Goold & Porter Pty Ltd v Cleveland [1961] HCA 47; (1961) 107 CLR 129 (11 August 1961)

HIGH COURT OF AUSTRALIA

GOOLD AND PORTER PTY. LTD. v. CLEVELAND [1961] HCA 47; (1961) 107 CLR 129

Workers' Compensation (Vict.)

High Court of Australia
Dixon C.J.(1), Fullagar, Kitto(1), Taylor(1) and Menzies JJ.
(THE HONOURABLE MR. JUSTICE FULLAGAR died at Melbourne prior to the delivery
of judgment in this appeal.
THE HONOURABLE MR. JUSTICE MENZIES did not deliver a judgment in this appeal.)

CATCHWORDS

Workers' Compensation (Vict.) - Injury in course of employment - Lump sum award for Table injury and award of weekly payments during incapacity - Subsequent incapacity from illness resulting from same injury - Right to further weekly payments - Workers' Compensation Act 1951-1953 (Vict.), ss. 9, 11 - Workers' Compensation Act 1958 (Vict.).

HEARING

Melbourne, 1961, May 17, 19;
Sydney, 1961, August 11. 11:8:1961
APPEAL from the Supreme Court of Victoria.

DECISION

August 11.
The following written judgment was delivered:-
DIXON C.J., KITTO and TAYLOR JJ. This appeal arises out of the second of two the Workers' Compensation Acts (Vict). The first of these applications was made in February 1955 when it was alleged that she had, in the course of her employment with the appellant, sustained a crushing injury to the middle finger of her left hand. The injury was said to have resulted in paronychia which is an inflammatory condition caused by an infection at the base of the finger-nail. The original injury had occurred in September 1952 and the earlier infection had recurred in September 1953 and in March 1954. As a result of this recurrence the respondent was incapacitated for a short period in the latter month and again from the 23rd December 1954 to the 10th January 1955. The application came on for hearing in October 1955 when the only matters which fell to be determined were the degree of injury and the amount of compensation to which the respondent was entitled. Basing its decision on medical certificates produced by the parties the Board found that there was a resultant disabling deformity of the respondent's finger and that the disability was equal to the loss of one-third of the use of the first joint of the finger. In the result an award, dated 25th October 1955, was made in her favour for the sum of 57 pounds, together with amounts for weekly compensation during the attendant illnesses and for medical "and the like" expenses. The sum of 57 pounds was one-third of the amount specified in the Table appended to s. 11 of the Workers' Compensation Act 1951-1953 as the amount of compensation payable for the total loss of the first joint of the middle finger of either hand. (at p135)

2. At the time when this award was made it was thought that the respondent's finger was free from infection and that - to employ an expression which was freely used on the hearing of this appeal - her condition had become "stabilized". It was for this reason, we are told, that the Board, in accordance with its usual practice, was then prepared to make, and did, in fact, make an award for a lump sum payment pursuant to s. 11. But the finger was not free from infection and by October 1955 the presence of the infection had again become manifest. Her finger had become swollen and was constantly sore and, intermittently, it exuded pus. The condition of the finger did not, however, further incapacitate her at that time but ultimately the finger was, upon medical advice, amputated. This operation was performed in August 1956 and, as a result, she was incapacitated from 21st August 1956 to 2nd October 1956. (at p135)

3. Following these events the respondent made a further application for compensation. In terms, she claimed "weekly compensation for the period of incapacity resulting from the injury" and an unspecified sum for medical expenses. But upon the hearing the application was treated as if it included also a claim for a further lump sum payment pursuant to s. 11. The Board found that the respondent had, in fact, been incapacitated from 21st August 1956 to 2nd October 1956 and, further, that the incapacity was due to illness arising out of the injury "the subject of an award of the Board dated 25th October 1955". It also negatived any suggestion that the respondent had suffered any further injury in the course of her employment after 25th October 1955. In the result her application was dismissed because the Board considered that the first award was a bar to any further claim. The 1955 claim, it was said, was "between the same parties as in the present proceedings and in respect of injury to the same finger" and, since the Board had "found that the injury complained of was the same as in the earlier proceedings and due to the same cause", it was considered that the respondent's claim has been "litigated to a finish". However this may be it is not out of place to pause and say that the second claim was made in respect of the loss of the whole finger and a resulting illness and it can be true to say that the first claim was made in respect of the same injury only if we take "injury" to mean the "crushing injury" which occurred in 1952. No doubt this is what the Board meant to convey. But that does not appear to us to be a decisive consideration and, it would not, it seems, have been regarded by the Board as an answer to a claim for further weekly payments if it had not earlier made an award for a lump sum pursuant to s. 11. The claim for medical expenses was dismissed upon other grounds which, for reasons which will appear, it is unnecessary to mention. (at p136)

4. After the Board had made its award it stated a case pursuant to s. 56(3) of the Workers' Compensation Act 1958 for the determination of the Full Court of the Supreme Court. This was done at the request of the respondent and the questions of law which were stated were whether upon its finding of facts the Board should have made an award in her favour for (a) weekly payments between 21st August 1956 and 2nd October 1956; (b) total loss of the middle finger or some lesser award; and (c) the payment by the appellant of the reasonable costs of the medical and like expenses in respect of the treatment of the respondent's finger since 25th October 1955. Upon the appeal to the Full Court the respondent abandoned her claim to relief of the character mentioned in (b) above and questions (a) and (c) were answered respectively: "Yes" and "No". Question (b) was also answered in the negative but in the circumstances of the case it would have been more appropriate to have left it unanswered. In the result, however, the present appellant was unsuccessful only in relation to question (a) and this appeal is brought only against that part of the Full Court's order which purports to answer this question. Accordingly, we propose to confine our observations to the respondent's claim for weekly payments of compensation in respect of the period of her incapacity from 21st August 1956 to 2nd October 1956. This claim rested upon s. 9(2) of the Workers' Compensation Act 1951-1953 which provided that: "Except as is provided in section eleven of this Act, where the worker's total or partial incapacity for work results from the injury the compensation shall be a weekly payment during the incapacity in accordance with the provisions of the said (appended) clauses". This part of the sub-section was, of course, subject to the ensuing provision which excluded the right to weekly payments where the Board in its absolute discretion awarded a lump sum in redemption of the employer's liability for future weekly payments. Accordingly, the first question is whether during the relevant period the respondent's incapacity resulted from the injury which she had sustained in 1952. This question, however, presents no difficulty, for as already appears, the Board expressly found that it did. And since it is not suggested that a lump sum award in redemption of the appellant's liability for future weekly payments was ever made, the only question is whether an award in the form of that which had been made earlier constituted a bar to any further relief. (at p137)

5. That being so, it is of immediate importance to examine the purpose and effect, in the scheme of things, of Table payments pursuant to s.11. This, of course, can be ascertained only from an examination of the legislation itself but it is not without importance to observe the various changes that have been made from time to time. If one goes back to the Workers' Compensation Act 1915 it will be seen that it provided (s.8) that notwithstanding anything contained in that Act as to the rate of compensation, compensation for the injuries mentioned in the first column of the Fourth Schedule to the Act should be assessed in the manner indicated in the second column of that Schedule. Sub-section (2) of the same section stipulated that nothing in the Schedule should limit the amount of compensation recoverable for any such injury during any period of total incapacity due to illness resulting from that injury but any sum so received should be taken into account in estimating the compensation payable in accordance with the said Schedule. Similar provision was made by s.8 of the Workers' Compensation Act 1928. By s.6 of the Workers' Compensation Act 1935 sub-s.(1) of s.8 of the Workers' Compensation Act 1928 was repealed and a not dissimilar but more precise provision was substituted for it. This provision was in the following terms: "(1) Notwithstanding anything in this Act as to the rate of compensation, the amount of compensation payable for any injury mentioned in the first column of the Fourth Schedule shall, subject to the said Schedule, be the amount set out opposite such injury in the second column of that Schedule". At this time it will be seen that an applicant for compensation was not entitled to recover or receive the full amount of any Schedule payment in addition to weekly payments already received; if he had received weekly payments pursuant to the earlier substantive provisions of the Act the total amount so received was, in the event of a lump sum award being made in respect of a Schedule injury, to be deducted from the amount specified in the Schedule. No doubt this was a factor which made it desirable that applications for lump sum awards pursuant to the Schedule should not be finally determined until an applicant's injury had become "stabilized", since the making of an award of a fixed sum might well have resulted in unduly limiting the amount of compensation recoverable by the applicant. (at p138)

6. By s.6 of the Workers' Compensation Act 1936, however, s.8 of the Act of 1928 was amended so as to provide that in assessing compensation under the Schedule the sum of twenty-five pounds should be excluded when taking into consideration weekly payments already made. In its new form sub-s.(2) read: "Nothing in the said Schedule shall limit the amount of compensation recoverable for any such injury during any period of total incapacity due to illness resulting from that injury but any amount over and above the sum of Twenty-five pounds so received shall be taken into account in estimating the compensation payable in accordance with the said Schedule by deducting from the compensation payable the excess of such amount over and above the sum of Twenty-five pounds". Then, in 1946, s.8 of the principal Act was repealed and an entire new section substituted. This sub-section was in substantially the same terms as s. 11 of the Workers' Compensation Act 1951. That section, omitting the Table, is as follows: "11.(1) Notwithstanding anything in the foregoing provisions of this Act as to the rate of compensation, but subject to the following provisions of this section, the amount of compensation payable for any injury mentioned in the first column of the Table appended to this sub-section shall, subject to the said Table, be the amount set out opposite such injury in the second column of the said Table. (2) Where a worker suffers any injury - (a) which as to the major part thereof consists of an injury for which compensation is payable under the said Table; or (b) which consists of a lesser but substantial degree of any injury for which compensation is payable under the said Table - the injury shall, subject to the following provisions of this section, be regarded as an injury for which compensation based on the said Table shall be payable, and the Board may award as compensation such amount as, having regard to the provisions of the said Table, appears to be just and proportionate to the degree of injury suffered. (3) Nothing in the foregoing provisions of this section or in the said Table shall limit the amount of compensation payable for any injury during any period of incapacity due to illness resulting from that injury, and the amount of compensation payable pursuant to the foregoing provisions of this section and the said Table shall be payable in addition to any weekly payments payable in respect of incapacity due to that illness. (4) Where a worker has suffered an injury for which compensation would, but for the provisions of this sub-section, be payable under the foregoing provisions of this section, and it appears to the Board - (a) that the amount of compensation which would be so payable would be substantially less than the amount of compensation which would be payable under the provisions of sub-section (2) of section nine of this Act if compensation were assessable under that sub-section; and (b) that, because of the special circumstances of the worker (including, without limiting the generality of the foregoing, the nature of his injury in relation to the nature of his former usual employment), the amount of compensation under the foregoing provisions of this section would be inadequate - then the Board may award compensation pursuant to the provisions of the said sub-section (2) of section nine without regard to the foregoing provisions of this section and the said Table". (at p139)

7. It will be seen that in 1946 the provision that the amount of weekly payments already made should be taken into account when a Table award was made disappeared from the Act. In future the fixed sum was to be paid for the specified injury in addition to weekly payments already made. So much is common ground. Again this may be thought to have provided a sound reason for the Board's practice to refrain from making a Table award in any particular case until the applicant's injury had become "stabilized". It might well be difficult in some cases to determine whether a Table injury had been sustained or, having regard to s. 11(2), to assess the "just and proportionate" lump sum payable until this condition was thought to have been reached. But it cannot follow from acceptance of this rule of practice as soundly based that the making of a Table award will or can constitute a bar to a claim for further weekly payments if, in fact, a right to such payments is given by the statute. Indeed, it is quite impossible to give any consideration to the argument of estoppel or res judicata unless and until the nature of the right which the respondent attempted to assert in her second application is clearly identified. She asserted in those proceedings, of course, a right to weekly payments of compensation pursuant to s. 9(2) of the Act and in support of her claim she alleges, and the Board has found as a fact, that she was incapacitated from 21st August 1956 to 2nd October 1956 as the result of illness arising out of her original injury. Clearly enough, this claim does not raise any issue which was or could have been litigated in the earlier proceedings. But, it is said, the Board found in the earlier proceedings that her injury had become "stabilized" - whatever the precise meaning of that expression may be - and it was only because it so found that it proceeded to make a Table award. This fact, however, cannot alone provide an answer to the respondent's claim, for it means no more than that the Board was satisfied that the time and circumstances were appropriate for the making of such an award. But, of course, if upon the true construction of the statute no further relief was available to the respondent after the making of a Table award that is another matter. In that event, her claim would fail but not because of any estoppel by judgment or otherwise; it would fail simply because she had no right to any such payments. On the other hand, however, if upon its true construction the statute gave to the respondent a right to further payments it is obvious that the earlier award cannot stand in her way. The real question in the case is, therefore, whether any such right was given by the statute. (at p140)

8. It is noticeable that the provisions of s. 11, first introduced in 1946, made some significant changes. First of all, as we have mentioned, there was no provision such as had theretofore existed, which required past weekly payments to be taken into account when a claim for a lump sum award for a Table injury was made. The appropriate Table sum was to be payable in full in addition to any weekly payments already made. Nevertheless, there can be no doubt that an award of such a lump sum was to be in lieu of and not in addition to future weekly payments for incapacity which the particular injury itself necessarily involved. In other words, an applicant who had suffered the loss of an arm and was thereby permanently and partially incapacitated was not on that account alone to be entitled to future weekly payments of compensation in addition to a lump sum under the Table. But the new provision, clearly enough, recognized a distinction between the inevitable results of an incapacitating injury and incapacity due to illness resulting from such an injury. With respect to the former an applicant was entitled to receive weekly payments of compensation pursuant to s. 9 but if he proceeded to obtain an order under s. 11 his right to weekly payments in respect of the resulting incapacity ceased. So much is apparent from the opening words of s. 9(2) itself and from the part which s. 11 plays in the scheme of things (see in particular s. 11(4)). But it was expressly provided by s. 11(3) that nothing in the foregoing provisions of the section or in the Table should limit the amount of compensation payable for any injury during any period of incapacity due to illness resulting from that injury, and the amount of compensation payable in pursuance of the foregoing provisions of the section and the Table should be payable in addition to any weekly payments payable in respect of incapacity due to that illness. Much was made of the fact that the expression "incapacity due to illness resulting from that injury" was identical with that which appeared in the relevant provisions of the Acts of 1915 and 1928 but it assumes an entirely new significance in the later Acts. In the earlier Acts it was used in a context which showed that a Table payment was to be in substitution for the right to any weekly payments including those already made whilst in 1946, and again in 1951, it appears in a context which is capable only of meaning that a Table payment is to be in addition to any right to receive weekly payments for incapacity due to sickness resulting from an injury. It was suggested that the provisions of s. 11(3) were merely intended to make it clear that from the time when they were first introduced earlier weekly payments should not, as previously, be taken into account when making a Table award. But in our view the language is too strong to permit us to limit its operation in this way. In terms, the provision is quite clear and the historical explanation which is suggested to account for its presence in the Act is quite insufficient to qualify the plain meaning of the words. Upon reading the provision it will be seen that it is of no consequence whether the incapacity from sickness occurs before or after the making of a Table award provided, of course, that the sickness is productive of a degree of incapacity over and above the incapacity necessarily resulting from the character of the injury itself. To our minds this is the crux of the case for if upon the true construction of the Act the respondent had a statutory right to weekly payments in respect of the period from 21st August 1956 to 2nd October 1956 it is idle to assert that her right was barred by the earlier award. That award could not and did not defeat her right nor could the application of the so-called principle of "stabilization" result in any estoppel by judgment or otherwise. That being so, the appeal must be dismissed. (at p141)

ORDER

Appeal dismissed with costs.