Taylor v Vorback & Another [1985] NSWCC 4; (1985) 1 NSWCCR 114 (20 September 1985)

[1985] NSWCC 4; (1985) 1 NSWCCR 114 (matter no 1310/83)

TAYLOR v. VORBACK & ANOTHER

Compensation Court of New South Wales: Burke J

20 March, 18 April 1984 (H)

20 September 1985 (J)

Assessment and amount of compensation - Amount of compensation during incapacity - Weekly payments during incapacity - Computation of amount - Total incapacity - Employment a one-off event - Whether or not a part-time worker - Computation of average weekly earnings - Workers Compensation Act 1926, sections 9 and 14(1)(a)

Assessment and amount of compensation - Amount of compensation during incapacity - Weekly payments during incapacity - Diminution of earning power - Probable earnings but for injury - Employment a one-off event - Workers Compensation Act 1926, section 11(1)

Words, phrases and maxims - "part-time worker" - Workers Compensation Act 1926, section 9(10)

J.S. Williams, for the applicant

S.M.L. Grant, for the second respondent

Cur adv vult

BURKE J: The applicant, Denise Margaret Taylor, claims workers compensation from the respondent, Allan Vorback, alleging incapacity from 16 August 1981 as a consequence of injuries sustained that day in a motor vehicle accident in the course of her employment. The applicant alleges the respondent is uninsured and claims relief under the Uninsured Liability and Indemnity Scheme.

The respondent alleges the applicant was not a worker within the meaning of the Act and traverses the degree of any incapacity.

It is clear, on the evidence, that Vorback operated an ice-cream vending business using a number of mobile vans. Mr Gearside was regularly employed in the operation of that business. Gearside and Taylor were well acquainted. On occasion Taylor, with one or some of her children, would ride with Gearside in the ice-cream van while the latter was performing his duties of dispensing ice-cream and other commodities around the suburbs. This she did purely as a volunteer without reward. Taylor had thereby acquired some familiarity with Vorback's operation.

On 16 August 1981, in company with her son, Taylor went with Gearside in the ice-cream van. When picking up the van from Vorback's premises there was an obvious problem. A driver of another van had not turned up and the respondent was thereby short a driver. Taylor mentioned she was prepared to drive the other van. Nothing eventuated from that offer and Taylor went with Gearside in the van driven by him. Around 9.30 to 10.30 am, Vorback caught up with the van to restock it. He queried the genuineness of Taylor's earlier offer to drive a van. Both the applicant and Gearside depose that Vorback said words to the effect that it would be worth a day's pay for her to drive the van. The applicant says she accepted that offer.

Gearside drove the restocked Hi-Ace van back to Vorback's and Taylor set forth in it to sell ice-creams etc. while Gearside was stocking the Kombi van. While proceeding to Macquarie Fields to embark upon this ice-cream selling venture, Taylor was involved in a collision in which she sustained some fairly serious injuries particularly to the left leg.

Gearside had been doing the work for some weeks. It would seem fairly clear the remuneration was related to the value of commodities sold. A regular stocktake of the van was performed to determine sales and the driver received 30 per cent on sales of ice-cream, sweets, soft drinks and the like and 10 per cent on sales of cigarettes. Saturday and Sunday were the best days for sales. Gearside suggests a Sunday operation could gross sales of the order of $300 to $350. The weekdays were fairly slack apart from short periods before and after school hours. Gearside estimates his average weekly income from this source as around $200.

The contractual offer and acceptance alleged by the applicant is essentially that the respondent put a proposition to drive the van for a day's pay and she accepted. That such offer was made is confirmed by Gearside. Vorback appeared in person at the trial and chose not to give evidence. I apprehend no reason, in the circumstances, why I would not accept that such offer was made and accepted.

It appears to me tacitly clear that Vorback was aware of Taylor's general familiarity with his operation and the areas in which he sold his products. There was, in the circumstances, little ambit for explicit direction and control by the respondent. Mr Grant, appearing for the Registrar, has conceded that the applicant was a worker if it be accepted that the conversation deposed to by the applicant and Gearside in fact occurred. Mr Vorback has made no such concession.

There was admitted in evidence a statement of claim and statement of defence in Supreme Court proceedings No. S13639 of 1982 between the present applicant as plaintiff and the present respondent as defendant, in which the plaintiff claims damages from the defendant in respect of those injuries sustained on 16 August 1981. Inter alia, in the statement of claim the applicant/plaintiff alleges that she is an employee of the respondent/defendant. That allegation is not traversed in the statement of defence. That is alleged to constitute an admission by the present respondent that the present applicant was in fact his worker.

With or without the admission, it appears to me that the probabilities favour the applicant being a worker. The offer of work for a day's pay suggests a contract of service rather than a contract for services. What the applicant was doing was a routine function in the respondent's operation. For reasons more fully stated in Wickens v. Pripic, Compensation Court, No. 18018/83, Burke J, 5 July 1985, unreported, I am of the view the applicant was in fact a worker employed by the respondent.

The applicant's engagement was for one day. It appears, in fact, to have lasted to the extent of about 15 to 30 minutes of actual work. The arrangement was that she would receive a day's pay for the day's work. Perhaps that was to be calculated, as was Gearside's remuneration, by a percentage of sales. The actual remuneration would then depend upon the day's turnover. It could, of course, refer to some unspecified daily rate. Even though Saturdays and Sundays were the best income-producing days - and the event occurred on a Sunday - Gearside gives his average weekly income as around $200. He deposes to Sunday turnovers of up to $300 to $350 which would entitle him to amounts ranging between $30 - if all sales were cigarettes - to about $100, if all sales were ice-cream etc. It seems to me, in all the circumstances, I could accept that this day's work was undertaken for a sum of about $50, perhaps a little more than Gearside's daily average.

Being a worker, the applicant clearly sustained injury in the course of her employment. She was clearly totally incapacitated thereby for a considerable period and continues to have a substantial disability as a consequence of her injuries. Dr Segelov has expressed the view that the applicant was totally incapacitated until about May 1983. When she was seen by Dr Scarlett in March 1983, he noted she was recovering from serious injuries and anticipated some further improvement. Dr Goldie, seeing the applicant on 25 July 1983, expressed no explicit view as to her capacity to work, merely noting her complaints were reasonable and even with some improvement she would continue to have about 20 per cent loss of function in the left leg with reduced agility and ability to walk long distances. He later commented that, as at that examination, he would have thought she was fit for light driving work. In general, I would accept the applicant has ceased to be totally incapacitated by about Monday, 16 July 1983.

Dr Segelov has expressed the view that thereafter she is in general terms fit for work. He accepts she may well have difficulty in long standing, climbing stairs and ladders and accepts a 20 per cent loss of function of the left leg. The applicant has stated she still has a fair degree of disability with the left leg, particularly in such things as operating the clutch of a vehicle with manual transmission, a difficulty which Dr Goldie accepts as reasonable. Indeed, he feels she could function in a position at least partially sedentary, with not much bending or stooping and not much walking. The applicant did not appear to over-dramatise her disabilities and her credibility is not impugned. I would accept she has a deal of difficulty with her left leg such as would inhibit her in a number of areas of activity. It would seem to me probable that those disabilities would affect the ability of a woman under 40 years of age to function fully in a labour market reasonably accessible to her. She remains, in my view, partially incapacitated. The labour market in which she functioned, if any, is not defined in the evidence. True, Dr Goldie records as a matter of history that she had worked as a geriatric nurse but I would not regard that record as evidence of the fact. I discussed relevant authorities on that issue in Coleman v. Unilever Australia Pty Ltd, Compensation Court, No. 8467/82, Burke J, 22 December 1983, unreported. As far as can be discerned from the evidence, this could be the only work the applicant ever undertook.

The Act has a number of provisions which impinge upon the determination of the quantum of compensation. The primary provision is section 9(1)(a) which provides that the compensation payable shall include:

"(a) the worker's current weekly wage rate in respect of any period of incapacity which together with any other such periods ... do not total more than 26 weeks, and, in respect of any subsequent period, a weekly payment in respect of the worker during the incapacity which shall not exceed 90 per cent of his average weekly earnings for the previous 12 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 this paragraph in respect of any period of incapacity occurring after a period of incapacity of, or periods of incapacity totalling, 26 weeks shall not exceed $102.30 per week, and shall be not less, in the case of an adult worker, than $81.40 per week for total incapacity."

The amounts mentioned in the concluding portion of section 9(1)(a) are adjustable and the particular amounts mentioned are those applicable at February 1982 at the conclusion of the first 26 weeks of the applicant's total incapacity.

Under this provision, the applicant during the first 26 weeks of total incapacity is to be compensated at her current weekly wage rate. Prima facie, section 9(8) provides for the calculation of a worker's current weekly wage rate. In essence, it provides four alternatives. One alternative relates to Crown employees and another to prescribed classes of workers. Neither is relevant to the present case. The remaining alternatives are either the amount fixed by a relevant award or an amount prescribed under this Act in the absence of any other appropriate provision. The evidence in this matter does not advert to any relevant award, indeed, the application for determination asserts there is none. Be that as it may, in the absence of any evidence, I am unable to find the applicant's activities were covered by such an award. The only remaining option is the default amounts prescribed which were $187.24 per week as at 16 August 1981 rising to $201.29 per week from 1 October 1981.

The provisions of section 9(8) are expressed to operate subject to subsections (10), (11) and (12). The latter two subsections are not apposite to the present case. Section 9(10) provides:

" (10) Subject to subsections (11) and (12), where the amount of a part-time worker's current weekly wage rate, as determined under subsection (8), exceeds his average weekly earnings referred to in subsection (1) (a) a reference in subsection (1) to that worker's current weekly wage rate is a reference to those average weekly earnings."

In essence, in the case of a part-time worker, substitute average weekly earnings for current weekly wage rate.

The question arises, was the applicant a part-time worker? The parties propose different views. On the one hand, it is proposed that reason and common sense confirm that a worker could hardly be more clearly part-time than the applicant. On the other, it is suggested that there is a distinction between a contract of service calling for continuous work though of limited duration and a contract of service that calls for limited periods of work throughout its subsistence. The latter is clearly part-time work but the former is suggested to be otherwise.

In support of the latter proposition, reference has been made to the Workers Compensation Regulations 1926, Division VII, Regulations 2 and 3. These Regulations are made for the purposes of section 10A(b). [See now the Workers Compensation Act 1987, section 42(4) and the Workers Compensation (General) Regulation 1995, Part 4 - Ed] That subsection permits the prescribing of certain classes of workers who are not to be considered as part-time workers for the purposes of subsection (10). The classes so prescribed (some shearers and many boners, slicers, slaughtermen and general hands in abattoirs and meat-works), in general, are workers whose ordinary working day is highly variable in duration. In an abattoir, the day's kill may be attended to in relatively few hours. So, it is suggested, the part-time workers referred to in subsection (10) are those whose working day, in the ordinary course of business, may often be quite short and certainly lacks the regularity of a routine working period per day.

Such a meaning of "part-time" would be compatible with the definition in the Macquarie Dictionary, as an adjective meaning "of or pertaining to, or occupying less than all normal working hours". As to the use of the Macquarie Dictionary, see the tacit approval of Kirby P in Crowell International Pty Ltd v. Mills (1985) 1 NSWCCR 23 and Samuels JA in John While & Sons Pty Ltd v. Changleng (1985) 2 NSWLR 163.

An analogy is drawn with Gearside. The applicant was performing work of the same character and in the same situation save that her engagement was for a more limited period. Gearside was not a part-time worker and it would be illogical then to classify the applicant as part-time merely because her contract, in essence the same, was of shorter duration.

That argument is clearly acceptable if the frame of reference against which one judges all normal working hours is in relation to the the day. It seems otherwise if the frame of reference is the week. It appears that, in other respects, the universal frame of reference against which evaluations are made under this Act is the week. The Act provides a weekly compensation; it is concerned with current weekly wage rates, and average weekly earnings and the rate per week at which a worker is being remunerated.

It therefore appears to me more consonant with the general approach of this Act that whether a worker is "part-time" or not should be considered in regard to the working week. A worker who works substantially the ordinary hours of the usual working week, even though perhaps compressed into three or four days, is not a part-time worker within section 9(10). Similarly, a worker who does not work such hours is, for the purposes of this provision, a part-time worker.

Any problem of statutory interpretation may be more apparent than real. However, even if the plain words of the statutory provision suggested that, in the present circumstances of a contract for continuous work through a very circumscribed period, the "current weekly wage rate" should be extrapolated from the earnings for that period to that for a complete week, the results thereby obtained being so anomalous and another interpretation which conformed to the practical overall operation of the Act being reasonably open, I would prefer to adopt the latter interpretation. See per Lord Reid in Gill v. Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 934:

"If the language is capable of more than one interpretation, one ought to discard the more natural meaning if it leads to an unreasonable result and adopt that interpretation which leads to a reasonably practical result."

See also Fry v. Inland Revenue Commissioners [1959] Ch 86; State Rail Authority (NSW) v. Belgrove [1982] 2 NSWLR 738.

It seems to me an unreasonable result that a worker whose only known contract of service was for one day for $50 should have a current weekly wage rate of $200 plus and be compensated accordingly.

Being a part-time worker within section 9(10), the applicant's entitlement under section 9(1)(a) during the first 26 weeks of total incapacity is to be compensated at the rate of her average weekly earnings.

The computation of average weekly earnings is dealt with in section 14 of the Act. The so-called primary rule is enunciated in the opening words of section 14(1)(a):

" (a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated."

It is suggested that a rate connotes a ratio between a quantity of one thing and a unit of another. One does not have to travel 60 kilometres to travel at a rate of 60 kilometres per hour. One does not have to work a full week to be remunerated at a rate of so much per week. If the applicant was earning $50 for the day it is suggested that the rate per week at which she is being remunerated is $250. It is conceded that the proviso to section 14(1)(a) would tend to lessen this figure. The proviso states:

"Provided that where by reason of the shortness of the time during which the worker has been in the employment of his employer, or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which during the 12 months previous to the injury, was being earned by a person in the same grade, employed at the same work, by the same employer ..."

It is submitted that the proviso would entitle the Court to look at Gearside's earnings for the purpose of establishing the rate per week at which the applicant was being remunerated and this would fairly clearly suggest it was $200 per week.

As against that, it has been argued that, on the evidence, the probabilities are that this $50 would have been the only sum earned by the applicant in any 12 month period. Her average weekly earnings are therefore of the order of $1.

Both section 9(1)(a) and section 14(1)(a) make it clear we are concerned with the employment in which the injury actually occurred. As Fletcher Moulton LJ explained (referring to the then English equivalent of section 14), the provisions of section 14 are not directed to displacing that concept but rather to providing for the admissibility of other evidence where some innate problem, under the circumstances then prevailing, tended to preclude an accurate calculation of a worker's earnings: Perry v. Wright [1908] 1 KB 441 at 455 to 462. He instances the example of two men working at oe2 per week. One has worked the whole year; the other 15 weeks. The employment necessarily involves an annual, two-week, unpaid shutdown. That does not occur in the period of the man who works 15 weeks. They are both injured at the same time. Does the man who was employed 52 weeks and grossed oe100 have an average weekly earning of oe1/18/5 while the man who worked 15 weeks and grossed oe30 has earnings of oe2 per week? No, both would have the same average weekly earnings. As Fletcher Moulton LJ said (at 461):

"As I have already said, the fact that a workman does not work during any week, and is therefore not remunerated during that week, does not, in my opinion, affect the rate of his remuneration; but in cases with which I am now dealing, the enforced idleness of these periods is an incident of the employment of such workmen, and the employers are entitled to urge that an allowance should be made in calculating the average weekly earnings in respect to the employment to this extent being discontinuous."

There is a clearly drawn distinction between an employment which is intermittent as a necessary element of the particular employment and the position where the intermittency is a matter of choice by the worker. In the former case, the periods not worked form part of the dividend when calculating average weekly earnings and in the latter case they do not.

In Moy v. Eisenhower [1967] 41 WCR (NSW) 137 at 140-141, Ferrari J followed Perry v. Wright:

"It appears to me that it would be a fictitious view of the rate at which the applicant was being remunerated if I looked not only at the earnings while he was being remunerated but also at the absence of earnings while he was not being remunerated at all."

The judgment of Fletcher Moulton LJ had the approval of the House of Lords in Greenwood v. Joseph Nall & Co Ltd (1916) 10 BWCC 9 (see particularly the judgments of Lord Kinnear at 16 and Lord Shaw at 17).

It is contended for the worker that the applicant was engaged continuously for a limited period. That she chose to work at no other time excludes that other time from consideration in calculating average earnings. It is thereby suggested that the $50 per day should be converted to the equivalent rate per week.

The Act is not really designed to cope with some of the odd and unusual circumstances that occur from time to time, e.g. Unicomb v. Jimmy Cole Caravans Pty Ltd [1978] 52 WCR (NSW) 66 where the worker had no "earnings".

Once again, it appears to me that it is always assumed that the unit of time dealt with under the Act is the week. Fletcher Moulton LJ spoke of a worker choosing not to work and not having remuneration during "any week". The injunction in section 14 to establish the amount "best calculated to give the rate per week" suggests that the inquiry is, what does this worker earn in a week in the circumstances and under the conditions particular to the employment?

If this worker worked every Sunday and only every Sunday for the respondent, and earned $50, it seems her average weekly earnings would be $50. There appears no difference in principle that this particular worker's engagement did not call for a second or third Sunday.

I am of the view the applicant's average weekly earnings are $50.

It follows, subject to the ultimate provision of section 9(1)(a), that during the first 26 weeks of total incapacity the appropriate rate of compensation is $50 per week and thereafter, during total incapacity, 90 per cent of that amount.

Does the final prescription of section 9(1)(a) require that, the applicant being an adult worker, the compensation after the first 26 weeks shall be not less than $91.90 per week as adjusted?

That provision has to be read in conjunction with section 9(2) which provides:

" (2) The total weekly payment by the employer under subsection (1) shall not, after a period of incapacity resulting from an injury to the worker of, or periods of incapacity resulting from the one injury to the worker totalling, 26 weeks, exceed an amount equal to the workers current weekly wage rate."

The provision, by its terms, clearly overrides any contrary provision in subsection (1). As the subsection formerly stood (limiting compensation to average weekly earnings) it was held to override the provisions of section 9(1)(a): Cassidy v. Bottrell [1972] 2 NSWR 726; and, as it now stands, it was similarly held by Campbell J: Abbas v. Austral Bronze Crane Copper Ltd, Compensation Court, No. 8328/79, 7 December 1980, unreported.

Therefore, in my view, the applicant's current weekly wage rate and average weekly earnings are $50. She is thereby entitled, during total incapacity, to be compensated at $50 per week during the first 26 weeks and thereafter at $45 per week.

As from 16 May 1983, the applicant is partially incapacitated. Her entitlement, if any, arises under section 11(1). That is, by and large, a three-stage process.

First stage

The first stage is to establish:

"... 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."

That requires that I assume to be fact that which patently is unlikely: Australian Iron & Steel Pty Ltd v. Elliott (1966) 67 SR (NSW) 87. I assume the applicant continued to work for the respondent as a van salesman. On what basis? one day per week; one day per year; every day. It appears to me a purely hypothetical situation with marginal relationship to the actual contract. Had the applicant been employed on a one-day per week basis, it would be reasonable to assume continuity of the actual contract. Taylor's employment was a purely one-off event which would have had no continuity. This appears to be another of those occasions with which the Act is not designed to cope. However, the Act does contain a discretion to adjust unrealities and it appears that, as long as the probable earnings and ability to earn are assessed on the same basis, the resulting calculations are adjusted by the use of the discretion to relate to real facts: e.g. Hill v. Bryant [1974] 2 NSWLR 423.

It therefore appears to me that I may assume that the applicant continued in regular full-time employment with the respondent. On that basis her probable earnings as at August 1981 would, most likely, equate with the actual earnings of Gearside at that time, $200 per week. What would that probably be by mid-1983 and thereafter?

Gearside's earnings were related to sales. He received a percentage. Largely the items sold, confectionery and ice confectionery, are elements of the food group which the Australian Statistician takes into account in calculating the Consumer Price Index. That index rose 8.1 per cent in the 1981-82 year; 9.6 per cent in 1982-83 and 7.8 per cent in 1983-84. There was a 4.7 per cent rise over the first three quarters of 1984-85. By and large, rising 7 to 8 per cent per annum. It seems to me likely that Gearside's earnings would probably increase at much the same rate. The probable earnings of the applicant for a week's work for the respondent in 1983-84 would thereby be around $248 per week and, thereafter, of the order of $267 per week.

Second stage

The second stage is to assess the worker's ability to earn, that is:

"... the average weekly amount he ... is able to earn, in some suitable employment or business, after the injury."

What is this worker's ability to earn in a reasonably accessible labour market?

The applicant has no particular skills. There is no known work experience. She patently has a capacity to drive vehicles. It would appear her injured leg would inhibit her capacity to drive some vehicles - particularly those with manual transmission. The disability of her left leg would inhibit her in work requiring agility and even long standing, much walking and the like. That is Dr Goldie's assessment. It would thereby appear that a substantial area of her potential labour market is precluded by her injury. Nonetheless, there are positions of a semi-sedentary nature within her capacity and which would return a reasonable remuneration. It would be within her capacity to operate as supervisor of a self-serve service station as would various light assembly jobs in factories. As against that, she is probably excluded from some common means of accruing income such as in the occupations of waitress, canteen hand, kitchen hand and the like. There is also a likelihood of the applicant losing time from work if there is periodic exacerbation of the left leg condition by some intercurrent stressful use. Taking account of such contingencies, I would regard her capacity to earn as fairly reduced to something of the order of $140 to $150 per week over the period with which I am concerned.

Having established probable earnings and ability to earn there is manifestly a "difference". In this case it is of the order of $100 per week.

Third stage

The third stage is to determine the amount to be awarded. The worker is not automatically entitled to such difference or such part thereof as is the permitted maximum payment under the Act. The weekly payment awarded:

"...shall bear such relationship to the amount of that difference as under the circumstances of the case may appear proper."

As Kirby P said in Australian Wheat Board v. Pantaleo [1984] 3 NSWLR 530 at 541:

"It is here that artificialities that may result from the hypotheses required in the first stage can be adjusted, by reference to realities of law and fact proved in the evidence of the particular case."

I might add that, where, for the purposes of comparing like with like, those same hypotheses or those of similar nature have been made in the second stage, they too are taken account of when it comes to exercising this discretion under the subsection.

Of such differences as have been determined, what amount is proper to award in the circumstances of this case?

Whatever pre-injury capacities the applicant may have had, there is no real suggestion in the evidence that she would have chosen to exercise them in the labour market had she remained uninjured. However, that was an option that was open to her. Such an option yet remains open, though in a rather more restricted field. She has a disability. She is partially incapacitated. The possibilities of selling her labour have been reduced. It appears to me that the reduction of those possibilities, her disabilities and incapacity warrant some minor portion of the "differences" being awarded as present compensation. In my view, the sum proper to award in the circumstances of this case is $10 per week.

Findings

I find:

1. The applicant was a worker in the employ of the first respondent.

2. On 16 August 1981, the applicant sustained injury, inter alia, to her left leg in the course of her employment.

3. The applicant was totally incapacitated thereby from 17 August 1981 to 15 May 1983 and partially incapacitated thereafter.

4. Her current weekly wage rate is $50 per week.

5. Her average weekly earnings are $50 per week.

6. Her probable earnings, in terms of section 11(1), for the period 16 May 1983 to 30 June 1984 would have been $240 per week and from 1 July 1984 to date: $260 per week.

7. Her ability to earn, in terms of section 11(1), for the period 16 May 1983 to 30 June 1984 was $140 per week and from 1 July 1984 to date: $150 per week.

8. The amount proper to award under section 11(1) in the circumstances of this case is $10 per week.

9. The applicant has sustained a 20 per cent permanent loss of efficient use of the left leg.

Orders and awards

There is an award for the applicant and I order:

1. that the first respondent pay the applicant weekly compensation at the rate of:

(a) $50 per week from 17 August 1981 to 14 February 1982 on the basis of total incapacity;

(b) $45 per week from 15 February 1982 to 15 May 1983 on the basis of total incapacity;

(c) $10 per week from 16 May 1983 and continuing on the basis of partial incapacity;

2. that the first respondent pay the applicant as lump sum compensation, under section 16, $4,400 in respect of 20 per cent loss of efficient use of her left leg;

3. that the first respondent pay the applicant's medical and hospital expenses under section 10;

4. that the first respondent pay the applicant's costs including one qualifying fee and fee for advice on evidence.

I declare that the first respondent was not insured as required by the Act at the time of the applicant's injury.

I order that the second respondent (the State Compensation Board) cause payment of the compensation and costs awarded against the first respondent to be made out of the fund constituted under section 41(2) of the Act.

I order that the first respondent reimburse the second respondent such amount or amounts as may be paid out such fund in respect of the compensation and costs awarded against the first respondent and in respect of the costs of the applicant and of the second respondent.

Orders accordingly

Solicitors for the applicant: Kennedy Winter & Rimes

Solicitors for the first respondent: Herman Morgan & Green

Solicitor for the second respondent: Solicitor for the State Compensation Board