellant. Consistently of course with my earlier expressed views, no question of the onus of proof did arise. (at p635)

14. The Court however was pressed in argument with the decision of Phillips v. The Commonwealth [1964] HCA 22; (1964) 110 CLR 347 . It is necessary to examine this decision a little closely. In the first place it is a decision under the Commonwealth Employees' Compensation Act 1930-1956 (Cth) which is somewhat different in structure to the Act. The employee in that case had an award of compensation on the basis of total incapacity under par. 1 (b) of the First Schedule to the Commonwealth Act. Total incapacity had ceased and the delegate of the Commissioner had determined that there was no continuing incapacity at all. His declaration had been that the employee "has been able to earn, in some suitable employment or business, a weekly amount which is not less than her pay at the date of injury as since varied, and thereupon she ceased to be entitled to weekly payments of compensation under the said Act". The employee appealed to the County Court against the delegate's determination. That appeal was in the nature of a re-hearing but it remained an appeal. Consequently, this Court said :

"The application of the ordinary principles relating to the
determination of disputed questions of fact by judicial
tribunals
requires the conclusion that if a claim for compensation
be rejected by the Commissioner or his delegate the onus of
proving the necessary facts to entitle the applicant to what
is virtually an award of compensation will be upon the claimant
in later proceedings before the County Court".
(1964) 110 CLR, at p 350

The employee claimed to retain the award of compensation not as for total incapacity but as for partial incapacity. Accordingly the Court held that the overturning of the Commissioner's determination to the extent of establishing partial incapacity was upon the appellant employee. Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 was not cited or dealt with by the Court, no doubt because it was not relevant to the matter which was before the Court. In my opinion the decision of the Court in Phillips v. The Commonwealth [1964] HCA 22; (1964) 110 CLR 347 does not touch upon the principles which were dealt with by Jordan C.J. in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 . Consequently I find no necessity further to discuss Phillips v. The Commonwealth [1964] HCA 22; (1964) 110 CLR 347 with which, if I may say so, with respect, I feel some difficulty which does not need to be resolved in order to dispose of the present case. I should add that I find nothing in Thompson v. Armstrong and Royse Pty. Ltd. [1950] HCA 46; (1950) 81 CLR 585 which is inconsistent with the views I have expressed. (at p636)

15. I am therefore of the opinion that the Supreme Court was right in deciding that where a worker in his initial application for an award of compensation establishes both his injury and some supervening incapacity the Commission is not entitled to dismiss the application for want of specific evidence by the applicant as to what he could earn in his incapacitated condition. In default of material provided by the employer as to the extent of the diminution in earning capacity of the worker, the Commission is entitled to use its own general knowledge and experience to determine what is the diminution in value of the worker's labour in the market due to the partial incapacity. It would indeed be something of an absurdity in the case of a workers' compensation scheme such as the Act contains that a worker who has proved a relevant injury resulting in incapacity to earn the wages he formerly earned should be denied an award at all. That of course would be the consequence of allowing the appeal in this case in the sense in which the appellant moves the Court. (at p636)

16. In my opinion the appeal should be dismissed. I should add that for my part I am entirely satisfied with the reasons given by the Supreme Court for dismissing the appeal to that Court. (at p636)

MENZIES J. In this Court it has been decided that, to warrant the making of an award, a worker claiming an award of compensation must prove not only injury and incapacity for work, but, where that incapacity is less than total, financial loss. In Thompson v. Armstrong & Royse Pty. Ltd. [1950] HCA 46; (1950) 81 CLR 585 , Latham C.J. said (2) :

"The cases show that in order that an employer should
become liable actually to pay compensation in respect of a
particular period there must be
[1950] HCA 46; (1950) 81 CLR 585
an injury of the worker
as defined in the Act ;
(1950) 81 CLR, at p 598
a resulting incapacity for doing the
work for which he was earning wages ;[1964] HCA 22;
(1964) 110 CLR 347
a consequent
economic loss of wages. If in fact he is still receiving those
wages in respect of a particular period he fails to establish the
third element and the employer is not liable in respect of that
period - though he would become liable if, the incapacity
continuing, he ceased to pay the wages." (at p637)

2. In Phillips v. The Commonwealth
[1964] HCA 22; (1964) 110 CLR 347 , the Court decided that the onus lies upon an employee to show that he should be awarded compensation as a person partially incapacitated with a diminished earning capacity. (at p637)

3. A somewhat different view had earlier been taken by the Full Court of the Supreme Court of New South Wales in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 , where Jordan C.J. said (1939) 39 SR (NSW), at pp 331-332 :

"The burden of proof lies upon the worker to establish
[1950] HCA 46; (1950) 81 CLR 585
that he has received a personal injury arising out of and in
the course of his employment, and
(1950) 81 CLR, at p 598
that as a result he has
sustained some incapacity for work, i.e. incapacity for obtaining
or performing work of the kind in which he was employed at
the time of the accident, or of earning full wages, to the same
extent as he could before the injury, assuming such work to
be available : Joy v. Morton
(1922) 15 BWCC 33
; Jones v. A. & E. Pettifer
Ltd.
(1929) 22 BWCC 405
. When the worker establishes this, he is prima facie
entitled to the compensation provided for by s. 9 : Moore v.
Barkey
(1923) AC 790, at p 795
; McCann v. Scottish Co-operative Laundry
(1936) 1 All ER 475
,
unless it appears that the incapacity is partial only, and that
it is necessary to limit the weekly payments in the manner
provided for by s. 11. The burden of proving that the
incapacity established by the worker is partial only, and, if
so, of proving the other facts necessary to involve a limitation
of payments under s. 11 is upon the employer : Proctor &
Sons v. Robinson
(1911) 1 KB 1004
; Cardiff Corporation v. Hall
(1911) 1 KB 1009
. This
burden may be discharged by material elicited from the
worker or his witness or by evidence called on behalf of the
employer. But it is for the employer to supply the necessary
material to the extent to which it may not be supplied by the
evidence given on behalf of the worker."

The Court of Appeal in this case followed Bryer's Case (1939) 39 SR (NSW) 321 . (at p638)

4. In my opinion this Court should follow the guidance afforded by the decisions of this Court. My reason for this depends not merely upon the superior authority of the decisions of this Court to Bryer's Case (1939) 39 SR (NSW) 321 . Those decisions, rather than Bryer's Case (1939) 39 SR (NSW) 321 , manifest, I think, a correct appreciation of the relationship of ss. 9 and 11 of the Workers' Compensation Act. (at p638)

5. It is incorrect to regard s. 11 as merely putting a ceiling upon the award to be made pursuant to s. 9. There are, as was correctly decided in Australian Iron and Steel Pty. Ltd. v. Elliott (1966) 67 SR (NSW) 87 , two aspects to s. 11. In the first place it adds a limitation to the amount that can be awarded for partial incapacity. I say it adds a limitation because a different limitation, although of the same character, is to be found in s. 9 itself, viz. that a weekly payment shall not exceed seventy-five per cent of the worker's average weekly earnings. The limitation in s. 11 is of the same character as that appearing in s. 9, and in view of the opening words of s. 9 it cannot matter, on the question of onus of proof, whether a limitation is to be found in s. 9 itself or in s. 11. It is, however, the second aspect of s. 11 that is of particular importance here ; i.e. it requires the payment awarded to bear such relation to the amount of the difference referred to therein "as under the circumstances of the case may appear proper". That difference is between (1939) 39 SR (NSW) 321 the weekly amount which the worker would have been earning as a worker, but for the injury, had he continued to be employed in the same or some comparable employment, and (1966) 67 SR (NSW) 87 the average weekly amount he is earning, or is able to earn, in some suitable employment or business after the injury. This provision requires, as a preliminary to making an award for partial incapacity, the ascertainment of the foregoing difference. The onus of proving that there is such a difference rests upon the worker seeking the award and not upon the employer opposing the application. This the learned judge constituting the Workers' Compensation Commission in this case rightly recognized when he said :

"I must have regard to the difference between what he
was earning or was able to earn in suitable employment or
business after the injury and what he probably would have
earned but for the injury had he continued to be employed as
a worker in the same or some comparable employment." (at p638)

6. In my opinion, in so far as the decisions of the Court of Appeal here and of the Full Court in Bryer's Case (1939) 39 SR (NSW) 321 would throw upon the respondent to an application the onus of proving that difference, they were wrongly decided. (at p639)

7. The difficulty in this case arises not because the learned judge constituting the Commission failed to appreciate the necessity for finding the difference in question, but because he himself said he could not find either (1) what the worker was earning, or was able to earn, in a suitable employment or business after the injury, or (2) what he probably would have earned, but for the injury, had he continued to be employed as a worker in the same or some comparable employment. This deficiency of evidence, of course, made the determination of a difference a matter of great difficulty, if not of impossibility, in the circumstances of this case. His Honour dealt with this problem as follows :

"Under s. 11 (1) (a) the normal procedure in looking to an
award of partial incapacity is to find the two sums, to the
difference between which one must have regard in approaching
the question of an apt award. In the present case it appears
to me in relation to the matter of average weekly earnings
after the injury that I should attend to what the applicant
has been able to earn in some suitable employment or business
and desist from the effort to reconstruct what in fact he has
earned. That is rendered all the more necessary in some
respects by his absence from work for the short periods
mentioned
for other causes. In relation to the question of the
probable weekly earnings in terms of s. 11 (1), I have
considered
approaching the matter to endeavour to fix some
specific figure as representing that amount. This is the quite
exceptional case in which I feel driven back to approach the
matter from the different point of view of finding the difference
between the two amounts without finding what those amounts
really are. It appears to me that in the circumstances of this
case it is easier for me to do justice between the parties by
having regard to the effect of the disability from time to time
upon the earning power of a man in the position of the applicant
than it is for me to arrive at that difference by first ascertaining
separately the amounts, the finding of the difference between
which is the purpose of the exercise."

Having said this, his Honour continued :

"I make an award for the applicant for $23.50 per week
from 20th February 1967 to 1st June 1967."

This part of the award was for total incapacity and is not in question. Turning to the question of compensation for partial incapacity, his Honour then said :

"Having regard to my view of the general course of the
applicant's recovery in the orthopaedic sense and taking the
period from 2nd June 1967 to date it appears to me that over
that period the probable extent of the difference referred to
in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of
the order of about $15 per week. I make an award for the
applicant under s. 11 (1) (a) for $15 per week from 2nd June
1967 to date and continuing." (at p640)

8. In the order made by the Commission the following findings are
set out :

"(a) the applicant on the Nineteenth day of February
1967, received injury to his right elbow arising out of
and in the course of his employment by the respondent ;
(b) the respondent in the course of and for the purposes
of its trade or business entered into an arrangement
with the applicant under which the applicant agreed
to haul timber and the applicant received the said
injury while actually performing some part of the said
work himself ;
(c) that as a result of the said injury the applicant was
totally incapacitated for a period from the Twentieth
day of February, 1967, to a date which cannot exactly
be determined and was partially incapacitated
thereafter up to the present time and remains partially
incapacitated ;
(d) the applicant's average weekly earnings not less than
Twenty-three dollars Fifty cents plus one-third ;
(e) the evidence does not establish that the depressive
condition from which the applicant has suffered resulted
from the said injury."

I would suppose that (d) relates to pre-accident earnings. It is to be observed that here there is no finding to afford any basis for determining the amount of an award for compensation for partial incapacity, but the Commission nevertheless ordered and awarded as follows :

"(a)That the respondent DO PAY the applicant weekly
compensation at the rate of -
(i) TWENTY-THREE DOLLARS FIFTY CENTS from the
Twentieth day of February, 1967, to the First
day of June, 1967, on the basis of total incapacity ;
(ii) FIFTEEN DOLLARS from the Second day of June,
1967, on the basis of partial incapacity, such
weekly payment to continue during the
applicant's
said partial incapacity, or until the same be
ended, diminished, increased or redeemed in
accordance with the provisions of the
abovementioned
Act." (at p640)

9. The learned judge, not having indicated how he reached the
conclusion that he expressed in his reasons for judgment by the words "the probable extent of the difference referred to in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of the order of about $15 per week", counsel for the respondent here was invited to point to any material before the Commission which could support such a finding, but they could provide no assistance. I have examined the material in the appeal book myself and I can find nothing to support such a finding. The figure, for all that appears in that material, could have been $5, $10, or $20 just as well as $15. There is, therefore, no basis on which to support the award of $15 a week for partial incapacity. In my opinion it is not for the Commission to guess a figure where the Act treats that figure as one susceptible of determination by evidence - as, of course, it is. (at p641)

10. In the foregoing circumstances the Court of Appeal dismissed the appeal against the award, holding, incorrectly as I think, that the award could not be impeached on the ground that there was no evidence to warrant the choice of the amount for which it was made because the onus of satisfying the Commission as to the amount of the award to be made for partial incapacity lay upon the employer, not the worker. However, the true position is that the onus was upon the worker to provide material upon which the court could make an award according to the requirements of s. 11. The worker having provided no material sufficient for that purpose, the award made was not in conformity with s. 11. (at p641)

11. In these circumstances I think that the appeal should be allowed. (at p641)

WINDEYER J. The Workers' Compensation Act, 1926-1967 (N.S.W.) provides for compensation for injured "workers". A worker is defined as a person who has entered into a contract of service or apprenticeship with an employer. In addition certain persons, including suppliers of timber and timber-getters as described, who are employed as independent contractors rather than as servants and thus not within the primary definition of a worker, are deemed to be workers for the purposes of the Act. The respondent in this case was such a person. When he was injured he was deemed to be a worker employed by the appellant. He was injured in the course of this employment. As a result of his injury he was for a time totally incapacitated. Then he became partially incapacitated within the meaning of the Act. This meant that he was entitled to compensation by weekly payments measured by s. 11 (1) (a) of the Act, as amended in 1964. This provision is as follows :

"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." (at p642)

2. Section 36, as amended in 1964, of the Act empowers the
Commission to determine among other things : "the existence and degree of incapacity for work by reason of an injury" ; the degree of diminution of earning capacity by reason of an injury" ; "the amount of average earnings of a worker" ; and, most importantly, "the weekly amount or sum in accordance with subsection one of section eleven". (at p642)

3. In this case the Commission made an award in favour of the applicant before it, the present respondent, for fifteen dollars per week for the period of partial incapacity. The employer, the present appellant, appealed to the Supreme Court (Court of Appeal Division), alleging errors in matters of law within the meaning of s. 36 (4) (a) of the Act as it has stood since 1960. By its notice of appeal it sought to have the award set aside and the matter remitted to the Commission for further hearing and consideration. The Supreme Court dismissed the appeal (1970) 92 WN (NSW) 629 . The appellant now appeals to this Court pursuant to special leave granted. I shall assume that an appeal thus lies to this Court from the decision of the Supreme Court, although after further consideration of the matter I have misgivings, for s. 37 (4) (d) now seems to me to spell finality. (at p642)

4. The problem of the case is the difficulty of applying the words of s. 11 (1) (a) when the worker is an independent contractor performing his contract by the use of his own equipment. The section puts an upper limit to the amount of the weekly payment that can be awarded in a case of partial incapacity. Apart from postulating an upper limit it leaves it to the Commission to award a weekly amount that "shall bear such relation to" the upper limit "as under the circumstances of the case may appear proper". The upper limit, as I have called it, is the difference between two amounts of earnings. The former is expressed as an amount that was earned before the injury "as a worker". The latter is expressed in more general terms, by reference to actual earnings or an ability to earn in some suitable employment. It obviously does not follow, as an abstract proposition, that a predicated remainder postulates a particular initial sum and a particular subtrahend. An amount as the upper limit that s. 11 (1) (a) sets can be stated without stating the two amounts used to produce it. His Honour who tried the case in the Commission abandoned any attempt to determine with precision what were the earnings of the respondent before his injury, as the records of his affairs did not enable his weekly gains from his contract to haul logs to the appellant's mill to be segregated from other gains. I think that his Honour was right in not attempting to compute this. But I say so not so much because the computation was difficult or impossible by reason of insufficient data as because it was in my opinion irrelevant and unnecessary. The Act is concerned with compensation for the total or partial incapacity of a worker - that is, the destruction or diminution of his earning capacity measured by his earnings "as a worker". The question is not the same as is involved in assessing "economic loss" in an action for damages for personal injuries. The earning capacity of a man as a worker is measured by the remuneration that is the fruit of his labour, his wages or their equivalent. It is not to be measured by the profits he derives by embarking his capital in a business or by his usual capital equipment in earning money. In the present case the respondent carried on a business on his own account, using his own truck and other equipment. To assess his profits for a given period it, would be necessary to set against receipts all actual and notional outgoings of the undertaking, including all those relevant to the maintenance of the equipment. These might if the equipment were the contractor's property include an allowance for its depreciation ; if it were not owned by him, outgoings for its hire or hire purchase. But to my mind the respondent's profits and gains from his business before he was injured were irrelevant. He was deemed to be a worker in another man's business. In this artificial and notional situation, "the weekly amount which he would probably have been earning as a worker" was, for the purposes of the Act, such sum as notionally represented the value of his wage for so much of his time as he devoted to the performance of his contract with the appellant. In the circumstances I see no reason why his Honour was precluded from using his own knowledge of industrial conditions and wages, and concluding therefrom that the diminution of the respondent's earnings resulting from his partial incapacity as assessed by a medical board amounted to $15 a week and making an award accordingly. I think that what was said by the Supreme Court in Kemp v. Darling Island Stevedoring & Lighterage Co. Ltd. (1959) 76 WN (NSW) 707 is as applicable in relation to pre-injury earnings as to post-injury earnings and to the difference. (at p643)

5. I see no reason to disagree with anything that Jordan C.J. said in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW) 321 . An employer before the Commission cannot in my view in a case of partial incapacity leave it to the applicant worker to establish the statutory limit, and then say that, if he does not do so, no award can be made. The question, especially in the case of a person deemed to be a worker, is not, I think, to be equated with rules about the onus of proof in a civil action. The Commission is obliged to make an award if incapacity be established. It can act on any material within its knowledge that it considers sufficient to enable it to do so. The Supreme Court, I consider, rightly upheld the decision of the learned judge of the Workers' Compensation Commission simply because it was not shewn to have been based on error of law. The appellant had not adduced any evidence establishing that some other amount ought to have been awarded. I need say no more, for I agree in the conclusions of the Chief Justice and I concur generally in his reasons in his judgment, which I have had the benefit of reading. (at p644)

6. I would dismiss the appeal - and with costs which in any event the appellant undertook to pay. (at p644)

OWEN J. I have had the advantage of reading the judgment prepared by my brother Menzies. I agree with it and wish only to add a few words. I have no doubt that in a case in which an employer seeks to have an award for weekly payments ended or diminished under s. 60 of the Act the onus lies on him to establish all the facts necessary to justify such a course being taken by the Commission. And I would point out that in each of the two cases, namely, Proctor & Sons v. Robinson (1911) 1 KB 1004 and Cardiff Corporation v. Hall (1911) 1 KB 1009 , upon which Jordan C.J. relied in Bryer's Case (1) for the proposition that "the burden of proving that the incapacity established by the worker is partial only, and, if so, of proving the other facts necessary to involve a limitation of payments under s. 11 is upon the employer" the Court was dealing with an application made by the employer to review the amount of weekly payments payable under an existing award. Where, however, a worker claims that an award should be made in his favour on the ground that he is partially incapacitated it seems to me that it is a necessary part of his case to establish the facts necessary to enable the Commission to determine what is the "difference" to which s. 11 (1) (a) of the Act refers, namely, "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 comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury", so that it may proceed to fix the appropriate sum to be awarded. This, as my brother Menzies has pointed out, accords with what Latham C.J. said in Thompson v. Armstrong & Royse Pty. Ltd. [1950] HCA 46; (1950) 81 CLR 585, at p 598 , and with the decision of this Court in Phillips v. The Commonwealth [1964] HCA 22; (1964) 110 CLR 347 . With all respect to those who sat in Bryer's Case (1939) 39 SR (NSW) 321 I am of opinion that what Latham C.J. said in Thompson's Case [1950] HCA 46; (1950) 81 CLR 585 and what this Court decided in Phillips' Case [1964] HCA 22; (1964) 110 CLR 347 should be followed and that this appeal should therefore be allowed. (at p645)

GIBBS J. On 16th February 1967 the respondent sustained an injury to his right arm while unloading timber which he was hauling pursuant to an agreement with the appellant. The circumstances were such as to attract the operation of s. 6 (5) (a) of the Worker's Compensation Act, 1926 (N.S.W.) (as amended) ("the Act"), so that the respondent is for the purposes of the Act to be deemed to be a worker employed by the appellant. It is not disputed that the injury which the respondent received arose out of or in the course of what is deemed to be his employment by the appellant. On an application made by the respondent for compensation under the Act, the Workers' Compensation Commission of New South Wales found that as a result of the injury the respondent was totally incapacitated for a time and was thereafter partially incapacitated. The Commission ordered and awarded that the appellant pay the respondent weekly compensation at the rate of - (i) $23.50 from 20th February 1967 to 1st June 1967, on the basis of total incapacity ; (ii) $15.00 from 2nd June 1967, on the basis of partial incapacity, such weekly payment to continue during the respondent's said partial incapacity or until the same be ended, diminished, increased or redeemed in accordance with the provisions of the Act. The award in respect of the period of total incapacity has not been challenged. However the appellant appealed to the Court of Appeal of the Supreme Court of New South Wales against the award of $15 per week made on the basis of partial incapacity. The appeal was dismissed (1970) 92 WN (NSW) 629 and a further appeal has been brought to this Court by special leave. (at p645)

2. By s. 7 (1) (a) of the Act a worker who has received an injury (which means personal injury arising out of or in the course of employment - s. 6 (1)) whether at or away from his place of employment shall receive compensation from his employer in accordance with the Act. Section 9 of the Act provides, inter alia, that subject to the provisions of that section and of ss. 10 and 11, where total or partial incapacity for work results from the injury the compensation payable by the employer under the Act shall include a weekly payment in respect of the worker during the incapacity which shall not exceed seventy-five per cent of his average weekly earnings for the previous twelve months if he has been so long employed by the employer, but if not, then for any less period during which he has been in the employment of the same employer. The compensation payable under that paragraph is not to exceed a specified sum which at all material times until 18th December 1967 was $23.50 per week. Section 11 (1) (a) provides as follows :

"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." (at p646)

3. Before the injury the respondent had been engaged in hauling
timber and also, to some extent, in dealing in sawn timber. He commenced the work of hauling timber under his agreement with the appellant in November 1966 and from that time until the date of the accident the greater part of his work consisted of the hauling of logs to the appellant's mill. After the respondent returned to work again, some time about the end of May 1967, he was compelled, because of his injury, to give up the business of log hauling and instead mainly engaged in timber felling with a chain saw. Evidence was given by both parties directed to show the financial position of the respondent both before and after the injury but the learned judge who constituted the Workers' Compensation Commission obviously experienced difficulty in basing a conclusion upon that evidence. An attempt was made to compare the income of the respondent with that derived by two other hauliers but the learned judge found it impossible to draw any useful comparison. As to the evidence that dealt directly with the respondent's own earnings, the learned judge found it impossible to determine what part of his gains during the financial year in which the accident occurred was applicable to timber hauling and what part to other activities, and he said :

"I think it would be quite impossible to attempt to reach
any view that I would be justified in acting upon as to any
definite amount of money earned by the applicant from his
work under the respondent." (at p647)

4. When he came to consider the application of s. 11, the learned judge said that in relation to the average weekly earnings after the injury he should attend to what the respondent had been able to earn in some suitable employment or business and desist from the effort to reconstruct what he had in fact earned. However, he did not say how much he considered the respondent was able to earn. He went on :

"In relation to the question of the probable weekly earnings
in terms of s. 11 (1), I have considered approaching the matter
to endeavour to fix some specific figure as representing that
amount. This is the quite exceptional case in which I feel
driven back to approach the matter from the different point
of view of finding the difference between the two amounts
without finding what those amounts really are. It appears
to me that in the circumstances of this case it is easier for me
to do justice between the parties by having regard to the effect
of the disability from time to time upon the earning power
of a man in the position of the applicant than it is for me to
arrive at that difference by first ascertaining separately the
amounts, the finding of the difference between which is the
purpose of the exercise. (Cf. Hamilton v. Shelton Co. Ltd.
(1926) 19 BWCC 475, at pp 495-496
)"

It is not quite clear for what purpose the learned judge cited Hamilton v. Shelton Co. Ltd. (1926) 19 BWCC 475 , which does not seem to bear on the question which he had been discussing at that point of his judgment, but it may have been for the proposition, enunciated by Atkin L.J., (1926) 19 BWCC, at p 495 , that in deciding what a worker is able to earn after the accident the judge "is entitled to take into account his own knowledge of the labour conditions in the district". The learned judge went on to say that there did not appear to him to be any reason to award anything less than the actual amount of the difference. He then proceeded to make an award of $23.50 per week in respect of total incapacity and said that :

"having regard to my view of the general course of the
applicant's recovery in the orthopaedic sense and taking the
period from 2nd June 1967 to date it appears to me that over
that period the probable extent of the difference referred to
in s. 11 (1) (a) is - and it is impossible to be dogmatic - is of
the order of about $15 per week."

The formal order in which his decision is recorded contains a number of findings, including a finding (1 (d)) that "the applicant's average weekly earnings not less than twenty-three dollars fifty cents plus one-third". No doubt this was intended to be a finding as to the respondent's average weekly earnings for the period during which he was deemed to be in the employment of the appellant and, if upheld, it supports the award of $23.50 made for total incapacity under s. 9 of the Act. I have already said that this part of the award is not challenged. (at p648)

5. The Court of Appeal, in affirming the judgment of the learned judge, accepted (1970) 92 WN (NSW), at pp 634-635 as correct the following statement by Jordan C.J. in Bryer v. Metropolitan Water Sewerage and Drainage Board (2) as to the onus of proof in proceedings under the Act :

"The burden of proof lies upon the worker to establish (1970) 92 WN (NSW)

, at pp 634-635.
that he has received a personal injury arising out of and in
the course of his employment, and (1939) 39 SR (NSW) 321, at pp 331-332
that as a result he has
sustained some incapacity for work, i.e. incapacity for obtaining
or performing work of the kind in which he was employed at
the time of the accident, or of earning full wages, to the same
extent as he could before the injury, assuming such work
to be available : Joy v. Morton (1922) 15 BWCC, 33
; Jones v. A. & E. Pettifer
Ltd. (1929) 22 BWCC 405.
When the worker establishes this, he is prima facie
entitled to the compensation provided for by s. 9 : Moore v.
Barkey (1923) AC 790, at p 405.
; McCann v. Scottish Co-operative Laundry (1936) 1 All ER 475.
, unless
it appears that the incapacity is partial only, and that it is
necessary to limit the weekly payments in the manner
provided
for by s. 11. The burden of proving that the incapacity
established by the worker is partial only, and, if so, of proving
the other facts necessary to involve a limitation of payments
under s. 11 is upon the employer : Proctor & Sons v. Robinson
(1911) 1 KB 1004
; Cardiff Corporation v. Hall (1911) 1 KB 1009.
This burden may be
discharged by material elicited from the worker or his witnesses
or by evidence called on behalf of the employer. But it is
for the employer to supply the necessary material to the extent
to which it may not be supplied by the evidence given on behalf
of the worker."

Their Honours held that there is no difference in respect of the onus of proof between an ordinary worker and a person who is deemed to be a worker by the provisions of s. 6 (5) (a) of the Act, that accordingly the appellant bore the burden of proving the facts necessary to limit the amount of compensation under s. 11 (1) (a) and that this onus had not been discharged. They added that the Commission was entitled to use its own experience and knowledge in fixing the amount of compensation. (at p649)

6. The learned primary judge did not expressly deal in his reasons for judgment with the question of the onus of proof. However the first submission made on behalf of the appellant is that the onus lies on the worker of proving his claim to receive compensation on the basis that his injury has resulted in partial incapacity which has caused him economic loss, and that there is no evidence in the present case that the respondent suffered any economic loss after the period of his total incapacity had ceased. (at p649)

7. I cannot believe that in an ordinary case the question whether the onus of proving the facts necessary to establish the difference referred to in s. 11 (1) (a) lies on the worker or on the employer is of much practical importance, but with great respect I am unable to accept as correct the dictum of Jordan C.J. in Bryer v. Metropolitan Water Sewerage and Drainage Board (1939) 39 SR (NSW), at p 332 that :

"The burden of proving that the incapacity established by
the worker is partial only, and, if so, of proving the other facts
necessary to involve a limitation of payments under s. 11 is
upon the employer." (at p649)

8. The two decisions which his Honour cited in support of this
proposition were both cases in which an employer applied for a reduction of the amount of compensation which had been awarded to a workman on the basis of total incapacity, and it was held that the employer, who contended that the incapacity was no longer total, bore the onus of proving the case which he put forward : see Proctor & Sons v. Robinson (1911) 1 KB, at p 1008 and Cardiff Corporation v. Hall (1911) 1 KB, at p 1016 . These cases therefore are not authority for the wide statement made by Jordan C.J. Moreover, it is contrary to principle to say that a party who is opposing an award should bear the onus of establishing facts which would show that no award should be made, or that less than total compensation should be awarded. It is true that the right to compensation which is given to a worker by s. 7 of the Act is not cut down by ss. 9 and 11 which prescribe the amount of compensation payable (cf. McCann v. Scottish Co-operative Laundry Association Ltd. (1936) 1 All ER, at pp 478-480 ), and that a worker who establishes that he has received a personal injury arising out of or in the course of his employment, and that as a result he has sustained some incapacity for work, is in general entitled to receive at least some worker's compensation from his employer (Kandos Coomber Colliery Co. Ltd. v. Bromwich [1948] HCA 43; (1948) 77 CLR 371, at pp 377-378 ). However, a worker who has made out those facts may not be entitled at any particular time to payment of compensation, since his right may be dormant (Thompson v. Armstrong & Royse Pty. Ltd. (1950) 81 CLR, at p 596 ), or suspended (Portland Colliery Co. Ltd. v. Murray (1923) AC 566, at p 574 ). Clearly, the Workers' Compensation Commission may not make an award of an amount which exceeds the limits set by ss. 9 and 11. If it does not appear to the Commission that a particular weekly payment will not exceed those limits, the Commission must refrain from awarding that payment, and the worker who is contending that it should be awarded must fail. In effect therefore the Act imposes on the workman the burden of showing that the amount for which he contends may lawfully be awarded. On behalf of the respondent, it was submitted that s. 11 (1) (a) imposes a ceiling or limit on the amount of compensation that may be awarded under ss. 7 and 9, and that this affords a reason for holding that the onus of showing that this additional barrier would be broken by a particular award lies on the employer. I do not accept this submission. As was said in Commissioner for Railways (N.S.W.) v. Agalianos [1955] HCA 27; (1955) 92 CLR 390, at p 397 :

". . . s. 11 (1) (a) has two aspects. It sets a limit to the
weekly payments on account of partial incapacity and it sets
a standard in relation to which the weekly payments are to be
fixed or assessed."

The true position in my opinion is that both ss. 9 and 11 deal with the measurement of the right to compensation which s. 7 confers. If the material on which the Commission is entitled to act does not enable it to quantify the worker's right in accordance with those sections, the worker would be entitled to no more than a declaratory order. (at p650)

9. The view that the onus lies on the worker, and not on the employer, of establishing any facts necessary to show that the limits imposed by ss. 9 and 11 are not exceeded is supported by the remarks of Latham C.J. in Thompson v. Armstrong and Royse Pty. Ltd. (1950) 81 CLR, at p 598 , although the Court was divided in that case, and his Honour's remarks cannot be regarded as representing the view of the whole Court. In Phillips v. The Commonwealth (1964) 110 CLR, at p 351 , the Court held that an applicant for compensation under the Commonwealth Employees' Compensation Act 1930 (Cth) (as amended) bore the onus of proving the diminution of his earning capacity, and although the provisions of that statute are different in many respects from those of the Act, this decision is in accord with the opinion I have reached. (at p651)

10. I have already said that I do not think that the question where this onus lies is of much importance in an ordinary case. This is because of the well-established rule that the Commission is entitled to make use of its judicial knowledge as to such matters as rates of wages and availability of employment (see Bryer v. Metropolitan Sewerage and Drainage Board (1939) 39 SR (NSW), at p 330 ; Kemp v. Darling Island Stevedoring and Lighterage Co. Ltd. (1959) 76 WN (NSW) 707 ; and Australian Iron & Steel Pty. Ltd. v. Elliott (1966) 67 SR (NSW) 87, at p 94 ), and also because, in an appropriate case, a worker may rely on the provisions of s. 11 (2) of the Act which in effect provide that upon any failure by an employer to provide suitable employment for his injured worker during the worker's partial incapacity for work, the worker shall be compensated on the basis that his incapacity for work is total. In many cases therefore little evidence will be required to enable the Commission to determine the amount of compensation to which a worker is entitled under ss. 9 and 11 of the Act. To say this, however, does not mean that the burden is removed from the worker and cast on to the employer. (at p651)

11. In a case arising under s. 6 (5) (a), where a contractor is deemed to be a worker, and both before and after the injury the claimant was not in receipt of wages but was conducting his own business, it seems to me that it will be most unlikely that the Commission will have judicial knowledge of the amount the claimant would probably have earned but for the injury, or of the amount he is earning after the injury. The Commission can use its general knowledge of the labour market, but it is not expected to have, or if it has it cannot use, particular knowledge of the facts of an individual case (cf. Reynolds v. Llanelly Associated Tinplate Co., Ltd. (1948) 1 All ER 140 ). In the present case the learned primary judge, in applying s. 11 (1) (a), had to find the difference between the amounts referred to in that provision. The word "earning" which is there twice used does not refer, in a case arising under s. 6 (5) (a), to the gross amount which would probably have been received, or is received, by the person who is deemed to be a worker, and out of which payments would have to be made for wages, materials and the provision of plant, but to the net amount, which represents the remuneration for the labour of the person deemed to be a worker. It was said in Jones v. International Anthracite Collieries Ltd. (1918) 11 BWCC 274, at p 283 , that in ascertaining "average weekly earnings" for the purpose of a provision that corresponded to s. 11 (1) (a) in its original form, "what one has to arrive at is . . . what was the man really receiving for remuneration. In other words, what was the reward for his labour". In determining the difference between the two amounts mentioned in the present section, the one hypothetical and the other factual (Australian Iron & Steel Pty. Ltd. v. Elliott (1966) 67 SR (NSW), at p 93 ,) one is in my opinion concerned with the net remuneration of the person deemed to be a worker, and not with his gross takings. It is obvious that the Commission cannot have general knowledge as to the net amount which an individual contractor would probably have earned for his labour had it not been for his injury, or of the net amount he has actually earned since his injury, since so much depends upon the manner in which he conducts his business, his efficiency, the extent to which he employs workmen and uses plant, and the amount of overhead expenses he has to meet. Such matters must depend on the particular evidence in an individual case, and not on general knowledge. (at p652)

12. However, I have not been persuaded that there was no evidence upon which the award in the present case could have been sustained because not all of the material which was before the learned primary judge was placed before this Court. In particular, the respondent's day book, cash book and cheque butts were not reproduced or placed before us. The appeal was brought by motion and not by special case, and the evidence on which the Commission might have relied has not been identified. Although it may be doubted that there was sufficient evidence, the question was not fully explored in argument, and, as the evidence is not all before us, in my opinion the appeal should not succeed on this ground. (at p652)

13. The second ground urged by the appellant was that in the circumstances of the case it was not possible for the learned primary judge to find the difference between the two amounts mentioned in s. 11 (1) (a) if he was unable to find the amounts themselves. I agree with this contention. No doubt there may be exceptional cases in which such a finding would be possible, e.g., where there is evidence that a worker suffering from the incapacity in question would earn at a weekly rate which is less by a given sum than the rate paid to an ordinary worker. The present, however, is not a case of that kind. It is true that the determination of the difference mentioned in the subsection involves matters of estimation and not merely a mathematical calculation. I am prepared to agree also that it is not necessary that the Commission should make a formal finding of the two amounts where to do so would be "an empty formality" (as Jordan C.J. said in Bryer v. Metropolitan Water Sewerage and Drainage Board, (1939) 39 SR (NSW), at p 333 ). It is however one thing to say that the Commission need not make formal findings of the two amounts ; it is quite another to say that it can find the difference between the amounts if it cannot find the amounts themselves and there is no direct evidence to show what the difference is. As to the first amount - the hypothetical weekly earnings - the learned judge said no more than that he had considered trying to fix it. As to the second amount, the learned judge rejected a consideration of the actual post-injury earnings. In this, in my opinion, he was wrong. If the workman is in fact earning after the injury, the amount of his actual earnings cannot be disregarded ; it may be shown that his actual earnings are not a true guide, either because he could have obtained better employment, or, perhaps, because they were inflated by the charity of some other benevolent employer, but as a general rule if a man is earning a particular sum it is impossible to say that he is able to earn only a lesser sum. Although the Commission is very much at large in determining the difference mentioned in s. 11 (1) (a), it is required to act judicially and not merely to guess at a figure. In the present case I consider that the learned judge could not have arrived at the amount of the difference for the purposes of s. 11 (1) (a) without first making up his mind as to the two amounts, and that his failure to do so amounted to error of law. Whether, if he had applied his mind properly to the questions raised by s. 11 (1) (a), there would have been evidence to enable him to make a determination does not appear, as I have already said. In the circumstances, therefore, it seems to me that although the appeal should be allowed the proper course would be to remit the matter to the Commission for further consideration. (at p653)

14. I would allow the appeal, set aside the award made by the Commission for compensation from 2nd June 1967 and remit to the Commission for further consideration the question of the amount of compensation to be awarded on the basis of partial incapacity. (at p653)

ORDER

Appeal allowed. Appellant, pursuant to an undertaking given by it on the grant of leave, to pay the respondent's costs of the appeal. Order of the Supreme Court set aside and in lieu thereof order that the appeal to the Supreme Court be allowed, the award of the Workers' Compensation Commission set aside and the matter remitted to that Commission for further consideration, costs of the further consideration by the Commission to abide the order of the Commission.