Gibson v Accident Compensation Corporation [2016] NZHC 1003 (17 May 2016)

High Court of New Zealand

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Gibson v Accident Compensation Corporation [2016] NZHC 1003 (17 May 2016)

Last Updated: 22 June 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-970 [2016] NZHC 1003

IN THE MATTER	of an appeal under s 162 of the Accident Compensation Act 2001
BETWEEN	WILLIAM GIBSON Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	13 April 2016
Counsel:	A C Beck for Appellant H A Evans for Respondent
Judgment:	17 May 2016

_{JUDGMENT OF BROWN J}

Introduction

[1] Although the appellant was injured at his workplace in October 2005, until his surgery on 29 November 2006 he continued to work there but did 10 hours less overtime each week. The respondent ruled that the appellant had no entitlement to weekly compensation for the period 10 October 2005 to 29 November 2006 on the grounds that during that period the appellant was not incapacitated, within the meaning of the Accident Compensation Act 2001 (the Act), as a consequence of his covered injury condition.

[2] An appeal against that decision was declined in the judgment of

_{Judge M J Beattie dated 20 August 2013 in which the Judge held that the respondent}

GIBSON v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1003 [17 May 2016]

was correct to determine that the appellant was not incapacitated during the relevant period.¹

[3] On 19 October 2015 Judge G M Harrison granted leave to appeal to the High

Court on what he described as a “neat” question of law:²

Does the interpretation of the word “employment” in s 103(2) of the Act include the total time (including overtime) being worked by the claimant at the time he suffered his personal injury?

Background

[4] The factual background was recorded in the decision of Judge Beattie at [3]:

• In November 2003 the appellant, then aged 55 years of age, commenced employment as a mechanical engineer at Hillside Workshops for TOLL NZ.

• As stated at the review hearing his job was to build the end walls of railway carriages and this involved demolishing the existing end walls and then fabricating new end walls out of steel and then welding them into place.

• The appellant was one of a team of 14 persons engaged in this particular work.

• It was the evidence of the appellant that he and his fellow employees each worked a total of 60 hours per week, that period including

20 hours per week overtime, and which was said to be required because of the pressure on the employer to deliver the re-fabricated

carriages as quickly as possible.

• On 15 September 2005, the appellant began to experience pain in his shoulders following the lifting of a gas bottle containing carbon dioxide, and by 10 October 2005 that pain had not diminished, and it is the case that the appellant reduced his overtime work from

20 hours per week to 10 hours per week.

• The appellant continued in his employment working 50 hours per week until 29 November 2006 when he underwent surgery at Dunedin Hospital for his shoulder injury conditions.

• It is the case that the appellant had been waiting some time to be accepted for that surgery at the hospital, and he had continued in his employment after the injury date prior to entering hospital for the surgical treatment.

¹ _{Gibson v ACC [2013] NZACC 259.}

² Gibson v ACC [2015] NZACC 313.

• Whilst the appellant did resume his employment in 2007, it was not until March 2008 that he resumed his full-time pre-injury employment of 60 hours per week.

• It is the case that the respondent accepted that the appellant had an entitlement to weekly compensation from 29 November 2006 until

26 March 2008, being the date of his return to full-time work.

• The decision in issue in this case arises from the fact that the appellant sought weekly compensation for the 10 hours per week loss of income for the period from 10 October 2005 when he commenced somewhat restricted work duties until

29 November 2006, which was the date when the respondent accepted that he had commenced to experience incapacity, it being the date when he went to hospital for surgical treatment for his covered injury conditions.

[5] The appellant’s written submissions acknowledged that that factual background was not in dispute. Nevertheless it is apparent that there is a dispute of fact concerning the reason why the appellant’s overtime hours were reduced from 20 to 10 hours per week. Judge Beattie stated that the appellant “reduced” his overtime

work³ whereas the appellant’s submission stated:

It is not correct to suggest that the appellant chose to work reduced hours;

the reduction in overtime was in accordance with company policy.

[6] Consequently in his decision granting leave Judge Harrison said:⁴

... I note from submissions filed in support of the application for leave that it is not accepted that Mr Gibson chose to work reduced hours but that the reduction in overtime was in accordance with company policy. That is a question of fact which may have to be determined at a later time.

[7] That question is not of course a matter for determination on the present appeal which is confined to an issue of law concerning the meaning of the word “employment” in s 103(2).⁵

The legislative framework

[8] Part 4 of the Act provides for the entitlements for claimants who suffer personal injury. The entitlements in s 69(1) include:

³ _{At [3], [4], [17] and [20].}

⁴ _{At [5].}

⁵ Accident Compensation Act 2001, s 162.

(a) rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation;

(b) first week compensation; (c) weekly compensation.

[9] Weekly compensation is addressed in ss 100–101 which relevantly provide:

100 Entitlement to weekly compensation depends on claimant’s

incapacity for employment and vocational independence

(1) A claimant who has cover and who lodges a claim for weekly compensation–

(a) is entitled to receive it if the Corporation determines that the claimant is incapacitated within the meaning of section 103(2) and the claimant is eligible under clause 32 or clause 44 of Schedule 1 for weekly compensation:

...

(2) While a claimant is receiving weekly compensation, –

(a) section 103 or section 105, as the case may be, continues to apply to the claimant; and

(b) the Corporation may from time to time determine the claimant’s incapacity under section 103 or section 105, as the case may require, and

...

(3) The claimant may lose his or her entitlement to weekly compensation through the operation of sections 103 to 112.

101 Procedures for determining incapacity for employment and vocational independence

(1) When the Corporation is required or allowed by this Act to determine a claimant’s incapacity for employment, it must do so under section 103 or section 105. ...

[10] Incapacity for employment is then addressed in ss 102–104:

102 Procedure in determining incapacity under section 103 or section 105

(1) The Corporation may determine any question under section 103 or section 105 from time to time.

(2) In determining any such question, the Corporation–

(a) must consider an assessment undertaken by a medical practitioner or nurse practitioner; and

(b) may obtain any professional, technical, specialised, or other advice from any person it considers appropriate.

103 Corporation to determine incapacity of claimant who, at time of personal injury, was earner or on unpaid parental leave

(1) The Corporation must determine under this section the incapacity of–

(a) a claimant who was an earner at the time he or she suffered the personal injury:

...

(2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.

(3) If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment.

...

104 Effect of determination under section 103 on entitlement to weekly compensation

If the Corporation determines under section 103(2) that the claimant is not incapacitated for employment–

(a) a claimant who is receiving weekly compensation for loss of earnings from employment–

(i) loses that entitlement immediately; and

...

(b) a claimant who is not receiving weekly compensation for loss of earnings from employment is not entitled to begin receiving it.

Judge Beattie’s decision

[11] At [15], Judge Beattie identified the question for determination by him as whether the lessening of the appellant’s weekly income during the period in issue was as a consequence of the appellant’s incapacity. After noting the terms of s 103(2) and (3) the Judge reasoned as follows:

[17] From the facts of the appellant’s situation, I find it to be the case that it cannot be found that he was unable to engage in his pre-injury employment as the factual situation is that he did continue to engage in his pre-injury employment, and the only difference was that he reduced the amount of overtime worked per week from 20 hours to 10 hours.

[18] I find that such a state of affairs does not amount to establishing the factual situation that the appellant was unable to engage in his employment.

[19] The evidence also establishes that whilst the appellant did on a regular basis engage in 20 hours per week overtime, for which he received additional earnings, that overtime was not an integral part of his employment contract and that engagement only required him to carry out 40 hours per week, and the Court received no evidence that if the appellant did not engage in the additional hours he would not have been able to retain his employment.

[20] As a matter of law, I find that the appellant’s right to weekly compensation can only arise if it can be established that he was unable to engage in his pre-injury employment by reason of the physical aspects of his injury. In the case of this appellant the evidence is clear and not in dispute that he was able to continue with his pre-injury employment, and the only change was his decision to reduce the amount of overtime work which he would engage in, and even if be accepted (sic) that this was because his physical condition was affecting his overtime ability, I find that it was not affecting his ability to engage in the employment in which he was employed prior to suffering the personal injury in question.

[21] Accordingly, therefore, I find that in the particular circumstances of the appellant’s case, the respondent was correct to decline to grant him the loss of overtime income that he suffered, and the respondent was correct to determine that the appellant was not incapacitated within the meaning of the Act between October 2005 and November 2006.

The leave decision

[12] After reciting [20] of Judge Beattie’s decision, Judge Harrison observed:

[9] The effect of that funding is that if an individual previously worked

20 hours overtime per week and as a result of the injury is no longer able to work those hours, he is not entitled to compensation for the loss of income suffered because his employment nevertheless continued.

The Judge said that that clearly raised for interpretation the word “employment” in

s 103(2).

[13] In resisting leave the Corporation relied upon Revitt v Accident Compensation Corporation where special leave was declined in respect of a proposed question of law concerning whether “employment” in s 103(2) related only to employment at the

very time of the accident.⁶ Following earlier decisions holding that a claimant must have been engaged in employment when the personal injury was suffered,⁷ Collins J concluded that the proposed question of law was not seriously arguable.

[14] In granting leave to appeal Judge Harrison described Revitt as being quite a different situation from the present case, noting that it did not deal with the issue whether “employment” can include overtime hours worked.

Submissions of counsel

[15] Although Judge Beattie signalled that his finding in [20] involved a question of law, the rationale for the finding is not apparent solely from that paragraph where the Judge employed the paraphrase “pre-injury employment”. However it is clear from the previous paragraphs, [17] and [19], that by his use of the phrase “pre-injury employment” the Judge was referring to the appellant’s employment contract which required him to work for 40 hours per week – hence the statement in [20] that it was “not in dispute that he was able to continue with his pre-injury employment”.

[16] Mr Beck submitted that the word “employment” in the Act is not to be equated with an employment contract in the legal sense, drawing attention to the definition in s 6:

Employment–

(a) means work engaged in or carried out for the purposes of pecuniary gain or profit; and

(b) in the case of an employee, includes a period of paid leave, other than paid leave on the termination of employment

[17] Mr Beck argued that that definition is broad, being intended to cover all work carried out to earn income and is not limited to only certain obligations. His proposition was simply that where a claimant is unable to carry out work that was carried on before the injury and suffers lost income as a result, then s 103(2) must

_apply.

⁶ _{Revitt v Accident Compensation Corporation [2014] NZHC 1394.}

⁷ Accident Compensation Corporation v Vandy [2011] 2 NZLR 131 (HC); Murray v Accident

Compensation Corporation [2013] NZHC 2967.

[18] Mr Beck built on this argument by reference to various features of the scheme of the Act including the fact that levies paid by an earner under ss 219 and

220 are based on the earner’s total income with no distinction being drawn between

income earned during ordinary hours and income earned by way of overtime.

[19] The argument for the Corporation ranged widely. Noting the purpose in s 3(d) of the Act of ensuring that claimants receive “fair compensation” for loss from injury, the Corporation first discussed the “cushioning approach” of the no-fault cover scheme, referring to passages from Accident Compensation Commission v Nelson⁸ and Police v Davies.⁹ The point was made that the cushioning principle was consistent with the Corporation being not liable to pay full compensation but only fair compensation, reference being made to the fact that weekly compensation is limited to 80 per cent of earnings below a capped limit.

[20] The submission then reviewed several cases which have addressed s 103, namely:

(a) O’Connor v Accident Compensation Corporation;¹⁰

(b) Irving v Accident Compensation Corporation;¹¹

(c) AP v Accident Compensation Corporation;¹²

(d) Revitt v Accident Compensation Corporation;¹³

(e) Jones v Accident Compensation Corporation.¹⁴

[21] Then, under the heading “How should the High Court answer the question posed by Judge Harrison”, the Corporation submitted that the answer depends on the

⁸ _{Accident Compensation Commission v Nelson [1979] NZCA 58; [1979] 2 NZLR 464 (CA) at 468.}

⁹ _{Police v Davies [2009] NZSC 47, [2009] 3 NZLR 189 at [18].}

¹⁰ _{O’Connor v Accident Compensation Corporation [2000] NZACC 224.}

¹¹ _{Irving v Accident Compensation Corporation HC Whangarei, 11 April 2003, Laurenson J.}

¹² _{AP v Accident Compensation Corporation [2012] NZACC 382.}

¹³ _{Revitt v Accident Compensation Corporation, above n 2.}

¹⁴ Jones v Accident Compensation Corporation [2013] NZHC 2458, [2014] NZAR 1.

facts of the particular question, acknowledging that an inability to work overtime could mean that a claimant is incapacitated.¹⁵ The submission stated:

48. In the present case, and despite the appellant’s personal injury, he was able to engage in his original employment as a mechanical engineer, albeit in a supervisory capacity, more latterly, but nonetheless employment in which he was employed at the time he suffered the original personal injury.

...

50. There is no factual dispute in this appeal, that the appellant was able to carry on working, despite suffering his personal injury. Judge Beattie determined, as a matter of fact, that Mr Gibson was therefore not incapacitated. On the appellant’s own evidence at the review hearing, he was able to work full-time (on the basis that

30 hours or more per week is defined as full-time employment) and his only loss is the reduction in his ability to work an extra 10 hours

of overtime. That is the basis of his claim. It is important not to mix

up concepts of employment and incapacity.

Conclusion

51. The respondent submits that it is important not to gloss over the requirement for a finding of incapacity, in terms of s 103 of the Act. It is only when a claimant is able to produce evidence of incapacity – which is not the case in this appeal – that s 103(2) is met, and a further enquiry is then made by reference to the schedule of the Act to calculate entitlements. The issue of entitlements cannot be considered, until incapacity has been established. That is a question of evidence and in this case, ACC submits that, on the facts of this case, the appellant’s claim fails.

52. The answer to the question posed by Judge Harrison is that it depends on the specific facts of each case. A case by case analysis is therefore required, and the High Court should not therefore definitively answer that question.

Analysis

[22] Issues of fact and evidential findings are not tasks for this Court on an appeal under s 162. This Court’s function is confined to questions of law. The meaning to be attributed to a word in a statute is such a question, being a matter of statutory

_{interpretation.}¹⁶

¹⁵ _{Lester v Accident Compensation Corporation [2014] NZACC 170 was cited as an example.}

¹⁶ R v Barnet London Borough Council, ex p Shah [1983] 2 AC 309 (HL) at 341; Timothy Endicott

“Questions of Law” (1998) 114 LAR 292, 299.

[23] I consider that the appellant’s contention is sound and that “employment” in s 103(2) involves the total duration of employment including any period of overtime. My reasons for that conclusion are sourced in various provisions of the Act.

Provisions in the Act

[24] First I note the definition of “employment” which, as Mr Beck observes, simply refers to work engaged in for the purposes of pecuniary gain or profit. There is no suggestion that the work engaged in is confined to the regular contracted hours of work.

[25] Secondly, I note the definition of “earnings as an employee” which means all PAYE income payments of the person for the tax year: s 9(1). Overtime earnings are not included in the list of excluded items: s 11(1).

[26] Thirdly, I refer to section 97 which provides for the payment of first week compensation by the employer at a rate of 80 per cent of the amount of earnings as an employee lost by the employee as a result of incapacity during the first week of incapacity. Section 97(3) states:

(3) For the purposes of this section, there is a presumption that the earnings the claimant loses as a result of the incapacity is the difference between–

(a) the claimant’s earnings in the 7 days before his or her

incapacity commenced; and

(b) the claimant’s earnings in the first week of incapacity.

The claimant’s earnings in the seven days before incapacity could include overtime earnings.

[27] Fourthly, a similar point can be made with reference to the amount which the Corporation is liable to pay for weekly compensation for loss of earnings to an earner, namely 80 per cent of the claimant’s weekly earnings as calculated under cls 33 to 45 and 48: cl 32 of Part 2 of Schedule 1. Those weekly earnings in relation to the four weeks after the first week of incapacity are calculated by reference to the claimant’s earnings as an employee in the four weeks immediately before his

incapacity commenced: cl 34(1). Those weekly earnings in any subsequent period of incapacity are calculated by reference to the claimant’s earnings as an employee in the 52 weeks immediately before his incapacity commencement: cl 34(2). In both instances these earnings prior to incapacity could include overtime earnings.

[28] I do not consider that that conclusion is contrary to the purpose in s 3(d). In my view the “cushioning approach” is reflected in and achieved by the dual limitations of the 80 per cent entitlement¹⁷ and the statutory cap.¹⁸ It is not apparent to me that fairness additionally requires that any overtime earnings, assuming that the evidence in any particular case established that overtime earnings would have been payable, should be excluded.

Prior legislation

[29] In addressing the approved question of law I have also reflected on the legislative history of s 103(2). The earliest form of a provision providing a test for incapacity was s 37 of the Accident Rehabilitation and Compensation Insurance Act

1992:

37. Test of incapacity – For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred or, where section 49 of this Act applies, any other employment for which the person is qualified by reason of experience, education, or training, or any combination of them.

[30] Section 37 was repealed in 1996 and replaced by provisions which dealt separately with incapacity in relation to “earners generally” (s 37A) and with incapacity where a person had ceased to be an employee as well as cases of loss of potential earning capacity (s 37B). The substituted s 37A stated:

37A. Determination of incapacity in relation to earners generally –

(1) For the purposes of this Part of this Act, the Corporation shall determine the incapacity of a person (other than a person to whom section 37B of this Act applies) in accordance with this section.

¹⁷ _{Accident Compensation Act 2001, sch 1, pt 2, cl 32.}

¹⁸ Schedule 1, pt 2, cl 46.

(2) The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred.

...

(4) If the Corporation determines under this section that a person is able to engage in employment in which the person was engaged when the personal injury occurred, then, – ...

[31] The Accident Insurance Bill introduced to the House on 17 September 1998 was more specific with reference to the scope of employment. Clause 65 stated:

65. Insurer to determine incapacity of insured who, at time of incapacity, was earner– (1) The insurer must determine under this section the incapacity of an insured who was an earner at the time he or she suffered the personal injury.

(2) The question that the insurer must determine is whether or not the insured is for the time being unable, because of his or her personal injury, to engage in any of the employment in which he or she was employed when he or she suffered the personal injury.

...

(5) If the insurer determines that the insured is able to engage in any employment in which the insured was employed when or she suffered the personal injury,–

(emphasis added)

[32] As reported back cl 65 was amended to read:

...

(2) The question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in every part of every employment in which he or she was employed when he or she suffered the personal injury.

(3) If the answer under subsection (2) is that the insured is unable to engage in any of the employments, the insured is incapacitated for every such employment.

(4) If the answer under subsection (2) is that the insured is unable to engage in 1 or more of the employments, the insured is incapacitated for the employments he or she is unable to engage in.

(5) If the answer under subsection (2) is that the insured is unable to perform a part of an employment, the insured is incapacitated for that employment.

(emphasis added)

[33] Then in a Supplementary Order paper dated 8 December 1998 further changes were made:

(a) the words “any of the employments” in cl 65(3) were replaced with

the words “every part of every such employment”;

(b) the second reference to “the employments” in cl 65(4) was replaced

with the words “every employment”.

[34] Hence s 85 of the Accident Insurance Act 1998 stated:

85. Insurer to determine incapacity of insured who, at time of incapacity, was earner –

(1) The insurer must determine under this section the incapacity of an insured who was an earner at the time he or she suffered the personal injury.

(2) The question that the insurer must determine is whether the insured is unable, because of his or her personal injury, to engage in every part of every employment in which he or she was employed when he or she suffered the personal injury.

(3) If the answer under subsection (2) is that the insured is unable to engage in every part of every such employment, the insured is incapacitated for every such employment.

(4) If the answer under subsection (2) is that the insured is unable to engage in 1 or more of the employments, the insured is incapacitated for every employment he or she is unable to engage in.

(5) If the answer under subsection (2) is that the insured is unable to engage in a part of an employment, the insured is incapacitated for that employment.

(emphasis added)

[35] However s 103 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (renamed in 2010 as the Accident Compensation Act 2001) reverted to the wording of the 1992 legislation.¹⁹

[36] To my mind, the case for the inclusion of overtime work within “employment” was significantly stronger in the context of the phrase “every part of every employment” in s 85 of the 1998 Act. I recognise, however, that Judge Beattie may well have come to a different conclusion given his apparent focus on the extent of the engagement under the relevant employment contract.

[37] The question, however, is what is to be inferred from the reversion to the pre-1998 wording in s 103(2) of the Act? Is s 103(2) to be read in the same way as the former s 85(2), or did the return to the pre-1998 wording signal a substantive change?

[38] I have not discerned any clue in the legislative history which points in either direction. I am mindful of the observation of Elias CJ in Allenby v H that approaches taken to the interpretation of provisions under earlier accident compensation legislation need to be treated with some caution in considering the current legislation.²⁰

[39] However, as her Honour also noted, if a significant change was intended then it might be expected that some explicit acknowledgement of the change would have occurred in the legislative processes.²¹ In those circumstances, two matters lead me to conclude that s 103(2) should be construed to have the same meaning as the former s 85(2).

[40] The first matter is the point made by Mr Beck concerning the approach to be adopted to the interpretation of the legislation. He drew attention to a number of the judgments in Harrild v Director of Proceedings,²² including the following

_{observation of Keith J:}

¹⁹ _{See [10] above.}

²⁰ _{Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 at [7].}

²¹ _{At [9].}

²² Harrild v Director of Proceedings [2003] NZCA 125; [2003] 3 NZLR 289 (CA).

[39] I return to the terms of the 2001 Act, the latest version of a major piece of social legislation, and to the philosophy underlying it. I agree with Richardson J in Accident Compensation Corporation v Mitchell [1992]

2 NZLR 436 at pp 438 – 439 that a generous unniggardly interpretation of the legislation is in keeping with its policy of providing comprehensive

cover for all those suffering personal injury in New Zealand, wherever,

whenever, and however occurring. It is true that, since he said that, the coverage of the legislation has been more precisely defined and in some

respects narrowed (for instance with the introduction of the medical

misadventure and mishap limits) but with one possible exception I do not see those changes as affecting this case.

[41] More recently, Kós J observed in Murray v Accident Compensation

Corporation:²³

[36] In a recent decision I respectfully suggested that the principle stated by Richardson J in Accident Compensation Corporation v Mitchell,²⁴ that the

1982 Act be given a “generous unniggardly interpretation”, still had

application despite the more crystalline legislative drafting that has followed in later versions of the Act.²⁵ I suggested that lines of exclusion in a social welfare context needed to be drawn clearly. Expectations which were the “fair and reasonable product of statutory language and ... consistent with the overall statutory purpose should not be read down except by language of the clearest kind”.

[42] Mr Evans submitted that a number of cases including Vandy show that where the legislation is capable of being interpreted in only one way, then the application of a generous or unniggardly approach does not arise.²⁶ It is not possible in my view to conclude against the background of the legislative history that s 103(2) is capable of being interpreted in only one way.

[43] Secondly, as earlier noted,²⁷ one purpose of the Act is to ensure that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation. In Warren v Accident Compensation Corporation, Wild J had regard to that purpose in determining the

_{appropriate calculation of Mr Warren’s earnings.}²⁸ _{He said:}

²³ _{Murray v Accident Compensation Corporation, above n 6.}

²⁴ _{Accident Compensation Corporation v Mitchell [1991] NZCA 162; [1992] 2 NZLR 436 (CA) at 438.}

²⁵ Brosnahan v Chief Executive of the Ministry of Social Development [2013] NZHC 2618 at [32]–

_[33].

²⁶ _{Accident Compensation Corporation v Vandy, above n 7.}

²⁷ _{At [19] above.}

²⁸ Warren v Accident Compensation Corporation [2007] NZHC 1314; [2008] NZAR 111 (HC).

[26] The consequence of including Mr Warren’s earnings as a casual employee in the calculation of his weekly earnings for compensation purposes is that the result is not a fair calculation of Mr Warren’s likely loss. Contrary to the s 3(d) purpose, that will not ensure that Mr Warren “receives fair compensation for loss from injury, including fair determination of weekly compensation”.

[44] In my view, similar considerations apply in determining the appropriate level

of the appellant’s pre-injury earnings as an employee.

Disposition

[45] For the reasons explained above, the appeal is allowed. The answer to the question of law,²⁹ the subject of leave to appeal, is in the affirmative.

[46] However I emphasise that, as noted at [7] and [22] above, this decision does not purport to resolve any outstanding factual questions. Furthermore the issue whether the appellant was “unable ... to engage in” the employment is not a matter that this judgment addresses.

[47] In the event that issues arise as to costs, counsel should submit memoranda within 15 working days.

_{Brown J}

²⁹ At [3] above.