Loizos v. Carlton and United Breweries Ltd

117 FLR 35
94 NTR 31

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(Judgment by: Kearney J) Court:

Judges:
Kearney JAngel J
Mildren J

Judgment date: 25 February 1994

Darwin

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Judgment by:
Kearney J

This is an appeal from a decision by the Supreme Court (Martin J, as he then was), allowing an appeal from a decision of the Work Health Court of 8 March 1991, and varying its determination. The function of this court is to decide whether the Supreme Court was right or wrong: see Wilson v Lowery (CA(NT), 11 May 1993, unreported) at pp 5-7.

I have had the benefit of reading the opinion of Mildren J. There the relevant provisions of the Work Health Act 1986 (NT), the facts, the history of proceedings and the issues arising in this appeal are fully set out and discussed. I need not repeat them.

His Honour has concluded that whether "normal weekly earnings'' in the Act refers to earnings at the time of the injury, or to later earnings (when no immediate financial loss flowed from the injury), or whether on the proper construction and application of s 65(3) the appellant had no normal weekly earnings for the purpose of calculating his loss of earning capacity, the result is the same and the appeal must be dismissed. I agree that the appeal must be dismissed but as I consider that the analysis by the learned trial judge was correct, and that that conclusion should determine the outcome of the appeal, I should state my reasons for that approach.

A statutory fiction and its consequences

The problems which arise in applying the Act to the facts of this case ultimately stem from the words "as if'' in s 189(2), a deeming provision which, for the purpose of the appellant's claim under the Act, transposes the occurrence of his injury from 1961 to a date "after'' 1 January 1987. The Act thereby creates a fictitious factual situation. This is not uncommon in statutes: see, for example, Wainer v Rippon (1979) 29 ALR 643 at 650 Council of the Shire of Redland v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641 at 655.

One consequence of this fiction in my opinion is that it was not open to the appellant in his application under the Act to rely in any way before the Work Health Court on the reality that his injury had occurred in 1961; s 189(2) does not simply attach the benefits of the Act to a pre-existing injury. The appellant was bound to proceed on the fictional basis which arose when he made his election under s 189(2): see Coates v Cominissioner for Railways (1961) 78 WN (NSW) 377, where Kinsella and Collins JJ said at 384:

Where a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact; and it is not open to a worker against whom the provision operates that the injury shall be deemed to have happened at a certain point of time, to seek to establish that he has in fact received the injury before that time.

It follows that the appellant's "normal weekly earnings'' in 1961 were irrelevant to the calculation to be made under s 65, unless they were encompassed by the words "immediately before'' in s 65(3). For reasons set out later, I consider they were not within the scope of those words. In so far as the hearing before the Work Health Court proceeded on a root assumption that the appellant's 1961 earnings were relevant to the s 65 calculation, the proceedings were unsoundly based and the decision erroneous.

Statutory fictions of the s 189(2) type commonly result in practical difficulties: see, for example, the problems created by the "asifism'' discussed at [1979] Crim LR 266 and 607-8, and [1980] Crim LRat 68-9. And so it is here. In other Australian jurisdictions which have reformed their workers' compensation legislation in recent years, the legislatures have not relied on the deceptively simple "asifism'' approach of s 189(2) to provide for compensation for pre-existing injuries, but on the techniques outlined by Asche CJ in Cunningham-Beattie v Groote Eylandt Mining Co Pty Ltd (1989) 60 NTR 1 at 6. See, for example, s 124 of the Safety Rehabilitation and Compensation Act 1988 (Cth), and Sch 6 of the Workers Compensation Act 1987 (NSW).

The construction of "immediately before'' in s 65(3)

As Mildren J points out, on the facts on which the court was required to act, the appellant had no entitlement to compensation under the Act until 23 March 1989; that is "the date upon which he first became entitled to compensation'', for the purposes of s 65(3).

I bear in mind that the Act is a remedial statute, and accordingly its provisions should be interpreted in a benign and liberal manner, and a construction most favourable to the worker is to be preferred where any ambiguity exists: see Foresight Pty Ltd v Maddick (1991) 79 NTR 17 at 24. I have no real or substantial doubt that the words "immediately before'' in their context in s 65(3) plainly and unambiguously bear only a temporal meaning; I consider this view was also held by Martin J.

The next question is as to the time-scope encompassed by "immediately before''; in particular, does it encompass the period which elapsed since the appellant last had "normal weekly earnings'' prior to 23 March 1989? It is clear that the appellant last worked in 1986 though there was no specific finding to that effect by the Work Health Court: see its earlier judgment of 24 May 1989. This stemmed from the way the case was run before that court, the concentration being on his employment in 1961, any employment in 1986 being regarded as irrelevant. Mildren J has pointed to the difficulties, flowing from the way the case was conducted, in now dealing with the significance of the 1986 employment; however, for present purposes, I set those to one side. Since October 1986 the appellant has been an invalid pensioner.

Different views have been expressed in the case law as to the time-scope of the words "immediately before'', in different contexts. I turn to some of the cases, by way of illustration.

Cockburn CJ said in R v Justices of Berkshire (1878) 4 QBD 469 at 471:

It is impossible to lay down any hard and fast rule as to what is the meaning of the word "immediately'' in all cases.

I respectfully agree. The meaning, however, clearly depends on the context in which the words appear. The words do not necessarily connote the instant prior to the date in question. In Re Beaumont dec'd [1980] 1 Ch 444, a reference in inheritance legislation to a "person ... who immediately before the death of the deceased was being maintained'' was held to require the court to consider whether there was some settled basis or arrangement for that maintenance, and not merely the de facto position at the moment of death, though it was confined to the basis subsisting at the moment before death. That is, "a relationship of dependence which has persisted for years will not be defeated by its termination during a few weeks of mortal sickness'', as Stephenson LJ put it in Jelley v Iliffe [1981] 2 WLR 801 at 807.

Clearly, the words "immediately before'' refer to a more confined period of time than that connoted simply by "before''. See for this approach Commissioner for Superannuation v Bayley (1979) 28 ALR 293 ; 41 FLR 385 , a case involving the construction of a statutory provision whereby an employee formerly eligible for superannuation benefits was deemed not to have ceased to be eligible, when "immediately after so ceasing'' he had again become eligible. Lockhart J considered at ALR 315; FLR 401 that the deeming provision was:

... intended to ensure that a person does not lose his status as an eligible employee merely because he ceases to be one and later becomes one again, provided the gap in time is not unreasonably large [emphasis mine].

In a number of cases in England arising from the dismissal of employees shortly prior to the transfer of a business attention focussed on the meaning of "immediately before'' in regulations which transferred to the transferee the transferor's liability etc under its contract of employment with those of its employees "employed immediately before the transfer''. See the discussion in Alphafield Ltd v Barratt [1984] 3 All ER 795 at 798-800, where a "flexible construction'' was adopted. This was overruled in Secretary of State for Employment v Spence [1987] 1 QB 179 see at 191-8, per Balcombe LJ. See also Litster v Forth Dry Dock & Engineering Co Ltd (in receivership ) [1990] 1 AC 546 at 569, per Lord Oliver of Aylmerton, affirming that a "flexible construction'' could not be adopted in this context and stating, at 575, that "either the contract of employment is subsisting at the moment of the transfer or it is not ... '' I respectfully agree with some general observations by his Lordship at 567, viz:

The expression "immediately before'' is one which takes its meaning from its context, but in its ordinary signification it involves the notion that there is, between two relevant events, no intervening space, lapse of time or event of any significance . If, for instance, the question is whether a deceased person was seized of property immediately before his death, attention is focussed upon the very instant at which the death occurred [emphasis mine].

The meaning of "immediate'' in the context of "immediate unlawful violence'' in the Public Order Act 1986 (UK) was considered, and the word differently construed, in R v Horseferry Road Metropolitan Stipendiary Magistrate ; Ex parte Siadatan [1991] 1 QB 260 . The Divisional Court said at 269:

It seems to us that the word "immediate'' does not mean "instantaneous''; that a relatively short time interval may elapse between the act which is threatening, abusive or insulting and the unlawful violence. "Immediate'' connotes proximity in time and proximity in causation; that it is likely that violence will result within a relatively short period of time and without any other intervening occurrence.

In Perfect v Northern Territory of Australia (SC(NT) (Mildren J), 29 May 1992, unreported) the court considered that "immediately'' in the context of "immediately advise the claimant'' in s 85(7) of the Act did not require that the advice be instantaneous. Mildren J said at p 15:

... a literal construction of this word in a statute would, in strictness, exclude the lapse of any interval of time, and for that reason, has rarely, if ever, been preferred by the courts. ... Whether the notice was served "immediately'' is a question of fact to be determined in the circumstances of the case. As Cockburn CJ said in Alexiadi v Robinson (1861) 2 F & F 679 at 684; 175 ER 1237 at 1240 the word implies "a more stringent requisition than what is ordinarily implied in the word `reasonable'. Still, it must receive a reasonable interpretation, so far that it cannot be considered as imposing an obligation to do what is impossible.

At p 16 his Honour said:

... the notion of "immediately'' must take into account that the worker may not be able to be found - he may, for instance, have gone interstate to get urgent medical treatment. In my view, the word "immediately'' means, as Kennedy LJ expressed it, in Barker v Lewis & Peat [1913] 3 KB 34 at 37"as immediately as the circumstances permit.

The foregoing cases illustrate the different meanings in different contexts. The question is, what is the meaning of the words "immediately before'' in their context in s 65(3)? I consider that in s 65(3) they encompass at most some reasonably short period of time immediately preceding "the date on which he first became entitled to compensation''. As noted earlier, since 1986 the appellant had been unemployed and during the period to March 1989 had no weekly earnings. Accordingly, he had no "normal weekly earnings'' at the very instant before 23 March 1989. But if the words "immediately before'' in s 65(3) are given a more flexible construction, as I believe they should, do they embrace any period in 1986 when he was last employed? I think the answer is best expressed by adopting the approach of Blackburn J in Hobbs v London and South Western Railway Co (1875) LR 10 QB 111 at 121:

... it is something like having to draw a line between night and day; there is a great duration of twilight when it is neither night nor day; but ... though you cannot draw the precise line, you can say on which side of the line the case is ...

I consider that wherever the precise line limiting the period encompassed by "immediately before'' in s 65(3) is to be drawn, giving those words a flexible construction, the appellant is well outside that line on the facts of this case; this applies to any earnings in 1986, or before that time. I consider that this was also the view taken by Martin J.

Conclusions

It follows from this approach that I agree with Martin J that on the facts the appellant had no "normal weekly earnings'' "immediately before'' 23 March 1989. The answer to the calculation required by s 65(3) is therefore "zero''. The appellant is admittedly totally incapacitated as from 23 March 1989. Yet application of the formulae in s 65 of the Act to the fictitious factual situation created by s 189(2) means that the "rate [of compensation] that would otherwise be payable'' to him is zero.

I also agree with Martin J that the purpose of s 65(7) is to provide a "safety net''. Section 65(7) warrants the broad construction referred to in Builders Licensing Board v B J Lindner Pty Ltd [1982] 1 NSWLR 561 at 565 it should be so construed "as to afford the utmost relief which the fair meaning of its language will allow'', as Isaacs J put it in George Hudson Ltd v Australian Timber Workers' Union (1920) 32 CLR 413 at 436. Construing the words of s 65(7) - "in lieu of any payment at less than that [minimum] rate that would otherwise be payable ... under this section'' - in this manner, I consider that the appellant falls squarely within this statutory "safety net''. The construction of the words "any payment'' as embracing a zero amount in the particular circumstances of this case - that is, a construction which treats no payment as a "payment at less than that [minimum] rate'' - promotes the purpose underlying the Act and accords in my opinion with the legislative intention, justice and common sense. It is a construction which does not, I hope, give rise to Alice and Lord Atkins' query as to "whether you can make words mean so many different things''. Its basis is that Territory law at bottom is a sensible thing; to adopt words that great Queenslander also once used, it provides an "answer that I venture to think would occur to most people, whether laymen or lawyers'': Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 50.

In short, I agree with Martin J that the rate of compensation payable to the appellant is the minimum rate prescribed pursuant to s 65(7), for the reasons his Honour states. For that reason I consider that the appeal should be dismissed, with costs.