PARTIES:					PLEWRIGHT, Glen William

						v
			
						PASSMORE, Mark t/a
						PASSMORE ROOFING

TITLE OF COURT:			Supreme Court of the 
						Northern Territory

JURISDICTION:				Appeal from Work Health Court 
						exercising Territory 								Jurisdiction

FILE NOS:					No. 252/1990

DELIVERED:				Darwin 19 July 1995 

HEARING DATES:				14 May and 13 June 1995

JUDGMENT OF:				Angel J

CATCHWORDS

Workers Compensation - Assessment and amount of compensation - Cessation of payments - Appeal - Error of law where relevant admissible evidence is excluded

Work Health Act (NT), s116

Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, referred to
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, referred to
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32, referred to

REPRESENTATION:
Counsel:
Appellant:		Ian Nosworthy
Respondent:		Jon Tippett

Solicitors:
Appellant:		Elston and Gilchrist
Respondent:		Ward Keller

Judgment category classification: C
Judgment ID Number: ang95008
Number of pages: 7

ang95008

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

No. 252 of 1990			IN THE MATTER of an appeal under
						the Work Health Act

						BETWEEN:

						GLEN WILLIAM PLEWRIGHT
							Appellant

						AND:

						MARK PASSMORE trading as
						PASSMORE ROOFING
							Respondent						

CORAM:   ANGEL J

	REASONS FOR JUDGMENT

	(Delivered 19 July 1995)

	This is an appeal from a decision of the Work Health Court delivered on 4 November 1994.  The two grounds of appeal in the Notice of Appeal are as follows:

	"1.	The learned Chief Magistrate erred in law in failing to make a finding with respect to the most profitable employment reasonably available to the worker.

	2.	The learned Chief Magistrate erred in law in finding that the worker's normal weekly earnings for the period 22 March 1988 to 20 September 1988 were in the amount of $388.30 per week."

	In the course of the hearing, by leave, a third ground of appeal was added, namely: "The learned Chief Magistrate erred in law in adopting schedule "A" to the respondent's written submissions, and, in particular, the figure of 70% appearing therein."  Schedule A was the respondent's calculations of benefits said to be properly payable to the appellant.

	The decision, the subject of this appeal, was made on a worker's appeal against the employer's cancellation of weekly compensation payments pursuant to s69 of the Work Health Act.  The worker challenged the validity of the cancellation.  

	The hearing before the learned Chief Magistrate constituting the Work Health Court was disjointed and lengthy.  The learned Magistrate's reasons for decision run to some 79 pages, wherein he traces the history of the worker's claim, and, inter alia, extensive medical evidence pertaining to the worker's condition.  

	It was common ground that on 22 March 1988, whilst working at Tipperary Station the appellant suffered injury when he fell from a roof on to the ground.  He was paid worker's compensation until 16 November 1988 when the payments were cancelled.  

	The worker's case mounted in the Work Health Court was that he was totally incapacitated.  The learned Chief Magistrate rejected the worker's case based on s65(6) of the Work health Act and found that the worker was partially incapacitated.  He found that there had been continuing partial incapacity for work within the meaning of the Act since "the point in time when the worker was no longer totally incapacitated - that is, not later than 1 March 1990".  

	The learned Chief Magistrate reached no final conclusion as to the extent of partial incapacity, concluding "... I would fix the partial incapacity in percentage terms as between five and ten percent.  However, I would be prepared to hear counsel further on the question of the percentage, if necessary."  The parties have never approached the Work Health Court to finalise that matter.

	The learned Chief Magistrate was presented with each party's calculations as to what benefits were payable to the worker.  There was a dispute as to the quantum of the appellant's normal weekly earnings for the period referred to in the second ground of appeal.  From 22 March 1988 to 20 September 1988 the appellant was paid $388.30 per week.  The employer said this represented the appellant's normal weekly earnings.  The appellant was paid for the first 26 weeks of his incapacity.  In a compensation claim form (exhibit 12) which was prepared by the respondent employer and signed by the appellant whilst he was hospitalised, the figure of $388.30 is entered next to the question "What was your gross weekly wage before your injury or disease?  Do not include overtime."

	The appellant submitted to the learned Chief Magistrate that there was other evidence that should be preferred, the evidence of the worker that it was agreed he would be paid $11 per hour seven days per week, ten hours per day, and the taxation return and associated PPS document for February 1988 (exhibit 4).  The PPS deduction form for February 1988, prepared by the respondent, sets out a gross payment for that month of $2,112 with $318 tax deducted.  These figures indicated the normal weekly earning of the appellant was $528 per week gross in February 1988.

	Thus there was conflicting evidence before the learned Chief Magistrate as to what the normal weekly earnings of the applicant were at the relevant time.  The learned Chief Magistrate concluded that $388.30 was the appropriate figure. He expressed his reasons for reaching that conclusion as follows:

	"Can the figure of $388.30 be reconciled with $528.00?  Which is the better evidence - the claim form or the PPS deduction form?  Each was signed by Mr Plewright and he gave evidence that the contents of the claim form were correct.

	Mr Tippett pointed out that the worker did not plead that the employer had underpaid him or applied the wrong rate to compensation payments between March 1988 and September 1988 and neither did the worker raise the issue in the hearing.  Mr Passmore was not called on the issue by either side.
	In my opinion it is not necessarily the worker's obligation to prove that he was underpaid.  If he has been paid less than his entitlement then the employer is simply obliged to meet the shortfall.  But in this case the worker did not even assert, either before or at trial, that he was being underpaid.

	I agree with Mr Tippett that in the circumstances he should now be precluded from seeking to argue that figures different from those used at the time should now apply to the calculation of the benefit for long term incapacity pursuant to section 65.

	Accordingly I will accept the figures as set out in Annexure A to the employer's final submissions as those applicable to the calculation of the entitlement, if any, for the relevant periods."

	The appellant argued that the learned Chief Magistrate erred in law in determining that the appellant was precluded from relying on the evidence in the taxation return and the oral evidence to the effect that the appropriate figure was $528.  I agree with that submission.  

	When the income tax return was introduced into evidence by the respondent, counsel for the appellant announced to the learned Chief Magistrate that the appellant relied on the taxation return as evidence of normal weekly earnings, adding that she was unclear as to whether there was any issue on the matter.  Counsel for the respondent employer said nothing at the time, and in particular made no submission that the worker was precluded from any such reliance.  

	In the mass of material before the court there is nothing to suggest some sort of estoppel against the appellant by reason of the appellant's conduct of the case.  Counsel for the respondent expressly disowned any reliance on estoppel.  The pleadings before the learned Chief Magistrate did not determine the issue.  

	It is undoubtedly the case that wrongly to admit or wrongly to exclude evidence constitutes error of law.  So, too, is it to err in law to exclude all consideration of relevant admitted evidence.  Relevant evidence before the court is to be considered even if it is ultimately to be rejected in preference to other evidence.  It is apparent from the learned Chief Magistrate's reasons that rather than weigh all the evidence and prefer one lot of evidence to another, he altogether excluded consideration of the tax return and other evidence relied upon by the appellant.

	Before this court, counsel for the respondent, relying on Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, and Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37-38, contended that the learned Chief Magistrate was entitled to make a finding of fact, that he had made that finding and that the finding was not vitiated by reason of the fact he did not have regard to the other evidence.  Regardless of the reasons of the learned Chief Magistrate for reaching his conclusion, it was said, if there is evidence supporting the finding there is no error of law and thus no ground of appeal since appeals to this court from the Work Health Court are confined to matters of law: s116 Work Health Act.  I can not agree with this submission.  As I have said, wrongly to exclude all consideration of relevant admitted evidence is to err in law.  The learned Chief Magistrate only accepted the figure of $388.30 because he precluded consideration of the figure of $528.  He did not prefer one figure to another.

	It follows from this that appeal ground 2 is made out and that the appeal should be allowed and that the learned Chief Magistrate's determination that the appellant was earning $388.30 per week as his normal weekly wage should be set aside.

	As to the appeal ground 3, counsel for the respondent conceded that the calculations presented to the learned Chief Magistrate wrongly overlooked the retrospective effect of an applicable amendment to the Work Health Act and that a percentage figure of 70% used in the calculations ought to have been 75%.  The learned Chief Magistrate's decision to adopt the 70% figure is also set aside.

	It is unnecessary to deal with appeal ground 1.
	The appeal is allowed.
	The appellant shall have his costs of the appeal.  

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