Commissioner for Railways (NSW) v Agalianos [1955] HCA 27

Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 - HCA 1955 case summary — Zoe

[17]

G. Wallace Q.C. (with him H. Jenkins), for the appellant. The scheme of the amending Act shows that the legislature intended to deal with and did deal with certain types of cases retrospectively, but not the type of case to which the applicant belongs. In respect both of entitlement and quantum the critical date is the date of injury and the law in force at such date is that which is applicable. [He referred to s. 3 (2) of the amending Act amending s. 9 of the Workers' Compensation Act 1926-1948 and continued :] This sub- section illustrates the scheme of the Act and gives a retroactive operation in two types of case, (a) persons in actual receipt of weekly payments under the principal Act, i.e. the 1926-1948 Act, and (b) persons becoming entitled to weekly payments under the principal Act. Then s. 4 (c) (i) of the amending Act, which introduces pars. (b) and (c) to s. 11 of the principal Act, continues the legislative scheme and the benefits under par. (b) are conferred retroactively in the same limited manner. Section 11 (1) (b) operates for the benefit of those either receiving or entitled to receive compensation under the principal Act unaffected by the amending Act, the right to compensation is not to be derived from the provisions of the amending Act alone, which is directed to the quantum of compensa- tion. In framing the legislation Parliament was forced to draw the line at some point, it not being intended to re-open all previous cases, and the line was drawn by limiting the benefit to those in fact receiving compensation under the principal Act and those who having received an injury before the amending Act were subse- quently held entitled under the principal Act. The basis of the argument is that s. 11 (1) (b) is not an entitling section, but serves merely to increase the amount of compensation payable where an adult worker has otherwise established his right to compensation. Unless compensation is payable under s. 11 before the introduction of the amendments s. 1] (1) (b) will not cure the position.

[21]

stances of the case may appear proper. The assumption made by this provision is, of course, that where there is partial incapacity for work the earnings before the injury will always be greater than wages obtainable by the employee after the injury. Accordingly it was thought sufficient to speak simply of the " difference between " the two rates of earning without defining it as the excess of the average weekly earnings before the injury over the weekly earnings since the injury. But its meaning is the same as if it had so defined the difference. It was entirely logical to make the assumption ; for "incapacity for work" means the loss or reduction of the capacity to earn. The often quoted statement of Lord Loreburn is that there is incapacity for work when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him and there is partial incapacity for work when such a defect makes his labour saleable for less than it would other- wise fetch: Ball v. William Hunt & Sons Ltd. (1). But as the purchasing power of money fell the amounts in which wages were expressed increased sufficiently and with sufficient rapidity to make it possible for a man whose injury placed a lasting limitation on his real earning power to obtain a weekly wage expressed in a greater amount than that which he earned before his injury. Yet in comparison with his fellows he might still be under a partial incapacity for work. As s. 11 stood it would of course operate to prevent such a man from receiving any compensation. But there might well be cases in which, although the new wages were not actually higher than the old and in fact were lower, yet because of the change in money value the difference would not justly reflect the actual diminution in earning power due to the injury. In such a case the weekly payments which the man under partial incapacity would receive would be much reduced in amount. Further, it was reasonable to suppose that in the future there would be altera- tions in wage levels which would operate to affect the result of the comparison between the average weekly earning before the injury and the average weekly amount of the present earnings of the partially incapacitated man. A purpose of the Act No. 20 of 1951 was to deal with these situations. It failed, however, to deal with the operation of s. 9 and dealt only with the operation of s. 11, an omission that was remedied by Act No. 25 of 1951.

[27]

The question turns on the meaning conveyed by the words "receives compensation'. For he is an adult worker. His injury occurred before the commencement of the Act. He is partially incapacitated for work by his injuries, as it has been found, for now that he no longer is employed by the commissioner, we must take it that the diminished earning capacity attributable to his injuries has taken effect and has resulted in his being disabled from earning less than, in spite of his age, he otherwise would have been able to do. That he does not actually "receive" compensation is of course a fact. His claim to do so was rejected by the commissioner and is the matter now in issue. But the provision can scarcely mean that actually receiving compensation should be the test of its operation upon a given case. The expression is explained by the appellant as referring to cases in which compensation is paid or becomes payable under s. 11: in its unamended form in respect of an injury which has occurred before the commencement of Act No. 20 of 1951 and has resulted, whether before or after that date, in partial incapacity for work. This part of par. (b), according to the appellant, is concerned with workers who independently of the amendment become or should become recipients of compensation and its purpose is to put up the amount to be received ; the appellant denies that it has any purpose of enabling an injured worker to receive compensation who otherwise would be excluded by the operation of s. 11 with reference to his pre-injury wages. In point of policy such a distinction can be justified only on grounds of expediency, not of justice. If it is fair and proper to alter one limb of the statutory comparison because the amount of compensation otherwise payable in respect of an injury is too low, still more must it be fair and proper to do so when the disproportion with present- day rates is so extreme as to produce nothing for the incapacitated man. The words " who after such commencement receives com- pensation in respect of an injury which occurred before such commencement" are directed at the points of time of the two events ; the injury must be before and the compensation must be after the Act. The draftsman does not appear to have been con- cerned with the relationship to the compensation which the word "receives" might connote. The appellant contends that the draftsman contemplated two steps, the establishment under the old law of something equivalent to receipt or receivability of an amount and then the increase of the amount received or receivable

[42]

But par. (b), dealing with cases of injuries received before the first amending Act of 1951, contained a difference of expression which gives rise to the problem in the present case. The provision it makes for a case which falls within its terms is that the amount: of the average weekly earnings of the worker before the injury shall be deemed to be increased as from the commencement of the amending Act No. 20 of 1951 by the difference between the living wage, the needs basic wage or the basic wage, as the case may be, applicable at the time of the injury and the basic wage applicable at such commencement; and it adds that after such commence- ment the average weekly earnings shall be deemed to be increased or reduced from time to time by the amounts by which and from the dates from which the basic wage applicable at such commence- ment is subsequently increased or reduced as the case may be. (The expressions the living wage, the needs basic wage and the basic wage, it may be mentioned, are defined ; broadly, they refer to amounts so denominated at different periods for the purposes of industrial awards). The problem in the present case arises from the fact that the paragraph is expressed as applying " in the case of an adult worker in receipt of compensation at the commence- ment of the Workers' Compensation (Amendment) Act, 1951, or who after such commencement receives compensation in respect of an injury which occurred before such commencement He Allie argument addressed to us on behalf of the appellant is that the two cases described in the words quoted do not include the case of a worker such as the respondent. True, he was injured before the commencement of the amending Act, and at that date he was still partially incapacitated for work as a result of the injury. But, it is said, he is not within the first class described in the paragraph, for he was not at that date "in receipt of compensation », even though this expression should be construed as meaning actually receiving or entitled to receive weekly payments under a current award. Nor (the argument proceeds) is he within the second class, even on a corresponding interpretation of the expression " receives compensation", for he cannot bring himself within that class

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Judgment (61 paragraphs)