PARTIES:	NORTHERN CEMENT PTY LTD
v
IOASA, Uni
TITLE OF COURT:	SUPREME COURT OF THE NT
JURISDICTION:	UNDER WORK HEALTH ACT
FILE NO:	240 of 1993
DELIVERED:	17 June 1994
HEARING DATE:	6 May 1994
JUDGMENT OF:	MARTIN CJ.
CATCHWORDS:
Workers' Compensation - Employer cancelling payments Work Health Act, ss65, 68, 69 & 104
Davison v Totalizator Administration Board (1988) 56 NTR 8, referred to.
Barbaro v Leighton Contractors (1980) 30 ALR 123, referred to.

Workers' Compensation - For what injuries compensation is payable
Work Health Act, s3, "incapacity"
R Hoe and Company Ltd v Dirs (1941) 1 KB 34 at 39, 41, referred to.
Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171 at 178, applied.

Workers' Compensation - Sufficiency of evidence and onus of proof
Phillips v Commonwealth (1964) 110 CLR 347, applied.
J & H Timbers Pty Ltd v Nelson (1977) 126 CLR 625, applied.
Morrissey v Conaust (1991) 77 NTR 19, applied.
Purkess v Crittenden (1965) 114 CLR 164 at 167-168, applied.

Workers' Compensation - proceedings to obtain compensation - determination of claims -
Work Health Act, s104

Workers' Compensation - Assessment and amount of compensation - Amount of compensation during incapacity -
Work Health Act, s65(1) and (2)(b)
Workers' Compensation - Assessment and amount of compensation
- Review of award

REPRESENTATION:
Counsel:
Appellant:	J Waters Respondent:	S Gearin
Solicitors:
Appellant:	Elston & Gilchrist Respondent:	Mildrens

Judgment category classification Judgment ID Number: mar94006 Number of pages: 13
DISTRIBUTION:	LOCAL

mar94006
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 240 of 1993

BETWEEN:
NORTHERN CEMENT PTY LTD
Appellant

AND:
UNI IOASA

Respondent

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT
(Delivered 17 June 1994)

This is an appeal by the employer from a decision of the Work Health Court by which the respondent worker was awarded compensation, in accordance with the Work Health Act, in the sum of $54.90 per week as and from 25 March 1993.	The appellant contends that the respondent was not entitled to any award and seeks an order that he pay the costs of the proceedings in the Work Health Court and in this Court.

The first four grounds of the appeal are that the Court erred in its finding that the respondent suffered a partial incapacity within the meaning of the Act, findings which provided

the foundation for the making of the award.	In particular, it is said that such a finding was inconsistent with other findings of the Court as to the respondent's capacity for work.		Error was also imputed to the Court in finding that certain jobs, in which the worker had previously engaged, were not reasonably available to him because he had lost the sight of one eye in the work related accident which gave rise to his claim for compensation.	Questions relating to dux litis and onus of proof also arose.

At the commencement of the hearing of the appeal there was added to the grounds of appeal, by consent, the following:

The Court in finding that the worker had not discharged his onus in proving the level of incapacity, found sufficient other evidence to determine a level of incapacity.

As the argument was developed, it became clear that there were two issues subsumed under this one general ground of appeal, the first going to the question of onus of proof arising in the circumstances of this case, and the second, as to whether such evidence as there was available was sufficient to enable a finding of incapacity to be made.

The findings in the Work Health Court which were not in dispute, and which provide the general background to this matter, were :

That the respondent was at all material times an employee of the appellant.

He was employed as a kiln operator.

On or about 24 August 1990, he suffered injury by accident when an object invaded his left eye and he subsequently lost the sight in it.

The employer accepted liability under the Act without any proceedings having been instituted by the worker, and commenced payment of the appropriate weekly compensation benefits on the basis that the worker was totally incapacitated for work as a result of the injury.

At about the end of March 1993 the employer cancelled the compensation payments upon the basis that the worker had failed to comply with the rehabilitation programme (s75B(2)) and that he had demonstrated a capacity to work.	(The finding by the Work Health Court that the worker had not failed to comply with the rehabilitation programme is not challenged on appeal).

The worker's response to the cancellation of his weekly compensation payments was to make application to the Work Health Court for: "a decision of the liability and/or the amount of compensation payable by the employer to the worker".	In it the

worker claimed that he had "a capacity for work but retains an incapacity and inability or limited ability to undertake paid work because of injury .... ".	(See definition of "incapacity" s3).

His Worship approached the task by posing for himself a series of questions which, relevantly, were as follows:

Whether the worker was no longer totally incapacitated for work as a result of the injury out of which his incapacity arose (s65(1) of the Act).

If yes to that question, whether the worker is partially incapacitated for work as a result of the injury out of which his incapacity arose (s65(1)).

If yes to the last question, what is the amount, if any, the worker is from time to time reasonably capable of earning in a week during normal working hours in work he is capable of undertaking if he were to engage in the most profitable employment, if any, reasonably available to him (s65(2)(b)).

His Worship went on to hold that on the first question the employer bore the evidentiary and legal onus to satisfy the Court of the matters there raised on the balance of probabilities, but that the worker bore the evidentiary and legal onus on the remainder of the matters raised by the questions.	In that his

Worship was correct.	His Worship expressly reminded himself that in relation to the issue of the amount that the worker is from time to time reasonably capable of earning within the parameters of s65(2)(b), he must have regard to the matters referred to in s68.	It provides that in assessing what is the most profitable employment available to a worker for the purpose of s65 regard shall be had to:

his age;
his experience, training and other existing skills;
his potential for rehabilitation training;
his language skills;
the potential availability of such employment;
the impairment suffered by the worker, and
any other relevant factor.

An employer is enabled, in the circumstances described in s69, to unilaterally cancel or reduce payments of compensation. If an employer cancels or reduces payments in purported reliance on s69, the employer acts contrary to law and ought to gain no benefit from that unlawful conduct.	Hence it is upon the employer to prove that its unilateral action falls within the section.
As a consequence of the amendments, which came into operation on
1 January this year, the Act now makes it clearer that a worker may commence proceedings under s104 for recovery of compensation where payments had been made, but cancelled or reduced under s69 (as to the position previously see Davison v Totalizator

Administration Board (1988) 56 NTR 8).	In so doing the worker is entitled to the full advantage to be derived from the fact that payments of compensation had been previously made and had not been cancelled or reduced following a judicial determination or agreement.	The employer should be in no better position than if there was no right to cancel or reduce payments (Barbaro v Leighton Contractors (1980) 30 ALR 123) or if the employer had applied to the Court for an order or ruling under s104.	But a finding that a worker has ceased to be totally incapacitated is not a finding that he is not partially incapacitated, and if a worker seeks to establish that he is partially incapacitated if it is found he is no longer totally incapacitated, then he must prove it (Phillips v Commonwealth (1964) 110 CLR 347; J & H Timbers Pty Ltd v Nelson (1977) 126 CLR 625; Morrissey v Conaust (1991) 77 NTR 19).

The Court found that the worker had lost the sight in his left eye, that he was aged 23, was fit, healthy and apparently a strong male with no incapacity in any part of his body apart from that.	It was found that he was able to stand, sit, walk, run, bend, stretch, use his legs, use his arms, use his hands, use his back and lift weights, all within normal limits, and was able to drive a motor vehicle.	The consequent finding that the employer had satisfied the Court that the worker was not totally incapacitated for work was hardly surprising.

His Worship then turned to consider whether or not he was satisfied that the worker suffered from a limited ability to

undertake paid work because of the loss of his eye. He found that until the accident he had experience as a sampler, assayer, general labourer, gardener, garbage collector, fruit picker and kiln operator, and that all of that was still within his physical capabilities.	He also found that the worker was poorly motivated to return to work and had not taken reasonable steps to look for gainful employment.	However, his Worship went on to find, in effect, that given that he had only one operative eye, the worker had a limited ability to undertake paid work in that it was reasonable for him to avoid employment which might involve the risk of injury to his good eye.	The jobs of assaying and kiln operating were within that category.		It was this finding which lay behind the appeal.	Given all that had been found as to the worker's capacity for work, and the absence of any medical or other cogent evidence that the worker ran a risk of injury to his good eye, it was argued that his Worship erred in law in making a finding that he had suffered any incapacity.	There was no medical or other expert evidence that the worker ran a risk of injury to his right eye should he return to work as an assayer or kiln operator, but there was evidence from the worker as to the nature of that work and upon which it was open to the Court to find that there was a risk of injury to an eye in the course of it.	In the words of Sir Wilfrid Greene MR in R Hoe and Company Ltd v Dirs (1941) 1 KB 34 at p39: "It does not require evidence to show that the loss of the remaining eye of a one-eyed man is a very much more serious thing than the loss of one eye to a two-eyed man".	In that case what was being considered was whether or not the job offered to

the worker was "suitable employment", and there was, in view of the Master of the Rolls, ample evidence to justify a finding that men employed as fitters in an engineering shop must run the risk of injury to the eyes (see p39), and at p41:

"[T]he original accident having occurred in the employment of the employer, the man's position and physical status as a workman is entirely changed and he is to be dealt with on the footing that he is an injured man whose injury has put him in the position that what to an ordinary man would be a legitimate risk to take has become a risk which is wholly unreasonable to ask him to take".

His Worship was quite correct in finding that the worker had suffered a partial incapacity for work in that he had a limited ability to undertake paid work because of the injury. In the words of the majority of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171 he had a "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" (p178).

To be entitled to an award of periodical compensation under the Act, it was also necessary for the worker to show that he suffered a loss of earning capacity (s65(1)).	By subs(2) of that section loss of earning capacity is the difference between his normal weekly earnings indexed in accordance with subs(3) (agreed at $480) and the amount, if any, he is from time to time reasonably capable of earning in a week during normal working hours

in work he is capable of undertaking if he were to engage in the most profitable employment, if any, reasonably available to him. It is the most profitable employment, if any, reasonably available to the worker, not reasonably available to anybody which must be considered, and, in that regard, his physical condition must be a factor.	It is inherent in the Court's findings that the specified employment was not reasonably available to the worker because risk of injury to his right eye made it reasonable for him to decline to work further in any such occupation.	That was open, not only on the evidence, but as a matter of common sense. He was thus not able to regain his earning capacity in those jobs.

The question of onus of proof also arises in relation to this issue, for it is the worker who claims and must show not just that he is partially incapacitated, but also that he has lost earning capacity as a result.	Depending upon the circumstances, the worker may wish to show that he is not reasonably capable of earning anything within the parameters prescribed in s65(2)(b) or that he is capable of earning something, but less than his normal weekly earnings.	The employer, on the other hand, will often wish to minimise the amount which must be paid by showing that the worker is reasonably capable of earning, within those parameters, an amount equal to, or in excess of, his normal weekly earnings.
In this case the worker was content to base his claim for compensation upon the proposition that by reason of his incapacity he was not reasonably capable of earning anything because there was no employment reasonably available to him.	Consistent with

that attitude, he did not put forward any evidence which would shed light on his earning capacity in financial terms.	At the close of the respondent's case before the Work Health Court, there was evidence, as his Worship found, to support findings that he was not then totally incapacitated for work, but that because of the loss of his left eye, he suffered from a partial incapacity, in particular, in relation to occupations which might present a hazard to the sight in his remaining good eye.	No evidence had been presented by the worker as to the amount which he was from time to time reasonably capable of earning within s65(2)(b).	It was, after all, his case that he was totally incapacitated and the employer had to prove otherwise.	It is not necessary in this case to consider what the position would have been had the appellant not gone into evidence in relation to the amount which it sought to show the worker was capable of earning.	Perhaps the respondent would have been entitled to have nothing more than a declaratory order as to his incapacity to undertake paid work.

The appellant, however, placed in evidence a number of industrial Awards covering the occupations of general labourer, groundsperson and gardener, being amongst the occupations which it contended, and his Worship found, were reasonably available to the worker.	Of those, the most profitable employment was that of a general labourer under the Building and Construction Award for which the Award wage was $406.80 per week.	Based on an award of 75% of the difference between that sum and $480, his Worship ordered that the appellant pay the worker weekly payments of

compensation under the Act in the sum of $54.90 per week (s65(1)). Those calculations are not challenged.	In choosing the sum of
$406.80 as the amount which the worker was reasonably capable of earning, his Worship fixed on the lesser of two amounts payable under the Award, that is, for "off-site work" as opposed to "on-site work".	That choice meant that the compensation award was higher than it would otherwise have been.	His Worship made the choice because there was no evidence as to what was meant by either of those two phrases nor any evidence upon which he could make a finding that on-site work was reasonably available to the worker. His Worship was correct in regarding the matter in that way since if the employer contended that the higher amount payable under the Award should be adopted, then it should have led evidence upon which a finding to that effect could be made.		There is a distinction to be made between the onus resting upon the worker to show that partial incapacity for work, in the sense of suffering some inability or limited inability to undertake paid work because of an injury, and the amount which the worker is reasonably capable of earning within the parameters of s65(2)(b).	In respect of the quantification of loss of earning capacity, it is up to the employer to point to evidence in the case minimising his liability in monetary terms.	It would be unreasonable to require the worker "to prove an open ended negative", such as that he was not capable of earning more than an amount which he chooses to rely upon.
Once there is evidence to demonstrate incapacity and loss of
earning capacity on the part of the worker, then minimising the financial consequences of such findings rests with the employer.

The powers available to the employer under the Act, such as in s75B, in relation to treatment, training, rehabilitation and assessment of a worker, and the penalty upon a worker who unreasonably fails to undertake the same as provided in subs(2) of s75B, work together to ensure that an employer is not disadvantaged when it comes to showing the earning capacity of the injured worker.

It is helpful to recall:

"The expression "burden" or "onus" of proof, "[a]s applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden as it has been called, of establishing a case whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence" " (Phipson on Evidence (10th Ed) para 92, as quoted by the High Court in Purkess v Crittenden (1965) 114 CLR 164 at 167-168).

As to which Barwick CJ., Kitty and Taylor JJ. said in
Purkess v Crittenden (supra at 168):

"The position is, we think, correctly stated by the learned author .... when he says: 'the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates'".

As to the right to begin. In a case such as this the employer has cancelled or reduced the periodical compensation paid to the worker, and the worker's remedy is to apply to the Court for a determination of his rights. He must prove his case, but

he does so with the benefit of the admissions constituted by the payments made to him and such further evidence as he chooses to present.	He is entitled to begin, but the question of which side bears the onus on particular issues as they arise is not thereby disturbed.	At the close of all of the evidence the tribunal of facts considers and evaluates it, makes such findings of fact as are open on that evidence, and decides upon the basis of those findings whether the relevant onus has been discharged.

The appeal is dismissed.	The appellant is ordered to pay the respondent's costs of the appeal.