66 This argument raises an interesting point as it relates to amendments made after the date of the accident. As a matter of construction, subsequent amendments to a provision are not resorted to in order to determine the meaning of the provision in its earlier form. Rather, in the case of amending legislation, the construction process involves seeking to construe the amendment. That being so, regard may be had to the original or predecessor provision to determine the mischief, if any, the amendment was directed to. It is of interest to note, however, that this case throws up this: if the definition provision (that is, the phrase "coal miner" in the 2001 legislation), was the focus of the construction exercise, it would be legitimate to have regard to provisions such as s.7A introduced at the same time. The difference in the language in s.7A and Sch 6 Pt 18 cl.3(4) demonstrates the type of language that may have been appropriate to use had Parliament intended the meaning for which the appellant contends.
67 The respondent further submitted that the phrase "coal miner" was a composite phrase, involving two concepts: "workers employed"; and "in or about" a coal mine to which the Coal Mines Regulation Act 1982 applies.
68 In respect of the phrase "workers employed", the respondent relied upon the dictionary definitions with their emphasis upon "use of a person's service", as opposed to a person being engaged by a particular employer -in this case, the mine operator. He submitted that this construction was supported by the manner in which s.9 of the WCA operates. Section 9A, which provides by way of a negative formulation for the payment of compensation under the WCA ("No compensation is payable under this Act in respect of an injury unless the employment has been a substantial contributing factor to the injury"), has, according to the respondent, always been construed to apply at the time of injury.
69 I pause to observe that that is correct in relation to a frank injury, as was the case here. However, where in the case of a disease of gradual onset, the time of injury, for the purposes of determining the relevant employer is governed by s. 15. The respondent's submission continued that it followed, contrary to the appellant's concern about the operation of the section, that a worker in the position of the respondent would not be able to claim the enhanced benefits of the section merely because he worked, from time to time, in or about a coalmine. His entitlement to those benefits would depend upon whether, at the time of injury, the worker was "employed in or about a coal mine". It followed on this argument that at the time of injury, the respondent was a worker employed in or about a mine and was thus a "coal miner" within the definition.
70 The respondent submitted that the phrase "in or about" a coal mine bore the sense of physical proximity to the coal mine. In Owens v Campbell Limited [1904] 2 KB 60, the English Court of Appeal was concerned with the question whether a seaman who was injured in a boiler room of a ship which was, at the time of injury, moored at a wharf outside the docks at Cardiff, was injured "in or about a factory". A wharf was included in the definition of factory so the question became whether, by being on a ship docked at a wharf, the seaman was employed "in or about a factory".
71 The focus in the case was on the word "about", as the seaman was not employed by the wharf operator. Collins MR said (at 64) that the word "about" in the phrase "[employed] … in or about a factory … carries with it the idea of physical proximity; but it also involves the idea of an employment connected with the business carried on at the place indicated". Collins MR explained what he meant at 64:
"If and so far as the applicant was employed in relation to the purposes for which his employers had the use of the wharf, I think he could be said to be employed about it; but, in order to ascertain the rights of the parties, it is necessary to bear in mind that we are dealing with what may be called 'constructive factories'. We have to look to the nature of the factory and the character of the workman's employment, and the mere fact that he was employed by the undertakers in juxtaposition to the factory in the occupation of his employers does not make his employment one that is 'about' the factory. To take an example: suppose that a coachman comes to a factory to drive the occupier, who is his master, home, and at a distance of, say, fifty yards from the factory the coachman meets with an accident. The man would be in the employment of the occupier of the factory, and he would be near it, but his employment could not be said to be on or in or about the factory, because it was not concerned in any way with the business of the factory."
72 Collins MR concluded therefore, that as the seaman's duties had no connection with the use by his employer of the wharf, his "employment was not in or about a wharf". Romer LJ agreed (at 65) that on the facts the seaman was not employed "in or about a wharf", although, had the seaman's duties involved working on the wharf whilst the ship was moored, he would have come within the Act: see also Griffin v Houlder Line Ltd [1904] 1 KB 510.
73 The approach of Collins MR was adopted in The Queen v Neil; Ex-parte Cinema International Corporation Pty Limited (1976) 134 CLR 27. In that case the High Court was concerned, relevantly, with whether persons employed by the respondent were employed "in or about … theatres, halls …" etc. Gibbs J said at 32:
"An employee who is required to leave what might be called his headquarters, and to visit other places in the course of his employment, is not employed in or about those other places; for example, a clerk who goes to the post office to post a letter, or to a court to file a document, or to a warehouse to make a purchase, on behalf of his employer, is not employed in or about the post office, court or warehouse. The words describing the second class are quite inapt to refer to a salesman who, on behalf of his employer, visits a cinema to do business with the exhibitor who carries on business there."
74 In Taylor v The Cecil Syndicate Limited [1906] St. & R. QD 324, the Queensland Supreme Court was concerned with the meaning of the phrase "in or about a mine" in s.218 of the Mining Act (Qld) 1898. The plaintiff was a contractor engaged by the respondent, a gold mining syndicate, to break up the tailings from its mine to facilitate the extraction of minerals. He was requested by the mine's manager to assist in placing a heavy vat on a dray. In doing so, the plaintiff was injured. The question was whether he was entitled to damages under s.218 which provided: "If any person employed in or about a mine suffers injury .. owing to the negligence of the owner … the person may recover damages". It was held by Cooper CJ (at 328-329), that the tailings area was "a mine" within the Act and that, as the plaintiff's "employment was in connection with obtaining gold from a mineral. He was sifting tailings in order that gold might be extracted from them … [therefore] the plaintiff was 'engaged in or about a mine'".
75 The respondent submitted that, having regard to the above, the trial judge's finding that the respondent was a "coal miner" was correct. He was not a casual visitor to the mine. He worked at the mine regularly for purposes directly connected to the mining operations carried on at the mine. On the occasion that he was injured he was at the mine to undertake his regular work there. Accordingly, at the time of the injury he was a worker "employed in or about a coal mine".
76 In my opinion, these authorities provide persuasive support for the respondent's construction. It remains necessary, however, to determine whether that construction achieves, or is more consistent with, the object of the provision.
Purpose of Sch 6 Pt.18 of the WCA
77 The purpose of Sch 6 Pt 18 is tolerably clear. It is to continue to provide to a certain class of worker, that is, coal miners, the more beneficial compensation benefits that applied under the 1926 legislation. The question is, however, who falls within the class? There is nothing in the purpose of the WCA as a whole, or Sch 6 Pt 18 itself, that provides the answer. That then raises the further question whether it is a legitimate approach to statutory construction to have regard to the purpose of other legislation in order to determine the meaning of a provision in the statute the subject of the construction issue. The answer to that question depends upon the terms of the respective legislation. For example, in the case of complementary legislation such as the WCA and WIMA, it is expressly provided that the WCA is "to be construed with, and as if it formed part of, the WIMA": WCA s 2A(2) and WIMA s 60(2). Accordingly, the purpose of both Acts would be relevant to any construction exercise.
78 In a case such as the present, where a group is singled out to receive special treatment under legislation and that class is defined by reference to another Act, it is legitimate, in my opinion, to have regard to the purpose of the other Act, at least as an initial step in the construction exercise, to see whether it provides an answer as to who is included in the group. It may be, of course, that when other considerations are taken into account the meaning of the provision in question is not determined by the purpose of the other legislation.