British Broken Hill Pty Co Ltd v Simmons [1921] HCA 52; (1921) 30 CLR 102 (24 November 1921)

The British Broken Hill Proprietary Company Limited Appellant; and David Simmons Respondent.

Subject to certain provisoes which are immaterial to the present inquiry, sec. 5 (1) of the Workmen's Compensation Act 1916, which we shall hereafter call the Principal Act, ran as follows: "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 One." Schedule One, 1 (b), subject to an irrelevant proviso, ran thus: "Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed two pounds, and the total liability in respect thereof shall not exceed seven hundred and fifty pounds." It will be observed that the maximum compensation payable under this provision is limited in three ways. Under these enactments the respondent was in the receipt of a weekly payment of two pounds when the Workmen's Compensation (Amendment) Act 1920 was passed. Sec. 2 of that Act extended the meaning of the word "workman" which appears in sec. 5 of the Principal Act. Sec. 3 amended par. 1 (b) of Schedule One of the Principal Act: "(a) by omitting the words fifty per cent. and substituting therefor the words sixty-six and two-thirds per cent.; (b) by omitting the words two pounds and substituting therefor the words three pounds." It will be observed that the effect of sec. 3 was to extend the maximum compensation with respect to two out of the three ways in which it had theretofore been limited.

On 16th March 1921 the respondent asked that the weekly payment should be reviewed under the provisions of par. 16 of Schedule One, alleging that on such review he was entitled to the benefit of the increased maximum inserted by the new Act in par. 1 (b) of that Schedule. If Schedule One could be read as conferring rights apart from sec. 5 of the Principal Act there would be much force in the respondent's contention, but the Schedule is merely ancillary to sec. 5, and confers no rights apart from that section. Accordingly the inquiry must be whether that section entitles the respondent to the benefit he claims or not. We agree with our brother Higgins in thinking that one who is a "workman" within sec. 5 only because of the extended meaning given to that word by the amending Act can take no benefit under the section unless with respect to injury sustained after the passing of the amending Act, and the reasons which induce us to come to this conclusion lead us to think that the increased maximum in Schedule One prescribed by the amending Act is applicable only in case of such an injury. Sec. 5 of the Principal Act declares that in the case of personal injury by accident a specified class of men shall be entitled to compensation subject to a specified maximum. Sec. 2 prevents retroactive operation of the Act in cases occurring after the passing of the Act and before the time prescribed for its commencement; but it was conceded in argument that, even if no time had been thus fixed for the commencement of liability, the Act would not have applied to injuries sustained before the passing of the Act, because the provisions of an Act of Parliament must ordinarily be read as having no retroactive operation unless a contrary intention is to be found in the Act itself. The amending Act altered the operation of sec. 5 by enlarging the class of workmen and increasing the maximum of compensation, and for a like reason must be read as applying only to injuries sustained after the passing of the amending Act.

An attempt was made to distinguish between the right to originally obtain compensation under sec. 5 and the right to review compensation under par. 16 of Schedule One. It was argued that, as par. 16 of Schedule One was in its terms applicable to all accidents happening after the commencement of the Principal Act, it was not merely ancillary to sec. 5 but gave an independent right, and that therefore a person seeking review might take advantage of the maximum existing at the time of review; but this view is untenable. The Schedule merely prescribes the measure of the compensation given by sec. 5, and has no independent operation. The section declares that an employer shall be liable to pay compensation in accordance with Schedule One, and the word "compensation" in the section includes both the original compensation fixed under that Schedule and that fixed by the review. The result is that if the respondent can succeed in this case a "workman" is entitled to say: "I sustained injury by accident before the passing of the amending Act and my compensation was fixed under the Principal Act, but I have now acquired a new right and I require that my compensation shall be fixed under the amending Act, not by way of review under par. 16, but by way of original fixation under par. 1 (b) with the new maximum." In our opinion the statutes under consideration cannot bear such an interpretation.

In my opinion, the appeal should be dismissed. The accidents to which the composite Act—the Principal Act with the amending Act—applies are accidents which occurred or occur after 1st July 1917 (secs. 2 and 3 of the Principal Act); but any application made after the date of the amending Act (31st December 1920), whether for award or for review of award, must be made on the basis of the altered Schedule—altered as to maximum payments. Any application made before that date had to be made on the basis of the Schedule as unaltered.

The two Acts have to be construed as one (sec. 1 of amending Act); but the amendments thereby made are made as from 31st December 1920, for the present tense is used—"Par. 1 (b) of Schedule One is amended" (sec. 3). The amendments made by secs. 2, 4, 5, 6, also operate as from the same date. From that date onwards, the maximum compensation "shall be" 66⅔ per centum of the average weekly earnings, but not to exceed £3. Before that date, the maximum compensation permitted was 50 per centum of the average weekly earnings, but not to exceed £2; but the power to assess on such a basis has gone absolutely.

I see no difficulty whatever in applying the same principle to the words of sec. 2 of the amending Act, as to the definition of "workman." The definition of "workman" is enlarged, but it is enlarged as from the date of enlargement only. No workman who was not within the class of "workman" as defined up to 31st December 1920 is entitled to compensation if the accident happened before that date. The obligation to pay compensation to an injured workman, which was created by sec. 5 of the Principal Act, applies up to the end of 1920 only to workmen as defined up to that date, and the obligation as from the end of 1920 applies to workmen as defined on that date. An employee earning £400 per annum is not entitled to any compensation unless he be injured after that date. So with sec. 3—the assessment or review of compensation at any time before the end of 1920 had to be made on Schedule One as it then existed, but the assessment or review at any time after that date has to be made on the basis of par. 1 (b) of Schedule One as it now exists. So with sec. 4, which provides that for casual workmen the average weekly earnings are to be deemed to be not less than the appropriate living wage as found by the Board of Trade—the Board of Trade finding is to be applied to assessments of compensation made after 31st December 1920. So with secs. 5 and 6—the dividing line is at the date of the amendment.

This construction gives a consistent and workable scheme without doing violence to any of the words of the composite Act. On the other hand, on the construction submitted by the appellant, there arise the anomaly and the injustice that a workman who has got an award before the end of 1920 cannot now get the award reviewed under par. 16 of Schedule One at all; for he cannot apply on the basis of the Schedule as amended, and he cannot apply on the basis of the Schedule as it formerly stood—for that basis has been repealed. There is no provision to the effect that the Schedule as it formerly stood is to remain for the purpose of awards made before the end of 1920, and to imply such a provision is to make law, not to interpret the Act (see also Schedule One, par 1 (b), proviso; par. 2 of Schedule One as amended by sec. 4 of the amending Act; par. 16, proviso). It is admitted that according to the appellant's suggestion the word "accident" in the proviso to par. 16 would have to be read as "accident occurring after 31st December 1920," yet "accident" there meant, in accordance with the Principal Act, an accident occurring after 1st July 1917; and what it meant at first, it means still. The anomaly and injustice become even more apparent if we apply the appellant's construction to a workman who got 20s. or 30s. per week under the award, not the full maximum of 40s. as in the present case.

The construction which approves itself to my mind gives no retrospective force to any of the provisions of the amending Act. It is true that "accident" means accident happening since 1st July 1917, but that is due to the Principal Act in its combination with the amending Act. It is unnecessary to say that I accept the principle that an Act should not be construed as retrospective unless you see that the Legislature so intended it, and to the extent only that it was so intended (see per Bowen L.J. in Reid v. Reid[1]).

But it is urged that this construction interferes with the right of the employer to treat £2 as the maximum weekly payment, and counsel have cited sec. 8 of the Interpretation Act of 1897: "Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not ... affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed." It might be a sufficient answer to say that the contrary intention does appear here, even if we assume that the "right" to treat £2 as the maximum payment is a "right acquired or accrued." But the assumption itself is wrong; for it is clear that such a "right" is not a "right acquired or accrued" within the meaning of the Act (Abbott v. Minister for Lands[2]; Reynolds v. Attorney-General for Nova Scotia[3]). In the former case the repealed Act gave a right to an owner of land to make another conditional purchase. The new Act took away this right, but there was a saving clause in the new Act preserving "all rights accrued," &c., in words substantially the same as in sec. 8 of this Interpretation Act. The Judicial Committee of the Privy Council said the mere "right" existing in members of the community, or any class of them, to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the saving clause. In the latter case R. obtained a licence to work a coal-mining area for two years, and under the Act as it then existed the licence might be extended for another year on additional payment. The provision for licences was repealed, and a system of leases introduced in its place. Their Lordships held that R. had no "accrued right" to the extension, and that an application for extension made after the repeal must be refused. The construction of "obligation or liability incurred" must be on the same lines.

With all respect, I think that a fallacy has crept into the reasoning by the use in argument of abbreviated expressions, such as "increased right to compensation," or "right to increased compensation," instead of the full expression "extension of the limit beyond which the arbitrator may not award." If a County Court or District Court has jurisdiction to try actions for any sum not exceeding £200, and if an amending Act substitute "£300" for "£200" as from the end of 1920, a man who complains of breach of contract committed on 30th December 1920 could bring his action in that Court on 1st January 1921 claiming £300; but there is no "new right," or increase of the right to damages. The limit imposed by the Schedule is a limit imposed on the arbitrator; but the raising of the limit may incidentally enure to the benefit of the injured man, in the event of the arbitrator thinking that the man should be paid more than £2 per week. The man himself has no increased right unless and until the arbitrator so award; and the best test is that there are no means of enforcing any such alleged right. Ubi jus, ibi remedium.

In my opinion, Pring J. in the Supreme Court touched the heart of the matter when he said[4]:—"Immediately on the passing of the Act the words two pounds were excised from the Schedule and the words three pounds were substituted for them. The words two pounds are no longer in the Schedule and therefore cannot be applied by the Judge when hearing an application for a review under par. 16."

Appeal allowed. Order appealed from set aside and order of District Court Judge restored.

Solicitor for the appellant, John R. Edwards, Broken Hill, by Minter, Simpson & Co.

[1] (1886) 31 Ch. D., 402, at p. 409.

[2] (1895) A.C., 425.

[3] (1896) A.C., 240.

[4] (1921) 21 S.R. (N.S.W.), at p. 632.

High Court of Australia

British Broken Hill Pty Co Ltd v Simmons [1921] HCA 52; (1921) 30 CLR 102 (24 November 1921)

HIGH COURT OF AUSTRALIA