Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 (2 March 1959)

HIGH COURT OF AUSTRALIA

NASH v. SUNSHINE PORCELAIN POTTERIES LTD. [1959] HCA 7; (1959) 101 CLR 353

Workers' Compensation (Vict.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3),Taylor(4) and Windeyer(5) JJ.

CATCHWORDS

Workers' Compensation (Vict.) - Statute - Interpretation - Rule against retrospective operation - Enactment in 1946 of provision that "where a medical practitioner certifies that a worker is suffering from a disease and is thereby disabled from earning full wages at the work at &which he was employed . . . and the disease is due to the nature of any employment in &which the worker was employed at any time prior to the date of disablement then the worker shall be entitled to compensation . . . and the disablement shall be treated as the happening of the injury" - Application to case of worker disabled by silicosis in 1950 as result of employment &which ceased in 1938 - Silicosis not compensable prior to 1946. Workers' Compensation Act 1946 (No. 5128) (Vict.)., s. 8 - Workers Compensation Act 1951 (No. 5601) (Vict.), ss. 2 (2), 12 (1).

HEARING

Melbourne, 1958, October 16, 17, 20; 1959, March 2. 2:3:1959
APPEAL from the Supreme Court of Victoria. By application dated 9th February 1956 Iris Doreen Nash applied to the Workers Compensation Board for an award of compensation. The applicant alleged that she was suffering from silicosis, an industrial disease due to the nature of her employment as an insulator cleaner with Sunshine Porcelain Potteries Limited and that by reason of the disease she was disabled from earning full wages at the work at which she was employed.

DECISION

March 2, 1959.
The following written judgments were delivered:-
DIXON C.J. The question submitted for our decision by this appeal is whether employment as an insulator cleaner can now recover workers' compensation in consequence of a disablement, that did not appear until twelve years later, arising from silicosis attributable to her employment. During the intervening twelve years she was not employed but pursued her domestic duties. In the year 1955 she obtained from a medical practitioner a certificate that he had personally examined her and that he was satisfied that she was suffering from silicosis and was thereby disabled from earning full wages at the work at which she had been employed. He fixed the date of the commencement of the disablement as about 1950, a vagueness which though understandable may exceed the latitude allowed by law. However, for the purposes of our decision we may take it that the disablement commenced not later than the close of the year 1950. What the certificate meant by the statement that she was disabled from earning full wages at the work at which she had been employed is a question the answer to which is not self-evident. For she had not been employed since 1938, when she gave up her work as an insulator cleaner. The words, however, are those of the legislation and doubtless mean in the certificate whatever they mean in the statute. (at p358)

2. In 1938 when she gave up her employment silicosis was not, in Victoria, a disease in respect of which a worker could obtain compensation if he contracted it as a result of the nature of his employment and was thereby disabled. At that time compensation might be obtained in respect of a limited number only of diseases which were enumerated in a schedule to the Workers' Compensation Act 1928 as amended in 1935 (No. 3806 and No. 4360) or which had been added thereto by lawful authority: see ss. 18 to 25. Silicosis was not included among the so-called "industrial diseases" that were scheduled. But in 1946 this policy was changed. The schedule went. Any disease sufficed so long as it was due to the nature of any employment in which the worker was employed at any time prior to the date of disablement. It had been necessary that the disablement should be caused by a scheduled disease which itself should be due to the nature of an employment in which the worker had been employed within the twelve months previous to the date of disablement. But the limitation of time went as well as the limitation of the description of disease. This was all accomplished by the Workers' Compensation Act 1946 (No. 5128) (Vict.). That Act also provided a definition of the word "disease". It is to include any physical or mental ailment disorder defect or morbid condition whether of sudden or gradual development and it is to include also the aggravation acceleration or recurrence of any pre-existing disease as aforesaid. The law of workers' compensation in Victoria underwent a consolidation in 1951 ; in 1953 the consolidation in its turn underwent amendments. A not immaterial amendment took out the words "by accident" and the like so that the basal idea was no longer "injury by accident arising out of or in the course of the employment" but "injury arising out of or in the course of the employment". The alternative "or" had been substituted for the conjunctive "and" in that momentous phrase in 1946. The word "injury" had already received a wide definition. In this legislation it means any physical or mental injury or disease and includes the aggravation acceleration or recurrence of any pre-existing injury or disease as aforesaid. In the case before us the medical certificate was given after the Act of 1951 had commenced and for that matter after the Act of 1953 had come into force; but the certificate fixed a date of disablement before the Act of 1951 came into operation and after the commencement of the Act of 1946. The Act of 1951 contains a provision the object of which is plainly to prevent the consolidation prejudicing prospective rights which had not yet accrued. Its purpose is to carry over from the application, whether actual or inchoate or contingent, of the Acts repealed and consolidated into the operation of the consolidated Act all facts matters and things which might give rise to rights and liabilities under the legislation. The provision is to be found in s. 2. In spite of the elusiveness of the somewhat indefinite and not entirely self-consistent form the provision takes it makes it possible to adopt for the purpose of the present case the convenient course of treating the consolidated provisions of the Act of 1951 as applicable so far as the events of this case occurred after 1st September 1946 when the Act of 1946 (No. 5128) came into force. The material provisions do not differ except in the way the sections are numbered. Further, it will make for clearness and will not affect the consideration of the case if the text is read as amended by the Act of 1953 (No. 5676) which came into force on 1st June 1953, that is to say, before the medical certificate was given. (at p359)

3. The most material provision is contained in s. 12 (1) of the Act of 1951. As it now reads it provides that where (a) a medical practitioner certifies that a worker is suffering from a disease and is thereby disabled from earning full wages at the work at which he was employed; or (b) the death of a worker is caused by any disease - and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement, then subject to the provisions thereinafter contained, the worker or his dependants shall be entitled to compensation under "this" Act (scil. the consolidated Act) as if the disease were a personal injury arising out of or in the course of that employment and the disablement shall be treated as the happening of the injury. (at p359)

4. The provision states conditions on the fulfilment of which a right to compensation arises. The question in the present case appears to me to depend entirely on the meaning of the conditions and they, I think, are all stated in the earlier part of the sub-section ending with the words "shall be entitled to compensation". Nothing which follows appears to me to state in terms or to imply any further condition or to state or imply any limitation of the meaning of what has preceded it. In seeking to determine the application to a case like this of such a provision it is desirable to begin by putting aside those features which are accidental to the case and cannot or ought not to weigh in adopting an interpretation of the material part of the enactment. Such a course makes it possible to see more clearly the problem of interpretation that is involved. For example, twelve years may seem a long time between the cessation of work to the incidents of which a disease may be traced and a disablement. But the problem of interpretation would be the same if the employment had ceased on 31st August 1946 and the date of disablement had been 2nd September 1946. Again, the fact should be put aside that it is marriage that accounts for the applicant for compensation possessing no trade or employment and that it is twelve years since she had one. The interpretation of the provisions must be the same whatever may have been the reason of the applicant ceasing to work for wages and however short or long the time. (at p360)

5. Now it is as well to begin the discussion of the terms of s. 12 (1) by justifying the assertion that all depends on the conditions expressed down to the words declaring that when the conditions are fulfilled the worker or his dependants "shall be entitled to compensation" and that nothing can be found in the words that follow which can control or limit the conditions. The hypothesis expressed in the words beginning "as if" involves no reference to a matter of fact until you get to the words "that employment". Certainly "that employment" seems to refer to an employment susceptible of identification. But otherwise you are simply to suppose an injury and to suppose that it arose out of or perhaps in the course of the employment referred to and you are to do so in order to give effect to a right conferred upon the disabled worker or the dependants of the deceased worker to compensation under this Act. You are told that the disablement is to be treated as the happening of the injury. The date of the injury is that given by the medical certificate or, if the practitioner cannot certify a date, it is to be the date on which the certificate is given. If the death of the worker has occurred and he has obtained no certificate before dying, the date of his death is taken as the date of his disablement. (See s. 20). The provisions (scil. ss. 41, 42 and 43) relating to notice of the injury apply (s. 15) and that is one reason for treating the disablement as the happening of the injury. Of course the direction that the worker shall be entitled to compensation as if the disease by which he is disabled were a personal injury arising etc. refers to the basal provision for compensation. That is s. 5 which says that if in any employment personal injury arising out of or in the course of the employment is caused to a worker his employer shall subject as therinafter mentioned be liable to pay compensation in accordance with the provisions of the Act. It will be noticed that unlike s. 12 (1), which speaks of the worker's right to compensation ("shall be entitled to compensation"), s. 5 is expressed in terms of the employer's liability to pay compensation. It may perhaps seem a point of little significance. But in a matter where rules of construction are invoked to limit the application of express words so that they will not apply to events, if any, that have already occurred it is not unimportant to notice that the legislature's concern is with conferring a right to compensation rather than with imposing a liability or duty. As will appear, the selection of a person to bear the burden which the creation of the right to compensation necessarily creates is another, but a secondary, matter. By directing that the worker disabled by a disease "shall be entitled to compensation under this Act as if", etc., s. 12 (1) confers on that worker a title to compensation which is conclusive. It puts him conclusively in exactly the same position for that purpose as he would occupy if he acquired a right to compensation "under this Act" by suffering a personal injury arising out of or in the course of "that employment". If it be open to do so one would venture to think that for the same purpose it is to be considered that the injury happened at the date fixed for the disablement. Once you have fixed the employment to which the words "that employment" referred, all that remains is to work out the compensation. Cases of death could give no difficulty : the compensation would be calculated under cl. 1 (1) (a) of the clauses appended to s. 9. Many difficulties may be imagined in ascertaining the compensation for total or partial incapacity in a case of disablement by industrial disease where the worker has relinquished working for wages : to discuss them would not assist in reaching a solution of this case. But two things must be borne in mind. The first is that in ascertaining "average weekly earnings" cl. 4 (b) provides a last resort unlikely to fail. Thus the missing factor for applying the second limb of par. (ii) of cl. 1 (1) (b) will be supplied. The second is that it is well settled that a right to compensation conferred by the Act is not to be restricted or denied because of difficulties in fitting the clauses relating to the computation of compensation to the circumstances of his case : Lysons v. Andrew Knowles & Son (1901) AC 79 ; Ball v. William Hunt & Sons Ltd. (1912) AC 496, at p 500 ; King v. Port of London Authority (1920) AC 1, at pp 11, 28 and McCann v. Scottish Co-operative Laundry Association Ltd. (1936) 1 All ER 475, at p 478 . There is, however, one not unimportant principle laid down by s. 18 in relation to the computation, namely, that the amount of compensation shall be calculated with reference to the earnings of the worker while at work under the employer from whom the compensation is recoverable. That provision forms one of the sections which govern the ascertainment of the person who is to pay the compensation. They provide a plan or scheme for saddling a particular employer or particular employers with liability to meet the compensation to which, once the prescribed conditions are fulfilled, the worker becomes entitled. These provisions are of course an essential part of the legislature's measures for conferring upon workers a right to recover compensation for industrial disease. But, as it appears to me, it would be a mistake to take these liability provisions as a guide for determining the scope and application of the right to compensation which the Act confers. A study of them seems to me to show that in truth legislative policy and principle were conceived from the opposite point of view. The primary thing was to prescribe the conditions the fulfilment or occurrence of which entitled the worker to compensation for injury arising from industrial disease. The question of allocating the burden came next. I say this because I do not think that considerations affecting liability can govern the question whether a worker whose disablement arises after 1st September 1946 from causes existing before that date falls within the operation of the provisions commencing on that date and the further question whether the employment must then subsist. This really becomes sufficiently clear when the character of the provisions for fixing liability upon employers is considered. In the first place the worker is to resort to the employer who last before the date of disablement employed him in the employment to the nature of which the disease was due : s. 14. This does not mean that the disease must in fact be contracted in the employment of that employer. It is enought that the disease is incidental to that class of employment. "If the disease is incidental to that class of employment so that it can be attributed to service therein, then he is to be compensated, as if something could be proved, which ex hypothesi may not be proved - namely, as if an accident had arisen out of and in the course of that employment under a particular employer and at a particular time and had been proved to have so arisen. The difficulty of proving the date when the disease was contracted is met by treating the date of the disablement as the date of the happening of the accident. This is in favour of the workman. The employer, per contra, gets the provision that the proof of the disease is to be given by the certificate of the certifying surgeon, and if the surgeon cannot determine when the disease was contracted, the date of his certificate is to be taken as arbitrarily fixing the time of that event. If the suggested limitation of the relevancy of the last employer were adopted, the anomalous result would be that the date of the accident would be fixed, but its connection with the employment, then or last previously subsisting, would be at large, and the workman's difficulties, arising in any case from the gradual appearance of the symptoms of his disease, would be aggravated by his being tied to a date for the accident, which might be long after the time when the disease was really contracted" : Blatchford v. Staddon and Founds (1927) AC 461 , per Lord Sumner (1927) AC, at p 470 . As Lord Sumner said : "The paternal benevolence of the Legislature towards workmen is well known, and if the price of that benevolence is paid by the last employer, who thus has to bear others' burdens, that is nothing new in this kind of legislation, nor is it done to an extent that need surprise any one who has fully digested the position in which the Act of 1897 had already placed employers" (1927) AC, at p 469 . But by a proviso the worker is required to furnish to the employer upon whom he claims information of what other people employed him in the same kind of employment. The last employer may join any previous employer as a party in any proceedings for the recovery of compensation and if it is proved that the disease was in fact contracted in his employment the compensation is to be recoverable from that employer. If the disease be of such a nature as to be contracted by a gradual process, employers who prior to the date of disablement employed the worker in the employment to the nature of which the disease was due are made liable for contribution to the employer from whom the compensation is recoverable. All this is effected by s. 14 and its provisos. As it seems to me it can be of no importance that the actual contraction of the disease may be shown to have begun in an employment before 1st September 1946. (at p363)

6. In Miller v. J. W. Handley Pty. Ltd. (1948) 2 WCD (Vict) 134 compensation was awarded to a nursing sister who was shown to have contracted pulmonary tuberculosis in January 1946. This was discovered in May 1948 when apparently she obtained a certificate of disablement. She was then still in the employment to the nature of which the disease was due. She recovered compensation from the last employer. The case differs, of course, from the present in the fact that when the Act commenced on 1st September 1946 the worker was still employed in the employment to the nature of which the disease was due. But in a judgment which I find convincing Judge Gamble, who was chairman of the board, showed that the fact that the disease was contracted before the commencement of the Act of 1946 could not matter. "When it is borne in mind" said his Honour, "that under s." 12 "primary liability is placed upon the last employer in that particular kind of employment just because he is the last such employer, it is clear that the actual date of the contraction of the disease is as between the worker and the employer wholly irrelevant" (1948) 2 WCD (Vict), at p 139 . In a later passage the learned judge pointed out how absurd it would be having regard to the history of the provision to limit the operation of the words "at any time" in the phrase "in which the worker was employed at any time prior to the date of disablement". "In its original form s." 12 "of the Act limited the period over which the respondent or respondents could go back in time to 12 months from the date of disablement. This is a matter of express statutory enactment in our opinion giving the section retrospective operation for that period and for that purpose. The amendment of the section by substituting 'at any time' for the words '12 months' cannot affect the construction of the section. The words 'at any time' are therefore still necessarily retrospective in the same sense" (1). It must of course be conceded that when as s. 18 in the Workers' Compensation Act 1914 (No. 2496) (Vict.) the original provision including the words "employed within the twelve months previous to the date of disablement" was enacted it might have been a question whether these words were to be limited by construction by applying a presumption against retrospective operation, limited for example to workers who were employed at the date when the Act commenced. I should not myself have thought that the words ought to have been so construed or that such a construction accorded with the real intention of the legislature : it is for that reason that I cite the foregoing passage. The learned judge proceeds : "Further as the liability of the last employer is determined independently of the date of the acquisition of the disease, the effect of the argument advanced by the respondents would be to deny to the last employer his essential right under the scheme to transfer or share the liability by establishing that the disease was in fact contracted in some other prior employment if that prior employment ceased before September 1, 1946 - even one day before. The amendment of the period '12 months' to the unlimited 'at any time' was clearly intended to be an amendment enlarging the scope of the section not restricing it." (1948) 2 WCD (Vict), at p 140 (at p364)

7. In the same judgment the meaning and effect of the judgment of the Privy Council in Victoria Insurance Co. v. Junction North Broken Hill Mine (1925) AC 354 affirming the Supreme Court of New South Wales (1924) 24 SR (NSW) 160 ; 41 WN 36 was explained and the contention that the decision bore on such a case as the present was disposed of. In the third paragraph on page 138 of the report of the judgment of the Board there is some confusion between Lord Wrenbury's position as only one Lord of Appeal of five in Blatchford v. Staddon and Found (1927) AC 461 and his position of responsibility for the judgment of the Judicial Committee in the case of the Victoria Insurance Co. (1925) AC 354 . But otherwise I am content to accept the explanation which the Board gives of the passages (1948) 2 WCD (Vict), at pp 136-139 in that authority relied upon by the appellant. But in any case I do not think that they affect the real question in this case. (at p365)

8. The essential difficulty of the present case appears to me to arise not from the matters to which I have referred but to the somewhat elusive references under one form of expression or another to the fact of employment. Is it right to understand these references as meaning that the worker must have been employed since the commencement of the Act on 1st September 1946 in an employment to the nature of which the disease was due? For the purpose it is perhaps enough to begin with the citation of a provision not directly relevant. It is s. 13 which provides that if it is proved that the worker has at the time of entering "the employment" wilfully and falsely represented himself in writing as not having previously suffered from the disease compensation shall not be payable. To what employment do the words "the employment" refer? The answer plainly must be the employment of the worker with the employer from whom the compensation would (but for s. 13) be recoverable. When you turn again to s. 14 you find that primarily he is the employer who employed the worker prior to the date of disablement in an employment of the required kind. Must he have employed the worker after 1st September 1946 when the amending Act commenced? The first thing to be noticed in s. 12 (1) is that the medical practitioner must certify that the worker is disabled from earning full wages at the work at which he was employed. Plainly the date of disablement fixed by or in consequence of the certificate must be after the commencement of the amending Act of 1946. For some time it appeared to me that perhaps in those words an implication was to be found that at the time when the disablement arose the worker either was employed at some work or would have been employed but for the disablement. In other words s. 12 (1) might perhaps be taken to contemplate a medical certificate of an existing disability for work or employment in or about which the worker had an existing concern at the time of the disablement certified. But so to read the provision would mean that even in the case of a disease contracted after the amending Act of 1946 came into force which did not make itself manifest for some time it would be essential that the worker should be employed or that except for the disablement or some accidental circumstance he would be employed. On the whole the implication does not seem to be demanded by the words or sufficiently supported by the context. The argument that the word "worker" by definition imports some existing employment cannot be accepted. Throughout the Act this word is used no doubt to import that the required relationship shall exist at a time when it was material to the specific purpose of a given provision : but not otherwise or further. And in s. 12 (1) it is obvious that the status is material not to the certificate or to the actual time of disablement but to the employment to the nature of which the disease is due. As you proceed in the reading of s. 12 (1) you find that two references occur to employment which are linked together so that grammatically they must refer to the same thing. There is the phrase "any employment in which the worker was employed at any time prior to the date of disablement" and there is the phrase "arising out of or in the course of that employment". (at p366)

9. It seems to me to be clear enough that the words "that employment" refer to the same employment as that described as "any employment in which the worker was employed at any time prior" etc. Now that employment cannot be restricted to the period after 1st September 1946, when the amending Act commenced, except by placing a limitation on the words "at any time". Yet it seems to me quite certain that these very words were inserted to extend the time backwards. The definite retrospection of twelve months was deliberately replaced by the unrestricted "at any time". No rule of construction reflecting the presumption against imposing liabilities by reference to an event happening before the enactment of a statute could justify the limitation of these express words. (at p366)

10. It was pointed out in the course of the argument that such a construction might leave without remedy a worker who but for the passing of the Act of 1946 would have been entitled to compensation. Suppose that prior to 1st September 1946 a worker had worked so long at a manufacturing process involving the use of lead or its compounds that his system was "poisoned" but no manifestations of the disease had appeared. Suppose, however, that he had left his employment before that date. Clearly enough upon the disease manifesting itself and his obtaining a certificate of disablement after that date he would have been entitled to compensation but for the passing of the Act of 1946 repealing the old provisions and the schedule. For lead poisoning was a scheduled disease. But he had acquired no title to compensation before 1st September 1946 ; no "right" had accured. The incipient disease gave him no right or title whether present future or contingent: it amounted to nothing but a factor which if other events occurred might form one element in a title to a right. I cannot see how as at 1st September 1946 s. 6 (2) of the Acts Interpretation Act 1928 (Vict.) could apply to his case. It would be strange indeed if by an implied limitation of the words "at any time" his case were excluded from the Act containing amendments directed to the removal of all limitations upon the category of the diseases or upon the time at which the worker must have been employed in the employment to the nature of which they might be due. (at p367)

11. In my opinion the applicant was entitled to recover compensation and her appeal should be allowed. (at p367)

McTIERNAN J. In my opinion the appellant's claim for workers' compensation should be upheld. She suffers from disability resulting from silicosis due to the nature of her employment with the respondent. In view of the fact that she caught the disease while in the respondent's employment it seems to me that it should occasion no surprise that the Workers Compensation Acts make the respondent liable even though her employment with the respondent terminated in 1938. I think that the decisive fact which makes the respondent liable is that the disability from the disease occurred after the Workers' Compensation Act 1946 came into operation. The disability was an event on which s. 8 of the Workers' Compensation Act 1946 did operate. It was clearly a prospective operation. The broad saving provisions of s.2 (2) of the Workers Compensation Act 1951 preserved the right which accrued to the appellant under s. 8 to claim compensation in respect of her disability. Now s. 8 limited no period between disability and the employment wherein the worker contracted the disease. Indeed, it expressly got rid of any such limitation which existed in the old s. 18 of the Workers' Compensation Act 1928. Armed with the medical certificate for which s. 8 provided, the worker had to prove that "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement" and, compensation was by s. 20 of the Principal Act as amended by s. 8 of the Act of 1946, "recoverable from the employer who last employed the worker prior to the date of disablement in the employment to the nature of which the disease was due". The relevant employment is identified by those criteria. After s. 8 came into operation there was nothing about lapse of time. The authority which was given by the section to a medical practitioner is to certify as to a patient suffering from a disease and as to a personal disability for work. The section said the "work at which the worker was employed". I would not construe these words as referring only to a current employment for such a construction would leave unprotected any worker who gave up his employment or had retired from it because of disability resulting from a disease contracted in it. This would, in my opinion, be a capricious and unsound construction where, as in this case, the worker was not employed at all after she left the employment in which she contracted her disease. The word "work" must include the work at which the worker was employed when he was last employed. In this case that work is the work at which the appellant was employed by the respondent, and at which she contracted the disease. It seems to me to be a proper construction of the section to include that work within the category for which the medical certificate might be given. Where the conditions precedent to the right to claim compensation in respect of disability resulting from disease are fulfilled, the provisions under which the worker proceeds allow the fiction to be adopted that the disease is an incapacitating injury, for the purpose of bringing into play the provisions of the Act relating to compensation for injury, so far as they are capable of application to the case. For these reasons the award in question was validly made under the Workers Compensation Act 1951 as amended. In my opinion the dissenting judgment of Gavan Duffy J. is right. I would allow the appeal and affirm the award made by the Workers Compensation Board in favour of the appellant. (at p368)

FULLAGAR J. This appeal, which is from a judgment of the Full Court of the Supreme Court of Victoria, raises a difficult question under those provisions of the Victorian Workers Compensation Acts which relate to "industrial diseases". The question is whether, having regard to the times at which the relevant events occurred, certain amendments of the legislation, which were made in 1946, apply to the case of the appellant. It is convenient to begin by stating the facts, which are simple enough. (at p368)

2. Between the years 1931 and 1938 the appellant, Iris Doreen Nash, was employed by the respondent company as an insulator cleaner. In December 1937 she married, and in May 1938 she ceased to be employed by the respondent. Since that time she has not been employed by the respondent or by any other employer. During her employment with the respondent she was exposed to dust containing silica, and as a result of this exposure she developed the disease of silicosis, although it was not known to her nor manifested by any signs or symptoms until within the last few years. The first symptom noticed by her was breathlessness from about 1950 onwards. On 20th December 1955 Dr. K. J. Grice, a legally qualified medical practitioner, signed a certificate which, so far as material, was in the following terms:- "I hereby certify that having personally examined Doreen Iris Nash on the ninth day of December 1955, I am satisfied that she is suffering from silicosis being one of the diseases to which the Workers' Compensation Acts apply, and that she is thereby disabled from earning full wages at the work at which she has been employed, and I certify that the disablement commenced about 1950, according to the history given." The appellant has been physically totally disabled for work by reason of the disease of silicosis since February 1955. (at p369)

3. On 5th January 1956 she gave notice of her disablement to the respondent, and a little later, liability to pay compensation being denied, she made a claim for compensation, which came on for hearing before the Workers Compensation Board on 7th February 1957. The board on 21st February 1957 made an award in her favour, but stated a case for the determination of the Full Court of the Supreme Court under s. 56 (3) of the Workers Compensation Act 1951. The question asked by the case is whether upon the facts above stated the board was justified in law in making the award. The Supreme Court by a majority (Herring C. J. and Smith J., Gavan Duffy J. dissenting) held that this question should be answered: - No. From this decision the appellant appeals by special leave to this Court. (at p369)

4. The first Victorian Workers' Compensation Act was enacted in 1914. It followed fairly closely the English Act of 1906, which was the first English Act to make special provision for industrial diseases. The Victorian legislation was consolidated, without any amendment of importance, in 1915 and again in 1928. Between 1928 and 1946 a number of amendments of general importance were made, but none affecting industrial diseases, and from 1931 to 1938, the period during which the appellant was in the employment of the respondent, an employer's liability in respect of industrial diseases was governed by the Act of 1928. Section 5 (1) of that Act contained the general provision for payment of compensation, and was, so far as material, in these terms: - "If in any employment personal injury by accident arising out of and in the course of the employment is caused to a worker his employer shall be liable to pay compensation in accordance with the Second Schedule." The Second Schedule provided for the amount or rate of compensation payable (a) "where death results from the injury", and (b) "where total or partial incapacity results from the injury". Sections 18 to 27 inclusive dealt with industrial diseases. It is necessary only to set out s. 18. That section provided: - "Where - (i) the certifying medical practitioner for the district in which a worker was employed certifies that the worker is suffering from a disease mentioned in the Fifth Schedule and is thereby disabled from earning full wages at the work at which he was employed; or (ii) the death of a worker is caused by any such disease, and the disease is due to the nature of any employment in which the worker was employed within the twelve months previous to the date of the disablement whether under one or more employers, the worker or his dependants shall subject to the provisions hereinafter contained be entitled to compensation under this Act as if the disease were a personal injury by accident arising out of and in the course of that employment and the disablement shall be treated as the happening of the accident." Sections 19 to 27 contained subsidiary and ancillary provisions. The only amendments which have ever been made in these provisions were consequential on the amendments of s. 18 which were made in 1946 and will be mentioned in a moment. (at p370)

5. It is seen that s. 18 of the Act of 1928 was limited in two ways. In the first place, it applied only to diseases mentioned in the Fifth Schedule. In the second place, it did not apply if the disablement took place more than twelve months after the worker had ceased to be employed in an employment to the nature of which the disease was due. If s. 18 had remained unaltered, it is obvious that the appellant in this case could have had no claim for compensation. For, in the first place, silicosis was not one of the diseases mentioned in the Fifth Schedule, and, in the second place, she had ceased to be employed in an employment to the nature of which her disease was due - or indeed in any employment - very much more than twelve months before her disablement. (at p370)

6. The Workers' Compensation Act 1946 (Act No. 5128) came into force, by virtue of a proclamation, on 1st September 1946. This Act effected an alteration of general importance in the law by substituting for the words "out of and in the course of the employment" in s. 5 of the Act of 1928 the words "out of or in the course of the employment". What is material in the present case, however, is that by s. 8 it greatly enlarged the scope of a worker's right to compensation in respect of industrial diseases. I will set out in a moment the amended section as it now appears in the consolidating Act of 1951. For the present it is enough to say that the enlargement was twofold. Any disease which could be shown to be due to the nature of the employment of a worker became a compensable disease. And the time limit of twelve months disappeared, so that, in cases to which the new section applied, it ceased to matter how long before the disablement the worker had ceased to be employed in an employment to the nature of which the disease was due. (at p371)

7. The Workers Compensation Act 1951 came into force by virtue of a proclamation on 19th December 1951. It was a consolidating Act. It repealed (subject to a saving clause) all prior legislation, including the Act of 1946. It then, so far as industrial diseases were concerned, re-enacted the pre-existing provisions, embodying without alteration the amendments effected in 1946. Section 5 (1) contains the provision which gives the general right to compensation. It reads: - "If in any employment personal injury by accident arising out of or in the course of the employment is caused to a worker his employer shall subject as hereinafter mentioned be liable to pay compensation in accordance with the provisions of this Act." Section 9 provides for the amount or rate of compensation which is to be payable "where the worker's death results from the injury" and "where the worker's total or partial incapacity for work results from the injury". Section 12 reproduces the old s. 18, as amended in 1946. It provides: - "(1) Where - (a) a medical practitioner certifies that a worker is suffering from a disease and is thereby disabled from earning full wages at the work at which he was employed; or (b) the death of a worker is caused by any disease - and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement, then subject to the provisions hereinafter contained the worker or his dependants shall be entitled to compensation under this Act as if the disease were a personal injury by accident arising out of or in the course of that employment and the disablement shall be treated as the happening of the accident." Section 14 provides: - "The compensation shall be recoverable from the employer who last employed the worker prior to the date of disablement in the employment to the nature of which the disease was due, and notice of the death or disablement shall be given to that employer and may be so given notwithstanding that the worker has voluntarily left his employment". There are three provisos. The first may be summarized by saying that it requires the worker or his dependants to supply to the last employer in what may be shortly called the hazardous employment information as to all other employers who have employed the worker in the hazardous employment, and provides that, if such information is not supplied, that last employer, if he can prove that the disease was not contracted in his employment, shall not be liable to pay compensation. The second provides that the last employer may join any other employer as a party to proceedings before the board, and, if he proves that the disease was in fact contracted in the employment of that other employer, that other employer shall be the employer from whom compensation is recoverable. The third provides that, if the disease is of such a nature as to be contracted by a gradual process, any other employers who have employed the worker in the hazardous employment shall be liable to make to the employer from whom compensation is recoverable such contributions as the board may determine. Section 16 provides for cases in which the employer who last employed the worker in a relevant employment is dead or cannot be found or (in the case of a company) has been wound up. Section 18 provides: - "The amount of the compensation shall be calculated with reference to the earnings of the worker while at work under the employer from whom the compensation is recoverable." Section 20 provides: - "The date of disablement shall be deemed to be such date as the medical practitioner certifies as the date on which the disablement commenced or if he is unable to certify such a date the date on which the certificate is given." (at p372)

8. Before approaching the question at issue there are two things to be said about Dr. Grice's certificate. It certifies that the appellant is "disabled from earning full wages at the work at which she has been employed". The words of s. 12 are "was employed", not "has been employed", but this is of no importance. The certificate must be taken to refer to the employment of the appellant by the respondent. Of possibly greater importance is that the certificate is defective in that it does not state any date as the date of the commencement of the disability. It merely states that the disablement commenced "about 1950", and even that statement is qualified by the words "according to the history given". It may be that in strictness s. 20 of the Act ought to be held to apply, and the date of the commencement of the disability taken to be the date of the certificate. The case, however, has been conducted before the board and in both courts on the footing that the certificate is formally correct and that the disability commenced not later than the end of 1950. (at p372)

9. The appellant's argument has the attractiveness which commonly attends simplicity. She says that her case falls literally within the terms of s. 12 (1). A medcal practioner has certified that she is suffering from a disease, and is thereby disabled from earning full wages at the work at which she was employed by the respondent from 1931 to 1938. The disease is admitted or proved to be due to the nature of her employment with the respondent. It follows, she says, that she is entitled to compensation under the Act, and the disease is to be treated, for the purposes of ss. 5 and 9, as an injury which arose, when disablement supervened, out of or in the course of her employment with the respondent. The compensation is recoverable from the respondent by virtue of s. 14, and the amount is to be calculated, under s. 18, by reference to her earnings while at work under the respondent. (at p373)

10. The appellant says that the view outlined above is inescapable on the clear language of the Act except by reading into s. 12 (1) some arbitrary qualification. She further says that that view does not involve giving to s. 12 (1) any retrospective operation. The giving of the certificate, which is the primary foundation of her right, is an event which took place after the commencement of the Act of 1951. If we should test retrospectivity by reference to any other fact or event than the giving of the certificate, it can only be, she says, by reference to the occurrence of her disability. And, although that event occurred before the commencement of the Act of 1951, it occurred after the commencement of the Act of 1946, and gave her, she says, a right which is preserved by s. 2 (2) of the Act of 1951. That sub-section provides (to put it shortly) that, notwithstanding the repeal of the Act of 1946, all circumstances existing under that Act shall continue to have the same operation and effect under the Act of 1951 as they would have had under the Act of 1946 if it had not been repealed. The construction of an amending Workers Compensation Act which makes it apply in respect of an "accident" or "injury" occurring after its commencement, but not in respect of an "accident" or "injury" occurring before its commencement, is, of course, familiar: see, e.g., Kraljevich v. Lake View & Star Ltd. [1945] HCA 29; (1945) 70 CLR 647 and cases there cited, and cf. Mynott v. Barnard [1939] HCA 13; (1939) 62 CLR 68 . (at p373)

11. The respondent urges that to adopt the appellant's construction would be to give to the Act of 1946 or the Act of 1951 a retrospective effect and to make it operate in many cases in a manner most unjust to an employer. The liability which the Acts impose is imposed as an incident of the employment of workers by an employer. Surely there is a very strong presumption that the legislature did not intend - either in 1914, when the first Act was passed, or in 1946, when the relevant amendment was made - to impose a new liability as an incident of an employment which had ceased long before the relevant Act became law. The appellant was employed by the respondent in a hazardous employment from 1931 to 1938. During that period the potential liability of the employer which was an incident of that employment was, so far as industrial diseases are concerned, limited to a list of specific diseases which did not include silicosis, and it was further limited to cases in which the incapacity or death of a worker occurred within twelve months of the worker's ceasing to be employed by it. It is impossible, says the respondent, to suppose that the legislature, when eight years later it greatly extended the potential liability of an employer of workers in a hazardous employment, intended to attach that extended liability to an employment which had long since ceased. The presumption against such an intention is, it is said, strongly fortified when regard is had to the position in relation to insurance. An employer would normally, of course, wish to insure himself against his liability under the Acts, and in fact insurance has always been compulsory under the Acts. But how could an employer in 1938 insure himself against a liability which did not exist? The respondent could, and presumably did, insure itself against all potential liability in respect of industrial diseases under s. 18 of the Act of 1928. But it could not be expected to insure itself in 1938 against what was not even a potential liability until the Act of 1946 became law. It might perhaps be suggested that he could, in each year after 1946, have insured himself against the new potential liability to workers employed by him in the past. But such a view seems altogether unrealistic. The insurance required by s. 37 of the Act of 1928 was (as it still is) an insurance against liability to individual workers, and the penalty for non-compliance was (as it still is) a specified sum "in respect of each uninsured worker employed". A large employer of labour with a large "turnover" of labour would, in order to be safe, have to insure himself against the new potential liability in respect of every worker employed by him over a long period of years - he could not know how many years - in the past. (at p374)

12. But, whatever may be thought of the position with regard to insurance, it is quite clear that the appellant's construction of the Acts of 1946 and 1951 does mean that a liability may be imposed on an employer in respect of something - viz. the actual or presumptive contraction of an industrial disease in his employment - which happened long before the Act of 1946 became law. It is also quite clear, as a matter of law that such a construction, which gives to the Act an operation retrospective in the relevant sense, is to be avoided if a construction which will give it a merely prospective operation is reasonably open. I do not think that there is any serious difficulty in so construing the relevant section as to give it a merely prospective (at p375)

13. One view which was said to avoid "retrospective" operation (though it was not pressed before us) was that the appellant was not a "worker" within the meaning of the Act for the very simple reason that she had not been employed by anybody since 1938. This view does not seem to me to be tenable. As Gavan Duffy J. said, "An applicant must be a 'worker', but only in respect of the injury he has sustained. He is claiming in his character of 'worker'." The view thus rejected is indeed inconsistent with Blatchford v. Staddon and Founds (1927) AC 461 and other cases of high authority. (at p375)

14. The view of the majority of the Full Court was, as I understand it, that the amendment made in 1946 applied, on its true construction, only to cases where the worker had been employed after the commencement of the Act of 1946 in an employment to the nature of which the disease was due. It did not apply where the only relevant hazardous employment had ceased before the commencement of the Act. This view is, in my opinion, correct. (at p375)

15. As Lord Sumner explained in Blatchford v. Staddon and Founds (1927) AC 461 , the legislature, when it decided to make industrial diseases compensable, could not, because of the very nature of such diseases, simply provide that the contraction of such a disease should be treated as the equivalent of what may be called a traumatic accident or injury. On the other hand, it did not choose to enact a separate and self-contained "code" for such diseases, but took the course of giving the right to compensation in respect of such diseases by reference to the general provisions for cases of accidental injury, engrafting on them certain special provisions or modifications which the nature of the case seemed to require. The root of the difficulty with which the legislature had to deal lay in the fact that an industrial disease may be acquired in a particular employment, but may not produce incapacity, or manifest itself at all, until many years later. In the meantime the worker may have been employed by a number of employers in the hazardous employment, and it may be quite impossible to say in which of those employments the disease was in fact contracted. The solution of the difficulty was found in requiring the worker to prove no more than that the disease is "due to the nature of an employment in which he was employed at any time before disablement". If he can prove this, he is given a right to compensation, and the employer liable is "the employer who last employed him in the employment to the nature of which the disease is due". That employer may be able to shift the liability on to the shoulders of another employer, or he may be able to obtain contribution from another employer or other employers, but the only employer with whom the worker is primarily and directly concerned is the last employer in the hazardous employment. (at p376)

16. It would seem to follow, as a matter of general principle, that the legislation on which the appellant founds her claim should be construed as limited in its application to cases where the relevant employment - the last employment to the nature of which the disease is due - is an employment subsisting after that legislation came into force. The general rule may for present purposes be stated by saying that an enactment is prima facie to be construed as not attaching new actual or potential legal consequences to facts which have ceased to exist before it came into force. The fact to which new potential legal consequences are attached here is the employment of a worker in an employment of a particular nature. That fact had ceased to exist before the Act of 1946 came into force. (at p376)

17. The view expressed above is, I think, strongly supported - if not indeed directly suggested - by the words "as if the disease were a personal injury by accident arising out of or in the course of the employment". In considering these assimilating words, it will make for clarity if we go back to the original Victorian Act of 1914. They have not been altered since, and, although s. 5, which gives the general right to compensation for accidental injury, has been altered in several respects, there has been no alteration which is material for present purposes. (at p376)

18. Before the Act of 1914 there had been in Victoria no such thing as workers' compensation as we know it. Part III of the Employers and Employees Act 1890, following the English Employers Liability Act 1880, had modified the common law in certain not unimportant respects, but the Act of 1914 introduced an entirely novel idea into the law. Section 5 (1), which has been set out above, gave a general right to compensation to workers injured in their employment. Section 18, which also has been set out above, dealt with industrial diseases. It did not completely define the right of a worker to compensation in respect of an industrial disease. It gave him that right by reference to the general provisions of s. 5 (1). (at p376)

19. Now, it may be taken as clear that s. 5 (1) is looking only to the future. It is impossible to construe it as imposing this entirely novel liability on an employer except in respect of accidents occurring after it came into force. And, because the accident must occur in an employment, s. 5 (1) imposes that liability only in relation to an employment subsisting after it came into force. Such is the plain meaning of s. 5 (1), and it is hardly necessary to invoke any rule of construction. Section 5 (1) cannot be read as applying to an accident occurring in an employment which had ceased before it came into force. Then, when s. 18 in effect equates an employment-disease to an employment-accident, it seems natural and right to infer that the same, or a corresponding, temporal limit of operation is intended. It seems natural and right to say that, just as s. 5 does not apply to an accident occurring in an employment which had ceased before it came into force, so s. 18 does not apply to a disease attributable actually or presumptively to an employment which had ceased before it came into force. The position in this respect is not, I think, affected by the provision in s. 18 that the disability shall be treated as the happening of the accident. The purpose of that provision is merely to fix the date of disablement as the date from which compensation is payable: see Keary v. Archibald Russell Ltd. (1915) SC 672 approved and applied in Victoria Insurance Co. Ltd. v. Junction North Broken Hill Mine (1925) AC 354 . (at p377)

20. It has seemed to me to make for simplicity if we approach the matter by looking at the original Act of 1914. The relevant sections have been amended in several respects since 1914, but it obvious that precisely the same considerations apply when we are dealing with the amendment effected by the Act of 1946 or with the Act of 1951. (at p377)

21. No surprising or untoward consequences appear to me to follow from the view which I have expressed. It was suggested that one result of adopting it would be (because the Act of 1946 repealed the old s. 18) to leave without any right to compensation a worker who before the Act of 1946 became law contracted a Fifth Schedule disease which did not disable him or manifest itself until after that Act became law. Such a worker, it was said, would have no claim under the repealed law, and would have no claim under the new law unless he had been employed after the Act of 1946 became law in an employment to the nature of which the disease was due. It is clear, in my opinion, that no such result follows. The position of such a worker would be governed by the law as it existed before the Act of 1946 came into force. His right arises from the actual or presumptive contraction of a disease in a particular employment, and that right would, notwithstanding the repeal of the old s. 18, be preserved to him by s. 6 (2) (c) of the Acts Interpretation Act 1928. (at p377)

22. It was also suggested that, on the construction which I have adopted, the new s. 18, introduced in 1946, could not, so far as it extended the rights of workers, have any effective operation for many years after its enactment. I am unable to accept this argument. If it were correct, it would mean that the old provision with the twelve months limit, which has never been altered in England, was in Victoria, and always has been in England, practically futile. That this is not so is shown by innumerable reported cases. The argument assumes that no industrial disease will manifest itself and create disability until - as in the case of the present appellant - many years have passed since it was actually contracted. There is no justification for any such assumption. The amendments of 1946 will apply to every case in which the disability of a worker is due to the nature of an employment in which he has been engaged since those amendments became law. Such a disability may, I should suppose, manifest itself soon or late - more or less immediately or many years later - and I can see no sound reason in any such consideration for inferring that the legislature, in enacting the Act of 1946, intended to make an employer liable by reference to something which occurred before its commencement. (at p378)

23. A considerable number of authorities were cited in argument, but it is necessary, I think, to refer only to one or two of them. The judgment delivered by Lord Wrenbury for the Privy Council in Victoria Insurance Co. Ltd. v. Junction North Broken Hill Mine (1925) AC 354 has been the subject of a certain amount of controversy since the judgment of Scrutton L.J. in Ellerbeck Collieries Ltd. v. Cornhill Insurance Co. (1932) 1 KB 401 but it is sufficient to say that it is binding on this Court. It has, in my opinion, only a very indirect bearing on the present case. The view which I take is in accord with the decisions in Greenhill v. "Daily Record" Glasgow Ltd. (1909) 2 BWCC 244 and Bellambi Coal Co. Ltd. v. Clark (1953) 53 SR (NSW) 440; 70 WN 284 which are not, of course, binding on this Court, but which were, in my opinion, correctly decided. The only other decision to which I think it necessary to refer is the decision of the Victorian Workers' Compensation Board in Miller v. J. W. Handley Pty. Ltd. (1948) 2 WCD (Vict) 134 . His Honour, Judge Dethridge, in giving the reasons of the board for its award in favour of the appellant in the present case, referred to this decision, and really, I think, regarded it as covering the present case. The decision in Miller's Case (1948) 2 WCD (Vict) 134 was, in my opinion, on the facts found, correct, and I would with respect agree with most of what was said by his Honour, Judge Gamble, in giving the reasons of the board for that decision. But it seems to me to be perfectly consistent with the view which I take of the present case. In Miller's Case (1948) 2 WCD (Vict) 134 the worker was in the employment of the respondent employer on and after the date of commencement of the Act of 1946 and was indeed still in that employment when she obtained her certificate of disablement. It was, however, proved that she had actually contracted the disease (tuberculosis) before the date of commencement of the Act, and the argument for the respondent was that the Act should be construed, in order to avoid retrospective operation, as not applying to cases where the disease was shown to have been contracted before it came into force. The board rejected this argument, but the reasons given indicate that it was fully conscious of what I would regard as the plain point of distinction between that case and the present case. His Honour said: - "When it is borne in mind that under section 18 primary liability is placed upon the last employer in that particular kind of employment just because he is the last such employer, it is clear that the actual date of the contraction of the disease is as between the worker and the employer wholly irrelevant" (1948) 2 WCD (Vict), at p 139 . I would entirely agree with this. He then listed the allegations which the claimant worker had to prove as these: - " (1948) 2 WCD (Vict), at p 139 that the applicant is a worker; (2) that a medical certificate was given that she is suffering from a disease; (1948) 2 WCD (Vict), at p 140 that she is disabled by such disease; (4) that the disease was due to the nature of her employment; (5) that the respondent was the last employer in an employment of the nature described" (1948) 2 WCD (Vict), at p 139-140 . He proceeded: - "All these matters happened or came into existence after September, 1946, and to apply the Act to them is in no sense to give the Act retrospective operation" (1948) 2 WCD (Vict), at p 140 . In the present case the fifth of the stated alleganda et probanda is a fact which existed before, and only before, the amending Act came into force, and to apply the Act to this case would be to give it retrospective operation in the relevant sense. (at p379)

24. There is one passage in the decision of the board in Miller's Case (1948) 2 WCD (Vict) 134 with which I am quite unable to agree. That is the paragraph which begins: - "In its original form s. 18 of the Act limited the period over which the respondent or respondents could go back in time to 12 months from the date of disablement. This is a matter of express statutory enactment in our opinion giving the section retrospective operation for that period and for that purpose" (1948) 2 WCD (Vict), at p 140 . I would agree, of course, that the amendment of the section by substituting "at any time" for "within the twelve months" cannot affect the construction of the section for present purposes. But to say that the reference to the twelve months gave the section a retrospective operation to the extent of that period and that the amendment extended the period of retrospectivity, is, with respect, to beg the question. As Herring C.J. and Smith J. have pointed out, the references to time in the original section and in the amended section have no bearing on any question of retrospective operation. They are concerned with the period anterior to disablement within which the worker must have been engaged in the employment to the nature of which the disease is due. They cannot affect in any way the entirely different question whether the section applies at all to a case where the worker has not been engaged in any such employment after the commencement of the Act. (at p380)

25. For the reasons given I am of opinion that this appeal should be dismissed. (at p380)

TAYLOR J. The difficulty in this case is the inevitable result of the often noticed ineptness of making provision with respect to compensation for so-called occupational or industrial diseases by attempting to assimilate cases of this character to cases of "injury by accident" - or "injury" - in the course of employment. This, of course, is what s. 12 of the Workers Compensation Act 1951 attempts to do when it provides that, upon an appropriate certificate being given in respect of a worker suffering from a disease which is due to the nature of any employment in which he was employed at any time prior to the date of disablement, "the worker . . . shall be entitled to compensation under this Act as if the disease were a personal injury by accident arising out of or in the course of that employment and the disablement shall be treated as the happening of the accident". This section was amended in 1953 by the omission of the words "by accident" and by the substitution of the words "the injury" for the words "the accident". The "basal" provision, or that which gives to workers the general right to compensation for injuries arising out of or in the course of their employment, is s. 5 (1) and it is to this provision that a worker suffering from an occupational disease is relegated by the provisions of s. 12. Accordingly, it seems to me, it is upon the provisions of s. 5 (1) that his right to payments of compensation must ultimately depend. Substantially the question in the present case is whether the appellant, with the aid of s. 12, is in a position successfully to assert that, in an employment to which s. 5 (1) of the Act applies, she sustained personal injury arising out of or in the course of that employment. Whichever way this question is answered anomalies will result but I agree with my brother Fullagar in thinking that this contention cannot be made good. (at p381)

2. Under s. 5 (1) a worker may establish a right to compensation by showing that he has sustained an injury in the course of his employment and in undertaking this task he will of course have the benefit of the provisions contained in s. 8 of the Act. Compensation under s. 5 (1) may be recovered whether the injury is traumatic in origin or whether it is the result of a disease or the aggravation acceleration or recurrence of any pre-existing injury or disease. But in each of these types of cases it is essential that the necessary connection between the so-called injury and a relevant employment be established. Section 12, however, does not in terms depend for its operation upon proof of any actual relationship between a worker's employment and the disease from which he is found to be suffering; it is sufficient if "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement". Then when the prescribed conditions are found to exist he "shall be entitled to compensation under this Act as if the disease were a personal injury arising out of or in the course of that employment". But, in my view, s. 12 is, in effect, no more than a "deeming" provision which, in appropriate circumstances, will enable a worker to bring his case, not otherwise within the provisions of s. 5 (1), within the provisions of that section. In effect he is put in the same position as if he had sustained personal injury arising in the course of his employment. But it would be a strange result if in the first two types of cases referred to compensation could be recovered under s. 5 (1) only in respect of injuries arising out of an employment after the commencement of the Act whilst, in the case of a worker suffering from an industrial disease and whose right ultimately depends upon s. 5, it is immaterial whether the relevant employment was before or after that event. I am unable to accept the view that the right to compensation in such a case is solely dependent upon s. 12 and for the reasons which I have briefly stated the appeal should, in my opinion, be dismissed. (at p381)

WINDEYER J. The question in this case arises under the consolidating Workers Compensation Act 1951 (No. 5601), as amended in 1953 by Acts Nos. 5676 and 5715. But the problem really arises as a result of the Workers' Compensation Act 1946 (No. 5128). That Act substituted a new s. 18 for the previously existing s. 18 of the Workers' Compensation Act 1928, the then principal Act. This s. 18 is now s. 12 (1) of the 1951 Act; but for the solution of this matter we must, I think, take our stand at 1946. Whatever rights the appellant got under the 1946 enactment were preserved for her by s. 2 of the 1951 Act; and that Act did not improve her position from what it was when the 1946 enactment came into operation on 1st September 1946. The difficulty in this case lies in deciding within what period of time the events and circumstances which under the Act artificially assimilate industrial diseases to traumatic injuries must have happened or existed. Immediately before the enactment of s. 18 in 1946 only certain industrial diseases were compensable, and silicosis was not one of them. Moreover, a compensable disease could then produce entitlement to compensation only if the disablement resulting from the disease occurred while the worker was employed in work of the kind which caused the disease, or had been so employed within twelve months of the date of disablement. In 1946 this was radically changed. By the new s. 18, firstly, all industrial diseases became compensable; and secondly, a worker was to be entitled to compensation if he became disabled by an industrial disease at any time after being in the employment causing the disease, and not only when the disablement occurred within twelve months. (at p382)

2. An applicant for compensation must after 1946 establish that "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement". To avoid giving this provision any retrospective effect it might be construed as meaning "any employment in which (after the enactment came into operation) the worker was employed at any time". But the manner of the 1946 amendment was to substitute a new s. 18 for that in the existing Act. The actual or prospective rights it gave to workers were thus introduced into an existing system of compensation. I have found this a difficult case. Judgments given in other cases more or less comparable with this are not all easily reconcilable; but I have come to the conclusion that to determine who are entitled to the benefit of the rights given by the 1946 amendment the language of the statute should be applied quite literally, reading s. 18 in the context into which it was inserted. The words "at any time" then seem to me decisive. They no doubt were inserted to replace the former limitation of twelve months; but, in my view, these words when originally enacted gave a retroactive operation at the outset to the provisions concerning disability arising from industrial disease, the limit of retrospectivity being twelve months. The possible consequences of the extension made in 1946 may not have been in contemplation. To create a liability in an employer in cases where the employment had ceased years earlier, as here, might certainly cause considerable hardship for the employer; and this result was perhaps not intended by the legislature. But I do not feel that, in all the circumstances, any general presumption against retrospectivity should displace or qualify what I consider to be the express meaning of the words. (at p383)

3. I do not think it necessary under the section that an applicant be actually in employment at the time of the medical certificate or of the disablement. I may add, although the question does not arise here, that, as I read the section, it would always be open to an employer to contend that an applicant for compensation had not contracted a disease at all. The worker must prove that "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement"; and the employer could, I think, contend that the medical certificate was based on a mistaken diagnosis. Furthermore, in my view the effect of the section is to bring persons who become disabled by industrial disease within the purview of the Act. They become entitled to compensation "as if the disease were a personal injury by accident". It is, I think, necessary to measure the entitlement according to s. 9 as affected by s. 18 of the 1951 Act. (at p383)

4. I would allow the appeal. (at p383)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Victoria set aside. In lieu thereof answer the question of law submitted for the opinion of the Full Court Yes and order that the respondent Sunshine Porcelain Potteries Limited do pay the costs of the applicant Iris Doreen Nash in the Supreme Court.