Commissioner for Railways v Bain [1965] HCA 5;

Commissioner for Railways v Bain [1965] HCA 5; - HCA 1965 case summary — Zoe

[52]

2. Two other questions which do not appear to have been debated in the Supreme Court presented themselves to us upon the hearing of the appeal. The first of these arose because of the fact that although the second paragraph of sub-s. (1A) of s. 16 provides that "disease" in the first paragraph of the sub-section "includes the condition known as 'boilermaker's deafness'" it does not explicitly go on to provide that boilermaker's deafness is a disease "which is of such a nature as to be contracted by a gradual process". For my part I do not think that the omission, if it can be called an omission, is of any significance for it is clear from the findings of fact appearing in the case stated that if boilermaker's deafness is to be regarded as a disease within the meaning of the provision and, therefore, that it can be "contracted", it is of such a nature as to be contracted by a gradual process. Further it should be observed that s. 7 (4B) of the Act provides that "the condition known as 'boilermaker's deafness' . . . shall for the purposes of subsection four of this section be deemed to be a disease and to be of such a nature as to be contracted by a gradual process". The purpose of sub-s. (4) is to cast upon the worker's last employer the obligation of paying compensation to the worker in any case where the injury is a disease of that nature and the obligation so cast upon the employer must be taken to mean an obligation to pay compensation in accordance with the Act. Where there is resultant incapacity there will be an obligation to pay compensation under ss. 7, 9, and 11 or "if the worker so elects" in such a case, under s. 16 (1). In either case the compensable injury is deemed by the Act to be a disease and to be of such a nature as to be contracted by a gradual process. But the obligation of the worker's last employer must also extend to the liability under s. 16 (1A) to pay a lump sum in the case of boilermaker's deafness which has not resulted in incapacity and the disease in respect of which that liability exists must, in my view, be taken also to be treated by the Act as a disease "which is of such a nature as to be contracted by a gradual process". (at p263)

[53]

3. The other question which has been somewhat agitated in the case is concerned with the application of s. 16 (5) to the table appended to s. 16. As appears from the reasons of the Chief Justice the award which the respondent obtained was based upon a partial loss of binaural hearing and the amount awarded was a proportionate amount of the sum specified in the table for a total loss of hearing. But the suggestion is made that although s. 16 (5) is applicable to most of the injuries described in the table it cannot apply to a so-called injury described as "loss of hearing of both ears". The expression in s. 16 (5) - "permanent loss of the efficient use of" - it is suggested is inapplicable to an injury described by reference to the loss of a faculty though it is, without question, applicable to an injury described by reference to the loss of a member. It is, however, not questioned that in the case of loss of hearing of one ear the apparent difficulty is overcome by the second foot-note to the table. But, in my view, and with respect to those who think otherwise, the suggestion concerning the applicability of s. 16 (5) to the item in question is without validity. I observe that in Coates' Case (1960) 78 WN (NSW) 377 the applicability of s. 16 (5) to the item as it then appeared in the table - "loss of hearing" - was assumed without question though it was held that the provisions of that sub-section could have no application to the ensuing item - "complete deafness of one ear". But following Coates' Case (1960) 78 WN (NSW) 377 the former item was altered to "loss of hearing of both ears", the latter item was deleted and "loss of hearing of one ear" was substituted and at the same time the second foot-note was added. It may be conceded that the form of the amendments then made are open to substantial criticism but upon examination of the relevant provisions I am satisfied that s. 16 (5) is applicable to each of the injuries listed in the table including the injury described as "loss of hearing of both ears". I reach this conclusion by accepting the view that what that section plainly requires is that in the case of each tabled item the words "loss of" are to be read as including "permanent loss of the efficient use of" to the intent that the table will include provision for permanent impairments causing a diminution of "full efficient use". When this is done in respect of the item in question we are left, in effect, with the expression in the table "permanent loss of the efficient use of the hearing of both ears". The expression is without doubt awkward but no more awkward than many expressions to be found in legislation of this character. However, it is necessary, if possible, that some meaning should be given to this phrase and I think the intention sufficiently appears that one of the effects of s. 16 (5) was to make provision in the table for the award of an appropriate lump sum when an "injury" results in a permanent diminution in the hearing of both ears. (at p264)

[57]

4. The claim in question was made on 27th February 1961 and was for an award under s. 16 of the Act on the footing that the worker had suffered an injury consisting of boilermaker's deafness reducing his binaural hearing. It was found that the reduction in his binaural hearing was 26.3 per cent and an award was made for that percentage of 1,750 Pounds, the amount which the table provides for the complete loss of hearing of both ears. This calculation inevitably assumed that sub-s. (5) of s. 16 applied when the table injury is "Loss of hearing of both ears - 1,750 Pounds". That sub-section is as follows: "For the purpose of the said table the expression 'loss of' also includes the 'permanent loss of the efficient use of' but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount." This provision can, of course, be applied readily enough when the nature of the injury is the loss of a member (for example, "loss of the lower part of a leg - 1,800 Pounds"), but, for myself, I do not see how it can apply when the table injury is itself a particular loss of capacity (for example, "Loss of hearing of one ear - 800 Pounds", "Loss of hearing of both ears - 1,750 Pounds"). It seems to me that the impossibility of using sub-s. (5) in such a case was recognized in the case of "Loss of sight of one eye" and "Loss of hearing of one ear" because, to confine myself to the latter case, the following note is appended to the table: "For the partial loss of hearing of one ear there shall be payable such percentage of the amount that would be payable for the total loss of the hearing thereof as is equal to the percentage of the diminution of hearing." Why like provision was not made with regard to the injury "Loss of hearing of both ears" it is impossible to understand. It is, however, quite clear that it is not possible to treat the partial loss of hearing of both ears as something to be dealt with simply by attributing the percentage of binaural loss to each ear separately, because the sum provided for the loss of hearing of both ears is not twice that provided for the loss of hearing of one ear. It follows that not only was the assumption that was made in calculating the award not justified but it is not possible to treat it distributively as though it had been found that there had been loss of hearing of each ear to the extent of 26.3 per cent. (at p266)

[58]

5. The second matter of difficulty is more complicated. The history of s. 16 of the Act, so far as it relates to boilermaker's deafness, has been traced by Judge Conybeare and I will do no more than extract some significant dates from his informative historical survey of the legislation. It was in 1951, following the decision in Frost v. Mark Foys Ltd. (1951) 25 WCR 164, that the words "when the injury results in total or partial incapacity" were deleted from s. 16 (1) so that thereafter the table applied notwithstanding that the injury caused no incapacity. Nevertheless, a claim for compensation for boilermaker's deafness made under the section with the aid of s. 7 (4) failed because it was decided that boilermaker's deafness was not a disease and, furthermore, that it was not contracted by a gradual process: Milne v. International Combustion Australia Ltd. (1953) 27 WCR 80 Section 7 of the Act was then amended in 1957 to provide by sub-s. (4B) as follows: "The condition known as 'boilermaker's deafness', and any deafness of like origin, shall for the purposes of subsection four of this section be deemed to be a disease and to be of such nature as to be contracted by a gradual process." Nevertheless, after this amendment, a claim under s. 16 with the aid of 7 (4) and 7 (4B) for compensation for boilermaker's deafness failed because, by reason of s. 7 (5), the date of the happening of the injury was fixed as the date of the worker's incapacity, and boilermaker's deafness produced no incapacity: Coates v. Commissioner for Railways (1960) 78 WN (NSW) 377 It was in these circumstances that sub-s. (1A) of s. 16 was introduced and it must be set out verbatim: "Where an injury mentioned in the first column of the said table is a disease which is of such a nature as to be contracted by a gradual process and which has not resulted in incapacity, such injury shall, for the purpose of determining a worker's right to the amount indicated in the second column of the said table, be deemed to have happened at the time when such worker makes his claim for compensation. In this subsection 'disease' includes the condition known as 'boilermaker's deafness' and any deafness of the like origin and total or partial loss of sight which is of gradual onset." This subsection creates a number of problems. One, with which we are not directly concerned, was discussed by Walsh J. in his judgment in the Full Court, namely, the application of the sub-section to successive claims. No assistance towards the solution of the problem of construction that now faces the Court would, I think, be gained by attempting to solve this problem, so it may be put on one side. There are, however, two real difficulties of direct concern here. One is that, although "boilermaker's deafness" is expressly included in the word "disease" for the purpose of the sub-section, the final provision of the sub-section does not go further and deem boilermaker's deafness to be a disease "of such a nature as to be contracted by a gradual process" as does s. 7 (4B) for the purposes of s. 7 (4). The other is that, although the sub-section operates to provide a date for the happening of certain injuries, it does so only with regard to injuries mentioned in the first column of the table, and boilermaker's deafness is not mentioned there. (at p267)

[71]

17. In England and elsewhere many cases of occupational disease have turned upon the word "accident" in the phrase "personal injury by accident". Wherever those words appear in a statute in which certain diseases are specified as being compensable, the question whether some other disease resulting from a worker's employment can give a right to compensation depends upon whether it could be said to have been contracted by accident. The judgments in the long series of cases on this point exhibit perhaps some lack of uniformity and perhaps too some variations in the use of medical knowledge of the aetiology of particular diseases as the foundation of analogies between one case and another: see Fife Coal Co. Ltd. v. Young (1940) AC 479 But I think it may be said, at all events since the decision in the House of Lords in Roberts v. Dorothea Slate Quarries Co. Ltd. (1948) LJR 1409, that a disease which is contracted by a gradual process cannot be an injury by accident, because an accident is some identifiable event as distinct from a continuous process. In the New South Wales statute, however, the word "accident" does not appear. It may be that the word "injury", standing alone and undefined, contains, either of itself or from past associations in this branch of the law, a suggestion of a traumatic injury as a distinct happening at an identifiable point of time. But in the New South Wales statute the word "injury" is not undefined. The Act gives it a comprehensive meaning which robs it of any essential sense of particular occurrence - for, as the definition stood at the time relevant for this case, "'injury' . . . includes a disease which is contracted by the worker in the course of his employment . . . and to which the employment was a contributing factor . . . ". A disease is thus none the less an injury within the meaning of the Act whether it be in fact contracted at a particular point of time or by a gradual process. The word "disease" seems to me apt to describe any abnormal physical or mental condition that is not purely transient, certainly one that, like boilermaker's deafness, is commonly called an occupational disease. Such a disease may be the result of infection (e.g. anthrax or blood poisoning), of constant exposure to some irritant substance (e.g. dermatitis), of the absorption of a substance poisonous by its cumulative effect (e.g. lead poisoning), of the long continued inhalation of dust injurious to the lungs or of exposure to some other factor which is a circumstance of the employment. I cannot see that, for the purposes of the New South Wales Act, any abnormal physical condition well recognized in medical science that, like beat hand or beat knee, is the result of repeated pressure or, like boilermaker's disease, of repeated concussion by noise is any the less a disease than is an abnormal physical condition caused by a germ or by the repeated absorption through the nose or the skin of some deleterious substance. Of course, when all forms of occupational disease were brought compendiously within the definition of "injury" for the purposes of the Act, the need for special provisions concerning diseases contracted by a gradual process still remained. These were necessary to determine the person from whom the worker could claim compensation - fixed by the Act as his last employer in the disease-producing employment - and also to determine for various procedural purposes, including notices of injury and service of claims, the time at which the injury was to be taken as having happened, that is to say when the disease was to be taken as having been contracted. (at p272)

[74]

20. The case comes, I think, fairly within the terms of s. 16 (1A). But some troublesome questions remain when it is sought to relate that sub-section to the table. It has been said that the opening words "Where an injury mentioned in the first column of the table is a disease "should be read as meaning where the injury so mentioned is the result of a disease. But, having regard to the terminology of the Act making the word "injury" include disease, the wording of the sub-section, though clumsy, is understandable. The difficulty is that the table, a thing long familiar in workers' compensation law, contains no reference to any disease by name. It lists under the heading "Nature of injury" losses of various bodily members - an arm, a leg, a finger, a toe and so forth - and in the form it now has, and at the relevant date had, it includes, beside such losses of members, certain losses of faculties. The item that is relevant for present purposes is "Loss of hearing of both ears". There is no specific provision for a partial loss of hearing of both ears as there is, by a footnote, for a partial loss of hearing of one ear. However, s. 16 (5) provides that: "For the purpose of the said table the expression 'loss of' also includes the 'permanent loss of the efficient use of' but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount". In my opinion, and with respect to those who think otherwise, the judges of the Supreme Court and of the Workers' Compensation Commission were correct in regarding this as applicable to any item described as "loss of", whether of a faculty or of a bodily member. "Permanent loss of the efficient use of hearing" is no doubt a clumsy expression. But the provision - and there are similar provisions in other workers' compensation statutes - is understood and applied without difficulty by those regularly engaged in the administration of this branch of the law. I think that this Court ought not to interfere in their assessments unless it be clearly established that they proceeded on some erroneous principle - and certainly ought not to do so by adopting a construction of the Act which was not put forward in argument. I appreciate that an argument could be advanced that the effect of the table and its footnotes is that a partial loss of the hearing of one ear is compensable, but that a partial loss of binaural hearing is not. But that would mean disregarding s. 16 (5) - or treating it as inapplicable, which I think it is not. It would be illogical and moreover contrary to the principle expressed by Dixon C.J. in Williams v. Metropolitan Coal Co. Ltd. [1948] HCA 8; (1948) 76 CLR 431 where he said: "It was settled very early in the history of workers' compensation legislation that the liability provisions were to be treated as paramount to the compensation provisions where any conflict is found between them" (1948) 76 CLR, at p 450 His Honour expressed the same view in Nash v. Sunshine Porcelain Potteries Ltd. [1959] HCA 7; (1959) 101 CLR 353: "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" (1959) 101 CLR, at p 361 These statements are supported by authorities to which his Honour referred. (at p274)

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

Commissioner for Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 (3 February 1965)

Parties

Legislation Cited (1)

Cases Cited (7)