Virag v James N Kirby Pty Ltd [1990] NSWCC 1; (1990) 6 NSWCCR 86 (5 June 1989)

[1990] NSWCC 1; (1990) 6 NSWCCR 86 Matter No. 1257 of 1987

VIRAG v. JAMES N KIRBY PTY LTD

Compensation Court of New South Wales: Moran J

Assessment and amount of compensation - Amount of compensation during incapacity - Weekly payment during incapacity Ä Worker paid unemployment or sickness benefit equal to or greater than amount awarded up to the date of award Ä Whether interest payable on arrears of the award Ä Compensation Court Act 1984, section 19

A. J. Katzman, for the applicant

C.B. Loveday, for the respondent

Cur adv vult

MORAN J: On 31 March 1989 I made an award in favour of the applicant under section 11(1) of the Workers Compensation Act 1926 from 14 February 1987 to 30 June 1987 and then under section 11(2) of the Act from 1 July 1987 to 31 March 1989 and continuing. Applicant's counsel sought an order for interest on the arrears of the award under section 19 of the Compensation Court Act 1984. At the time I pointed out that as the applicant had been in receipt of unemployment benefits from the Department of Social Security until 3 March 1989 and thereafter sickness benefits, I was not inclined to award interest on the arrears.

Counsel asked for time to make written submissions. I have now considered these submissions. Both counsel referred to BENNETT V. JONES [1977] 2 NSWLR 355, PHEENEY V. DOOLAN (NO. 2) [1977] 1 NSWLR 601 and Ruby v. Marsh [1975] HCA 32; (1975) 132 CLR 642 and counsel for the respondent to CULLEN V. TRAPPELL [1980] HCA 10; (1980) 146 CLR 1.

The question to be decided is whether the intention of the section is to penalise the respondent because it has the use of the monies payable under the award until the decision of the Court or whether it is to compensate the applicant for the loss of income pending the conclusion of the hearing.

In the present matter the applicant at all relevant times had a wife dependent upon him for support. The Social Security benefit which he received prior to 30 June 1987 would have exceeded the amount which I awarded to him under the provisions of section 11(1) of the Act and the benefit received after that date would be about the same as the amount awarded under section 11(2).

In BATCHELOR V. BURKE [1981] HCA 30; (1981) 148 CLR 448 Gibbs CJ said at 455:

"In accordance with the principle which has been accepted in this Court and in the Privy Council it would therefore not be right to award interest in respect of that portion of the award which represents damages for earnings lost before trial but replaced by payment of worker's compensation. It would not be consistent with that principle to award interest simply to discourage defendants from delaying the settlement of claims. The interest is awarded to compensate the plaintiff or the detriment that he has suffered by being kept out of his money, and not to punish the defendant for having been dilatory in settling the plaintiff's claim."

Manser J in an unreported decision of HEALEY V. MCPHERSON BINDING PTY LTD, Compensation Court, No. 317/86, 5 June 1989, unreported, followed the decision of the High Court in BATCHELOR v. BURKE and declined to award interest. He granted liberty to apply in respect of any difference between the workers compensation payments and Social Security benefits.

For the above reasons I refuse the application for interest on the award and make no order as to costs.

Application denied

Solicitors for the applicant: Markham Geikiew & Rumore

Solicitors for the respondent: Hunt & Hunt