Wyper v Hetton Bellbird Collieries Ltd [1960] HCA 81; (1960) 105 CLR 208 (16 November 1960)

HIGH COURT OF AUSTRALIA

WYPER v. HETTON BELLBIRD COLLIERIES LTD. [1960] HCA 81; (1960) 105 CLR 208

Workers' Compensation (N.S.W.)

High Court of Australia
McTiernan(1), Fullagar(2), Kitto(3), Menzies(3) and Windeyer(4) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Incapacity from employment disease contracted by gradual process - Previous retirement of worker - Death of worker - Amount of compensation payable to widow - Workers' Compensation Act, 1926-1954 (N.S.W.),s. 8 (1) (a).

HEARING

Sydney, 1960, August 11, 12, 15, 16; November 16. 16:11:1960
APPEAL from the Supreme Court of New South Wales.

DECISION

November 16.
The following written judgments were delivered:-
McTIERNAN J. In this case I also agree in the conclusion reached by Kitto

FULLAGAR J. The facts of this case are similar to those in Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188 , except that the appellant is not a worker but the widow of a deceased worker. The only question actually raised, however, is as to the amount of compensation payable. (at p211)

2. The deceased during his working life had been employed in coal mines. The respondent company was his last employer, and he worked in a coal mine of the respondent up to 25th October 1947. Having then reached the statutory retiring age of sixty years, he was compulsorily retired and a pension was paid to him. On 19th October 1954 he was examined by a Medical Board. The only finding of the Board that need be mentioned is that he was suffering from pneumoconiosis and was totally incapacitated by that disease. It is agreed that the date of his incapacity was the date of the Board's certificate. On 22nd September 1956 he died, pneumoconiosis being certified as one of the causes of his death. (at p212)

3. It has not been disputed that his widow is entitled to compensation to be calculated under s. 8 (1) (a) of the Act. But, between the date when he ceased to be employed by the respondent and the date of his certified incapacity from pneumoconiosis, s. 8 (1) (a) was amended three times. It was amended in 1948, in 1951 and in 1953, and each successive amendment had the effect of substantially increasing the amount of compensation payable. The appellant contends that the amount of compensation payable is to be ascertained by reference to s. 8 (1) (a) as it stood in 1954. The respondent contends that it is to be ascertained by reference to s. 8 (1) (a) as it stood in 1947. The Supreme Court was of opinion that the contention of the respondent was correct. (at p212)

4. For the reasons which I have given in Fisher's Case [1960] HCA 80; (1960) 105 CLR 188 I am of opinion that the relevant date is the date of the worker's incapacity, and, as I have said, it is agreed that that date is the date of the certificate of the Medical Board, viz. 19th October 1954. The provision to be applied is, therefore, s. 8 (1) (a) as it stood in 1954. (at p212)

5. In my opinion, the appeal should be allowed, and the questions asked by the case stated should be answered: 1 (a) No; (b) No; (c) No; 2 No. (at p212)

KITTO AND MENZIES JJ. In this case the appellant is the widow of a worker who was a coalminer until 1947, and at some unascertained time while working in that capacity contracted pneumoconiosis. It is admitted by the respondent, who was the employer who last employed the worker in coal-mining, that incapacity resulted from the disease on 19th October 1954. The worker died in 1956, and the respondent concedes that thereupon the appellant as his widow became entitled to an award of compensation under the provisions of par. (a) of sub-s. (1) of s. 8 of the Workers' Compensation Act, 1926 (N.S.W.), as amended. That paragraph was amended in 1948, 1951 and 1953. The Workers' Compensation Commission held that the paragraph was to be applied as it stood after 1953. The Supreme Court, on the other hand, considered that it should be applied as it stood in 1947. (at p212)

2. For reasons similar to those which we have stated in the case of Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188 , we are of the opinion that the paragraph as it stood after the 1953 amendment was the provision applicable to the case. We would therefore allow the appeal, set aside the order of the Supreme Court insofar as it answered the questions in the stated case, and answer the questions: (1) No; (2) No. (at p213)

WINDEYER J. I agree that the appeal should be allowed and that the questions in the stated case should be answered as proposed. (at p213)

ORDER

Appeal allowed with costs. Discharge the order of the Supreme Court. Order that in lieu thereof question (1) in the stated case be answered: No, and question (2) be answered: No, and that the appeal to the Supreme Court be dismissed with costs.