Wang v Watkins (Overseas) Ltd [1963] PNGLR 50 (21 March 1962)

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WORKERS’ COMPENSATION - Worker totally and permanently incapacitated, also loss of use of both legs - Whether worker entitled to lump sum payment under Fourth Schedule in addition to periodic payments under Second Schedule - Appeal from Arbitrator - Workers’ Compensation Ordinance 1958-1961 Section 13(2).

The Appellant worker, employed by the respondent company, suffered serious injuries in the course of his employment. These included injuries to his spine which deprived the worker of the use of both his legs. In Arbitration proceedings under the Workers’ Compensation Ordinance 1958-1961 the respondent employer conceded that the worker was totally and permanently incapacitated. The worker claimed weekly payments of compensation under the Second Schedule and a lump sum payment under the Fourth Schedule for the loss of use of his two legs. The Arbitrator awarded the worker Ł2 7s. 3d. per week under the Second Schedule and Ł634 10s. under the Fourth Schedule. From this Arbitration the employer appealed to strike out the award under the Fourth Schedule.

The provisions of Section 13(2) of the Workers’ Compensation Ordinance 1958-1961 do not create a new liability to pay compensation under the Fourth Schedule in cases of total and permanent incapacity but are merely descriptive of compensation granted in Sections 8 and 11. Appeal allowed.

There is much to be said for the view that the words “which shall be assessed in accordance with the Second and Fourth Schedule to this Ordinance” of Section 13(2) of the Ordinance were added to make it clear that although in general compensation in the case of death and total permanent incapacity is to be unlimited, nevertheless it is subject to the various provisions of the Second Schedule as, for example, the provisions for downward adjustment in paragraph 2 (a) of that Schedule.

These were two appeals from an award of Mr. R. G. Ormsby at Madang acting as Arbitrator under the Workers’ Compensation Ordinance 1958-1961, whereby he awarded the worker Ł2 7s. 3d. a week compensation for total and permanent incapacity under the Second Schedule and a lump sum payment of Ł634 10s. under the Fourth Schedule for the loss of use of both legs in the same accident in which he was rendered totally and permanently incapacitated. There was also an appeal by the worker Pius Wangi, seeking to increase the amount awarded to him by the Arbitrator under the Fourth Schedule. It was conceded by the employer, Watkins (Overseas) Limited, that the injuries had arisen in the course of the worker’s employment and that, as a result, he had become totally and permanently incapacitated for work and that the same injuries had resulted in the worker losing the use of both his legs. The report is concerned with the first of these appeals.

After reading the terms of the Arbitrator’s award, His Honour continued “Against this award the employer has appealed to this Court seeking a variation by striking out paragraphs 1 and 3 of this award. The worker has appealed seeking a variation of paragraph 3 of the award by substituting for the sum of Ł634/10s. the sum of Ł951/15s. An Order was made herein by the Registrar that both Appeals be heard together.”

In the Arbitration it was agreed by both parties that by reason of injuries suffered by the Appellant by accident arising out of or in the course of his employment he had been rendered totally and permanently incapacitated for work. The injuries included spinal injuries which inter alia deprived the Appellant of the use of both legs.

No contest arises as to the entitlement of the worker to the weekly payments referred to in paragraph 2 of the award.

Mr. Cruickshank contended that his client is entitled to an award of a lump sum calculated in accordance with the Fourth Schedule for the loss of the use of two legs in addition to weekly payments during his incapacity.

In order to sustain this contention, it is necesary for Mr. Cruickshank to be able to point to some provision of the Ordinance or its Schedules which on its proper interpretation creates a right in his client to this added benefit.

Sections 8 and 11 of the Ordinance state in positive terms that the worker is to be entitled to certain benefits in certain circumstances. Section 8 provides that in the case of personal injury by accident to a worker his employer shall, subject to the Ordinance, be liable to pay compensation in accordance with the Second Schedule to the Ordinance.

Section 11 provides that, subject to the Ordinance, when a worker sustains any of the injuries specified in the first column of the Fourth Schedule to the Ordinance, the compensation payable shall, when the injury results in incapacity other than total and permanent incapacity for work, be the amount specified in the second column of that Schedule for that injury.

If the mater stopped there, it is quite clear that the worker could not receive a benefit under Section 11 of the Fourth Schedule because this injury did result in total and permanent incapacity for work.

It is said, however, that on the proper interpretation of Section 13 (2) there is to be found a provision creating a right in the Appellant to a payment of the amount shown in the Fourth Schedule as appropriate to any Fourth Schedule injury which he suffered - in this case, loss of the use of both legs.

Apart from Section 13 (1) the operative provisions entitling workers to benefit would in some cases continue until very large sums had been paid thereunder. Section 13 is a Section which is primarily directed to declaring a maximum amount beyond which the worker’s entitlement and the employer’s liability shall not extend.

Section 13 (1) provides that notwithstanding anything contained in the Ordinance the amount of compensation payable in respect of an injury or injuries caused by any one accident shall not, except as provided by that section, exceed Ł3,000.

Section 13 (2) states, “Where an injury results in the death or the total and permanent incapacity of the worker for work, the last preceding subsection shall not apply to limit the total amount of compensation payable under this Ordinance, which shall be assessed in accordance with the Second and Fourth Schedules to this Ordinance”.

It is argued that the effect of the words italicised above, hereinafter called “the new words” is to enact that in the case of a worker who is totally and permanently incapacitated there shall be a right in him to recover all sums to which the worker might be entitled by reason of Section 8 under the terms of the Second Schedule and also to recover the sums set out in the Fourth Schedule opposite any of the named injuries which the worker may have suffered. It is to be noted that it was unnecessary to provide any such positive enactment in respect of the Second Schedule payments because they are already independently secured to the worker, or in the case of death to him and his dependants by Section 8 and Section 5 (2).

It is pointed out that the new words were inserted in Section 13 (2) by way of addition to the terms of that subsection as it appears in the Ordinance in force immediately before the Ordinance of 1958. That Ordinance contained provisions corresponding to Section 11 (1), Section 11 (2), Section 13 (1) and, but for the new words, Section 13 (2). Under that Ordinance it is clear that a person suffering a total and permanent incapacity could claim no benefit in the nature of a Fourth Schedule payment because the only provision conferring Fourth Schedule benefits are expressly excluded him therefrom.

It is said, therefore, that the insertion of the new words was a device adopted to reform this exclusion. It is said also that unless that meaning is ascribed to the words in question then the purpose of their inclusion is obscure and they have no work to do.

To this Mr. White makes answer that the words in question are inapt to express the positive grant of a benefit and that they appear in a Section which is concerned not to grant benefits but to declare the limits or lack of limits of benefits granted elsewhere in the Ordinance.

It is also said for the employer that in view of the exclusion by Section 11 (1) of the Fourth Schedule benefits by express words in the case of persons totally and permanently incapacitated, it might have been expected that a provision intended to reverse that exclusion would have been made by some unequivocal expression to be found perhaps in an amendment of that Section or at any rate having some compelling reference thereto.

It is also said that the scheme of the Act does not encourage the view that legislative policy would be likely to envisage the payment of a Fourth Schedule benefit against a background of continuing weekly payments. Reference to Sheppard v. United Stevedoring Proprietary Limited[lxvi]¹, provides some support for this view. Again it is said that the task of the worker is to extract from the new words the positive enactment of a liability of the employer to pay and that the word “assessed” is a word more apt to express the notion of calculating something otherwise ordered to be paid than to create an original liability in respect of something not otherwise ordered to be paid.

The strength of the argument for the worker lies in the difficulty of ascribing any purpose to the new words unless they are intended to create some additional entitlement in the worker or his dependants. If they do create an additional entitlement they do so only in respect of the Fourth Schedule payments. On the worker’s contention the words must be taken to mean that in cases of death or total permanent incapacity, there shall be a payment by reference to the Fourth Schedule as well as payments under the Second Schedule. Considered in relation to death, this must be taken to mean either, nothing, because the Fourth Schedule does not deal with death, or to mean that there shall be a payment by reference to the various members of the body, loss of use of which is caused by the death. This latter is absurd. If therefore the words are intended to create a new liability they fail to do so with regard to death. This throws considerable doubt on the suggestion that they do create a new liability at all. So far as cases of total permanent incapacity are concerned, it is difficult to believe that the legislature intended to reform Section 11 (1) by the unclear method of putting the new words into Section 13.

The argument for the employer, that the new words are merely descriptive of the compensation made payable under the Ordinance, makes it possible to give them a meaning with reference to death, because there could have been weekly payments and a Fourth Schedule payment prior to death. It is then contended for the worker that this view of their function leaves them without a meaning with reference to total and permanent incapacity because in that case the Ordinance does not otherwise provide for a Fourth Schedule payment; and therefore the argument that they are merely descriptive of a substantive grant of compensation to be found in some other section fails because they cannot operate upon one of the situations to which they appear to have a grammatical reference.

I do not think this is a compelling argument because once it is admitted that the words could do some work, namely in cases of death, then there is some reason for their existence, and it is not necessarily to the point that they do not do work with reference to every set of circumstances the subject of Section 13 (2).

If therefore the problem resolved itself into a contest between reading the new words as descriptive of the compensation payable by the force of Section 8 and Section 11 or as creating a new and additional right in the worker, I think the better view is that the former construction is to be preferred.

But I think there is much to be said for the view that the new words were added to make it clear that although in general compensation in the case of death and total permanent incapacity is to be unlimited, nevertheless the provisions of the Second Schedule providing, for example, in paragraph 2 (a) for a downward adjustment where the Fourth Schedule payments have been made and death has supervened, and in paragraph 13, since repeated, for payment of a lump sum of an amount less certain circumstances than the Fourth Schedule payment appropriate to the injury suffered, are to apply in the case of entitlements on death and total permanent incapacity. Used in this sense the new words do the opposite of what is claimed for them on behalf of the worker. I am inclined to think this is the true explanation of the insertion of the new words. I therefore think that they cannot be used to create a new original liability to pay under the Fourth Schedule as well unlimited weekly payments in the case of a totally and permanently incapacitated worker.

The appeal by Watkins (Overseas) Limited must therefore be allowed and it follows that the appeal by the worker must be dismissed.

So far as costs are concerned, I think the employer failed to take this obviously arguable matter seriously enough at the Arbitration proceedings. There is, of course, a disinclination on the part of the Court to visit a liability for costs on a worker who is seriously injured and has not acted unreasonably in the proceedings. In addition, the employer paid no costs of the Arbitration.

I did think the worker should contribute to some degree to the costs of the successful Appellant, but when I come to consider the amount involved, it seems to me to be so small as to lack significance to the employer but to constitute a considerable burden to the worker. I think therefore that the proper Order in the circumstances is that each party bear its own costs.

[lxvi][1953] VicLawRp 91; 1954 A.L.R. 529.

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Papua New Guinea Law Reports

Wang v Watkins (Overseas) Ltd [1963] PNGLR 50 (21 March 1962)

Papua New Guinea Law Reports - 1963