Sipple v Carey's (Tamworth) Pty Ltd [2000] NSWCC 4; (2000) 19 NSWCCR 275 (24 January 2000)

Last Updated: 30 October 2000

[2000] NSWCC 4; (2000) 19 NSWCCR 275

SIPPEL v CAREY'S (TAMWORTH) PTY LTD

[2000] NSWCC 4

Compensation Court of New South Wales: Burke J

22 September, 5 November 1999 (H)

24 January 2000 (J)

Workers compensation - Weekly compensation - Partial incapacity - Discontinuance after two years - Grounds for discontinuation must apply - At relevant time: when notice of intention to discontinue payments given or when payments actually discontinued - Provision only applies when payments actually being made - Workers Compensation Act 1987 (NSW), s 52A

Words and phrases - "relevant time" - Workers Compensation Act 1987 (NSW), s 52A

R.J. de Meyrick, for the applicant

S.L.C. Flett, for the respondent

Cur adv vult

1 BURKE J: The applicant seeks weekly payments nominally from 10 May 1996 to date and continuing together with medical and other expenses of treatment. Really the claim is in respect of the period from 12 June 1997 onwards. Those entitlements are alleged to arise from injuries suffered on 9 May 1996 and 10 March 1997 in the course of his employment by the respondent. The evidence was heard in Tamworth on 22 September 1999.

2 The formal issues were pleaded as injury, incapacity and nexus. At the conclusion of addresses formal leave was granted, and the respondent's answer amended, to add a defence relying upon par (a) and par (b) of s 52A(1) of the Workers Compensation Act 1987 (the Act). The parties were ordered to lodge written submissions regarding the latter matter. That was duly done and final addresses were delivered on 5 November 1999.

Facts

3 The applicant is presently aged 31 years, born 1 December 1968, is married and claims four children as dependants as well as his wife up to about 12 or 14 months prior to the hearing at which time she obtained employment. The applicant left school in 1984 at the end of Year 10, tried some clerical work in a bank, didn't like it, was apprenticed to a carpenter who apparently went broke, that put an end to the apprenticeship and from 1986 the applicant embarked on a career as a truck driver. Eventually in February 1996 he came into the employ of the respondent.

4 The applicant was engaged in long distance haulage, mostly interstate, driving semi-trailers.

5 A few minutes before midnight, on 9 May 1996, on the New England Highway near Ballandean in south eastern Queensland, the applicant and his semi-trailer were proceeding around a right hand curve at about 100 kph. A major problem with that manoeuvre seems to be that the applicant was apparently asleep at the time. Never trust a semi-trailer left to its own devices. The semi left the roadway, rolled onto its left side, jackknifed and eventually stopped.

6 In this process the applicant was shaken up somewhat. He is apparently a little confused as to what followed immediately after--and even a little before. He was transported by ambulance to the Stanthorpe Hospital arriving at 1.15 am on 10 May 1996, from whence he was transferred at 3.30 am to Toowoomba General Hospital where he was admitted at 5.21 am. He was complaining of neck and left shoulder injuries. He remained an in-patient for a couple of days.

[At [7] - [ 56] his Honour then considered evidence relating to the applicant's earlier and subsequent medical and employment history, the medical opinions given and, after evaluating the factual evidence, concluded:]

Summary

57 Overall it appears that it is likely that the applicant in the later 1980s, shortly after leaving school, suffered some sort of whiplash injury in a motor vehicle accident. Whatever the effects of that may have been he took up, or continued, interstate transport work and apparently managed that reasonably successfully for a number of years. In August 1994 he fell from a truck in Gunnedah and injured his left shoulder region. The recovery from that injury was not complete but sufficient to permit him to continue in long distance haulage, even following the consultation with Dr Mayo in April 1996.

58 On 9 May 1996 he rolled his semi-trailer while working for the respondent suffering neck and left shoulder injuries. He was off work for a few weeks at most, did some lighter work for a while but was back to driving at least shorter trips in something around six weeks and eventually resumed the full gamut of driving work. The applicant maintains that he did so though still symptomatic with the aid of analgesics.

59 On 10 March 1997 he again fell from the back of a trailer. He again injured his neck and also injured his back. By early April he had resumed yard work. By mid-May he was complaining to Dr Mayo of increasing pain and ache and fluctuating headaches. He was certainly complaining of the back, which is the subject of Dr Mayo's certificates at the time, but the clinical notes clearly indicate intercurrent complaints regarding the neck and associated headache. The applicant was terminated by the respondent on 11 June 1997. I accept that the applicant, having furnished certificates for lighter duty and, apparently there being some input from rehabilitation people concerning a return to work program, protested that the work provided was outside the scope of that specified. In that sense he refused an instruction lawful or otherwise but I do not accept that he was unreasonable as is suggested in the employment separation certificate. The provisions of s 52A(1)(b) being otherwise applicable, this event would not fall within the purview of the section.

60 The worker fairly quickly secured another job with Pendergast but, on his account, couldn't cope with it and ceased after about eight weeks. He has not worked since. He continues to complain, increasingly, of his neck, shoulder and headache. As against that he indicates that, subjectively, his back has virtually recovered. It was his back problem in the main which lead to the certification of Dr Mayo of fitness for restricted work and to the ultimate dismissal of the applicant by the respondent. There is a touch of irony in the substantial resolution of the applicant's back problem.

61 This has all occurred in the context of the applicant being a young man--going on for 29 when he ceased with the respondent--with a wife and four children. He was earning an agreed $862.85 per week with the respondent. The worker believes he cannot work. There is medical support for that proposition. There has been a separation, at least nominal, from his wife. He retains the custody and control of the four children. The suggestion of the respondent is that he either masquerades or, if he has an incapacity, it results from other than relevant injury, primarily the former.

62 The applicant's sequential recall of life events is parlously faulty. That is suggested to be deliberate and fabricated.

63 On the totality of the evidence, I do not accept that the applicant is a malingerer who fabricates his expressed problems and disabilities. He is not a particularly satisfactory witness and may exhibit some selective deficits of recall, but all in all I accept that he experiences neck, shoulder and head symptoms and has done so particularly since the accident of 9 May 1996 in the employ of the respondent. I say "particularly" because it is likely that the applicant had continued to suffer symptoms in the left shoulder in some degree from the fall in Gunnedah in August 1994.

64 On the totality of the evidence I am satisfied that the effects of the two events in the employ of the respondent produce an incapacity. Dr Davis apart, that is the view of the doctors whose reports are in evidence. Dr Basser, apprised of a prior history, doesn't resile from his former opinion that the applicant is incapacitated. His uncertainty is rather as to apportionment of such between the injuries in the employ of the respondent and the pre-existing problems. Since the applicant worked fairly continuously with such pre-existing problems as he suffered, the superimposed injuries with the respondent are the probable source of the subsequent incapacity.

Incapacity

65 It is submitted by counsel for the applicant that the worker is totally incapacitated. Dr Creer certainly foresees difficulties in the applicant finding suitable employment but eschews the opinion that he is totally incapacitated. He, as Dr Basser and Dr Carmody, regards the applicant as unfit for truck driving. Dr Carmody goes further and opines that the applicant is unfit for any work without rehabilitation and retraining. Dr Basser, while feeling that emotional factors are significant, accepts an organic problem with the left shoulder and feels the applicant fit for work not involving strain on the shoulder. Dr Basser notes the constellation of complaints regarding the neck pain, stiffness and grinding, the headaches, lack of concentration and defective memory but makes no evaluation of the reality or otherwise of the complaints and does not incorporate consideration of those problems in evaluating incapacity. Perhaps he regards them as emotionally determined.

66 The applicant has understated his prior problems which he overtly took to be irrelevant to his current claim. His left shoulder was, at least, an intermittent disability prior to relevant injury. There were probably low grade symptoms fairly constantly. That would warrant the terse summary at the Toowoomba General Hospital of a chronic left shoulder problem. The rolling of the semi-trailer on 9 May 1996 aggravated that problem and generated a cervical problem. There is pathology revealed by the investigations of the shoulder. Whether it emanates in part from the Gunnedah accident of 1994 or solely from 9 May 1996 incident cannot be determined. Either way the incapacity stems from the latter incident. Investigations regarding the neck reveal no sinister pathology. The diagnosis is soft tissue injury. No pathological explanation of the headaches has been demonstrated. The better diagnosis appears to be tension headache. There is similarly no sinister pathology in the applicant's back. Presently, at least, it is essentially asymptomatic. I do not feel that the applicant has understated his symptoms and disabilities experienced since May 1996. Perhaps overstate may be a little harsh in implication. Maybe he is a little hyperbolic.

67 It may be that emotional or psychological factors play a significant part in the manifestation of the applicant's symptom complex as Dr Basser suggests. No psychological concomitant of the two relevant events is alleged in the application filed. There is scant evidence of such in any event other than comment en passant by the occasional medical examiner. I would accept that a "normal" degree of distress would be experienced by the worker who at a young age and with family commitments finds himself unable to follow his chosen avocation. That could augment to a degree the subjective appreciation of symptoms.

68 In that overall context I regard the applicant as partially incapacitated. He is precluded from the heavier forms of work, including driving semi-trailers or trucks, but retains a saleable capacity in the less arduous areas of employment. Unskilled lighter employment should return something of the order of $10 to $12 per hour, approximately $400 per week. I would believe that employment of that kind would be available in the relatively urban area of Tamworth.

69 The parties have agreed on probable earnings uninjured at $862.85 per week. Doing a little rounding that leaves a difference of $460 per week. No submission has been addressed to any discretionary factors which might reduce the amount of any award below that difference. None occur to me. I assume that the commencing date of the claim is 12 June 1997, the day following dismissal though the applicant's wage schedule would suggest 7 April 1997, the date of resumption of light duties, as the relevant date. Irrespective of the dependency situation regarding the wife, the dependency of the four children suffices to maintain an award at the rate of the above difference.

Section 52A

70 The last remaining matter is then the somewhat vexed question of the application of s 52A of the Act which in general provides, in specified circumstances, a limitation of receipt of benefits for partial incapacity to a period of 104 weeks. The respondent submits that such period will have expired prior to the date of judgment and any award should therefore be limited in duration.

71 Again in general, the circumstances triggering the operation of s 52A are where the worker has obstructed his return to work (refused suitable work), made no attempt to use his residual capacities or is a victim of economic circumstance, mostly geographic I would imagine, in there being little or no suitable work available in the area where he resides.

72 The popular slogan under the aegis of which the Workers Compensation Act 1926 (the 1926 Act) was introduced was: "Industry should pay for its own casualties". Over the intervening decades the ambit of the Act has widened to encompass benefits being payable in circumstances with barely a scintilla of industrial connection. The most influential subsequent amendment was that of 1942 substituting the disjunctive "injury arising out of or in the course of the employment" for the former conjunctive "injury arising out of and in the course of the employment". Temporal connection with employment could then suffice without any causal connection. Recent legislative action has shown a desire to re-establish a necessity for a real industrial causal connection before benefits are attracted. The recent introduction of s 9A into the Act now requires a more stringent causal relationship to employment than was necessary under the former conjunctive requirement. The philosophy remains essentially the same as originally; industry should pay for industrial casualties.

73 Under the former dispensation, before the introduction of s 52A, once the quantum of a weekly payment in respect of partial incapacity was established in accordance with the provisions of the Act, a worker remained so entitled while such incapacity persisted. It mattered not whether he chose to work or not, whether he was totally incapacitated by supervening illness or whether he was serving a term in gaol. The philosophy underlying this was much the same; industry was paying for a casualty of industry. The award or payment established the loss due to injury, whether the worker chose to earn what he was able to earn didn't affect that loss. By not working the worker imposed no greater burden on his employer. He could earn the amount that he was able to earn and retain his award or payment and enjoy a better life style or not earn and merely subsist. Either way it cost industry not a cent more.

74 The sociology underlying a s 40 award was that it also provided an inducement to a partially incapacitated worker to use his residual capacity in appropriate work. The award was necessarily less, often considerably so, than earnings uninjured so working in suitable employment supplemented the award and aided the worker to maintain the economic parity he formerly enjoyed. It was a "win - win" situation. The worker enjoyed much the same life style as before injury and industry subsidised but a proportion of the cost. It was much the same in regard to s 11(2) of the 1926 Act. It was intended as an inducement for employers to retain partially incapacitated workers in suitable work. It didn't achieve that aim because the co-existence of compulsory insurance removed the personal penalty on the employer. Had the employer been constrained to meet the additional cost it could have been otherwise.

75 Superficially s 52A does not appear to fit this philosophy of industry paying for its casualties and providing sociological win-win solutions. Quite the contrary. In the context of such considerations it seems clearly draconian, the only question appearing to be just how draconian.

76 Bishop J has analysed the operation of the provision in Royal Society of Welfare for Mothers & Babies v Bowers (1999) 18 NSWCCR 732. That judgment sets out in full the past and present forms of the section (at [6] and [10] respectively) as well as the transitional provisions in Sch 6, Pt 4, cl 14 and cl 15 (at [8] and [12] respectively) so I will forbear to do so in this judgment.

77 In its initial form as inserted by the WorkCover Legislation Amendment Act 1996, s 52A it came into operation on 12 January 1997. It was clearly ill-conceived and essentially stillborn and couldn't operate effectively except by accident and even that was questionable. It was replaced by the provision in its present form by the Workers Compensation Legislation Amendment Act 1998 operative from 1 August 1998.

78 The basic elements of each enactment can be broadly summarised as partially incapacitated workers became disentitled to weekly payments after 104 weeks in specified circumstances:

1996 Act IF * Partially incapacitated and not suitably employed, and not exhausted s 38 entitlements and not seeking suitable employment * Partially incapacitated and not suitably employed, received maximum s 38 benefits and unreasonably refused offer of employment for which trained * Partially incapacitated and not suitably employed, received maximum s 38 benefits and failed to find suitable employment solely because of the state of the labour market Employer must give 12 weeks notice of intention to discontinue payments Must state grounds (class specified above) and what action worker must take to avoid implementation Notice to worker personally or by post Notice can't be given more than 12 weeks before expiry of the 104 week period Employer cannot discontinue payments if worker provides a medical certificate of likely duration of incapacity Section 52B(1) provided time frames and means by which a worker could approach the Court to dispute the discontinuance.

1998 Act IF at the relevant time * Partially incapacitated and not suitably employed and not seeking suitable employment * Partially incapacitated and not suitably employed and unreasonably rejected offer of suitable employment * Partially incapacitated and not suitably employed and has sought but failed to obtain suitable employment primarily because of the state of the labour market Employer must give notice in accordance with s 54 of intention to discontinue payments The notice can be given up to 6 weeks before the end of the 104 week period but not earlier If a worker claims compensation after the earliest time at which the notice may be given OR Pending Court proceedings for weekly payments include a period beyond 104 weeks THEN Notice may be, but need not, be given The relevant time is the time at which notice of intention to discontinue is given OR, where no notice is given or required, the time at which payments are discontinued.

79 It is clear that the later version widens the group of workers potentially affected. Whether there are or are not outstanding s 38 entitlements has become irrelevant. The unreasonable refusal of any offer of suitable employment, not merely one for which suitable training has been received, can be a basis of discontinuance. Failure to obtain suitable employment solely because of the general labour market has become primarily for that reason. (Anyone who feels some antipathy to the imprecision of "substantial" in s 9A is not going to be amused about "primarily" in this provision).

80 In an appropriate case the implications of primarily will be explored. In Harpur v State Rail Authority (NSW) [2000] NSWCC 3; (2000) 19 NSWCCR 256 in relation to s 9A, I commented on the expression "a substantial contributing factor". That didn't mean "the" substantial factor. In fact there would be cases where there was no cause which could be classed as "the" substantial factor. The adverb "primarily" in relation to the causes of a particular outcome may have connotations of "the" substantial factor. Perhaps there could be no primary cause of a failure to obtain suitable employment. The denouement of this and other little enigmas will unfold in time--but not here.

81 The endless loop inspired by the former s 52A(3)(a) requiring that the notice of intention to discontinue must inform the worker of the steps he must take to avoid the implementation of the threatened discontinuance is gone. One of those steps as provided in the former s 52A(6) was to furnish a medical certificate of the duration of partial incapacity. That vitiated the notice and a further 12 weeks payments must be made. Another notice could be given. It too must advise the worker etc. It eases the stress on the rainforests.

82 Both forms of the provision require a period of notice before discontinuance of payments. The 1998 version made the date of notice the "relevant time"--the time at which the existence or otherwise of the ground/s alleged to warrant the discontinuance would be determined. This was rather more specific than the prior version.

83 Both forms of the provision were accompanied by transitional provisions. Indeed the perhaps debatable area of the decisions of Bishop J in Bowers and in Vockins v North Broken Hill Ltd (1999) 19 NSWCCR 59 was whether or not Sch 6, Pt 4, cl 14 (6.4.14), introduced with the original form of s 52A in 1996 continued to apply to classes of matters to be determined under the provision as amended by the 1998 Act which was itself accompanied by the transitional provisions of Sch 6, Pt 4, cl 15 (6.4.15).

84 Transitional provision 6.4.14 provides that the 1996 form of the section applies to two classes of matters differentially.

85 Firstly, it applies in respect of all injuries received after 12 January 1997 (cl 14(1)).

86 Secondly, it applies to injuries received after 30 June 1987 and before 12 January 1997 upon certain conditions. In general the employer must give the worker at least 52 weeks preliminary notice that the section exists and could apply to him and cannot serve a notice of discontinuation until at least 40 weeks later and cannot cease payments until 12 weeks after the giving of such later notice (cl 14(2)).

87 None of these latter requirements apply in respect of injury received after 12 January 1997. No pre-warning was required, just the notice of proposed discontinuation not less than 12 weeks before.

88 In fairly stark contrast, 6.4.15(1), governing the application of the 1998 amendment, applies that form of the section to any discontinuation of payments that occurs after 1 August 1998 irrespective of when the actual injury may have occurred.

89 The circumstances in which the 1996 form of the section applied are but a limited subset of those the subject to the 1998 amendment. The 1998 form is all embracing. The 1996 epiphany was applied, differentially, on the basis of the date of injury--and presumably not at all to injury prior to 30 June 1987. The 1998 manifestation was applied on the basis of the date of discontinuance of payment. They are radically different parameters without any common factor. In my view, this is the critical difference between the two legislative assaults upon the partially incapacitated. The latest form forsakes any reference to injury as the basis of its operation. The 1998 amendment has no need of discriminations between injuries before and after 12 January 1997, as originally provided in 6.4.14(2). All are now one for the purposes of the current s 52A.

90 I am therefore of the view that 6.4.14(2) can have no application in respect of any discontinuation of payments occurring after 1 August 1998 irrespective of the date of injury. Those provisions, even under the old dispensation, had no application to injury received after 12 January 1997. They now have no application in respect of injury received before 12 January 1997. The date of injury is now irrelevant to the operation of the section. All injuries, whenever occurring, are now equal and, contra to George Orwell and "Animal Farm", none are more equal than others. Nor less equal either.

91 Transitional provision 6.4.14(3) excluded from the operation of the original s 52A weekly payments being made pursuant to an award of the Court. (There was also an exclusion of some pending applications under s 51 of the Act.) Neither are reproduced in 6.4.15. The exclusion of payments under an award of the Court appears eminently practical. There is an extant curial order that payments will be made. In case of default the Registrar of the Court, on appropriate application, can ministerially issue a certificate which may then be registered as a judgment in the District Court and so proceed to execution. The worker wishes the fruits of his award. The employer claims the award is negated by operation of law--by this very provision of the Workers Compensation Act. The worker says he will execute on the award, whatever they think the Act may say. Who is to determine that impasse? It appears to be a matter arising under the Act. This Court would have exclusive jurisdiction to determine such question if it be so. Maybe the District Court would have jurisdiction, the matter arising in the course of execution of a formal judgment of that Court. A very messy situation which was simply avoided by the transitional provision.

92 What is the situation after 1 August 1998 under the new s 52A? On the face of it the only relevant fact as a precondition to its operation is a discontinuation of payments after 1 August 1998. Any discontinuation of a weekly payment then falls within the province of the new dispensation. Neither the transitional provision nor the substantive section explicitly make any exceptions. Does the legislature intend that the situation explicitly avoided under the 1996 regime should now be open to occur? Or does it, by 6.4.14, still exclude such matters from the operation of the section. Does cl 14 have any application to a discontinuation of payments after 1 August 1998?

93 Both forms of s 52A were and are framed in terms of "weekly payments of compensation in respect of partial incapacity for work are not payable ..." in the specified conditions. S 9 provides that a relevantly injured worker "shall receive compensation from the worker's employer in accordance with this Act" (empahsis added). S 52A provides circumstances in which compensation is not payable under the Act. It seems to me that, despite the obvious practical problems, the provision has the effect according to its terms including that of effectively terminating an award of the Court by operation of law in the appropriate circumstances. As to whether or not the circumstances were appropriate would be a matter which the Court has jurisdiction to determine.

94 Comparing the provisions of 6.4.14(3) and the present s 52A(8) appears to me to demonstrate persuasively the non-application of those Schedule provisions to the present section. Schedule 6.4.14(3) provides:

(3) Section 52A does not apply in any of the following cases:

(a) a case where the worker is receiving or entitled to receive weekly payments of compensation under a court award made before the commencement of that section,

(b) a case where court proceedings in which the worker is claiming weekly payments of compensation for which the employer or insurer has denied liability (including proceedings on an application for a determination under section 51 where there has been such a denial) are pending as at the commencement of that section,

(c) a case where court proceedings on an application for determination under section 51 are pending as at the commencement of section 52A and the employer or insurer has not denied liability to make weekly payments of compensation, but only if approval under section 51(1)(c) has been given before that commencement.

It deals with three subjects: payments under an award of the Court; pending proceedings for weekly payments and WorkCover approved s 51 applications.

95 The present s 52A(8) provides:

(8) If:

(a) a claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or

(b) proceedings before the Compensation Court involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,

the notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.

It deals with two subjects, a claim for weekly payments and pending proceedings for weekly payments. Only one of those matters is dealt with in 6.4.14: the pending proceedings.

96 Formerly there could be no discontinuation at all in matters where proceedings for weekly payments were pending before the Court. Now, not only can payments be discontinued but it isn't even necessary to give any prior notice. The subject matter is dealt with in s 52A(8) because this special provision--lack of need for notice--was being made in respect of it. The other two matters formerly dealt with in 6.4.14 are omitted from s 52A(8).

97 There was no need for any special provision regarding s 51 applications as had been provided in 6.4.14(c) as concurrent amendments to the Act completely changed that process by no longer requiring WorkCover approval to commutation. It returned much to the form of the old redemption--an application by an employer at his option. In that context it is significant that discontinuation of payments pursuant to an award doesn't even rate a mention. That is because no special provision was being made in respect of that matter. It was covered by the general provisions of s 52A. That the operation of s 52A is independent of the provisions of 6.4.14 is also suggested by the specific provision of 6.4.14(3)(a) itself. Even when it protected payments under an award of the Court, it did so only in respect of awards made prior to 12 January 1997. Awards made thereafter were obviously subject to termination by operation of the then s 52A. The new manifestation of s 52A merely makes that process universal.

98 It seems to me that the Act giveth in s 9 and, in some circumstances, taketh away in s 52A. Bishop J in Bowers (supra) suggested that the better procedural course for the employer would be to seek termination of the extant award on the basis of the claimed operation of s 52A. That does not, as I see it, sit very comfortably with the provisions of this privative section. If the statute says compensation is not payable then no award of the Court, past, present or future, can effectively ordain otherwise. It would be unjust that an employer, excused by operation of law from making weekly payments, should be required or expected to maintain such payments.

99 If the employer has, or asserts, a right to cease payments by virtue of s 52A, gives the requisite notice and otherwise complies with the section then he is entitled to discontinue payments. It is the obverse of the usual situation coming before the Court where the worker asserts a right to weekly payments by virtue of injury, incapacity and relevant nexus; the employer is unconvinced and declines to accede to the claim for weekly payments. It is the worker who is then aggrieved, as presumably he would be by a discontinuance under s 52A, and it is he who applies to the Court for relief. Under s 52A I think the employer asserts a right, existing award or not, acts accordingly and the ball is in the worker's court just as much as if the employer had rejected an initial claim for weekly payments. In that situation the Court can determine the factual, and legal, issues that arise as it always has.

100 A notable omission from the 1998 reincarnation of the provision is the absence of any equivalent to the former s 52A(3)(a) which required the notice of discontinuation to specify the particular ground or grounds warranting the cessation of weekly payments. The lack of any such requirement is probably more honoured in the breach than the observance. If a worker knows not which of the several diverse grounds proposed by s 52A(1) are the alleged basis of discontinuance, he is obviously presented with substantial difficulty in any attack upon the action of the employer. Doubtless I would think, as presently advised, the Court would, on request, order appropriate particulars. It would be unconscionable for the worker to be required to contest a decision without knowledge of the basis upon which it was made or the issues raised by that action. As Meagher JA, in another context, commented in Ryde City Council v Cook [1999] NSWCA 380 at [13]:

To grant leave would be most unfair to the worker, who never at any stage was alerted to it until 23 November, and who in common justice should have known as early as possible what obstacles were to be raised in his path.

It would seem likely that the validity of the notice could also come into question if it is completely non-specific. You are charged with murder. We won't tell you who, where or when. Defend yourself--if you can.

101 A worker seeking weekly payments in his approach to the Court cannot just say I was injured and incapacitated as a result. He must particularise the particular injury or injuries relied upon. Similarly, I would think an employer, relying upon s 52A, would be well advised to particularise in his notice of discontinuation the grounds upon which the proposed discontinuance is based. Else, void for uncertainty?

102 Another major contrast in the successive forms of the section is the former lacked any precision as to the time at which the ground relied upon must exist. That has been remedied in its successor with explicit provisions as to the relevant time. Section 52A(2) provides that the relevant time is the date of the giving of the notice of intention to discontinue payments. In so far as s 52A(8) provides circumstances in which such notice is not required then it also provides that the relevant time is the time at which payments are in fact discontinued.

103 In Bowers Bishop J felt that, in the absence of express or otherwise clear intention of the legislature to the contrary, existing rights would remain undisturbed by the changes wrought by the Workers Compensation Legislation Amendment Act 1998. The rights to which he referred in illustration were essentially procedural not substantive. The changes were not to what could be done but the way in which it was done. Since there were potentially actions pending under the initial form of the provision and since the legislature could be taken to appreciate that actions already taken would be adjudged in the light of the law as it stood at the time of the relevant action, there was an apparent need to retain, at least temporarily, the transitional provisions of Sch 6, Pt 4, cl 14. That Schedule is the source of all the "rights" referred to in Bowers. In my view procedure is infinitely variable and any particular variation applies from the time stipulated.

104 In summary, my view is that the original s 52A introduced by the WorkCover Legislation Amendment Act 1996 foreshadowed what was to come. It applied, without the procedural limitations of 6.4.14 in respect of any injury received after 12 January 1997, the date from which that Act operated. No preliminary notice was necessary. None of the restrictions which applied to injuries prior to 12 January 1997 applied to later injury. The Workers Compensation Legislation Amendment Act 1998 took the next step and implicitly applied its revised and more stringent provisions to any injury independent of date of occurrence. It was, in my view, intended that after 1 August 1998 this latest form of s 52A would operate in accordance with its terms unrestrained by the procedural requirements of 6.4.14.

105 The philosophy and sociology underpinning the original s 52A so far as it related to prior injuries (certainly not injuries after 12 January 1997) was much as underlay the Act for decades. Industry would still pay for its own casualties. In so far as it might be relieved of that burden there was a win-win solution provided. The worker was given explicit notice in quite adequate time that he personally could be affected and he had every opportunity to take such remedial action as was necessary. The worker was induced to return to the workforce. For injury after 12 January 1997 there was no iron fist in a velvet glove inducement, no preliminary warning, none of the protection afforded to workers who had received earlier injuries. This was the beginning of the "Gotcha" regime. That found its full flower in the amendments introduced by the Workers Compensation Legislation Amendment Act 1998.

106 Now the employer strikes from ambush. No scintilla of opportunity for the worker to take any remedial action. Industry may have injured him but industry can avoid paying the bill. And that notwithstanding that none of the grounds of discontinuation relate to any action by a worker that would have cost industry a brass razoo more than it was already paying. It is not in the financial interests of industry to endeavour to induce a return to the workforce. That would still cost industry the price of weekly payments. The philosophy is that of Big Business and bean counters. Save a dollar is the aim. The social or moral concomitant can be ignored. Workers are expendable, dollars aren't. Perhaps that is a trifle hyperbolic. However, the change of direction is quite dramatic and the legislature appears to have embarked on a course that penalises workers for no relevant fault of their own.

107 Such a radical change of approach must have some rational explanation. I would tend to the view that it is all probably linked to the proposed and intended return to private insurance and also to the massive paper losses of WorkCover. The inducement to potential insurers to actually underwrite the risk and take over the outstandings was privative and draconian legislation such as this. As WorkCover discovered that it massive losses were mostly paper losses, the work of actuaries, accountants and bean counters, there is a sense of some declining enthusiasm for the return to private insurance. Perhaps there is yet some hope for a return to civilised legislative action in the field of compensation.

108 The crass political motivations are probably clear from the provision of s 52A(9). Coal miners are exempt. Too much political hassle. Besides, private underwriting was never really going to apply to the mines.

Mr Sippel and s 52A

109 Much of the above has no direct impact on Mr Sippel's case. He was not served with any notice of intention to discontinue payments because no payments were in fact being paid. He falls within the exception to the requirement of notice as provided in s 52A(8)(b). That not only excuses the need for notice but provides its own "relevant time" as the date on which payments were actually ceased. Since no payments were being made there were no payments to cease. Prima facie there is therefore no relevant time at which to adjudge whether any of the grounds in s 52A(1) relied upon apply.

110 The fundamental basis of the current provision is that one of the grounds must exist at the relevant time. The other fundamental precondition to the operation of the section is an appropriate notice or an actual discontinuation of weekly payments to determine that relevant time. It could be argued that the latter, actual discontinuance, could not always be so since s 52A(8)(b) specifically envisages existing proceedings for weekly payments pending at the time of the expiry of the relevant 104 weeks period suggesting that no weekly payments were in fact being made. That is not necessarily so. A not inconsiderable number of applications before the Court involve claims for increase or diminution, pursuant to s 55, of an existing weekly payment. I believe that s 52A(8)(b), in such a case, merely relieves the employer of the necessity to give a notice of intention to discontinue and permits the cessation of the existing payment prior to the pending matter coming on for hearing before the Court. There is then no difficulty in determining the relevant time for the purposes of the section. The want of need for notice probably reflects a concept that the worker having legal advice will have been advised along similar lines in any event.

111 In the absence of either a notice of intention to discontinue or an actual discontinuance of a weekly payment, Mr Flett of counsel for the respondent has ingeniously, or ingenuously, suggested a number of "notional" dates as a relevant time. As Meagher JA remarked, at least to the general effect, the statute means what it says and more importantly does not mean what it does not say. The statute is specific about what constitutes a relevant time and makes no reference to assumed notional dates. In my view there either is or is not a relevant time within the parameters defined by the statute. If there isn't then s 52A has no basis of application. In this matter there is no such relevant time. I agree with Bishop J in Vockins v North Broken Hill (supra) on the necessity for a relevant time within the statute.

112 As mentioned above at [2] the question of s 52A arose in this matter for the first time at the stage of addresses. Subsequently an application to amend the answer to formally raise that issue was allowed. That was done on the basis that the ground relied upon was s 52A(1)(a). The applicant had deposed that he was not seeking work and had not done so for more than two years. He had, on his own evidence, established a major element of the subsection. Superficially it seemed that he suffered no prejudice by the very belated amendment. Earlier forewarning could not have altered that basic fact. The only way in which the applicant could avoid the problem was to assert it otherwise. It was hardly relevant prejudice that the applicant had been denied the opportunity to lie.

113 Having since had the opportunity to ponder the ambit and effect of the provision, in retrospect, I believe that such amendment should not have been allowed. It was inapposite where a necessary corollary was the absence of a relevant time. Moreover, the Compensation Court Rules 1990, Pt 11, r 3(a) requires the employer's answer to raise:

any grounds on which he intends to deny wholly or partially the applicant's claim.

This section has that effect. The time to raise issues is prior to the trial not after the evidence is closed. Doing so ensures that the parties are fully aware of the issues between them well in advance of the hearing. That is as it should always be.

114 I am therefore of the opinion that s 52A has no application to this matter.

[At [115] and [120] his Honour considered facts and submissions and made formal findings and orders not calling for report - Ed.]

Solicitors for the applicant: JJ Woodward & Co

Solicitors for the respondent: Sparke Helmore