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High Court of Australia |
WATTLE GULLY MINES v. CLEMENTI [1956] HCA 16; (1956) 94 CLR 353
Workers' Compensation (Vict.)
High Court of Australia
Dixon C.J.(1), McTiernan(1), Williams(1), Kitto(1) and Taylor(1) JJ.
CATCHWORDS
Workers' Compensation (Vict.) - Statute - Interpretation - Injured worker - Provisions of Act "so far as they relate to rates or amounts of compensation" to apply with respect to every payment of compensation after commencement of Act irrespective of date of injury - Provision increasing upward limit on employer's liability to pay compensation - Applicability - Workers' Compensation Act 1951 (No. 5601) (Vict.) - Workers' Compensation Act 1953 (No. 5676) (Vict.), s. 15 - Workers' Compensation (Amendment) Act 1953 (No. 5715) (Vict.), s. 8.
HEARING
Melbourne, 1956, February 15, 16;DECISION
April 13.2. In each instance the case stated contains certain findings of the board. It is found that at all material times the party who is the respondent here was employed by the party who is now the appellant, that the employee was a "worker" within the meaning of the Workers' Compensation Acts, and that he was totally incapacitated for work (in the first two cases) by a disease due to the nature of the employment, namely silicosis and (in the third case) by personal injury arising out of or in the course of the employment. There was also in each case a finding that the worker was disabled by his incapacity from earning full wages at the work at which he was employed, and that the employer had admitted liability for compensation and had made certain weekly payments to the worker without any award of the board having been made. In each case, however, the weekly payments had ceased, and the employer had denied liability to make any further payments, contending that the payments already made had not only reached but exceeded the amount fixed by the applicable statutory provisions as the maximum amount of his liability. The worker had then sought from the board a decision that he was entitled to further payments. In the disputes thus raised there was no controversy as to the total of the amounts which had been paid to the respective workers ; the only question was whether, on the true construction of the Acts, the amount of the employer's maximum liability was below or above the aggregate of the amounts paid. (at p358)
3. In Clementi's case the disablement occurred on 5th May 1949 and in Stuart's case it occurred on 10th November 1950. The workers' compensation legislation in force in Victoria at each of those dates was contained in the Workers' Compensation Act 1928 (No. 3806) as amended by Acts up to and including the Workers' Compensation Act 1946 (No. 5128). Under these Acts Clementi and Stuart were entitled to compensation ascertained in accordance with the second schedule to the 1928 Act as inserted by way of substitution by the 1946 Act. Clause 1 (1) (b) (i) of the schedule prescribed certain weekly payments, the sum payable in respect of the worker himself, as distinct from dependants, being four pounds. This was qualified, however, by a provision, in cl. 1 (1) (b) (iii), that the total liability of the employer should not in any one case exceed 1,250 pounds. (at p359)
4. In Thomson's case the disablement occurred on 7th February 1951. By that date there had come into force (on 1st February 1951) a further amending Act, the Workers' Compensation (Amendment) Act 1950 (No. 5522), which had amended the relevant provisions of the second schedule by increasing the amounts of the weekly payments (the sum in respect of the worker himself becoming 5 pounds 10s. 0d.), and by raising the maximum amount of the total liability of the employer to 1,750 pounds, except in the case of a worker whose injury, in the judgment of the board, should result in his permanent and total disablement for work or his permanent and partial disablement for work, the partial disablement being established by the worker to be of a major degree, in either of which cases the board was empowered in its discretion to make such determination with respect to the total liability of the employer as it should think proper in the circumstances. (at p359)
5. The Act of 1950 contained no provision extending the benefit of the amendments thus made in the second schedule to workers whose right to be paid compensation had accrued before the Act commenced. Accordingly Clementi and Stuart continued to be entitled to weekly payments at the old rate, and the provision limiting the employer's liability to 1,250 pounds continued to apply in their cases. This was so because there was nothing to displace the presumptive rule of construction, which was applied by this Court in relation to workers' compensation Acts in Kraljevich v. Lake View & Star Ltd. [1945] HCA 29; (1945) 70 CLR 647 against reading a statute as intending to alter accrued rights. (at p359)
6. On 19th December 1951 there came into operation an amending and consolidating Act, the Workers' Compensation Act 1951 (No. 5601). This Act repealed all the Acts above-mentioned, but the repeal did not affect any right acquired by a worker or any liability incurred by an employer under the repealed Acts : see s. 2 of the 1951 Act and s. 6 (2) (c) of the Acts Interpretation Act 1928 (No. 3630). So far as material, the provisions of the 1951 Act were similar to those of the 1928 Act after its amendment by the 1950 Act. The clauses prescribing the mode of ascertaining the amount of compensation payable, instead of being relegated to a schedule, were appended to a section (s. 9) which provided that the compensation, where the worker's total or partial incapacity for work resulted from the injury, should be a weekly payment during the incapacity in accordance with the provisions of the clauses. These provisions, like those of the amending Act of 1950, must be construed as applying of their own force to those cases only in which the event giving rise to the liability to pay compensation occurred after the commencement of the 1951 Act. (at p360)
7. In 1953 two more amending Acts were passed. One, No. 5676, came into operation on 1st June 1953, and the other, No. 5715, though not assented to until 25th November 1953, provided that it should be deemed to have come into operation on 1st June 1953 : s. 1 (2). The former Act amended the clauses appended to s. 9 of the 1951 Act by (inter alia) substituting 8 pounds 16s. 0d. for 5 pounds 10 s. 0d. as the weekly payment to be made during the incapacity in respect of the worker himself (s. 7 (b) (i)), and by substituting 2,800 pounds for 1,750 pounds in the provision limiting the total liability of an employer. If no other material provision had been made, the three respondents in the present cases would have been unaffected by the amendments so made. And in the Act No. 5676, in the form in which it was passed, there was nothing to give the amendments any effect upon a case where the right to compensation had arisen under an Act earlier than the 1951 Act. True, there was a s. 15, which provided : "Notwithstanding anything to the contrary in any rule of law or construction, the amendments of the Principal Act made by this Act, so far as they affect rates or amounts of compensation, shall apply with respect to every payment of compensation after the commencement of this Act notwithstanding that the injury or disease giving rise to the right of compensation may have occurred or originated before such commencement, and every policy of accident insurance or indemnity in force under the Workers' Compensation Acts at the said commencement shall, notwithstanding anything to the contrary therein, be read and construed as fully insuring or indemnifying the employer against the increased liability accordingly". But the Principal Act there mentioned is the Act of 1951 (No. 5601) and the payments of compensation referred to would seem clearly to have been confined to payments of compensation the right to which accrued under that Act. This is the construction which most naturally fits the words "notwithstanding that the injury or disease giving rise to the right of compensation may have occurred or originated before such commencement", i.e., before the commencement of the 1953 Act (No. 5676). No intention is disclosed to apply the amended rates and amounts of compensation to cases to which the Principal Act itself did not apply. (at p360)
8. The legislature quickly showed that s. 15 in this form did not go far enough for its purpose. A new s. 15 was substituted by s. 8 of the second Act of 1953 (No. 5715), and was substituted as from the commencement of the Act No. 5676. It provides as follows: "Notwithstanding anything to the contrary in any rule of law or construction, the provisions of the Principal Act as amended by the foregoing provisions of this Act, so far as they relate to rates or amounts of compensation, shall apply with respect to every payment of compensation after the commencement of this Act irrespective of the date of occurrence or origin of the injury or disease giving rise to the right to compensation and notwithstanding that an award for a lesser rate or amount may have been made by the board before the commencement of this Act, and every policy of accident insurance or indemnity in force under the Workers' Compensation Acts at the said commencement shall, notwithstanding anything to the contrary therein, be read and construed as fully insuring or indemnifying the employer against the increased liability accordingly". (at p361)
9. It will be seen that the chief differences between the new s. 15 and the old are, first, that the concern of the new section is with the application of the amended provisions of the Principal Act (the Act of 1951), whereas the concern of the old section had been only with the application of the amendments made by the first 1953 Act; and, secondly, that in the new section the words making clear the intention that cases of accrued rights are covered do not refer, as did the corresponding words in the former section, to the occurrence or origination of injury or disease before the commencement of the first 1953 Act, but, with complete generality, make the amended provisions apply "irrespective of the date of occurrence or origin of the injury or disease giving rise to the right to compensation". The changes thus made, and particularly the latter, would have been pointless if the intention had not been to apply the new scale of compensation to every case in which compensation moneys had still to become payable by virtue of a right acquired, whether it had been acquired before the commencement of "this Act" or even before the commencement of "the Principal Act". (at p361)
10. In all this the parties agree. At the commencement of the first 1953 Act (No. 5676), none of the respondents had received or become entitled to receive sums amounting in the aggregate to the maximum placed upon his employer's liability by the Act which was in force when his right to compensation arose; and the appellants do not deny that by reason of the operation of s. 15 in its substituted form each respondent must be considered to have been entitled, since the commencement of Act No. 5676, to receive weekly payments at the increased rate, that is to say, in respect of himself only, 8 pounds 16s. 0d. a week. But the contention which the appellants advance and the respondents dispute is that s. 15 on its true construction has no operation with respect to the upward limit of an employer's liability, and that accordingly an employer is not liable to make any payment to a worker beyond the maximum amount fixed by the Act which was in force at the time when the liability to pay compensation arose in the particular case. Hence, it is said, the compensation to which the respondents were entitled after 1st June 1953, though of increased weekly amount, would cease to be payable when the total amount paid reached, in the cases of Clementi and Stuart, 1,250 pounds, and in the case of Thomson, 1,750 pounds. These respective total amounts have in fact been reached since that date, and accordingly all further liability is repudiated by the appellants. The respondents, on the other hand, contend that the effect of the substituted s. 15 was to make 2,800 pounds the limit in all cases in which, after the commencement of the Act No. 5676, any compensation should become payable, even though the entitling injury or disease occurred or began before such commencement and therefore at a time when the limit was lower than 2,800 pounds. (at p362)
11. The argument submitted for the appellants is based upon the expressions in the section which describe, first, the provisions of the Principal Act as amended which are to receive an extended application and, secondly, the matters with respect to which, by force of the section, those provisions are to apply. As to the first it is pointed out that the section deals with the amended provisions of the Principal Act so far only as they relate to "rates or amounts of compensation"; and it is said that, at least in the context here found, these words should not be understood as including the maximum total amount of an employer's liability. But reliance is chiefly placed upon the fact that s. 15 makes the amended provisions apply with respect only to "every payment of compensation". The effect is said to be that before those provisions can be given a particular application by virtue of the section you must find a "payment of compensation" to which to apply them. That means, it is said, that you must find either an instalment or a lump sum which would be presently payable if, the amended provisions of the 1951 Act not applying, the worker could rely only upon the Act which was in force when his right to compensation arose. That, of course, you are unable to do when weekly payments made before 1st June 1953 at the old rate together with payments made after that date at the increased rate have reached in the aggregate the amount of the employer's maximum liability under the Act originally applying to the case. (at p363)
12. This argument gives too narrow a meaning to the phrase "rates or amounts of compensation". It may be, as the appellants submit, that the word "amounts" refers, in this context, to lump sum payments of compensation and does not include the aggregate amounts of weekly payments; though it may be pointed out in passing that in cl. 1 (1) of the clauses appended to s. 9 of the 1951 Act the expression "the amount of compensation" is used in relation to cases in which weekly payments are provided for as well as to those in which the compensation takes the form of a lump sum payment. But however this may be, the provisions of the Principal Act which relate to "rates" of compensation must comprise the whole of the provisions of that Act which, in a case for which weekly payments are provided, regulate the extent of the employer's liability to make such payments. The rate of payments in such a case is not fully or accurately described by saying that it is so much a week; it is so much a week subject to the statutory limit upon the total amount to be paid. (at p363)
13. But the argument also takes too narrow a view when it treats the words "every payment of compensation" as referring, in cases like the present, to every individual weekly instalment of compensation. The section evidently had a twofold purpose: to displace the principle of Kraljevich's Case [1945] HCA 29; (1945) 70 CLR 647 so far as it would confine the application of the new scale to cases in which the right to compensation arose on or after 1st June 1953, and at the same time to ensure that the application of the new scale to cases in which the right to compensation arose before that date is prospective only. The first part of the purpose was accomplished by making irrelevant the date of occurrence or origin of the injury or disease. The second part required that instalments or lump sums which had already become payable before 1st June 1953 - and which for the most part would already have been paid - should not be retrospectively increased. That, at least, the language of the section achieved. But it did so by using language which, instead of providing negatively that payments for which the due date had already passed should not be affected, provided affirmatively that the application of the new scale should be with respect to every payment of compensation in the future; and the difficulty created by this language is to know whether any more is intended than an exclusion of rights which had become absolute before the new dispensation began. To hold that more is intended - that the principle of Kraljevich's Case [1945] HCA 29; (1945) 70 CLR 647 is meant to have a residual application, so that the limit of liability under an old scale shall survive to control the application of the new - would be to wring too much out of a phrase which, after all, is a natural enough form of words to use for the more limited purpose. The general sense of the section is that the new scale is to be resorted to for the purpose of determining every question as to rate or amount in ascertaining an employer's liability to make future payments. Notwithstanding the ambiguity which has provided the appellants with a foothold for their argument, the more natural meaning of the provision is that which makes the new scale the exclusive source of information as to the compensation to be paid in every case in which there was still any compensation to become payable at the date when that scale took effect. (at p364)
14. It was objected on behalf of the appellants that to take this view is to read s. 15 as drawing a line which is wholly arbitrary, for a worker who received on 31st May 1953 an instalment which brought his total receipts up to the limit prescribed by his original scale would derive no benefit from the section, while a worker whose final instalment fell due one day later not only would have that instalment increased but would be given a new right to such further instalments, each of the increased amount, as might be necessary to bring his total payments up to the amended limit of 2,800 pounds. This objection is sufficiently answered by what has been said already. The line drawn, far from being arbitrary, places upon a provision, which sets itself to increase vested rights and liabilities to some extent, a limitation which saves those rights and liabilities from alteration in so far as they have become absolute in the sense that they have given rise to debts actually payable. Thus it serves the perfectly rational purpose of ensuring that an employer is not retrospectively placed in default, or in default to an increased extent; it is, of course, an existing obligation which is altered, but the alteration is to take effect so far only as the obligation, when altered, requires payments to be made on future occasions. Obversely, a worker is not given a right to arrears by a retrospective increase in the amounts of payments which have already accrued to him; he is simply placed for the future on the same scale as that which applies to his fellow-worker who is injured or becomes diseased after 1st June 1953, but with credit being given for payments to which he has become entitled in the past. (at p364)
15. It is the opposite construction which would produce an arbitrary result. To read the section as sending one back in each case to the superseded scale which was in force when the right to compensation arose, in order to ascertain in accordance with that scale what payments were still to become due after 1st June 1953 and on what dates they were to become due, and as then fastening upon and increasing in amount each such payment as it falls due to be met so long as the limit of the employer's liability under the original scale is not exceeded, would be to find in the section the very odd intention of giving the worker nothing but the doubtful advantage of having larger but fewer payments and no increase at all in the aggregate amount of his compensation. The improbability of such an intention is apparent. No less obvious is the fact that there would be a plain contradiction in saying in one breath that "every payment" which under the old scale has yet to fall due is to be increased in amount, and saying, in the next breath, that some of those payments, namely those which, if increased in amount, would cause the original limit of liability to be exceeded, are not to become payable at all. (at p365)
16. One argument submitted for the appellants was based upon the fact that in the Act of 1950, as in the Act of 1951, the provision which qualified the limitation of the employer's liability by empowering the board in its discretion in certain cases to determine the total liability as it should think proper in the circumstances was expressly made subject to this, that in exercising its discretion (given elsewhere in the Act) to award a lump sum in redemption of the employer's liability for future weekly payments, the board should not take into account any amount which might have become payable beyond 1,750 pounds if the worker had continued to receive compensation by weekly payments throughout his incapacity. It was pointed out that the figure of 1,750 pounds in this provision of the 1950 Act has not been amended, although the first of the Acts of 1953 altered that figure to 2,800 pounds in the corresponding provision of the Act of 1951; and the contention was advanced that there would be a manifest inconsistency if, in a case in which the right to compensation arose under the 1950 Act, the limit of liability were to be treated as 1,750 pounds for the purposes of redemption proceedings but 2,800 pounds for all other purposes. The answer, however, is that s. 15 of the Act No. 5676, as inserted by the Act No. 5715, is itself wide enough in its true meaning to make 2,800 pounds the figure to be accepted as the limit in such a case for all purposes, including those of redemption proceedings. This is so because the provision which, in the 1951 Act as amended by the Act No. 5676, fixed the limit at 2,800 pounds for redemption proceedings (i.e., cl. 1 (1) (b) (iii) of the 1951 Act as amended by s. 7 (c) of the Act No. 5676), is one of the provisions referred to in s. 15 as those which "relate to rates or amounts of compensation". It relates to rates, because it is an integral part of a provision as to the limit of liability, which itself is one of the provisions relating to rates. Accordingly it applies, by force of s. 15, with respect to the payment of compensation in a case where the right to compensation arose under the 1950 Act. (at p366)
17. It is true, as the Workers' Compensation Board pointed out, that the respondents' construction of s. 15 has one result which may be thought anomalous, namely that it entitles a worker in the position of the respondents to more compensation in the aggregate than he originally acquired a right to receive, simply because he was still drawing weekly payments at 1st June 1953, whereas if he had been awarded, soon after his right to compensation arose, a lump sum equal to the then maximum of his employer's liability, the section would not have entitled him to receive any additional amount. It is impossible, however, to find in this consideration a sufficient reason for rejecting a construction which there is so much else to support. (at p366)
18. The board submitted to the Supreme Court in each of the three cases the question whether the applicant was entitled to receive weekly payments until a total amount of 2,800 pounds had been paid to him by way of weekly payments, subject to the variation, redemption or termination of weekly payments pursuant to the provisions of the Workers' Compensation Acts. This question was answered: Yes. (In the case of Clementi there was a second question as to the amount of each weekly payment, but the answer given was not challenged on the appeal). (at p366)
19. For the reasons which have been stated, the Supreme Court's answer to the question should be affirmed in each case. (at p366)
20. The appeals should therefore be dismissed with costs. (at p366)
ORDER
Appeal dismissed with costs.Minerals (Victoria) Pty. Ltd. v. Stuart.
Appeal dismissed with costs.Dean and Runge v. Thomson.
Appeal dismissed with costs.
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