[1971-72] PNGLR 128

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

KARU-KAPAPITAE

V

THE ADMINISTRATION OF THE TERRITORY OF PAPUA AND NEW GUINEA

Port Moresby
Minogue CJ Clarkson Kelly JJ

29 April 1971
14 May 1971

WORKERS’ COMPENSATION - Total and permanent incapacity - Loss of use of part of body - Whether entitlement to lump sum payments as well as periodic payments - Workers’ Compensation Ordinance 1958-70, ss. 8[clix]1, 11[clx]2, 13(2)[clxi]3; Second and Fourth Schedules.

The appellant worker received a fractured skull in the course of his employment; as a result he suffered extensive brain damage causing partial loss of the use of an arm and a leg, memory deficiency and post traumatic epilepsy, such that he was totally and permanently incapacitated for work. He claimed weekly payments in accordance with par. 1 (b) of the Second Schedule to the Workers’ Compensation Ordinance 1958-1970 in respect of the total and permanent incapacity, and also lump sum payments under the Fourth Schedule to the Ordinance in respect of the loss of use of an arm and a leg.

Held

That the provisions of s. 13(2) of the Workers’ Compensation Ordinance 1958-1970 do not create a new liability to pay compensation under the Fourth Schedule but are merely descriptive of the compensation granted in ss. 8 and 11.

Pius Wangi v. Watkins (Overseas) Ltd, [1963] P. & N.G.L.R. 50, approved; The Commonwealth of Australia v. Matheson (1955), 93 C.L.R. 403, followed.

Accordingly the worker was not entitled to lump sum payments in respect of the partial loss of use of an arm and a leg in addition to weekly payments for total and permanent incapacity for work.

Point of Law reserved by Kelly J

The worker made application for an arbitration under the Third Schedule of the Workers’ Compensation Ordinance 1958-1970 claiming an entitlement to weekly payments of $7.35 for total and permanent incapacity under par. 1(b) of the Second Schedule and lump sum payments under the Fourth Schedule in respect of partial loss of use of an arm and leg. After hearing the matter the District Court at Rabaul made an order for weekly payments under par. 1(b) of the Second Schedule and refused to make an order for lump sum payments under the Fourth Schedule. From that order the worker appealed to the Supreme Court and Kelly J. reserved a point of law for the consideration of the Full Court pursuant to ss. 11 of the Supreme Court (Full Court) Ordinance 1968, namely:

Is the appellant entitled to lump sum payments under the Fourth Schedule in respect of the partial loss of use of an arm and a leg in addition to weekly payments for total and permanent incapacity under paragraph 1(b) of the Second Schedule?

Counsel

Miss M. F. J. Campbell, for the appellant.
A. J. Croft, for the respondent.
Cur. adv. vult.

14 May 1971

MINOGUE CJ CLARKSON KELLY JJ: delivered the following joint judgment:
Karu-Kapapitae, to whom we shall refer as “the worker”, who was at all relevant times an employee of the Administration of the Territory of Papua and New Guinea, whilst driving a tractor in the course of his employment on 27th February, 1967, struck his head on the tractor when it overturned and suffered a severe compound fracture of the left side of the skull causing extensive brain damage and paralysis to the right of the body. The fracture required surgical treatment and part of the brain controlling voluntary movement in the opposite side (the right side) of the body was removed. A further area of the brain was removed, this area being described as an association area controlling speech and other sensory abilities.

After convalescence the worker’s condition stabilised to the extent of a fifty per cent loss of the use of his right arm and leg for ordinary purposes. For employment purposes the loss of use of limbs was up to eighty per cent. In addition the worker suffers from loss of short term memory and an inability to perform tasks involving design or pattern. In approximately August 1968 the worker was re-admitted to hospital suffering from severe post-traumatic epilepsy caused by scars on the surface layers of the brain arising from the fracture sustained in the accident. After treatment the worker returned to his place of employment where he has continued to be employed on light office cleaning duties because of the employer’s sense of moral obligation.

It is agreed that on the totality of the injuries suffered, namely the partial loss of use of arm and leg, memory deficiency, inability to perform tasks involving design or pattern and post-traumatic epilepsy, the worker is totally and permanently incapacitated for work. It is also agreed that having regard only to the partial loss of the use of an arm and leg the worker would be greatly restricted in the area of employment for which he would be capable but that nevertheless a limited number of positions including a few at his place of employment would be open to him and that this would also be the case if regard were to be had only to injuries other than the partial loss of the arm and leg.

The worker made application for an arbitration under the Third Schedule to the Workers’ Compensation Ordinance 1958-1970 claiming an entitlement to weekly payments of $7.35 for total and permanent incapacity under paragraph 1(b) of the Second Schedule and lump sum payments under the Fourth Schedule in respect of partial loss of use of an arm and leg. After hearing the matter the District Court at Rabaul made an order for weekly payments under par. 1(b) of the Second Schedule and refused to make an order for lump sum payments under the Fourth Schedule. From that order the worker appealed to the Supreme Court and Kelly J. reserved a point of law for the consideration of the Full Court pursuant to s. 11 of the Supreme Court (Full Court) Ordinance 1968, namely:

Is the appellant entitled to lump sum payments under the Fourth Schedule in respect of the partial loss of use of an arm and a leg in addition to weekly payments for total and permanent incapacity under par. 1(b) of the Second Schedule?

Section 8(1) of the Workers’ Compensation Ordinance 1958-1970 provides:

“If in any employment personal injury by accident arising out of or in the course of the employment is caused to a worker, his employer shall, subject to this Ordinance, be liable to pay compensation in accordance with the Second Schedule to this Ordinance.”

The Second Schedule sets out the scale and conditions of compensation (a) where the death of the worker results from the injury, (b) where the worker is totally incapacitated for work by the injury, and (c) where the worker is partially incapacitated for work by the injury. The remaining subsections of s. 8 contain a number of detailed provisions which are not relevant to the present question.

Section 11 provides:

“(1)    Subject to this Ordinance, where a worker sustains by accident arising out of or in the course of his employment any of the injuries specified in the first column of the Fourth Schedule to this 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 opposite the specification of the injury in the first column.

(2)      Upon payment of an amount under this section the worker shall not be entitled to payment in accordance with subparagraph (b) or subparagraph (c) of paragraph (1) of the Second Schedule to this Ordinance in respect of a period of incapacity for work resulting from the injury, but the amount payable under this section shall not be subject to any deduction in respect of any amount previously paid to the worker in accordance with those subparagraphs.

(6)      Where a worker sustains an injury which causes partial and permanent loss of the efficient use, in and for the purposes of this employment at the date of the injury, of a part of the body (other than the eye) specified in the Fourth Schedule to this Ordinance, there shall be payable an amount of compensation equivalent to such percentage of the amount of compensation payable under this section in respect of the loss of that part as is equal to the percentage of the diminution of the efficient use of that part.

(7)      For the purposes of this section and of the Fourth Schedule to this Ordinance, the loss of a specified part of a worker’s body shall be deemed to include—

(a)      the permanent loss of the use of that part; and

(b)      the permanent loss of the efficient use of that part in and for the purposes of his employment at the date of the injury.”

It is not necessary to set out the provisions of the remaining subsections of s. 11. The Fourth Schedule is entitled “Compensation for Specified Injuries”; the first column specifies the nature of the injury as, for example, “Loss of right arm, or greater part of right arm”, and the second column specifies the amount payable.

The only other section of the Ordinance which requires notice is s. 13, sub-ss. (1) and (2) of which are as follows:

“(1)    Notwithstanding anything contained in this Ordinance, the amount of compensation payable in respect of an injury or injuries caused by any one accident to a worker shall not, except as provided by this section, exceed Ten thousand dollars.

(2)      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.”

The key provision for the present purposes is s. 11(1) and in particular the meaning to be given to the words “when the injury results in incapacity other than total and permanent incapacity for work”. “Injury” is defined in s. 5 as meaning any physical or mental injury or the aggravation, acceleration or recurrence of a pre-existing injury.

The interpretation of the corresponding provision (s. 12(1)) of the Commonwealth Employees’ Compensation Act 1930-1950 which is in essence in identical terms to s. 11(1) of the Workers’ Compensation Ordinance was considered by the High Court in The Commonwealth v. Matheson[clxii]4. The case there being considered was not one of total and permanent incapacity but one where two separate injuries, one to the left leg and one to the right leg and hip, had been sustained in the same accident, the overall effect of which was to permanently partially incapacitate the employee for work. The court held that the employee was entitled both to a lump sum payment under the Third Schedule (corresponding to the Fourth Schedule to the Workers’ Compensation Ordinance) for injury to the left leg and to a periodical payment under the First Schedule (corresponding to the Second Schedule of the Workers’ Compensation Ordinance) for partial incapacity resulting from the injury to the right leg and hip.

Kitto J.[clxiii]5 referring to the Third Schedule to the Commonwealth Act,

“But strictly speaking the ‘injuries’ specified in that Schedule, as in sub-s. (1) of s. 12, are not injuries; they are losses of certain parts of the body by or in consequence of injury. Subsections (5) and (6) use more precise language. Subsection (6) extends the schedule to the permanent (and total) loss of the use of such parts (i.e. for any purpose) and to the permanent (and total) loss of their efficient use in and for the purposes of the employment at the date of the injury, and sub-s. (5) extends it to the permanent and partial loss of the efficient use of such parts in and for the purposes of that employment. If any such loss of use as is mentioned in either sub-s. (5) or sub-s. (6) is caused by an injury, it is not, I think, necessary to inquire whether the cause of that loss was an injury to the part of the body the use of which has been lost or to some other part of the body or to both. All that matters is that the use lost is of a part specified in the Third Schedule.”

It may be noted that sub-ss. (5) and (6) of s. 12 of the Commonwealth Act to which Kitto J. there refers correspond with sub-ss. (6) and (7) of s. 11 respectively of the Territory Ordinance.

Taylor J.[clxiv]6 referring to s. 12, said,

“This section applies only ‘when the injury results in incapacity other than total and permanent incapacity for work’ and the question immediately arises whether, as used in this context, the word ‘injury’ refers exclusively to the scheduled injury which an employee may have sustained or whether it is wide enough to cover the total injury where an employee, as the result of one accident, has suffered multiple injuries some of which are to be found in the schedule and some of which are not. An examination of the schedule provides reasons for thinking that the latter is the true view. It is, I should think, apparent that the loss of the distal phalanx of the little finger of the left hand, or any of a number of the other comparatively minor injuries specified in the schedule, could never be said to result in total and permanent incapacity for work Yet s. 12 has no application where the employee has sustained any such physical impairment if the injury to him has resulted in total and permanent incapacity.

In my view the word ‘injury’, as used in this qualifying provision, refers to the injury—whether constituted by a scheduled injury alone, or by a scheduled injury and other injuries contributing to the diminished capacity of the employee—which the employee has sustained as a result of any one accident, and the provision excludes the operation of the section when the injury, so understood, results in total and permanent incapacity. The first step in the construction of s. 12, therefore, is that it has no application for instance to the case of an employee who has, in the one accident, suffered the loss of a finger and other unscheduled injuries which together results in total and permanent incapacity for work. The section, however, is expressed, affirmatively, to operate when the injury results in incapacity other than total and permanent incapacity for work and, if the word ‘injury’ is to be understood in the broad sense to which I have already referred, it is clear that it was intended to operate in the case of multiple injuries—some of which are to be found in the schedule and some of which are not—which result only in partial incapacity.”

Taylor J. then went on to point out certain difficulties which were involved in this view, but he considered that difficulties which are at least as formidable were involved in the contrary view to which on the language of s. 12 he was not prepared to subscribe.

The third member of the court, Williams J. on his consideration of the operation of s. 12, reached the same result as did Kitto J. and Taylor J. Applying the interpretation adopted by Kitto J. and Taylor J. to the facts of the present case, the worker has suffered the partial and permanent loss of the efficient use of parts of the body specified in the Fourth Schedule in and for the purpose of his employment and such loss was in consequence of the fracture of the skull which caused brain damage, paralysis and subsequently post-traumatic epilepsy. The facts indicate that it was the fracture of the skull and consequent brain damage which was “the injury” and this was the “injury” which resulted in total and permanent incapacity for work. It is not correct to regard the partial loss of the efficient use of the limbs as being itself the “injury” since on the above reasoning it is but one of the consequences of the injury which resulted in total and permanent incapacity.

It is necessary to draw a distinction between loss of efficient use of a part of the body and incapacity. In some instances a percentage loss of a certain part of the body may have the effect of causing total incapacity. On the other hand, complete loss of the use of some other part of the body as, for example, the loss of the distal phalanx of the little finger of the left hand instanced by Taylor J. in the passage cited above would ordinarily only amount to a partial incapacity. The two concepts of loss of efficient use and incapacity are thus quite distinct.

There remains only to be considered the effect of the final words of s. 13(2), namely “which shall be assessed in accordance with the Second and Fourth Schedules to this Ordinance”. These words are not to be found in the Commonwealth Employees’ Compensation Act, but their effect was considered by Smithers J. in Pius Wangi v. Watkins (Overseas) Ltd.[clxv]7. We would with respect agree with the conclusion which Smithers J. reached in that case, namely, that those words do not create a new liability to pay compensation under the Fourth Schedule, but are merely descriptive of the compensation granted in ss. 8 and 11, and with the reasoning which led him to this conclusion. For this reason we do not consider that the insertion of these words in s. 13(2) justifies us in departing from the construction of s. 11(1) which results from the decision in The Commonwealth v. Matheson[clxvi]8. Moreover, it may be noted that the introductory words of sub-s. (1) of s. 13, namely, “Notwithstanding anything contained in this Ordinance” apply only to that subsection and are not made to apply to sub-s. (2).

For these reasons we consider that the worker is not entitled to lump sum payments under the Fourth Schedule in respect of the partial loss of use of an arm and a leg in addition to weekly payments for total and permanent incapacity under par. 1(b) of the Second Schedule and the point of law reserved for our consideration is determined accordingly.

Order accordingly.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[clix]Infra. p. 130.
[clx]Infra. P. 131.
[clxi]Infra. P. 132.
[clxii](1955) 93 CLR. 403.
[clxiii](1955) 93 CLR., at p. 414.
[clxiv](1955) 93 CLR. at p. 416.
[clxv][1963] PNGLR. 50.
[clxvi](1955) 93 CLR. 403.