Australia: Partial capacity entitlement – not something for another day

In Chapels on Whatley v Bedford [2015] WADC 129, His Honour Judge O'Neal (O'Neal DCJ) of the District Court of Western Australia affirmed the existing caselaw principles regarding proof of an entitlement for partial incapacity and disagreed with an Arbitrator's attempts to find a way around them by making some unusual orders.

By way of factual background:

  • The respondent worker was originally employed in 2011 as a general manager at the appellant's café.
  • She suffered injuries in a motor vehicle accident in 2011 and returned to work in May 2011 in a lesser role on a part time basis.
  • In March 2012 she again took up the position of general manager for the appellant.
  • In the course of that role she was involved in a work accident on 28 December 2012, described as the "loft incident".
  • Following the loft incident she returned to work and the Arbitrator found that she returned working for just 5 hours a day, although O'Neal DCJ stated that finding must be in doubt given the evidence (which was unclear).
  • She made a claim for workers compensation for the loft incident on 21 January 2013.
  • On 6 February 2013 she sustained another accident at work, described as the "barrel incident", for which no claim has been made.
  • The worker was made redundant two days after the barrel incident.

The worker's claim was always one for total incapacity, not partial incapacity.

Nevertheless, Arbitrator Holyoak-Roberts made the following orders:

  1. " The Respondent is liable to pay the Applicant forthwith:
    1. weekly payments of compensation for total incapacity from 31 December 2012 to 1 January 2013;
    2. weekly payments of compensation for partial incapacity from 16 February 2013 onwards.
  1. If the parties cannot agree, there is liberty to apply as to costs and quantification of the above orders."

The appeal by the employer primarily challenged the power of the Arbitrator to make the orders in 1(b) and 2.

A report from the worker's general practitioner was to the effect that she had been, and was still, partially incapacitated. The possibility that there could be a finding in favour of the worker for less than total incapacity arose for the first time in the course of closing submissions before the Arbitrator and was opposed by the employer when it was raised by the Arbitrator.

In his judgment, O'Neal DCJ stated [at paragraph 17]: "Given the nature of the medical evidence it was a fairly courageous decision on the part of the [worker's] legal representatives to not advance an alternative claim for partial incapacity. There may of course have been forensic reasons for not doing so, apart from the potentially embarrassing inconsistency in those two positions."

He found that there was no evidence as to what the worker was capable of earning, even on a part time basis, in other positions that she was capable of performing.

The employer was granted leave to appeal. There were eight grounds of appeal, the main one of which was that the Arbitrator erred in law in ordering payment for partial incapacity without any evidence that her "total weekly earnings" would exceed the "weekly amount".

The employer relied on the cases of Westralian Farmers Co-operative Ltd v Bunce (Unreported, WASC, Library No 7691, 31 May 1989) and Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 in support of the proposition that the worker must prove:

  • that she was partially incapacitated for the period of time contended; and
  • what she earned or was able to earn in some suitable employment or business during that period, and that this was less than her pre-accident earnings.

Given that the worker did not adduce evidence of her weekly earnings, O'Neal DCJ stated [at 36] that: "In the circumstances it is puzzling, to say the least, that the arbitrator determined to find the [employer] liable to forthwith pay the [worker] weekly payments of compensation for partial incapacity".

The worker's submission in response to the main ground of appeal was that: "the present application for leave to appeal and appeal are premature in that in real terms the application before the arbitrator remains live with both parties having the opportunity to lead evidence and make submissions on the issue of quantum of payments (if any)." The submissions also emphasized the Arbitrator's discretion in such matters.

O'Neal DCJ noted that the worker's submissions did not deal with the binding authorities of Bunce and Mitchell and stated [at 39]: "That would appear to be because there is no answer".

He held that the Arbitrator was plainly wrong to make the orders that she did and he allowed the appeal on this ground. The parties agreed that if he was to allow the appeal on this ground that it was unnecessary to deal with the remaining grounds.

The decision reinforces the longstanding case law principles concerning the need for workers to strictly prove their entitlement to partial incapacity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.