Lloyd v Norther Rivers Charity Racing Association [2001] NSWCC 49 (9 May 2001)

Last Updated: 5 September 2001

NEW SOUTH WALES COMPENSATION COURT

CITATION: Lloyd v Norther Rivers Charity Racing Association [2001] NSWCC 49 revised - 29/05/2001


PARTIES:
Bronwyn Kimberley Lloyd
The Northern Rivers Charity Racing Association


CASE NUMBER: 12698/96 of 2001.00


CATCH WORDS: Statutes & Delegated Legislation


LEGISLATION CITED:
Sch 1 Pt 9 Cl (3)(b) 1998 Act,
1987 Act s 37(1)(a), s 37(1)(a)(i), s 37(1)(a)(ii), s 37(1)(a)(iii), s 42(1)(d), s 43(1)(e), s 43(1)(f)

CORAM: Walker J

DATES OF HEARING: 16/6/98, 28/9/98, 29/9/98, 30/9/98, 13/10/98, 17/11/98, 18/11/98, 21/3/99, 17/8/99, 19/8/99, 20/8/99, 20/12/99, 21/12/99, 22/5/00, 23/5/00, 24/5/00, 4/10/00

DECISION DATE: 09/05/2001


LEGAL REPRESENTATIVES

FOR APPLICANT: Mr H Bauer instructed by McLellands Solicitors
FOR RESPONDENT: Mr C Branson QC with Mr R Gambi instructed by McCabes and then Hunt and Hunt Solicitors


JUDGMENT:

The Claim

1. The Protective Commissioner as manager of the estate and tutor of Kim Lloyd claims on her behalf weekly benefits pursuant to s 36 and 37 of the 1987 Act. The basis of the claim is that arising out of and in the course of her employment as a jockey by the respondent on the 17 January 1993 the applicant fell from a horse sustaining permanent brain damage and extensive orthopaedic injuries which rendered her totally incapacitated for work.

The Issues

2. The respondent does not dispute injury or that Kim Lloyd is totally incapacitated for work. However the appropriate manner in which the s 36 and s 37 entitlements should be assessed is in contention.

THE COMPETING SUBMISSIONS
A. S 36
1. The Workers Case

3. As I understand the totality of Mr Bauers submissions his case is as follows:
(i) For the first 26 weeks s 36 requires weekly payments be made at the current weekly wage rate.
(ii) S 42 defines current weekly wage rates. S 42(1)(d) applies to workers who are not:
(a) covered by an award
(b) crown employees
(c) the subject of regulations

Such workers are to be paid a prescribed proportion of average weekly earnings.
(iii) S 42(8) defines average weekly earnings for the purposes of s 42 as average weekly earnings calculated in accordance with s 43 at the date of injury. It also defines “prescribed proportion” to mean 80 per cent.
(iv) S 43(1)(e) and (f) applies to casual workers such as Kim Lloyd. In particular s 43(1)(f)(ii) applies to casual workers under 21 years and requires that her average weekly earnings be calculated on the basis that they are deemed to be not less than a normal wage for a full working week.
(v) Sch 1 Pt 9 Cl (3)(b) of the 1998 Act provides that the average weekly earnings of jockeys not working under a contract of service is to be calculated in such manner as the Compensation Court considers to be reasonable in the circumstances.

4. Mr Bauer then suggests three alternatives for calculating the average weekly earnings pursuant to those provisions:
1. On the basis of a first year apprentice electrician under the Electricians Award ($160.65 per week).
2. Under the Strappers and Stable Hands Award ($335.96 per week).
3. Under Restaurant Employers Retail Shop Award.
4. These alternatives are based on the Court applying the principle in NSW Harness Racing Club Ltd v Forrest.

2. The Employers Case

5. Branson QC submits that the 1987 Act should be interpreted as follows:
1. He agrees with Mr Bauer that s 36 requires that the weekly benefits paid to an injured worker for total incapacity during the first 26 weeks shall be at the current weekly wage.
2. S 42 defines current weekly wage.
3. S 42(1)(d) applies in Kim Lloyd’s case entitling her to the prescribed proportion of her average weekly earnings.
4. There are no regulations prescribing rates for casual jockeys to vary that prescribed proportion.
5. The amount paid by the respondent truly represents the prescribed proportion of the workers average weekly earnings under s 42(8) being 80 per cent of her fee for riding on 17 January 1993.

B. S 37
1. The Workers Case

6. Mr Bauer developed his previous arguments as follows:
(i) After 26 weeks s 37(1) applies to impose the following limits on Kim Lloyd’s weekly entitlements.
a. A maximum weekly payment starting at $235.20 but indexed biannually.
b. For workers over 21 years a minimum payment of $187.10 per week also indexed.
c. If the workers earnings do not exceed $170 the lesser of 100 per cent of those earnings or $153.
(ii) The same approach should be taken to calculating average weekly earnings is under s 36.
(iii) NSW Harness Racing Club Limited v Forrest should be applied to assess the average weekly earnings based on the alternative comparable employments previously suggested.
(iv) The worker turned 21 years on 26 March 1995 and this should be taken into account in applying s 37(1).

2. The Employers Case

7. Branson QC agreed with Mr Bauers submissions generally but departed from them at the point that Forrest’s Case was applied. His submission was that this Court was bound by the ratio in Australian Iron and Steel Pty Limited v Elliott that “it is an error of law in determining the weekly amount which the worker would probably have been earning to take into account a statement of unfulfilled intention of a worker in charge to employment which was neither the same nor comparable to that in which the worker was injured”.

8. He submitted therefore that between 18 July 1993 and 26 March 1995 Kim Lloyd was compensable at the minimum statutory rate of $177.90 (s 37(1)(a)(iii)) and thereafter at the minimum statutory rate for workers over 21 (s 37(1)(a)(ii)) or $180.80 indexed biannually.

MATTERS FOR DETERMINATION

S 36 AND S 37 ASSESSMENT

Sch 1 Pt 9 Cl 1: Average Weekly Earnings
1. Was Kim Lloyd employed by the respondent under a contract of service?
2. If so was she working under an industrial award?
3. If Kim Lloyd was not employed under a contract of service does Sch 1 Pt 9 Cl 1(3)(b) apply in the determination of her average weekly earnings?

S 42 Current Weekly Wage Rate
4. Was Kim Lloyd a worker to whom s 42(1)(d) and s 42(8) applies?

S 43 Computation of Average Weekly Earnings
5. Was Kim Lloyd a worker to whom s 43(1)(f) applies?
6. If so what is her full wage for a normal working week at the date of her injury? Should the principle in Forrest’s Case be applied to calculate that wage and consequently her average weekly earnings?
7. What is the prescribed proportion of Kim Lloyd’s average weekly earnings pursuant to s 42(1)(d) and s 42(8)?
8. What is Kim Lloyd’s entitlement to weekly benefits pursuant to s 36 from 17 January 1993 to 17 July 1993?
9. What is Kim Lloyd’s entitlement to weekly benefits pursuant to s 37 from 18 July 1993 until she turned 21 years of age on 26 March 1995?
10. What is her entitlement to weekly benefits pursuant to s 37 thereafter?

THE LAW

The Case Law

9. The parties have cited for my consideration numerous authorities including early English case law on Workman’s Compensation. A review of the development of the relevant law is in my opinion useful to the final decisions that need to be made in this case and I propose to briefly summarise a number of the cases cited.

10. In Vickers Sons and Maxim Ltd v Evans (1920) AC 444 the House of Lords dealt with the question of whether an infant skilled labourer temporarily working in an unskilled job when injured should only be compensated at the unskilled rate. They construed the words “the weekly sum which the workman would probably have been earning” not to be limited to what the workman would probably have earned in the same employment under the same employer.

11. In Ruston v Ryburn (1931) 24 BWCC 101 the Court of Appeal considered the claim of an injured infant lorry driver’s mate who asked for a review of his compensation when he attained 21 on the basis that uninjured he would by then be earning a full lorry driver’s wage. The Court of Appeal said the decision was purely a question of fact for the trial judge.

12. In Miller v Taylor and Son (1931) 24 BWCC 237 a boy injured aged 15 applied for a review on attaining 21 years on the basis that he had been offered a job at the higher rate. Lord Hansworth said the trial judge was entitled to take into consideration the character and skills of the worker as well as other factors such as availability of work in the district. He said the trial Judge should have applied was “what would the workman probably have been earning within the whole sphere of labour possibilities before him?”

13. In Webb v Southern Railway Co (1932) 25 BWWC 521 the Court of Appeal looked at the situation of a 19 year old infant who had lost his arm as a railway porter. He had subsequently committed a criminal offence and it was the policy of the railways not to employ convicted felons. When he applied for a review of his award the railways argued his labour to be valueless because of the offence. The trial Judge assessed his earning capacity in the open labour market not as a railway worker. The Court of Appeal dismissed the appeal stating that the trial Judge must consider the individual idiosyncrasies of the worker and ascertain what he was able to earn in the railway world or elsewhere.

14. In Rees v Gorse Galvanizing Company Limited (1947) 40 BWWC 33 the Court of Appeal again dealt with a review application by an infant following attainment of his majority. The basis of his claim was that the work he had been doing had been industrially reclassified and a higher wage attached to it. The Court of Appeal found that the work the applicant was doing at the date of the accident was irrelevant. The question was the rate applicable to the work he would probably have been doing at the date of the review.

15. In Evans v R Allen & Co Pty Ltd (1957) WCR 22 Judge Rainbow had before him a review application by an adult worker injured at 15 years of age. He was a messenger when injured but was training to become a wool classer. The question was whether he was entitled to compensation on the basis of what he might have been earning if he was not injured. Judge Rainbow held that the trade and industrial or general prospects of the worker and his character and personal limitations were to be considered in determining the probable earnings at the date of the review.

16. In Shaw v Hogan (1958) WCR 7 Judge Rainbow considered the case of a man who when aged 16 years in 1927 became a paraplegic in a fall. The case had not been formally reviewed and the payments had remained the same for many years. Judge Rainbow pointed out that rights of injured workers are to be determined by the law applicable at the date of injury subject only to statutory amendments that expressly or impliedly change that law. Judge Rainbow found the worker was not limited for all time to amounts properly payable during his minority and was entitled to bring claims based on wage variations from time to time.

17. The case went on appeal to the Full Supreme Court and that decision is reported along with Judge Rainbow’s. The Full Court held that s 9(4) of the 1926 Act did not mean the worker injured during his minority should be treated as a minor at all times in the future. Workers cannot be restricted to those jobs in which they are actually working at the moment when their rights fall to be determined.

18. In Sloane v Ward (1973) WCR 201 Judge Ferrari construed s 9(5) of the 1926 Act which dealt with a class of workers whose average weekly earnings was less than 3. In terms it was similar to s 37(1)(iii) in that it fixed a minimum entitlement for such low paid workers. The employer in that case argued that s 9(5) sets up a class of “poor earners” who when injured can never escape that status and must forever remain subject to its provisions. Judge Ferrari rejected that submission and applied the relevant award to increase the weekly benefits from time to time.

19. In Johnston v Commissioner for Railways [1973] HCA 46; (1973) 128 CLR 632 the injured worker promoted the hypothesis that uninjured he would have in the normal course of events been promoted from cleaner to engine driver. Justice Stephen at p641 said:

It is unnecessary in this appeal to determine in what circumstances it might be appropriate to look to some other occupation comparable to but distinct from that engaged in by the worker when he was uninjured; it suffices to say that as I interpret the subsection, occasions may arise in which, perhaps because some occupation has ceased altogether to exist because of technological change, it becomes necessary to hypothesise an occupation comparable to that in fact engaged in by the worker at the time of his injury.

20. In Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR 87 at p92 Justice Sugerman dealt with a similar issue as Webb v Southern Railway Co. In this case a coal miner was unable by operation of statute to work in his pre-injury employment because of his age. Justice Sugerman said the broad question was:

What is the loss which he has sustained by being deprived of the power to earn - what is the adequate compensation which should be awarded to him by the reason of the deprivation? - the amount of the wages which he could have earned had he been quite fit during the time the incapacity continues is a most appropriate and proper matter to take into account.

21. At page 93 he went on to say:

But the concluding words of the subsection (ie s 11(1)) require that, within the limit thus determined, the amount of compensation be assessed with due regard to the actual circumstances of the case and those circumstances would in proper cases include such matters as that the worker had passed the age of compulsory retirement from the coal mining industry and that therefore the measure of his actual earning capacity, had he not been injured is what in that event, he would have been able to earn in his general employment market other than the coal mining industry.

22. In his submissions Branson QC cites Elliott’s case at page 92 as authority for the proposition that it is an error of law in determining the “weekly amount which the worker would probably have been earning” to take into account a statement of unfulfilled intention of a worker to change to employment which was neither the same nor comparable to that in which the worker was injured.

23. Justice Sugerman in Elliott’s Case at p 92 said in the context of interpreting the provisions of s 11(1) of the 1926 Act which uses the same language as s 40 of the 1987 Act

The former refers to the weekly amount which the worker would probably have been earning had he continued to be employed, but only as a step towards fixing a maximum limit of compensation; and since the inquiry is based upon a hypothesis, it is not in point that in fact such continuance is prohibited by law. Indeed to depart from the hypothesis on such a ground would be to defeat the purpose of the provision, which is to prescribe a maximum by reference to the hypothesis stated and not by reference to the potential earnings of the worker if uninjured in some other field.

24. Judge Sugerman went on to point out that the Courts discretionary powers under s 40(1) could then be applied to take into account the circumstance that Mr Elliott would have been compulsorily retired when he attained the age of 60.

25. Elliott’s case needs to be distinguished here not only because it was concerned with the specific steps required by s 11(1) of the 1926 Act in cases of partial incapacity for work but because Mr Elliott’s average weekly earnings at the time of his injury were readily ascertainable and there was no intent on his part to begin another career in his mid sixties. Subsequent decisions of the Court of Appeal have had to come to grips with the situation where it is impracticable to readily ascertain the average weekly earnings and where the workers clear intention was to move on to other things.

26. Kim Lloyd was a casual jockey working for fee or reward who was not subject to an award and did not work a normal working week. She was a novice casual worker injured in work different to that which she intended to pursue.

27. The Court of Appeal some 20 years after Elliott’s Case considered the issue of the future labour market potential of workers and the possibility that the worker will progress to a higher paying position in the normal course of events in Australian Wheat Board v Pantaleo (1984) 2NSWLR 530. There it found that judging comparability of employment was essentially a factual question, though regard may be had to a variety of indicia of comparability in this context. For example; reference to the physical attributes of the former employment and the hypothesised job; the award classification likely to be open to a person such as the worker; the range of salaries that might reasonably have been within the worker’s pre-injury achievement or the career path reasonably open to the worker with the respondent or other employers. Mrs Pantaleo was a secretary who injured her ankle making secretarial work impossible. She established a business as a beautician. In upholding Judge Moroney’s award based on her uninjured earnings as a beautician the Court of Appeal overruled the view of Justice Glass in Hill v Bryant (1974) 2 NSWLR 423 at 428 that “employment here means, not service with the same employer, but engagement in the same occupation”. A wider view was justified on the basis that the statute required “beneficial elucidation which takes into account the compensatory nature of the legislation”.

28. The case that is generally regarded as the leading authority on the calculation of probable earnings of young persons who are just entering the work force is the Court of Appeal’s decision in NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217. The facts of that case were much the same as the one at hand. Ms Forrest aged 17 injured herself driving in a trotting race. Like Ms Lloyd her earnings were negligible because she had just started out in the industry. The trial judge experienced difficulty in drawing an inference from the evidence as to what uninjured she would have been earning at the date of the trial. Ms Forrest as a driver of trotters was working under a contract of service not an award but the trial judge in assessing a figure for comparable employment nevertheless applied the Strappers and Stable hands (State) Award finding a classification of “Stable hand Rider” which he thought appropriate in the special circumstances of the case.

29. The Court of Appeal upheld this approach. Justice Mahoney at p219 held: “stated in general terms, it was necessary for the trial judge to determine what, uninjured, the plaintiff would probably have been earning”. At p220 he went on to say:

As a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment. But that principle to the extent, that it is accepted, does not require that in every case the court most confine its attention to the same employment as that in which the uninjured applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment.

30. After examining the special facts of Ms Forrest’s employment history Justice Mahoney formed the view at p221 “I think she would have taken appropriate employment associated with horses”. This was despite the fact that the appellant had also worked as a kitchenhand, barmaid and confectionery labourer. Justice Priestly agreed with Justice Mahoney’s reasoning.

31. In Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247 at p His Honour Judge Neilson asserted:

Incapacity is not incapacity for pre-injury employment ... ... consideration must be given not just to whether he can still carry out his pre-injury employment but whether there are other types of employment that he would otherwise have been able to seek but for his injury.

32. In Department of School Education v Boyd (1996) 13 NSWCCR 289 the Court of Appeal considered an appeal by the employer who contended that an expressed intention by the worker to engage in other employment was not enough for the purposes of an award under s 40. Justice Beazley took the view at p291 that “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of s 40”.

33. I should comment here that nearly all the case law I have quoted deals with the assessment of probable earnings of partially incapacitated workers pursuant to s 40(2)(a) of the 1987 Act. Some of the earlier authorities I have quoted deal with cases of total incapacity.

34. The Parliament has not assisted the Court by indicating whether it considers that a different approach should be taken to cases of total incapacity when it comes to assessing average weekly earnings. On reading the provisions as a whole I can discern no such intention. Rather I note that the definition of “average weekly earnings” in s 42(8) uses the language of s 40(2)(a) referring to “the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment”.

35. S 43(2)(c) also requires employers to provide particulars of average weekly earnings to their employers based on “the same or a comparable grade and work as the worker as will enable the worker to determine for the purposes of s 36, 37, 40 or 55, the amount which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or comparable employment”.

36. It would be anomalous and absurd if this Court had decided Kim Lloyd was only partially incapacitated for work because she could earn some small sum in a sheltered workshop that her s 40 entitlement should then exceed her entitlement fully incapacitated for work.

37. I propose therefore to apply the following general principles of law in dealing with this case:
1. In estimating both current weekly earnings and average weekly earnings but for injury the Court will ordinarily have regard to what the worker would have earned in the employment undertaken at the time of injury.
2. However in special circumstances where it is impracticable to make such a calculation and particularly in the case of young workers at the start of their working lives it is permissible for the Court in the exercise of its discretion to estimate average weekly earnings by hypothesising some other appropriate comparable employment.

SCH 1 PT 9 CL 9

38. Sch 1 pt 9 Cl 9 of the 1998 Act relevantly provides:

Jockeys and harness racing drivers

9 (1) a person who:
(a) is engaged to ride a horse for fee or reward at a meeting for horse racing conducted or held by a racing club or association, ...... is for the purposes of the Act taken to be a worker employed by the racing club or association.
(2) subclause (1) does not apply to a racing club or association having its headquarters in a t own with a population not exceeding, 3000 people if:
(a) the meetings of the racing club or association are conducted or held within a radius of 8 kilometreskk from the town, and
(b) the profits derived from the operations of the racing club or association are applied for charitable purposes.
(3) For the purposes of assessing the compensation payable to a person to whom this clause applies, the ‘average weekly earnings’ of the person are:
(a) to be calculated in such manner (if any) as may be prescribed by the regulations, or
(b) If the person was not working under a contract of service - to be calculated in such money as the Compensation Court considers to be reasonable in the circumstances

39. There are no regulations that refer to the calculation of jockeys average weekly earnings.

40. The respondents headquarters in the City of Grafton and it has not raised the defences provided by clause 9(2). Worker was not disputed and there is no probative evidence before the Court that deals with any contractual arrangements under which Kim Lloyd rode for the Association.

41. Mr Bauer led evidence that Kim Lloyd was licensed to ride in picnic races but had only ridden on one occasion in 12 months.

42. It would appear that this is a case to which Sch 1 pt 9 cl 9(3)(b) applies and this Court has a wide discretion to assess a figure for average weekly earnings that it considers to be reasonable in the circumstances.

Kim Lloyd’s Education and Work Experience

43. The uncontested evidence of Mrs Lloyd is that Kim left School at year 10 having obtained her School Certificate in 1989. She completed work experience as a shop assistant with a pharmacy in Grafton in 1989. Over the next two years she worked as a waitress in the Caltex and then BP Service Stations South Grafton. At the beginning of 1992 she got a job as a cook in Shell Service Station South Grafton. In 1992 she completed an 18 week bridging course called Introduction to Electrical studies at Grafton TAFE then gave up her employment at the service station to undertake a full time pre-apprenticeship TAFE course in Electrical Studies. Kim went on holidays to Queensland when the TAFE term ended in November 1992. She returned to Grafton to re-commence her studies on 14 January 1993.

44. Kim had been living with her boyfriend Robert Pitkin since 1991.

45. Kathleen Lloyd gave evidence that the reason Kim was attending the TAFE course was that she wanted to become an electrician following in the footsteps of her sister Mllie who was a qualified electrician. Kim Lloyd confirmed in her evidence that she had wanted to be an electrician. The respondent did not seek to rebut this evidence in cross examination or by way of calling contrary evidence.

The Wages Schedule

46. The applicant filed an amended wages schedule on 17 March 1998. The respondent did not file a disputing wage schedule either within 7 days of service as required by CCR 9.6(2) or at all. CCR 9.6(3) provides:

(3) Any matter not so disputed shall be deemed to be admitted.

47. Mr Bauer submitted (tongue in cheek) that the respondent having failed to dispute the schedule had admitted the quantum of the applicants claim under s 36 and s 37. All the respondent has in fact admitted is that if after properly applying the provision s of s 42 and s 43 and the case law if this Court reaches the conclusion in the exercise of its discretion that the Electricians (State) Award should be applied to determine either the s 36 or s 37 claims then the amounts stated in the schedule are the award rates.

RESOLVING THE S 36 CLAIM

48. The uncontested evidence from the applicant is that uninjured Kim Lloyd was a bright attractive personality, energetic, work oriented, willing to do hard and unpleasant jobs, keen to improve herself and academically capable. Kim Lloyd admired as a role model her sister Millicent a qualified electrician and put in train the necessary steps to qualify herself to become an apprentice electrician.

49. I find on the balance of probabilities that Kim Lloyd intended to become and in all likelihood would have become firstly an apprentice electrician and ultimately after a four year apprenticeship a qualified electrician.

50. The evidence is that Kim Lloyd was studying at the Grafton TAFE as part of a pre-apprenticeship course that would put her in a position to become an apprentice electrician.

51. She had passed an 18 weeks introductory course that bridged the gap between her School Certificate and the levels of English and mathematics she might need enter such an apprenticeship. She had then embarked upon a 6 months TAFE Course that once passed would qualify her for the apprenticeship. It is not clear from the evidence just how far she had to go to complete that course. She had already passed four out of 15 subjects and she may have finished all subjects within the prescribed 6 months - ie about March 1993. However I note she had technically failed one exam in “AC principles”.

52. On the balance of probabilities I determine that uninjured it was unlikely that Kim Lloyd would have passed her TAFE course and completed the formalities necessary to taking up an apprenticeship with her sister or another electrician before the 26 weeks had expired under s 36 (ie by 17 July 1993). I further determine that she would have been able to take up an apprenticeship immediately thereafter. This determination excludes the possibility of taking into account any income Kim Lloyd would have earned as an apprentice electrician in assessing her s 36 entitlement.

53. The evidence is clear that whilst Kim Lloyd could have been earning a substantial weekly income as a cook she had forsaken that work to study to become an electrician. She had returned to Grafton on 14 January 1993 to resume her studies not to find a job. She had a licence to ride as a jockey in picnic races. That activity occurs midweek on holidays or weekends and would not particularly interfere with her studies. I determine on the balance of probabilities that the only industry in which the applicant would have worked uninjured while she was at TAFE was the racing industry.

Assessing the s 36 Entitlement

54. S 36 requires the Court to determine the workers current weekly wage rate in accordance with s 42.

55. It is agreed that the worker was not working under an award. S 42(1)(d) therefore applies and her current weekly earnings are deemed to be a prescribed proportion of her average weekly earnings in respect of the work she was performing immediately before becoming incapacitated.

56. Paragraph 42(1)(d) was promulgated on 1 February 1992 well before the worker was injured. Prior to that time the current weekly wage rate of a worker to whom s 42(1)(d) applied was fixed at $341.30 per week. The amendment means that s 42(8) fixes the prescribed proportion under s 42(1)(d) at 80 per cent of average weekly earnings.

57. S 42(8) also required average weekly earnings to be determined in accordance with s 43. The relevant time for the calculation was the date of injury.

58. S 43(1)(e) provides the manner in which the average weekly earnings of “casual workers” are to be calculated. A “casual worker” is defined as a worker whose contracts of service are mainly contracts for separate periods each of which is not more than 5 working days. It is agreed that Kim Lloyd was such a worker. The manner of calculating average weekly earnings is “as if the workers earnings under all his or her contracts of service for a period of 12 months preceding or any shorter period during which the worker may have engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.

59. S 43(1)(f) then provides relevantly:

(f) If a worker is a worker to whom paragraph (e) applies... the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section
______
(i) in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a normal working week of that worker or the basic wage, whichever is the greater; and
(ii) in the case of any other worker, be deemed to be not less than the full wage for a normal working week of that worker.

60. Kim Lloyd was only 19 at the time of her injury and did not turn 21 until the 26 March 1995. Accordingly s 43(1)(f)(ii) applies.

61. The first question for my determination is what did the Legislature mean by the expression “the full wage for a normal working week”? S 43(1)(e) employees by definition work “no more than 5 working days in the same industry” and it follows that what the Court is being asked to do is convert the casual earnings into a full weekly wage.

62. S 43 is directed at situations where circumstances make it impracticable at the date of injury to compute the rate of the workers remuneration. The dominant rule in s 43 is that average weekly earnings, as defined by s 42(8) are to be calculated on the basis of a weekly rate of remuneration at the date of injury. In Perry v Wright (1908) 1 KB 441 Fletcher Moulton LJ described the proper approach to calculating average weekly earnings as:

It imposes on the Court the duty of ascertaining what remuneration the workman would receive in a normal week in the employment in which he was engaged at the time of the accident and gives it freedom to do so in the manner best calculated to arrive at a fair result... It is intended that the average weekly earnings should be a real and not an artificial estimate of what rate of remuneration the workman might fairly be held to be enjoying at the date the accident.

63. S 43(1)(f)(i) makes it clear that, at least in the case of adult workers, that the Legislature intent is to ensure that whatever wage the Court arrives at it is not to be less than the basic wage. That requirement also suggests to me that in interpreting the expression “full wage for a normal working week” the Parliament meant that the amount earned by the casual worker be it only for an hour or a days work should somehow be transformed into a full normal weekly wage.

64. This was never going to be an easy task in the case of jockeys who ride only when they are given a mount and whose income is supplemented by a share of the prize. It is particularly difficult in the case of very young jockeys who are not likely to obtain many mounts and do not obtain the winning fees of more experienced jockeys.

65. No doubt this is why Sch 1 Pt 9 Cl (3)(b) of the 1998 Act gives the Court the widest possible discretion in assessing the average weekly earnings of jockeys allowing the earnings to be calculated “in such manner as the Compensation Court considers to be reasonable in the circumstances”. Judges exercising even the widest possible discretion are nevertheless constrained to carry out that duty within the bounds of sound judicial discretion. Conscious of my obligations in that regard I draw upon the wisdom of Lord Justice Fletcher Moulton who counsels that the end result should be fair, real and not artificial. I also draw on the wisdom of Justice Mahoney in Forrest’s Case who when similarly confronted with the case of a tyro trotting driver found that her special circumstances entitled to the judge at first instance to keep the exercise of discretion within the realms of reality by rejecting the approach of creatively constructing a normal weekly wage based on a novices first faltering steps as a driver in favour of the reality of an industrial award. Admittedly the job classification chosen of stable hand/rider was hardly as glamorous as a jockey or a harness racer and ultimately would have been far less remunerative. However the comparable employment chosen was in the same industry and closely allied to the task the worker was performing when injured.

66. Accordingly in the exercise of the extremely wide discretion vested in the Court by s 43 and Sch 1 Pt 9 Cl (3)(b) I propose, like Judge Moroney, to apply the provisions of clause 7 of the 1985 Strappers and Stable Hands Award. That award provides that an 19 year old stable hand/rider was entitled to 80 per cent of the rate of an adult stable hand rider in January 1993 viz 80 per cent of $419.95 or $335.96 per week.

67. S 42(1)(d) and s 42(8) then apply to determine her current weekly wage rate at 80 per cent of $335.96 or $268.77.

68. Kim Lloyd is therefore entitled to weekly benefits pursuant to s 36 from 17 January 1993 to 17 July 1993 at the rate of $268.77 per week. The respondent is entitled to credit for the amount of $13.45 per week actually paid.

Resolving the s 37 Claim

69. S 37(1)(a) provides that once the s 36 period of 26 weeks has expired the worker should be compensated at a rate equal to 90 per cent of “average weekly earnings”.

70. S 37(1)(a)(i) caps the potential claim. That cap is indexed biannually.

71. S 37(1)(a)(ii) imposes a minimum entitlement for over 21 years again indexed biannually.

72. S 37(1)(a)(iii) provides a minimum entitlement for worker under 21 years of age by lifting the 90 per cent rate to 100 per cent if they earn between $153 and $170. Otherwise the minimum rate is $153 per week.

73. I have already outlined the steps laid down by the Parliament in the circumstances of this case to ascertain average weekly earnings when making my assessment pursuant to s 36. They are as follows:
1. S 43 determines the rules as to how average weekly earnings should be computed.
2. S 43(1)(e) and (f) provides the relevant set of rules because Kim Lloyd was a casual worker at the time of her injury.
3. Because Kim Lloyd was under the age of 21 years at the time of her injury s 43(1)(f)(ii) comes into play to determine her average weekly earnings be "deemed to be not less than the full wage for a normal week f that worker”.

74. I have previously determined that because Kim Lloyd was a novice jockey and had only ridden in one race in the year of her injury that I should apply the principle in Forrests Case and find some comparable employment.

75. In doing so I propose to take Ms Lloyd’s career intentions into consideration. I have found that in the first 6 months of after her injury Kim Lloyd would have been committed to her TAFE studies and that on the balance of probabilities she would have completed that course about 17 July 1993. I have further found that uninjured and having passed that course Kim Lloyd would have then proceeded to take up an apprenticeship either with her sister or some other electrician and then after a four year apprenticeship have become a qualified electrician.

76. Sch 1 Pt 9 cl (3)(b) gives this Court a wide discretion in assessing the average weekly earnings of jockeys allowing them to be calculated “in such manner as the Compensation Court considers to be reasonable in the circumstances”.

77. The case law I have reviewed makes it clear that workers and particularly very young workers should not be restricted to those jobs in which they were working at the moment when their rights fall to be determined and that the whole sphere of labour possibilities before them can be considered by the Court in making its assessment see Miller v Taylor, Webb v Southern Railway Co. More recent Australian decisions such as Shaw v Hogan, Johnston v Commissioner for Railways and Australian Wheat Board v Panteleo as well as Forrests Case have continued that approach.

78. It is the respondents contention that because Kim Lloyd’s intention to become an electrician was unfulfilled this Court should not rely upon it in assessing average weekly earnings.

79. If Kim Lloyd had been a 5th year medical student or a 4th year law student, totally incapacitated when injured working at MacDonalds on the weekend for pocket money one cannot imagine a respondent seriously arguing that she should be compensated on the basis of the earnings of a casual shop assistant because the injury meant her career intentions could never be fulfilled. Nor do I believe in such circumstances that a credible argument could be mounted that her future earnings would have to be fixed by reference to her potential to progress in some comparable employment in the fast food industry rather than medicine or law. If this Court finds on the balance of probabilities that the intention would have been fulfilled is clear from the case law that it is entitled to assess average weekly earnings on that premise.

80. As Justice Beazley said in Boyd’s Case at page 211 “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work that may be sufficient for the purposes of s 40.”

81. Kim Lloyd had career ambitions to emulate her sister and become an electrician. They were not pipe dreams and I have found that such a career was within her abilities. She was engaged in a course of education specifically designed to allow her to realise her ambition of embarking upon an apprenticeship. She had a sister in the trade who no doubt would have assisted her realise her ambition. There is no evidence to the contrary and I have found on the balance of probabilities that she would have realised both her ambition to take up an apprenticeship and become a qualified electrician.

82. Taking all the evidence into consideration in the exercise of the very wide discretion bestowed upon this Court by the Legislation I determine that it is appropriate in all the circumstances of this case to assess Kim Lloyd’s average weekly earnings on the basis that her full wage for a normal working week would be:
(a) from 19 July 1993 to 18 July 1997 the award wage of an apprentice electrician and
(b) from 19 July 1997 the award wage of an electrician.

83. To calculate the appropriate entitlement pursuant to s 37 a large number of factors will have to be taken into account viz:
· The duration of the apprenticeship
· The variable award rates from time to time for apprentices and then electricians
· The provisions of s 44(c) which requires a recalculation of the average weekly earnings and statutory minimums at 21 years
· S 35 which imposes a maximum weekly payment indexed from time to time
· S 37(1)(a)(i) which imposes a maximum rate on weekly payments under s 37 again indexed
· S 37(1)(a)(ii) which imposes minimum weekly payments under s 37 for worker over 21 years
· S 37(1)(a)(iii) imposes maximum weekly payments for workers whose earning do not exceed $170 (indexed)

84. To assist me come to grips with this hotch potch of interacting figures applying at different times and in different ways I have composed the following Table:

Period

Award Rate

90%s37(1)(a)

Min:s37(1)(a)(iii)

Max:s37(1)(a)(I)

Entitlement

19.7.93to1.10.93	$160.65	$144.59	$153 ($177.90)	$246.20	$153.00
2.10.93to18.7.94	$160.65	$144.59	$153 ($178.80)	$247.40	$153.00
19.7.94to1.10.94	$214.80	$193.32	$179.60	$247.40	$193.32
2.10.94to26.3.95	$214.80	$193.32	$180.80	$250.10	$193.32
27.3.95to18.7.95	$214.80	$193.32	S37(1)(a)(ii)$199	$250.10	$199
19.7.95to1.10.95	$306.20	$275.58	$199	$250.80	$250.80
2.10.95to18.7.96	$306.20	$275.58	$200.50	$252.10	$252.10
19.7.96to1.10.96	$362.70	$326.43	$200.50	$252.10	$252.10
2.10.96to18.7.97	$362.70	$326.43	$203.30	$253.70	$253.70
10.7.97to1.10.97	$437.40	$393.66*	$203.30	$256.40	$256.40
2.10.97to18.7.98	N/A	N/A	N/A	$261.30	$261.30
19.7.98to1.10.98	N/A	N/A	N/A	$263.30	$263.30
2.10.98to1.4.99	N/A	N/A	N/A	$267.90	$267.90
2.4.99to18.7.99	N/A	N/A	N/A	$272.60	$272.60
19.7.99to1.10.99	N/A	N/A	N/A	$272.60	$272.60
2.10.99to1.4.00	N/A	N/A	N/A	$277.10	$277.10
2.4.00to1.10.00	N/A	N/A	N/A	$281.60	$281.60
2.10.00to1.4.01	N/A	N/A	N/A	$284.60	$284.60
2.4.01to1.10.01	N/A	N/A	N/A	$291.10	$291.10

* After this point the tradesman’s wages are well beyond the statutory maximum and obviously not applicable. Similarly the minimum rate is no longer applicable.

85. Because the large number of variables in the table make the likelihood of a mathematical error high I propose to grant liberty for the parties to apply to correct any such errors under the slip rule.

INTEREST

86. Interest on the arrears in weekly benefits would normally be assessed according to the Jamberoo Schedule at the rate of 3 per cent per annum. However because the Protective Commissioner will be levying a management fee on the award monies I have increased the rate to 3.5 per cent to ameliorate the impact of that fee.

FINDINGS

S 36
1. Kim Lloyd aged 18 years was employed by the respondent as a casual jockey. She did not have a written contract of service and no industrial award applied to her employment.
2. Accordingly Sch 1 Pt 9 Cl (1)(3)(b) of the 1998 Act applies in the determination of her average weekly earnings.
3. Because Kim Lloyd was committed during the first 26 weeks of her securing an apprenticeship as an electrician it is not appropriate in calculating her average weekly earnings to consider her potential earnings as a cook or a shop assistant. The only truly comparable employment for the purpose of determining her s 36 entitlements was that of a casual jockey.
4. Kim Lloyd was a worker to whom ss 42(1)(d); 42(8) and 43(1)(e) and (f) of the 1987 Act applies.
5. Sch 1 Pt 9 Cl (3)(b) of the 1998 Act gives the Court the widest possible discretion in determining a jockeys average weekly earnings. The Court is nevertheless required to keep its determination within the bounds of sound judicial discretion by ensuring its calculation is fair, real and not artificial.
6. I propose to arrive at such a determination by adopting the approach of the Court of Appeal in Forrests Case where in very similar factual circumstances it determined the workers normal weekly wage by reference to the Strappers and Stable hands Award as it applied to stable hand/riders.
7. The 1985 Strappers and Stable Hands Award Cl 7 provides that an 19 year old stable hand/rider be paid at 80 per cent of the rate of an adult worker namely 80 per cent of $419.95 or $335.96 per week.
8. S 42(1)(d) and s 42(8) then apply to determine the workers current weekly wage rate at 80 per cent of $335.96 or $268.77 from 17 January 1993 to 17 July 1993. The respondent is entitled to be credited with the payments of $13.45 per week it made during this period.

S 37 The Calculations
9. On the balance of probabilities Kim Lloyd would have fulfilled her ambition to become an apprentice electrician on 18 July 1993 and would have completed her indentures of apprenticeship by 18 July 1997.
10. I propose to exercise the discretion bestowed upon the Court by Sch 1 Pt 9 Cl (3)(b) and ss 43(1)(e) and (f) to determine Kim Lloyd’s average weekly earnings on the basis that her full wage for a normal working week would have been that of an electrical trades apprentice between 19 July 1993 and 18 July 1997 and a qualified electrician thereafter.
11. Because Kim Lloyd’s earnings as an apprentice electrician would be reduced by s 37(1)(a) to below the statutory minimum rate between 19.7.93 and 18.7.94, s 37(1)(a)(iii) applies and she was then entitled to $153 per week.
12. S 37(1)(a) applied to entitled the worker to 90 per cent of her award rate as an apprentice between 19.7.94 and attaining the age of 21 on 26.3.95. Between 27.3.95 and 18.7.95 she was entitled under s 37(1)(a)(ii) to the over 21 minimum entitlement.
13. Because the workers wage was well in excess of the statutory maximum she then remains on a continuing award based on s 37(1)(a)(i) or the maximum statutory award.

AWARDS

87. I make the following awards:
1. The respondent pay to the Protective Commissioner weekly benefits pursuant to s 36 at the rate of $268.77 per week from 17 January 1993 to 18 July 1993.
2. The employer pay the Protective Commissioner s 37 weekly benefits from 19.7.93 to this judgment and continuing in accordance with the Table that appears at page 20 of this judgment. I grant liberty to apply under the slip rule if any mathematical errors have crept into the calculations.
3. The employer pay the worker interest on the arrears of weekly benefits at the rate of 3.5 per cent per annum.
4. The employer pay the workers costs.

Mr H Bauer instructed by McLellands Solicitors appeared for the applicant
Mr Branson QC with Mr R Gambi instructed by McCabes and then Hunt and Hunt Solicitors appeared for the respondent