Coal Cliff Collieries Ltd v Austin [1919] HCA 77; (1919) 27 CLR 355 (19 December 1919)

HIGH COURT OF AUSTRALIA

H C of A

On appeal from the Supreme Court of New South Wales.

19 December 1919

Barton, Isaacs, Gavan Duffy and Rich JJ.

Leverrier K.C. (with him Pitt), for the appellant.

Mocatta (with him McTiernan), for the respondent.

Leverrier K.C., in reply.

Aug. 22

Barton J.

[1]

Isaacs and Rich JJ

. (read by Isaacs J.).

The first question we have to consider is whether this is a competent appeal as of right. If it falls within the first sub-section of sec. 35 of the Judiciary Act either because under par. (a) (1) the judgment appealed from is pronounced in respect of a "matter at issue of the value of £300," or under par. (a) (2) the judgment involves directly or indirectly "a question respecting any civil right of the value of £300," the appeal is competent. The judgment sought to be appealed from is one by which the Supreme Court held that the award of £2 a week during incapacity or until review under the Workmen's Compensation Act 1916 (No. 71) should stand. For the respondent, moving to strike out the appeal, it was urged as the real ground that such an award limited, as it must be limited in accordance with the words of the Act and the statutory regulation prescribing the form of award, to the respondent's incapacity, or review, was indefinite in time, and might not be of the value of £300, and no reference to other facts could alter it. Beard's Case[2] was relied on to show that £300 at least must be at stake at the present moment. As an alternative argument?naturally put forward with reluctance because, if successful now, it might be used hereafter against the respondent in case of an application for revision?it was contended that if the external facts are relevant they show that less than £300 will be paid. That might mean either that the respondent's injuries are not so severe as to last three years from the time the award begins to operate, or that he is likely to die before the three years. As to the latter possibility, if his early death were to be due to his injuries the liability could not be less (Schedule 1 (1)). So that the second possibility must mean likelihood of death from some other cause. The appellant contends that it is sufficiently shown that the appeal is competent. Mr. Leverrier read and relied on the affidavit of 17th June 1919, par. 6 of which says: "The judgment and order was given in respect of a sum exceeding the value of £300 and involves directly a claim and question exceeding the amount of £300." That is distinct, and the deponent has not been challenged or cross-examined. On a preliminary application made by the respondent to strike out the appeal as incompetent, the respondent had no affidavit to the contrary; and so it was ordered that the application should stand over until the hearing of the appeal, when the evidence in the case should be looked at, to determine the question. We start, therefore, with a general statement on affidavit to the effect mentioned. On the hearing the respondent filed an answering affidavit, the negative value of which is important. All it says material to this matter is that the value is not necessarily £300. On the hearing both affidavits were again referred to, and Mr. Leverrier, while stoutly maintaining the sufficiency of the award itself until displaced, also referred to the fact of the respondent's age and the absence of any material to counteract the primâ facie effect of the facts as showing a continuance which he said the law would presume in the absence of evidence to the contrary. The evidence discloses that Austin is about fifty years of age. Until his accident he was a miner employed by the Coal Cliff Colliery as a roadman, timbering, road laying, building stopings and doing anything he was asked to do. Apparently he was a man in full health and strength, the only previous accident was one to his finger, but apparently that was negligible. It is clear that up to the moment of the accident Austin was a robust and constitutionally sound man. Whatever incapacity he now suffers is the result of the accident.

Now, in the first place, the one tribunal recognized by the law to determine his incapacity has fixed it at the highest possible, namely, as entitling Austin to £2 a week. And that same tribunal is the only one entitled by law to declare any change in that condition. In our opinion, we are required, while that award stands unaltered, and no allegation is made that circumstances as to incapacity have changed, to consider the incapacity as continuing and as entitling the man to the same weekly compensation. The very highest it can be put for the respondent in relation to his preliminary objection is that we are called upon to estimate the chances of circumstances changing and of that tribunal reviewing the award and the extent of that review. Apart from the legal onus of establishing this, in face of the primâ facie case of the existing award, it is clear to us that no reasonable doubt can arise on the evidence before us. The accident occurred in August 1918. He was struck in the groin by a skip and knocked backwards; he was then struck by another skip and knocked forwards and rolled in the road clear of the rails. The doctor who attended him gave a vivid account of his severe injuries. Two medical men were examined in February 1919, they having in that month, six months after the accident, carefully examined him. One is the regular medical attendant of the employees, who had attended Austin in the hospital; the other was the Company's adviser specially for this case. A third doctor for the Company examined him also, but was not called. In February 1919 his condition is stated by the doctors in effect thus: Movements of right leg at hip joint not normal, impairment of flexion, and some pain; evidence of adhesion, tenderness on pressure on right hip joint and near urethra; probable hip joint trouble; not as good in present condition to do his old work. The Company's doctor added: "My opinion is that he is not able to do laborious work; he is fit for light work; the joint may come against him in the future; rheumatic pain sometimes supervenes."

Now, what is the chance of the incapacity disappearing or diminishing, and the arbitrator saying within reasonable time that the weekly amount is to be diminished?much less ended? What is the reasonable fair-minded conclusion to be drawn from the evidence? We have no hesitation in saying that this evidence?which was adduced by Austin himself on the arbitration for the very purpose of establishing how severe and permanent were his injuries, and on which he got the maximum amount the law allows?is justly to be taken against his present objection, as proving what he then in effect sought to prove against the Company. It seems to us the very essence of unfairness to contend that there is no sufficient evidence to show the probability of a long-continued liability, and therefore to deny to the Company the right of testing the very important and highly debatable effect of the new Coal Mines Regulation Act. It is, we think, on the whole an irresistible conclusion of fact that the liability to pay the £2 a week will not end within three years from its date.

If the evidence, as strong from a common-sense standpoint as we find here, is not sufficient?especially as it is in the present case uncontradicted?it is hard to see how any appeal by employer or employee can be competent except the appellant prepares himself with a mass of expert and expensive testimony to support the collateral contest as to value, a course that we think is burdensome to anyone and practically prohibitive to a workman. In the circumstances the decision in Beard's Case[3] is not adverse to the appellant. That case, particularly if read with the authorities there cited, supports the view that if the matter at issue or the civil right contested can be shown to be of the value to the appellant of £300 that is enough. Now, what is the "matter at issue" or the "civil right" contested here? Is it the total amount which will in fact be paid in the future? In our opinion it is not. It is the present liability to pay compensation to the respondent, and at the rate of £2 a week, for an indefinite time delimited only by the death of the respondent, or an alteration of the award as to duration or amount on a dispute as to either arising and on proof of changed circumstances during the respondent's lifetime.

Reference to the structure of the Act will make this very plain. The group of sections 5 to 15 inclusive, is headed "Liability of employers." Sec. 5 (1) says that "if in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the Schedule 1." Sub-sec. 3 divides the issues into three parts, (a) liability to pay compensation, (b) amount and (c) duration of compensation, and says that all or any of these may be settled by arbitration under Schedule 2. In secs. 7 (1) and 8 (1) and (2) the liability to pay compensation is the point dealt with. Sec. 9 is very important in this connection. It allows in certain cases proof to be made in bankruptcy for the liability to be assessed as therein provided; and it is declared to be a "debt" ?but the amount is the subject of legislative direction (see Homer v. Gough[4] ). That is entirely opposed to the main argument of the respondent on the preliminary question. Then Schedule 1, in prescribing the amount of compensation, says as to total or partial incapacity "the total liability in respect thereof shall not exceed £750." Par. 16 enables the weekly payment to be ended, diminished or increased, and par. 17 provides that where any weekly payment has been continued for not less than six months, "the liability therefor may, on application by or on behalf of the employer, be redeemed by the payment of a lump sum."

All this shows clearly the nature of the matter. If any doubt could possibly exist, it is settled by cases of the highest authority; the latest of which is Clawley v. Carlton Main Colliery Co.[5] , where the liability of the employer to make the weekly payment representing the compensation is emphasized, and made the point of the decision. That liability, as Lord Parker says in Gibson's Case[6] , is a statutory liability; which is the strongest imaginable.

Then, as to the duration of the liability, par. 8 of the Second Schedule makes the memorandum of an award, when recorded in the District Court, enforceable for all purposes as a District Court judgment. (See Bailey v. Plant[7] .) The cases cited during the argument, particularly the series beginning with Crossfield's Case[8] and ending with Tarr v. Cory Brothers & Co.[9] , show that unless the competent tribunal?which is the only tribunal authorized by law to do so?declares under par. 16 of Schedule 1 on proper materials, namely, changed circumstances, that the weekly payment ordered shall be ended or diminished or increased, the liability as standing under the award continues.

In our opinion there is a present liability, and as we think, in the circumstances, a liability that will continue for at least three years from the award to pay £2 a week to Austin.

We think that the preliminary objection should be overruled.

Gavan Duffy J

. read the following judgment:?

Three questions were discussed before us in the course of a somewhat desultory argument. They were these:?(1) Does this appeal lie as of right? (2) If not, should special leave to appeal be given? (3) If the Court entertains the appeal what order should be made on the merits? In the present judgment I propose to consider only the first of these topics. The respondent contended that an appeal does not lie to this Court without special leave because the judgment appealed against is not given or pronounced for or in respect of any sum or matter at issue amounting to or of the value of £300 (Judiciary Act 1903, sec. 35 (1) (a), cl. 1), nor does it involve directly or indirectly any claim, demand, or question to or respecting any property or any civil right amounting to or of the value of £300 (ibid., cl. 2). These clauses are framed for the purpose of allowing an appeal to a litigant who is able to show that he, or those whom he represents, would be pecuniarily benefited to the extent of £300 if his appeal were wholly successful (Beard v. Perpetual Trustee Co.[10] ). The question is whether the appellant here has satisfied the onus which lies on him of showing that his appeal comes within their operation. On 29th February 1919 the respondent obtained an award under the Workmen's Compensation Act 1916, the immediately relevant portion of which runs as follows: "(1) I order that the respondent the Coal Cliff Collieries Ltd. do pay to the applicant Thomas Austin the weekly sum of £2 as compensation for personal injury caused to the said Thomas Austin on the 23rd day of August 1918 by accident arising out of and in the course of his employment as a workman employed by the said respondent such weekly payment to commence as from the 23rd day of August 1918 and to continue during the total or partial incapacity of the said Thomas Austin for work or until the same shall be ended diminished increased or redeemed in accordance with the provisions of the above-mentioned Act."

No money has been paid under this award, and the appellant's counsel did not attempt to show us that the respondent's incapacity still exists, or indeed that it continued over any time after the date of the award, and no argument was made founded on the probability of its continuance. It was boldly urged that there was a primâ facie presumption that the award and the payment of £2 a week under it would continue until the full sum of £750 permitted by the Act of Parliament had been expended. The nature of such an award is elaborately explained in the case of George Gibson & Co. v. Wishart[11] . It is, as it purports to be, an assessment of the amount payable under the authority of the Act of Parliament during total or partial incapacity. It is operative only during incapacity, and the Act of Parliament authorizes a reassessment or revision of the amount of compensation because of the increase, diminution or cessation of incapacity. In his judgment Lord Parker[12] :?"The agreement or award determining the amount of compensation is not in any sense a judgment or decree, nor does it create any liability. The liability is imposed by the Act, and the agreement or award determines its amount. When, however, the agreement or award is recorded, the liability may be enforced as though it were a liability under a judgment or decree. Now, where the liability is to pay a weekly sum, not for any definite period, but during incapacity, it could not, even if embodied in a judgment of the County Courts in England, be enforced without some further proceeding, in which the Court could be satisfied as to the amount actually due. If in this further proceeding it were alleged by the employer that nothing was due as from a particular date, because on that date the incapacity had determined, it would be the duty of the Court to grant an adjournment so that the dispute as to the duration of the compensation could be referred. If on such reference the arbitrator found that the incapacity had in fact determined on the date alleged, it would be the duty of the Court to refuse to enforce the weekly payment after that date... Passing to the 16th paragraph of the First Schedule, it provides that any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum thereinbefore provided, and the amount of payment is, in default of agreement, to be settled by arbitration. This paragraph contemplates (1) that the weekly sum payable has already been ascertained by agreement or arbitration; (2) that, notwithstanding such ascertainment, a dispute has arisen as to the amount payable under the Act; (3) that this dispute will be itself settled by a new agreement or arbitration; and (4) that the settlement of the dispute may involve the weekly payment originally agreed or awarded being ended, diminished, or increased. The process by which the last-mentioned result is to be effected is called a review, but there is, I think, no magic in the word."

Against this award the present appellant appealed to the Supreme Court of New South Wales. That Court, after hearing argument, dismissed the appeal, and from its order appeal is now made to us. The utmost we could do if the appellant were wholly successful would be to set aside the award, and if we did so the appellant would not necessarily be pecuniarily benefited to the extent of £300. We have no right to presume that the respondent's incapacity or the award founded on it will continue for any specified period, and I think it is impossible to establish on the evidence before us that a sum of £300 will certainly or even probably be paid to the respondent under the award if the order appealed against stands. I am therefore of opinion that appeal does not lie in this case without special leave.

Appeal dismissed with costs.

Solicitors for the appellant, A. J. McLachlan & Co.

Solicitor for the respondent, A. A. Lysaght, Wollongong, by Makinson & d'Apice.

1. Owing to circumstances arising out of the death of Sir Edmund Barton shortly after the delivery of the final judgment in this case, it was impossible to obtain a copy of his judgment on the preliminary point.?Ed. C.L.R.

2. [1918] HCA 31; 25 C.L.R., 1.

3. [1918] HCA 31; 25 C.L.R., 1.

4. (1912) 2 K.B., 303.

5. (1918) A.C., 744.

6. (1915) A.C., 18.

7. (1901) 1 K.B., 31.

8. (1900) 2 Q.B., 629.

9. (1917) 2 K.B., 774.

10. [1918] HCA 31; 25 C.L.R., 1.

11. (1915) A.C., 18.

12. (1915) A.C., at pp. 33-34.