.  ".{:.,	PARTIES:	HARROWER
V
CRAIG

TITLE OF COURT:	In the Supreme court of the Northern
Territory of Australia

JURISDICTION:	APPEAL from the Workers Compensation Court exercising Territory Jurisdiction

FILE W:	sec 6 of 1992

DELIVERED:	Delivered at Darwin 29 September 1992 HEARING DATES:	Heard at Darwin 14 and 15 May 1992 JUDGMENT OF:	Mildren J
CATCHWORDS:

APPEAL	AND		NEW	TRIAL		-	Appeal	-	General	principles Admission  of  fresh evidence - Limited	power to receive - Party seeking	admission  must not  have known or could	not reasonably	have known	of	existence	of		evidence	at	first instance
Workers' Compensation Act 1979 (NT),s26(1A)
Brisbane city council & Anor v Attorney-General for Queensland (Ex rel scurr & Anor) (1978) 19 ALR  681, applied.

APPEAL	AND	NEW	TRIAL	-	Appeal	-		General		principles Interference		with		judge's findings	of	fact	-	Appeals	on questions	of		law		only		-		Question	of	whether		magistrate failed to have regard to the evidence and the weight of the evidence is one of fact - Finding of fact not supported by the evidence is an error of law
Workers' Compensation Act 1979 (NT),s26
John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11, applied.

EVIDENCE - Admissibility and relevancy - Documents - Court has limited power to receive fresh evidence in worker's compensation appeal - Party must not have known or could not reasonably have known of evidence at first instance - Question whether a document admissible as public document or under Evidence Act or Evidence (Business Records) Interim Arrangements Act, or by virtue of s80 of the Supreme Court Act or by way of judicial notice discussed - S26(1A) not subject to s80

Workers' Evidence Evidence (NT)

Compensation Act 1979 (NT),s26(1A) Act (NT)
(Business	Records) Interim	Arrangements	Act 1984

supreme Court Act (NT),s80

EVIDENCE	-	Admissibility	and	relevancy		-	Documents Judicial	notice		-	Operations		of	CDEP		Scheme	not	so notorious that court could take judicial notice of it - Not generally		known	in the community	to the	"ordinary	wide­ awake man" - Documents not of the kind which a court would consult to remind itself of generally known facts - Private publication

Brisbane	City Queensland		(Ex applied.

Council	&
rel	Scurr

Anor	v
&	Anor)

Attorney-General
(1978)	19	ALR

for
681,

EVIDENCE - Admissibility and relevancy - Irrelevant considerations taken into account in finding 100 per cent disability in leg - Proper inference from evidence was that worker's duties were mainly those of stockman - Finding upheld

Workers' Compensation Act 1979 (NT),ssl0(5) and 10(6)
Gunn Developments (NT) Pty Ltd v Edwards (unreported, Muirhead J, 14/4/77), applied.
The Commonwealth v Matheson {1955) 93 CLR 403, referred to.

EVIDENCE	-	Burden	of	Proof,		presumptions, and sufficiency		of	evidence	-	Medical	evidence expressed in terms of percentage disability - function	is to determine	what		weight should opinions

weight	and Opinions Magistrate's be given to

EVIDENCE - Burden of Proof, presumptions, and weight and sufficiency of evidence - Whether payments under  CDEP Scheme were equivalent to a wage - Remuneration received is prima facie evidence of partial incapacity - Evidence existed to support finding that worker not able to earn and an odd lot - Onus in primary application is upon worker to prove total incapacity - Concomitant circumstances properly taken into account

Workers' Compensation Act 1979 (NTJ,pars{lA),(2)(b)(ii) and (2A) of Second Schedule
Arnotts Snack Products Pty Ltd v Yacob (1984-5) 155 CLR 171, applied.
Thompson	v	Armstrong	&	Royse Pty Ltd	{1950) 81 CLR 585, applied.
Watkins Ltd v Renata (1985) 61 ALR 153, applied.
Buyong v	Readymix Concrete  (NT) Pty Ltd	{1989) 67 NTR 1, discussed.
Cardiff Corporation v Hall [1911) 1 KB 1009, discussed.
Barcevic v The Commonwealth {1957) 98 CLR 296, referred to.

JUSTICES
Jurisdiction, Operations of take judicial

Jurisdiction		and	procedure	generally Powers	and	Duties		-	Judicial	notice
CDEP Scheme not so notorious that court could notice  of  it - Not generally known	in the

'
community to the "ordinary wide-awake man" - Documents not of the kind which a court would consult to remind itself of generally known facts - Private publication

Brisbane	City Queensland		(Ex applied.

Council	&
rel	Scurr

Anor	v
&	Anor)

Attorney-General
(1978)	19	ALR

for
681,

STATUTES - Operation supreme court Act to Workers' Compensation derogant

and	effect	of	statutes	-	S80 be read		subject		to s26( lA)		of Act	-	Generalia		specialibus

of the non

Supreme Court Act (NT),s80
Workers' Compensation Act 1979 (NT),s26(1A)

WORKERS COMPENSATION - Assessment and amount  of compensation - Amount of compensation during incapacity - Payments received under CDEP Scheme were not in reality benefits paid under Social Security Act - Payments were of a charitable nature or were intended for the worker's benefit and should be ignored	·

Social Security Act 1991 (Cth),ss23,1165,1166 and 1363 Aboriginal  and Torres Strait Islander Commission	Act 1989 (Cth),ss57(1),61(2) and 66(1).
Workers' Compensation Act 1979 (NT),par(2)(b)(ii) of Second Schedule
Denn	v	Midland	Brick	Co	Pty	Ltd	(1984-5)	157	CLR	398, applied.

WORKERS		COMPENSATION					-	Assessment		and		amount	of compensation  - Amount of compensation during incapacity		- Whether payments under CDEP Scheme equivalent to a wage - Determination				as		to				total		or	partial			incapacity Remuneration	received		as prima facie	evidence		of	partial incapacity		-		Test	is			whether		physically		able		to		earn		- Evidence existed to support finding that worker not able to earn and an odd lot - Onus in primary application is upon worker	to				prove			total		incapacity			- Concomitant circumstances properly taken into account - CDEP payments charitable in nature

Workers' Compensation Act 1979 (NT),pars(lA),(2)(b)(ii) and (2A) of Second Schedule
Arnotts	Snack Products	Pty  Ltd v Yacob	(1984-5)	155 CLR 171, applied.
Thompson	v	Armstrong	&	Royse Pty Ltd (1950) 81 CLR 585, applied.
Watkins Ltd v Renata (1985) 61 ALR 153, applied.
Buyong	v Readymix Concrete (NT) Pty Ltd (1989) 67 NTR 1, discussed.
Cardiff Corporation v Hall [1911] 1 KB 1009, discussed.
Barcevic v The Commonwealth (1957) 98 CLR 296, referred to.
WORKERS COMPENSATION - Assessment and amount of  compensation - Review of award - Admission of fresh evidence - Limited power to receive - Party seeking admission must not have known or could not reasonably have known of existence of evidence at first instance

Workers' Compensation Act 1979 (NTJ,s26(1A)
Brisbane	city	Council	&	Anor	v	Attorney-General		for' Queensland		(Ex		rel	Scurr	&	Anor)		(1978)	19	ALR	681, applied.

WORKERS	COMPENSATION	-	Miscellaneous	matters	-	Other matters - Appeals - Only questions of law appellable
Workers' Compensation Act 1979 (NT),s26
John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11,

REPRESENTATION:
Counsel Appellant: Respondent:

Solicitors Appellant: Respondent:

DJ Bleby QC/		S Gearin G Hiley QC/	J Reeves

Elston & Gilchrist Cridlands

Judgment category classification: CAT A Court Computer Code:
Judgment ID Number: MIL92031 Number of pages: 32
General Distribution

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF	AUSTRALIA
AT DARWIN

No. 6 of 1992
IN THE MATTER of an Appeal under the Work Health Act

BETWEEN:

ANTHONY NORMAN HARROWER and JOHN KENNETH HARROWER
Appellants

CORAM: Mildren J

AND:
WILLIAM CRAIG

Respondent

REASONS FOR JUDGMENT
(Delivered 29 September 1992)

This is an appeal from the Workers' Compensation Court by the appellants who were the worker's employers. For convenience I will refer to the appellants as "the employers" and to the respondent as "the worker.11 The court found ( 1) that the worker suffered injuries on 30 November 1986 arising out of or in the course of his employment with the employers (2) that the worker has been and remains totally incapacitated for work since 30 November 1986 up until the date of hearing and is entitled to compensation under the Workers' Compensation Act ( 3) that the worker was entitled to redeem the employers' liability for future weekly payments (4) that the worker was entitled to lump sums for the loss of the efficient use of both of his legs, pursuant to sl0 of the Act.

Weekly Compensation 1/2/89 to	26/10/91	$ 19,700.00	
Redemption		$261,222.00	
Lump Sum Disability		$ 48,240.90	
		$328,240.90	

The Court assessed the amount of compensation payable as follows:

-----------
and ordered the employers to pay the worker's costs.

'
The employers appeal on a number of grounds. The Notice of
Appeal is extremely repetitious and contain grounds which on their face apparently do not relate to errors of law. For example, ground l(a) pleads that the court erred in "failing to have regard to the evidence and the weight of the evidence
...". section 26 of the Act limits an appeal to this court from the workers' Compensation Court to questions of law only: s26(1). Plainly, a complaint that the court below "failed to have regard to the evidence and the weight of the evidence• is an appeal on a question of fact and no question of law is involved.

Past Weekly Compensation
The first ground of appeal as stated by the employers' counsel, is that, in determining the worker's entitlement to past weekly compensation, the learned magistrate erred in law in failing to take into account remuneration received by the worker through a scheme called the "CDEP Scheme," and that therefore, he failed to properly apply clause (1B)(b)(i) of Schedule 2 to the Act. It is difficult to be sure precisely which  of the grounds of	appeal	in the	Notice of Appeal encompass this ground of appeal. Presumably they are raised by "Points of Appeal" 3,4,5 and 7 of the Notice of Appeal and "ground 11 2 therein. No objection was taken by the worker's counsel that this ground, as thus expressed, was not somewhere to be found in the Notice of Appeal.

The learned magistrate's findings about the "CDEP Scheme• were, that since November 1990, the worker had participated in a "CDEP" program at Hermannsburg "for apparently working four hours a day three days a week." "CDEP" is an acronym for "Community Development Employment Project." His Worship found that the community council supervises the work and the distribution of payments which are provided by the commonwealth and by the Aboriginal and Torres strait Islander commission ( "ATSIC"). His Worship further found that the CDEP program (or scheme) had no legislative basis, and was simply an agreement reached between certain communities and the

commonwealth that unemployment benefits be paid directly to the councils for distribution to the communities in the way described above. A person 1iving on Hermannsburg cannot withdraw from the program and continue to receive "benefits" whilst living at Hermannsburg without the council's approval. His Worship held that the CDEP Scheme was not part of the general labour market in the Northern Territory; is clearly designed as an alternative way of distributing unemployment benefits as well as enhancing the work skills of the participants; is limited to residents of some Aboriginal communities; and a weekly payment thereunder was not the equivalent of a wage earned in the labour market.

The employers submitted that some of those findings were not supported by the evidence and that, as a matter of law, the learned magistrate was wrong in holding that payments received under the scheme were not the equivalent of a wage. The evidence before the learned magistrate about the scheme was given by two witnesses; a union official, Mr DG McKenzie; and a senior employment officer with the Commonwealth Employment Service in Alice Springs, a Mr EJ Taylor. The evidence of both of these witnesses was largely hearsay. Objection was taken by the employers' counsel at the hearing to the admissibility of Mr McKenzie's evidence, but the objection was overruled. No attempt was made before me to argue as a ground of appeal that this evidence was inadmissible.

Counsel for the employers sought to place before me two documents, which were not tendered in the court below, the first of which was entitled "Community Development Employment Projects User Guide," and the second of which was a pamphlet entitled "CDEP in 1991." This was objected to by counsel for the worker. This court has only a limited power to receive fresh evidence. Pursuant to s26(1A) of the Act, fresh evidence may not be received unless I am satisfied that the party seeking the admission of the evidence did not know or could not reasonably have known of the existence of the evidence at the time of the original determination by the Workers'

Compensation Court. Mr Bleeby QC, for the employers, frankly conceded that this condition could not be met, but submitted that I nevertheless can, and should, take judicial notice of these documents, both of which were published upon the face of the documents, by ATSIC. Alternatively, it was submitted that the documents were admissible either as public documents at common law or as public documents within the meaning of the Evidence Act or as a business record under the Evidence (Business Records) Interim Arrangements Act, and that I may admit them pursuant to s80 of the Supreme Court Act, notwithstanding s26(1A) of the Workers' Compensation Act. At the hearing of this appeal I ruled that these documents were not receivable by me either via s80 of the Supreme Court Act, or as documents of which I, sitting on appeal, could take judicial notice, and I then gave brief oral reasons, reserving however the right to expand on those reasons when I delivered judgment in this appeal.

Assuming that the documents were admissible on any one of the bases suggested, I remain of the opinion that they are not admissible pursuant to s80 of the Supreme Court Act on an appeal from the Workers' Compensation Court. Section 80 of the Supreme Court Act provides:
"The Court may at any·time by order, upon such terms as it thinks fit, amend or remedy a defect, error or omission in any proceeding for the purpose of determining the real questions in controversy or otherwise depending on the proceeding."

Firstly, it has not been shown that there was any "defect, error or omission" of the kind contemplated, but assuming that the section is broad enough to cover an error by counsel in failing to tender a document (which I doubt), the failure by counsel to tender these documents at the hearing before the learned magistrate may well have been deliberate, and it has not been shown to be otherwise. Secondly, I consider that s80 of the Supreme Court Act, which is a general provision, must be read subject to s26(1A) of the Workers' Compensation Act, which is a special provision: generalia specialibus non derogant.

As to the submission that I can take judicial notice of these documents, I do not consider that the fact that there is a CDEP Scheme operating in a particular locality of the Northern Territory is so notorious that a court could take judicial notice of it. However, in this case, there was evidence of the existence of the scheme operating at Hermannsburg before the learned magistrate. As to the way the scheme operates, once again I do not consider that those facts are so notorious that they are generally known in the community to "the ordinary wide-awake man" (Brisbane City Council and Anor v Attorney­
General for Queensland (Ex rel scurr and Anor) (1978) 19 ALR
681 at 686 per Lord Wilberforce) so that I could remind myself of those facts by reference to a standard text book or the like. Finally, I do not consider that the documents in any event are of the kind which a court would consult in order to remind itself of generally known facts. They appear to be the private publications of ATSIC, and are in a class wholly different in nature from standard text books, dictionaries, published statistics from the Australian Bureau of Statistics and other similar works of reference.

The main thrust of Mr Bleeby's submission was that the evidence before the learned magistrate supported only one conclusion, and that is, that the monies received by the worker for his participation in the scheme were remuneration for his services. It was submitted that the learned magistrate's conclusion that the weekly payment the worker received under the scheme was not the equivalent of a wage was wrong in law. This finding by the learned magistrate is a finding of fact. However a finding of fact which is not supported by the evidence is an error of law: John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11 at 26.

In considering whether there was evidence to support the learned magistrate's conclusion, the starting point is whether or not the worker was totally or only partially incapacitated for work by the injury. If the worker was totally incapacitated, he was entitled to compensation at the rates

fixed by paragraph (lA) of the Second Schedule to the Act, subject only to the amount being reduced in accordance with paragraphs (2)(b)(ii) and (2A) of the Second Schedule. In determining whether or not the worker was totally incapacitated, regard may be had to any remuneration received by the worker by way of wages. But this is only prima facie evidence, because it may appear that the remuneration so received is not really paid in respect of the worker's ability to sell his labour. It may, for instance, be a payment made out of compassion, or because of some other extraneous reason: see Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 at 603-4, 615-16; 621-22.

The test as to what constitutes total incapacity for work was stated by Dixon CJ and Kitto Jin Barcevic v The Commonwealth (1957) 98 CLR 296 at 303:
"It has long been settled that total incapacity may exist although the injured man retains enough physical capacity to enable him to do particular work of a special kind not forming one of the ordinary recognised avenues of employment. In this Court the position was summarised thus­ 'permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind' : Wicks v Union Steamship Co of New Zealand Ltd (1933) 50 CLR 328 at 338.11

In Arnotts Snack Products Pty Ltd v Yacob (1984-5) 155 CLR 171 Mason, Wilson, Deane and Dawson JJ said, at 178:
"··· the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work."

In the context of the Northern Territory Workers' Compensation Act, the Full Court of the Federal Court of Australia, on appeal from this Court, held that the observations of the majority of the members of the High Court in Arnotts Snack Products were applicable to the Northern Territory Act: Watkins Ltd v Renata (1985) 61 ALR 153 at 156, 168. In

addition, all members of the Federal Court applied the observations of the majority in Arnotts Snack Products, at 177, to the effect that:
"··· incapacity for work denotes a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work, though his incapacity may not necessarily attract compensation because it results in no loss of earning power."

The learned magistrate found that the worker had been totally incapacitated since his injury on 30 November 1986. The employers attacked this finding because there was evidence, which the learned magistrate accepted, that in 1989 and 1990, the worker in fact obtained work totalling forty-three weeks at Kalala, Legune and Maryfield Stations as well as employment

with a Mr Vandesmeer in 1989 for a signs.	It	was	submitted	that

few weeks erecting traffic
the	learned	magistrate

misdirected himself as to the proper tests to be applied, and
that had he properly directed himself, he would have found that the worker was only partially incapacitated up to the date of the hearing. The employers also point to the fact that, in assessing the workers's entitlements to past compensation, the learned magistrate made no award for weekly payments during the periods when he was actually employed. Of course that fact by itself does not demonstrate that there was no incapacity, but it suggests, and no doubt strongly suggests, that any incapacity was not total.

His Worship does not expressly refer to any of the tests in the authorities to which I have referred in reaching his conclusion that the worker was totally incapacitated. However, his Worship seems to have concluded that the worker was an "odd lot.11 In his reasons, his Worship refers to "the possibility of some employer - compassionate or otherwise - availing himself "of the special residual powers which have been left in the worker (Cardiff corporation v Hall (1911) 1 KB 1009 at 1020) must also be conceded." Whilst that comment appears in the context of a discussion as to the worker's capacity for work in the future, it is apparent from reading the passage next following in his Warship's reasons, that the

7

same observation was applicable to the worker's capacity for work in the period, at least from 1989 onwards. Mr Bleeby QC submitted			that, to	the extent that his Worship must have relied  upon the odd lot category	in order to	justify his finding  that the worker was totally		incapacitated, he was wrong in doing so, as the decision in Cardiff Corporation v Hall has no application in a primary claim for compensation. In support of this contention, Mr Bleeby QC relied upon the decision of the Court of Appeal in Buyong v Readymix Concrete (NT) Pty Ltd (1989) 67 NTR 1 (special leave to appeal to the High Court refused (1990-91) 171 CLR 671). However, in my opinion all that Buyong's case decided is that the onus of proving that a worker is totally incapacitated in a primary application	by a worker		for compensation	rested with the worker. The Workers' Compensation	Court in that case, had found that the worker's incapacity for work was partial only. On appeal to the supreme Court, the judge hearing the appeal had concluded that the Workers' Compensation Court had erred in not having sufficient regard to the need for the employer to prove that a suitable job was available for the worker. The Court of		Appeal concluded	that the		judge		on		appeal		had applied the wrong onus. That case did not decide that a worker could not prove in a primary application for compensation that he was to be treated as totally incapacitated for work because he was an odd lot. That point was never discussed. Indeed, had that point arisen for determination, there is authority binding on the Court of Appeal and on this Court that a worker in such a case can establish, the burden of proof being upon him, that he was totally incapacitated for work in the sense that		he was		an odd			lot for whom		no work			was available: Barcevic v The Commonwealth (1957) 98 CLR 296, especially at 303-305	per		Dixon		CJ	and		Kitto			J.	Indeed,			there	are observations in that case, notably at 305, in which their Honours observed that the burden of proving that the worker was	an odd lot fell upon the worker, and that the worker "cannot throw the burden of disproof over to the Commonwealth in the absence of a finding that his labour was an 'odd lot'•11

These observations are perfectly consistent with the reasoning in Buyong's case.

The learned magistrate's findings concerning the periods of employment in 1989 and 1990 are summarised at 5 and 6 of his reasons for judgement as follows:
"The history of the worker's employment since his injury does not disclose the worker properly and effectively participating in the labour market as a normal employee but rather as someone who has been able through personal contacts to work for short periods and in circumstances where he was severely restricted by his back injuries.

Later, his Worship observed (at 10-11 of his reasons):
"Except for his employment erecting signs for four to six weeks in 1989, the worker has not effectively sold his labour in the open labour market since his injury in 1986 and he resigned from this position because of continuous back pain and the inability to cope with the demands of this labour. The other positions at Kalala at <sic) Legune Stations were obtained through personal contacts rather than the normal channels of the labour market. He was not in paid employment while residing at Maryfield station. Furthermore, in each of the paid positions at Kalala and Legune Stations he discontinued employment because of continued back pain."

Later, his Worship concluded (at 13 of his reasons):
"His work history since the injury demonstrates that he is capable of performing light duties only, for a limited period and even then with considerable difficulty because of constant pain. Medical evidence clearly shows the impossibility of his resuming the normal activities required of a station hand such as riding, mustering and light to heavy manual work. His work capacity has now been reduced to simple tasks such as driving over short distances for inspection purposes.

As to the worker's residual capacity for employment, his prospects for employment are extremely limited by his educational background, his Aboriginality, his limited intellectual capacity, his manually orientated work history, his physical disabilities and the difficulty in retraining in or finding suitable sedentary occupations. Furthermore, his medical prognosis is such that his back condition is expected to continue to deteriorate."

Save for any periods of actual employment, I consider that it was open to his Worship to find that the worker was an odd

lot and therefore totally incapacitated up to the date of the hearing based on those findings of fact. It was not necessary for the learned magistrate to specifically refer to the

expression	"odd sufficient if his

lot"	in	reaching	his	conclusion.	It	is
Worship concluded that his earning capacity

had gone, except for the chance of special employment of an
unusual kind. The findings to which I have referred indicate that this was the conclusion which his Worship reached, although he may not have used the time honoured formula in his judgment.

The learned magistrate properly took into account the "concomitant circumstances" in which the worker's residual capacity might be employed: see Barcevic at 303. True it is that the learned magistrate expressed his ultimate finding as one of total incapacity since the injury on 30 November 1986, but he made no award of weekly compensation for the periods the worker was in actual work. I think that this finding has to be read in that context, i.e. that save for those periods when he was in actual work, in which his residual capacity was employed, the worker was totally incapacitated.

The findings of fact upon which his Worship based his conclusions were in my opinion open to him on the evidence. I will not deal seriatim with all the criticisms Mr Bleeby QC made of the learned magistrate's findings. However, it is necessary to deal with two specific matters. The first related to the medical evidence. The medical evidence relevant to the worker's incapacity for work before the court comprised the evidence of Mr Johnstone, a surgeon, and a medical report of a Mr Girgis, an orthopaedic surgeon. Mr Bleeby QC stressed that both of these doctors expressed the view that the worker's injuries resulted in a 40 per cent disability affecting his working capacity as a whole, and that this disability was permanent. However, in my opinion the learned magistrate was not bound, because of that evidence, to conclude that the worker was only partially incapacitated. It was for his Worship to determine what weight, if any, he

would give to that evidence, and in considering that question, it would obviously be necessary for his Worship to consider a number of factors, such as whether the doctors concerned were applying their minds to a purely theoretical physical incapacity to work, whether they had taken into account the labour market in which the worker had been employed and was likely to be employed in the future, and in general the concomitant circumstances under which the worker might exercise any residual incapacity he had left. In the end result, the ultimate question was one for the magistrate, who was not bound to accept those opinions.

The second matter that must be considered in more detail is the learned magistrate's findings concerning the worker's participation in the "CDEP Scheme" at Hermannsburg. I do not consider that the finding of the learned magistrate as to the worker's participation in that scheme, are open to attack on the evidence before the learned magistrate. It may well be, as Mr Bleeby QC suggested, that the true nature of the scheme was to create the relationship of master and servant vis-a­ vis the worker and the community who employed him. But that was beside the point if the payments made to the worker were not really made in respect of the worker's ability to sell his labour. In this respect, in my opinion it is irrelevant whether the funds are an alternative form of distributing unemployment benefits or are for enhancing work skills. The true test is whether he was physically able to earn wages, not whether he was paid wages: Thompson v Armstrong and Royse Pty Ltd. supra, at 603, 615 and 621. The evidence of the worker as a whole supports the conclusion that the worker was not able to earn wages and the payments made to him, although they may be called wages, were really a form of charity, notwithstanding that the scheme's purposes included providing employment to those who were unemployed. The finding of the magistrate that the payments to the worker were not the equivalent of a wage earned in the labour market indicate that the learned magistrate must have viewed the payments to the worker as essentially charitable in nature.

However, that does not necessarily mean that the payments being received by the worker under the CDEP Scheme were required to be ignored altogether. Paragraph (2)(b) of the Second Schedule of the Act provides that "where the workman is totally or partially incapacitated for work by the injury, then, subject to paragraph (2A), the weekly payment otherwise payable under paragraph (lA) or (1B) shall be reduced-
where no determination has been made in accordance with paragraph (2)(b)(ii), by the amount of any payment, allowance or benefit which the workman receives from his employer during the period of his incapacity; or

where an application by either party for a determination by the Court has been made, to such amount as the Court determines is just and proper.

( 2A) In determining a payment under paragraphs (lA) or ( 1B) no regard shall be had to -

a pension or allowance in respect of a child dependent upon the earnings of the workman;
deferred pay payable to the workman; or

a payment, allowance or benefit that is payable to the workman by his employer under the terms of an award, order or determination of an industrial authority, under the terms of an industrial agreement or under the terms of the contract of service or apprenticeship between the workman and his employer whereby provision is made, in the event of the workman being totally or partially incapacitated for work in circumstances to which this Act applies, for the payment by the employer to the workman of a weekly amount equal to the amount ascertained or calculated in accordance with those terms less the weekly amount payable as compensation under this Act."

Mr Hiley QC submitted that the learned magistrate was correct in finding that the CDEP Scheme payments were an alternative way of distributing unemployment benefits payable under the Social Security Act, and that there would be no "double­ dipping" by the worker because of ss23 and 1165 of that Act. The employers contended that the learned magistrate's finding that the scheme payments were an alternative way of distributing unemployment benefits was wrong in law. It is therefore necessary to resolve this issue, which will have a

bearing on whether the court ought to have made any allowance under paragraph (2) of the Second Schedule.

The employers' contention is that the evidence before the magistrate was that payments made under the CDEP Scheme were in lieu of unemployment benefits, and that there was no evidence to support the conclusions that the payments were unemployment benefits in another guise. The distinction sought to be made, as I understand Mr Bleeby's contention, is that the CDEP Scheme payments were not in reality payments made for unemployment benefits under the Social Security Act, although it may be, that as a condition of eligibility to receive such payments, the worker was required to forfeit any entitlement he may have had to claim unemployment benefits.

The evidence on this topic given by Mr McKenzie was that "CDEP is - is one program that they have access to, but that's really based on - that's really based on you're for your - you're working for the dole, that's - that's what it's based on."

The following other evidence was given:
"HIS WORSHIP: Yes, what's your understanding? ---Well, my my understanding of it is - is people that are - that are unemployed and registered at - registered with the CES as being unemployed - all - all these names, they're all - all collated, I guess, by - by an ATSIC field officer and all these - all these people that are either unemployed or in some cases - in some cases people are on say, supporting parents benefits, even - even these people can - can get in and do - if - if - if the council wants - if it - if the council wants it, all these people are - all the names are taken of all these - all the people who are on these benefits, then from - from that, that's - that's the pool money and then on top - on top of that the department allocates or used - I don't know whether they still - still do or not - but they used to allocate 20 percent on cost to cover materials, goods, whatever - whatever they needed to - to actually do that work around the community.

What does each individual person do to get paid?---Well, he has to - he actually do - he actually has to do 4 hours work per day.

For how many days?---Five days a week."

In cross-examination Mr McKenzie's evidence was:
"MR RILEY QC: The CDEP Scheme; let me suggest a couple of things to you. Tell me whether you agree with this, that the purpose of the program is to enable people to participate in local employment, in local development projects, as a positive alternative to welfare payments; that's the theory behind the whole thing, isn't it? Do you want me to give you that again?--- Yeah, if you could, please.

It's an alternative to the dole; it's not payment or working for the dole, it's an alternative for the dole?---Yeah, but coming from the people themselves, they - they see ii as working for the dole.

You see it as working for the dole; you wouldn't know what the people at Hermannsburg regard it as, would you? You're just talking about Daly River - that's the only place you've had experience of it?---But - yeah, but also in my job I visited Milikapiti and that's also a CDEP community.
That's up here in the north?---That's right.
You know that people on CDEP pay tax?---I'm not - I'm not too sure.
You know that they're required to be covered by workers compensation?---Yep.
You know that they're required to work so many hours per week?---Yeah, 4 hours a week.
Four hours a day?---Oh, sorry, 4 hours a day, 20 hours a week, yeah.
If they don't work that, they don't get paid?---They get paid for the hours that they do work.
But they don't get their full pay?--That's right.
Do you know that one of the objects of the program is to provide for meaningful employment as an alternative to unemployment benefits?---Yes, and ---
Your received lectures on what the purpose of the program was?---Yeah, we had - we had attended training sessions on it, yeah.
That's what they told you there, is that right?---Beg your pardon.
And that's what they told you there?---Mm, that's right."

Later in cross-examination Mr McKenzie said:
MR RILEY QC: Perhaps I could put the question differently then; you've told us that there was back in the days when you had access to the figures, 75 to 80 percent unemployment in the Aboriginal community of the Northern Territory?---That's right.

In that figure of 75 to 80 percent, were the CDEP workers included as unemployed or as employed or don't you know what it was in that case?---No. See, I'm - I'm still of the understanding that to be employed under a CDEP program you've got to be registered as unemployed, right.

Do you know that, or is that just something you're guessing at?---That's - that's my understanding of it from how they first calculated it; you had to be - you had to be registered with the CES to have access to unemployment benefits, that's what the Department of Aboriginal Affairs worked on the, right, they come back through out stats to say, this is how many employed on that community so that's what we'll work on.
As you understand it, a person coming out of school aged
17 or 18 - - -?--- Right.
- couldn't go straight into the CDEP program; he or she would have to go and get themselves registered unemployed, collect unemployment benefits and then apply to the transfer across?---Well, it's - it's - it's not registered as unemployed but registered as seeking work but in the meantime you - you have access to job search allowance or - or some sort of allowance through the - through the social security, so in - -
HIS WORSHIP: Just to clarify that; you're saying that a young school leaver would get job search or job start
- wouldn't get unemployment benefits until such time as the period has elapsed from the time they registered?---That's correct, yeah.

Would that person, whatever benefit they're getting, whether it's job search or job start or unemployment, would they be doing CDEP work, or you're not sure about that?---Oh, I'm not too sure about that.

MR RILEY QC: In fact the money is paid as a lump sum, isn't it, to the community?---To the council, yeah.

And the council determines who shall get the work and who shall not?---That's correct.

If two people attend and one is not on unemployment benefits but is simply unemployed and looking for a job and the other is on unemployment benefits, it's only the person on unemployment benefits who can get

the job, is that what you say?---No, no, no that's not correct.

Assuming I qualified, I came from a community and I was unemployed and I went there, I could get work at the discretion of the council, under the CDEP program?-­
-No, under the CDEP program, all people who are on unemployment benefits or some - or - or who are unemployed in receipt of some benefits are encouraged to come in and do so many hours work for the community.

I understand that; what if you're not in receipt of any benefits - do you say you're simply not entitled to go on the program?---Well, what's the use of going on the program - you wouldn't get paid, would you?

Yes, you're paid by the community; the community employs people - that's how it works, isn't it?---Yeah, but, but - - -

And the community pays you?---Yeah, but it's - it's - the thing is, it's - it's re - how can I say it - instead of you receiving your unemployment benefits, it's - it's put straight to the council by - through ATSIC - I	don't know, through		some	arrangement	with the Department	of	Social	Security	and	that's	-	that money's pooled and put into the council, right, and the council has control of your - your unemployment
benefit.

The council is not restricted to employing only those people who are in receipt of benefits assigned to the council; they can employ anyone they like as long as they're within the community?---Yeah, long as - if the council's got the funds, yeah."

The evidence of Mr EJ Taylor in relation to the CDEP Scheme was as follows:
"MR REEVES: - - - Are you familiar with the operations of the CDEP Scheme as it operates in central Australia?­
--!	am.

It's a community based scheme?---It is.

Have you received any courses or training in relation to the scheme and how it operates?---Yes. As a field officer my job was to go with the - the social security field officer and a field officer from department - from the - all messed up here - ATSIC - sorry, they've changed the name that many times.
MR RILEY QC: As often as you've changed jobs.

THE WITNESS: We went out and had meetings with the - with communities on - and discussions on which way that

they were prepared to go with their planning on their communities. The meetings we had, we - we put the options to them of - of bettering their communities by going onto CDEP which is a form of unemployment benefits - the money is put into a bag in the - on the community; they decide of how they wish to distribute that money, whether they get to an age limit say, of 50, you don't have to work anymore, you get - you just normally get it or you get the pension from - from Social Security and don't have nothing to do with the CDEP part of it. They also decided on who's going to - how you're going to work, whether you work 4 hours in the morning or 4 hours in the afternoon; you know, have a system where you come in and you - you check on in the morning, put your name down, someone checks your name off that you've been in. You split into different work groups and away you go - in the afternoon, the same procedure.
MR REEVES: Is it part of your job to go through that process of consultation with a community before it enters the scheme?---It is. My job as a DEET field officer was to - was to tell them about what we could do to help them to get full benefit out of the scheme, and that was to explain to them that we can bring in instructors to teach the people that don't have any skills, to upgrade their skills so that they can work their own community and get it running.
How is the payment from the Department of Social security to the council calculated?---on - on the amount of people that are there; it's - I couldn't be sure on this but it's about 150 - sorry?

MR REEVES: Are you unsure of the exact figure?---The figure, yeah.
MR RILEY QC: I'm happy for it to continue.
MR REEVES: Approximately how much do you think it is?--­ It's about $150 per person - per head.

Just dealing a bit further with the basis; you mentioned pensions and whether or not people were on pensions or receiving them directly from the Department - you say it's $150 per head. How is it calculated? Is it the whole of the population of the community or only certain people in the community which it's based on?­
--Well, it's based on the people that are able bodied people to be able to work and not the people that are on the pension. That - that's the basis of it, is - is that the money goes in. The people that don't work, if you have a day off or have a week off or a day off or two weeks off, that's - that money's taken out; it's the same as, I don't come to work for the next two days, well, then they - they subtract that out of my normal wage I'd be paid; it's exactly the same thing on a CDEP Scheme - if you don't front for work

for two days well, then, you - you lose those two days or those two half days.

I was asking you about what the amount that an employed person receives by way of benefit?---Right.

At present - do you know what that is?---What? There - well, going on - I have a pensioner living with me at the moment. He receives $320 -
MR RILEY QC: I object to this, Your Worship. THE WITNESS: $320 a fortnight.
HIS WORSHIP: Just a moment, Mr Taylor.
MR RILEY QC: This can only be anecdotal in the worse.

HIS WORSHIP: What's the normal unemployment benefit that an unemployed single person would get; do you know what that amount is? If you don't just say so?---$120 a week."

In cross-examination, Mr Taylor said:
"MR RILEY QC: Now, you've told us that you have some experience with the CDEP Scheme. Can I suggest to you that the purpose of that scheme, as described to you in your training, is to provide a positive alternative for communities to reliance upon welfare, is that right?---No, it's not to reliance on welfare. To rely on welfare, did you say?
No. I put it to you a bit quickly?---Sorry
Is to present a positive alternative - - -?---Right.
- - - to be relying on welfare?---That's right. It's exactly the opposite?---That's right.
Its intention is to give meaningful employment to people in communities as opposed to unemployment benefits?­
--Yes.
People who are on CDEP pay income tax?---To my knowledge they do.
And they are required to be covered by worker's compensation?---That's correct.

They have between the community and the employed person the same basic legal responsibilities as any ordinary employment situation out in the wider community?---I - could I get that again?

I'm suggesting to you that what you've been taught about this program is that when somebody works under the CDEP Scheme for his community, or for a community, the same basic legal relationship relates to that employment situation as relates to all employment situations?---Yes, in the way of compensation and - -

Yes, and the obligations to provide a safe system of work and all that sort of stuff?---Yes.

The people who can obtain work under the CDEP Scheme include unemployment benefit recipients?---Right.
People from other CDEP community programs?---Yes.

Unemployed persons who are not in receipt of unemployment benefits?---Yes.

And some Department of Social Security benefit recipients such as sole parents and people who are prepared to forego other pensions?---Yes.

What happens is that whoever administers the scheme works out how many participants come from all those categories in a community and they pay them a certain amount of money based on the nurnber?---Yes.

Then they pay them, the community, an additional amount, a top-up fee - maybe it's called something else - for the purposes of administering the scheme and to give some money to do projects?--That's right. That money comes from ATSIC, yes. The other 20 percent - they give 20 percent of everything that's left behind.

Then you told us yesterday that once the community takes on this scheme, for somebody who is working under the scheme that if they don't work their set time they don't get paid or they get paid only for what they work?---That's right.

Just like in ordinary employment?---That's right. This - this is - this is an agreement between the community - not all communities do it though, but it's an agreement on the community between the community members and -like it's just an agreement between themselves.

HIS WORSHIP: What about if someone is on a community with a CDEP program and doesn't want to do the CDEP work, does he or she get paid unemployment benefits?--­ That's decided again by the community. They can be asked to be - to leave the community or they do exactly what the rest of the community's doing, but, you know, it can be done, yes. It just depends on the community.

MR RILEY QC: Isn't the situation this, leave the CDEP Scheme at any time in the wider market?---Yes.

that a person can. to seek employment

But if they continue to live in a community where it operates then they can't withdraw from it without some compelling reason?---That's right.
For example, ill health or family problems or whatever?-­
-Well, again it's - if - if I were to leave the community for two weeks I'd have to have a good reason to leave and then they could continue paying me or if I left they just said: 'We're not going to pay you because you're not here to do the work.' If ill health, if someone's in hospital, usually it continues. If I was going in - into a hospital to see my child or my wife or whatever and stay in town for a considerable amount of time, and if they think that was fair, then I'd still continue being paid. If I was just going in and I was someone that was, say, just going into town to get drunk or whatever, well then they wouldn't - wouldn't pay it.
So it really is a bit like any other job. You can get some compassionate leave to go and do things?---Yeah.

But if you just want to go because you don't feel like working, then you won't get paid?---That's right. It's an agreement between the - the - on the comrnuni ty people and the councils. They administer it themselves. They're the ones who draw the rules, we just follow them.

HIS WORSHIP: Just on that aspect, the rules might change with the change of personnel in council, I take it?­
--No, once the rules have been done at the start of it, that's it. It - it stays that way. For it to change I think it's a big - it's a bit (sic] issue and it's got to go back through the departments and take months and months of negotiating it. By that time you've probably got a new council in again. I think they - we try and discourage them of doing things like that."

In re-examination, Mr Taylor's evidence was as follows:
"MR REEVES: Just returning to the CDEP Scheme, if a person is - are there comrnunities where the CDEP Scheme operates alongside a group of people in the comrnunity receiving unemployment benefits?---I'm not sure but I think the one at Robinson River the - the old people still receive the pension and not the unemployment benefit as from the CDEP Scheme.

Have there been problems on communities with CDEP?---There has been yes.

On all of them or only some of them?---Well, one that I can think of, that is Ngukurr or Roper River, where the majority of the people didn't want - want CDEP but because of the family that's sort of the - the family of Roper River, and they have CDEP.
Does that family run the council?---That's right.

So going back to His Worship's question, changes -	let me ask you this. Is change the scheme?---If someone was shoot	the		president,	I	suppose	we changed.

if the council it possible to game enough to could	get	it

Put another way, can a community opt out of the scheme at any time if they wish?
HIS WORSHIP: This is generally, not to do with Ngukurr?-­
-Right. If - there would be a lot of difficulties in getting out of it, yes.

MR REEVES: If the whole community decided to get out of it, can they get out of it?---Yes, I think they can.

If you're receiving unemployment benefit - that is, if you're on a community and receiving unemployment benefit, are you entitled to participate in the CDEP Scheme?---To my knowledge, no.

If you're on a community and you're working, you've got a job there, are you entitled to participate in the CDEP Scheme?---If you're working, you've got a job there?
Yes?---Well, can I just see if - - -
That is, if you've got a job other than a job doing work under the CDEP Scheme?---Well, on the CDEP Scheme you've got one who works 4 hours a day and then you've got the council worker which works 8 hours a day, which are on two different wages.
Right, but the council worker is working 8 hours and not under the CDEP Scheme?---No.
So it applies to those people who are willing to stop receiving their unemployment benefit or other pension, is that right?---That's right.
And receive the equivalent of that in a wage through the CDEP Scheme?---Yes.
My learned friend said that the community is then paid an amount for the number of people calculated on the community and then the community is paid an amount, is that right?---Yes.

Is the amount that the community is paid calculated by reference to the unemployment benefit or pension?---

I think it's by per head and I - don't quote me on this but I think it's - - -
MR RILEY QC: Well - - -
HIS WORSHIP: What about employment of Aborigines in Darwin, do the problems that you're talking about exist here?­
-- I - I wouldn't know, Your Honour. I've never done -

You've never worked here?---No.
MR REEVES: Sorry, what did your Worship -
HIS WORSHIP: I was asking him about employment of Aboriginals in Darwin, whether the same or similar problems exist here as those that he's testified about but he's unable to answer that.

MR REEVES: Just returning to Ngukurr - well, no, not Ngukurr. In general is the scheme and its rules in the control of the community council?---That's right.

And you mentioned before that in a different context in some jobs you can get only the job if you're related to or going out with someone in that particular group?---That's right.
Does that tend to happen with the scheme on some communities?---That's right, yes.
So it may depend upon whether you're in favour or out?--­ Yes."

I consider that the most that can be gleaned from this evidence, so far as the question of the relationship of CDEP payments and unemployment benefits is concerned, is that a person who is in receipt of unemployment benefits and who lives in a community which participates in a CDEP Scheme, may, instead of receiving unemployment benefits, be employed by a council under the CDEP Scheme. The funds are paid to the relevant council by ATSIC. The council itself arranges the

employment and pays those employed under to	the	number	of	hours	worked.	The

the scheme according
funds	used	by	the

communities to finance the scheme are provided by ATSIC to the councils and are received by ATSIC "through some arrangement with the Department of Social Security."

This evidence does not, in my opinion, establish any basis for a finding that the payments, when received by the recipients, were really unemployment benefits in another guise, or to be more accurate, were in reality unemployment benefits paid in accordance with the Social Security Act. There was no evidence that I could find to support the conclusion that the monies were paid by the Commonwealth direct to the communities.

It is to be noted that, pursuant to s63(4)(j) of the Aboriginal and Torres Strait Islander Commission Act 1989, the Aboriginal and Torres Strait Islander Commission is required, for the purpose of preparing its estimates of its expenditure under s61, to allocate an amount under the heading "Community Development Employment Program." Section 61(2) of that Act provides that, subject to certain irrelevant exceptions, the money of the Commission shall not be spent otherwise than in accordance with estimates of expenditure approved by the Minister. Section 57(1) of the Act provides that there is payable to the commission such money as is appropriated from time to time by the Parliament to the Commission. Section 66(1) of the Act requires the Commission to apply its monies only as authorised by that section, which relevantly, means in accordance with the authority given to the Commission by the Act or any other law. The Commission finances are subject to audit and are required to be laid before both Houses of the Commonwealth Parliament (see ss72(9),73 and 76). Those sections reveal (a) that CDEP Schemes are contemplated by the Act, and the Commission is required to provide for such schemes in its estimates (b) the funds for such schemes come from Parliamentary appropriation (c) ATSIC, even if it received funds from some other source, such as via an administrative arrangement with another government department, without including those funds in its estimates, would not be permitted to lawfully expend that money.

Similarly, s1363 of the Social Security Act provides for the appropriation of pensions, allowances and benefits out of the Consolidated Revenue Fund. Prior to June 1991, entitlement to

unemployment benefits was governed, in general, by Part 2.11 of the Social Security Act. One of the requirements for the receipt of such a benefit was that a person is "unemployed" - see s518(1) - unless the Secretary decides to treat a person as unemployed pursuant to s518(2), or a person is relieved from the "work testII via some other section of the Act. It would appear unlikely that a person in genuine employment under a CDEP Scheme would be entitled to qualify for unemployment benefits. If a person nevertheless did so qualify, the Act requires payments to be made to the recipient (s565) or to a nominee on his behalf (s566). Since June 1991, unemployment benefits have been replaced by job search allowances. Again, the claimant in general, must be unemployed to qualify for the allowance (s513), unless the Secretary decides to treat a claimant as unemployed (s516) and must satisfy the "activity test" (s522) unless excused by the Act from doing so. Payments must be made to the claimant (s566) or, with the secretary's approval, to someone else on his behalf (s267). The allowance is, with certain limited and irrelevant exceptions, inalienable (s571). So far as I have been able to determine, there is no provision under the Social Security Act for payments of either the former unemployment benefits or present job search allowances to be made to an organisation such as ATSIC (or for that matter, to communities direct) for use in a scheme of the kind discussed in this case, and it seems to me that any informal arrangement of this kind would violate a number of the provisions of the Social Security Act. If monies were paid by the Department of Social Security to ATSIC in the manner contemplated in this case, it seems unlikely that those monies could have been lawfully administered by ATSIC; and in any event, such monies were plainly neither unemployment benefits nor job search allowances, whatever else they may have been. Accordingly, any monies received by the claimant under the CDEP Scheme were not recoverable by the Commonwealth pursuant to s1166 of the Social Security Act.

The evidence of the worker was that he received $137 per week under the scheme since he moved to Hermannsburg in ab_out November 1990, he was still receiving this amount at the time of the hearing in October 1991 and intended to keep on the scheme in the future "depending on what his back was like." Accordingly, up to October 1991, the worker had received an amount of approximately $6,500 during this period. It is not possible to be exact in the calculation. The amount of the compensation payable from 1 February 1989 to 26 October 1991 which the learned magistrate awarded was the sum of $19,700 in respect of past compensation. Accordingly, in lieu of that sum, the question is whether the amount of the award should be varied to substitute the sum of $13,200 for the sum of
$19,700.

The power of the court to diminish the amount of an award of weekly compensation in the case of a worker who is totally incapacitated contained in paragraph (2)(b)(ii) of the Second Schedule to the Workers' Compensation Act, is, where an application is made for a determination, broadly stated. The court may reduce the payment "to such an amount as is proper" subject to the matters referred to in paragraph (2A). As'a matter of statutory interpretation, I would have thought that paragraph (2)(b)(ii) was not constrained by the wording of paragraph (2)(b)(i) which refers to an "allowance or benefit which the worker receives from his employer during the period of incapacity." If this is correct, the only guidance given by the Act is to be found in the expression "just and proper.11 That being so, I consider that payments made for a worker's benefit of a charitable or gratuitous nature by a third party should be ignored as being irrelevant to the worker's entitlement to receive weekly payments: Denn v Midland Brick Co Pty Ltd (1984-5) 157 CLR 398 at 421 per Brennan J (with whom Mason and Dawson JJ agreed); or alternatively, such payments should be ignored on the basis that they are not intended to be made in relief of the employer's liability to pay compensation, but were intended to be made for the worker's benefit: Denn per Gibbs CJ at 406. Accordingly, the

appeal	against	the	award	for	past	weekly	compensation	is dismissed.

Redemption
The appeal against the award of $261,222 for redemption of future weekly payments was based upon the following propositions (1) the learned magistrate erred in finding that the worker was totally incapacitated for work (2) the learned magistrate should have found that the worker was partially incapacitated for work (3) the learned magistrate should have taken into account the amount received by the worker under the CDEP Scheme (4) the learned magistrate had made no allowance for inflation in fixing the value of the redemption.

For the reasons which I have discussed already I consider that the employers must fail in relation to the first three propositions (1) (2) and (3). Suffice it to say that there was evidence in relation to the worker's future incapacity for work upon which the learned magistrate could have found that the worker was totally and permanently incapacitated for work, and no error of law has been demonstrated.

As to the question of inflation, I consider that that argument was finally put to rest by the majority of the High Court in Commonwealth of Australia v Blackwell (1987) 163 CLR 428. As that case demonstrates, the use by the learned magistrate of a discount rate of 3 per cent in calculating the value of the redemption was correct, and takes into account inflation to the extent permissible by law.

Accordingly the appeal against the award for the redemption of future weekly payments is dismissed.

Lump Sum Benefits
The employers' argument was limited to the assessment by the learned magistrate that the worker had suffered a 100 per cent loss of efficiency in his right leg in and for the purposes

of his employment at the date of his injury: see ss10(5) and
(6) of the Workers' Compensation Act.

It was submitted that the learned magistrate had failed to approach the assessment of this loss in accordance with the observations of Muirhead Jin Gunn Developments (NT) Pty Ltd v Edwards (unreported, 12/4/77) and of Kitto J in The Commonwealth v Matheson (1955) 93 CLR 403 at 414.

The learned magistrate's ultimate conclusion was expressed in this passage of his reasons:
"The worker was a stockman whose basic work involved riding horses, working with cattle and at times in stockyards. The nature of his work required the worker to be physically fit and in particular that both his back and legs were strong and healthy. Considered against this background of employment duties, in my view the worker has suffered a 100 per cent loss of efficiency in his right leg so far as his employment as a station hand is concerned."

This passage, in particular the second sentence, suggests that the learned magistrate took into account irrelevant considerations in assessing the loss of the efficient use of the right leg for the purposes of the worker's employment, namely that the worker's duties required him to be physically fit, and that his back and both legs be strong and healthy. As Muirhead J pointed out in Gunn Developments (at 9):
"··· the question is not, as logic would perhaps demand, whether the worker is fit for his employment, or whether he is able or not able to continue that job or work in the same field of employment •.. The Tribunal must ascertain the nature of the injury which causes the permanent loss of efficiency of the part, and must then consider it against the background of the actual employment duties, not just the general type of employment. It is what his job required of him that will prove important."

At the time of the accident the worker was employed by the employers at Dorisvale Station as a stockman, particularly engaged in bull-catching. He was involved in a motor vehicle accident in November 1986 on the station whilst in the course of his employment. He suffered a fracture of one of the vertebrae of his lower spine with incomplete paraplegia of his

limbs,	worse	on		the right	side.	He		was	taken	to Darwin Hospital	where	an	unstable	burst	fracture	of	LJ	was

identified. He was transferred to the the	Royal	Adelaide	Hospital	on

Spinal Injuries Unit at
11	December	1986.

Investigations there revealed a severe comminuted fracture of L3 and considerable distortion of the spinal cord with pressure on the nerve root from a displaced bony fragment. Surgical procedures were undertaken to decompress the nerve root and stabilise the fracture site. He was discharged from the Rehabilitation Section of the Spinal Unit on 26 February 1987. By that time his incomplete paraplegia had improved, but was not resolved. He returned to Alice Springs where he came under the supervision of the local doctors. In early 1988 he returned to the Royal Adelaide Hospital to have some rods
removed.

At the time of the hearing, the worker's main disability was caused by back pain, particularly when lifting, driving around rough country in motor vehicles, walking distances longer than 300-400 metres, squatting, bending, riding horses, and by excessive activity. The medical experts agreed that this was his main disability. He had been left with stiffness and restriction in his back movements, and ought not lift any heavy weights, ride horses, drive plant or other heavy vehicles, or engage in prolonged sitting or in twisting movements. The discs adjacent to the fused segment were more susceptible to premature injury than a normal spine. The medical experts considered he was unfit to work as a stockman.

So far as the right leg was concerned, the worker had pain around the knee aggravated by crouching, walking, running, kicking a ball, lifting, cold weather, and sitting in an awkward position. There was also some loss of sensation above and around the kneecap and the top of the hip. There were a number of other restrictions which the worker complained he could not do, such as squatting, jumping and swinging onto a horse. Lifting heavy objects caused pain in the lower back and right leg. He said that he was unable to "swing on a horse,

jump over rails and yards, and jump off my horse when he's in full gallop and grab hold of a bull and things like that," and these activities cause pain mainly in his right leg. Lifting caused him to feel weakness in his right leg which felt unstable in the knee, and this feeling was also present when jumping off a horse or a fence. Nevertheless he could still ride horses for recreation and he admitted also to riding in bush races, although he complained of pain after this activity. Dr Johnstone assessed the loss of function in the right leg as between 10-15 per cent for general life experiences, but considered that for the purposes of his employment as a stockman, his right leg had lost 100 per cent of its efficient use. This assessment was based on his view that the worker would not be able to get on and off horses properly, or suddenly dismount from a horse, so that any work involving horses, such as mustering, would be beyond him. However Dr Johnstone conceded that he knew nothing about horse riding or the tasks of a stockman, and in particular what tasks and the time devoted to those tasks, that the worker was actually engaged in at the time of his employment.

The worker's evidence was that work as a stockman involved a number of different activities. He described himself as a "jack of all trades." In the Northern Territory where he had always worked as a stockman, mustering occurs during the dry season. The actual period of time involved in mustering depended on the conditions at the time and the station involved. In addition he would attend to inspecting, repairing and constructing new fencing. This could last for days at a time. Usually he would attend to this in a Toyota, rather than on horseback. The roads on which he might travel varied from "quite good" to "bad." In addition he would inspect and repair bores. He would maintain various equipment including trucks, Toyotas and motorcycles and carry out repairs and maintenance around the homestead and stockmens' quarters. He would inspect cattle, and operate graders to repair station roads. There was also a lot of yard work involving branding and spaying cattle. This was usually done in association with mustering. He agreed

that mustering cattle, riding horses, jumping off horse's to bring down cattle and the like was a small part of what he might do on a station in terms of the time he spent doing his duties overall. But this evidence was given in general terms, not specifically related to his employment with the employers, but to work as a stockman regardless of who the employer might be. He had, prior to being employed by the employers, worked as a stockman on several other pastoral properties in the Northern Territory.

The evidence which specifically addressed his employment with the employers at the time of the accident is somewhat limited. The worker said that he was employed as a stockman, and was particularly engaged in bull-catching, and had been so engaged for three months prior to the accident. Apart from saying that he was no longer able to jump off a horse at full gallop and grab hold of a bull, which I presume the worker did in "bull­ catching," he gave no evidence which specifically describes his actual employment duties with the employers in any detail. The employers, in answers to interrogatories (Ext 4), stated that the worker was employed as a stockman and carried out the duties of a stockman for a variable number of hours per day for five to seven days per week. The employers' solicitors, in a letter dated 8 October 1991, which contained further and better answers to interrogatories ( Ext 6), described his employment duties as "bull-catching, cattle mustering, horse riding and light to heavy manual work." No further details of his employment with the employers was led by either party at the hearing. on the basis that he was employed to carry out cattle mustering, the worker's evidence as to what might be involved in cattle mustering and horse riding was of assistance but the evidence was insufficient to get a clear picture of what precisely was involved in his actual employment with the employers. As Muirhead J observed in Gunn Developments after referring to medical evidence given by a medical practitioner in that case, that the worker's loss of function of the lower leg was 50 per cent, but for the purposes of being a stockman, 100 per cent:

"As a rule, it will suffice if the medical assessment is given objectively in functional terms. It is for the workman, if he looks for compensation in respect of loss of use of a part in a higher percentage because of the nature of his pre-injury employment, to give or call detailed evidence of this employment, the various duties, and the physical demands involved. It is for the arbitrator or tribunal after consideration of this evidence to determine whether the medical assessment of permanent functional loss should be increased in view of its findings as to the employment factors which go to the degree of loss of efficient use within the meaning of ss10(5) and (6). This is not to say, of course, that expert medical evidence as to the efficiency or adequacy of a part to perform a specific function will not be of value."

The question therefore is, whether, notwithstanding that the learned magistrate appears to have approached the assessment by having regard to irrelevant matters, the assessment should still stand, or some other assessment should be made.

As Muirhead J pointed out in Gunn Developments (at 11-12) if the facts show that the injury to the specified part of the body preclude a person employed as a stockman from efficiently carrying out the duties of a stockman, because those duties mainly involve the mustering and tending of cattle whilst on horseback, and the worker's injury precludes the worker from carrying out those duties, the worker is left with little or no residual efficiency when measured against the requirements of his pre-accident employment, even though there are tasks incidental to those of a stockman which he could still do. On the other hand, as Muirhead J observed (at 12):
"If the evidence was that he was a general hand, and that stock work by horse was just one of many duties he performed, then the position would have been different because the concept of 'his employment at the date.of the injury' would have embraced many tasks he could have performed quite well."

In this case, the evidence shows that at the date of the injury, his employment was that of a stockman and he was mainly involved in bull-catching but also in mustering cattle, horse riding and light to heavy manual work. It seems to me that the proper inference to be drawn is that any labouring work was incidental to his employment as a stockman, and that

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the disability to his right leg prevented him from efficiently
discharging his duties as a stockman at all. In this regard, I take into account also, the observation of Muirhead Jin Gunn	Developments	( at	14-15)	"that		when	considering	the situation of a worker whose tasks are associated with horses, allowance	must	be		made		for	sudden	emergencies	which	may arise." Accordingly in my view, the worker's disability in his right leg should be assessed at 100 per cent of the loss of efficient use in and for the purposes of his employment with the employers, and the learned magistrate's conclusion was correct.

Conclusion
In summary, the learned magistrate's award is upheld, and the appeal is dismissed with costs.