Fisher v Hebburn Ltd

I have had the opportunity of reading the judgment of Kitto and Menzies JJ. in this case. I agree with the construction which they have placed on the provisions of the Workers' Compensation Act upon which the case depends and that, having regard to the facts found by the Workers' Compensation Commission, the award which it made in favour of the appellant is a correct application of those provisions except as regards the payment which the award would require in respect of the appellant's wife.

This is an appeal from the Supreme Court of New South Wales (Full Court). The Workers' Compensation Commission made an award of compensation under the Workers' Compensation Act, 1926-1954 N.S.W. in favour of the appellant, but, on an appeal by way of case stated the Supreme Court held that he was not entitled to compensation.

The appellant, who is now aged about seventy years, spent most of his working life in coal mines. His last employer was the respondent company, in whose mine he worked from 1925 to 1949. In April 1949 he became totally incapacitated by an arterial disease known as Buerger's disease. He has remained totally incapacitated, and has not worked since that time. Buerger's disease was not contracted in the course of his employment in coal mines nor was his employment in coal mines a contributing factor to it. On 12th May 1949, having reached the age of sixty years, he was compulsorily retired from the coal mining industry under the provisions of the Coal and Oil Shale Mine Workers (Superannuation) Act, 1941-1952 N.S.W.. From the date of his retirement he received a pension under that Act.

On 7th July 1955 he was examined by a Medical Board appointed under the Workers' Compensation Act. The Board certified that he "is suffering from pneumoconiosis due to the effects of dust inhaled at his work in coal mines and which disables him for all work. He also suffers from Buerger's disease, not associated with occupation, which also incapacitates him from work". On 19th April 1956 the appellant applied for compensation under the Act.

At all material times the Act has provided, by s. 7 (1) (a), that a worker who has received an injury shall be entitled to receive compensation from his employer in accordance with the Act, and the word "injury" has been defined by s. 6 as including "a disease which is contracted by the worker in the course of his employment and to which the employment was a contributing factor". At all material times also the Act has provided, by s. 7 (4), that, where the injury is a disease which is of such a nature as to be contracted by a gradual process, compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Pneumoconiosis is a disease of such a nature as to be contracted by a gradual process.

The certificate of a medical board is made by s. 51 of the Act conclusive evidence as to the matters certified. It must be taken, therefore, to be established that on 7th July 1955 the appellant, having been for some years totally incapacitated by Buerger's disease (which is not a compensable "injury" under the Act), was also in a condition of total incapacity by reason of pneumoconiosis (which is a compensable "injury" under the Act). If he had been suffering from either disease alone, he would have been a totally incapacitated man. But, if he had been suffering from Buerger's disease alone, he would have been outside the Act, whereas, if he had been suffering from pneumoconiosis alone, he would have been within the Act. In precisely these circumstances it was held by this Court in Dawkins v. Metropolitan Coal Co. Ltd. [1] that a worker was not entitled to compensation, because it could not be said that his incapacity had "resulted" from the compensable injury. This decision, if the Act had remained unamended, must have been fatal to the appellant's claim in this case.

The Act, however, was amended in 1951. It was amended by inserting a new sub-section, (2A), in s. 7. This sub-section reads: "Compensation shall be payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity of the worker. Such compensation shall be payable as if such total or partial incapacity had in fact resulted from the injury. "Existing incapacity" means total incapacity by disease or otherwise - (a) not entitling the worker to compensation under this Act; and (b) existing at the time when the total or partial incapacity would otherwise have resulted from the injury." If this new sub-section applies to the case of the appellant, he is entitled to compensation notwithstanding that he was incapacitated by Buerger's disease before he was incapacitated by pneumoconiosis.

The Supreme Court held that sub-s. (2A) does not apply to the case of the appellant. In the view of their Honours the "injury" referred to in that sub-section is, in the case of a disease, the "receiving", i.e. the contracting, of the disease. That injury, in the case of the appellant, must be regarded, they said, as having occurred while he was in the employment of the respondent, and his rights are therefore to be determined by the law in force on the last day on which he was in that employment. That day was in 1949. Sub-section (2A) did not come into force until 27th June 1951, and it does not apply, they said, in respect of injuries received before that date.

There is, of course, much to be said for this view, but it does not, in my opinion, rest on a correct construction of sub-s. (2A).

There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of "accidents" or "injuries" occurring after their coming into force: the cases of Moakes v. Blackwell Colliery Co. Ltd. [1] and Kraljevich v. Lake View and Star Ltd. [2] are familiar examples. But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring "accidents" or "injuries". It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury.

This is, I think, the case here. I think the prospect of sub-s. (2A) begins with incapacity and not with injury. It applies, in my opinion, on its true construction, to all cases in which incapacity occurs after its commencement, whether the "injury", from which the incapacity resulted, occurred before or after its commencement. It is true that it begins with a reference to compensation "payable in respect of an injury". But compensation is not payable until incapacity results from an injury. The whole subject matter of the sub-section is incapacity. Dawkins's Case [3] was concerned entirely with incapacity, and with what constitutes incapacity resulting from injury. And the whole concern of the new sub-section is to see that an incapacity, which in Dawkins's Case [3] was held not to result from injury, shall for the future be treated as resulting from injury. Compensation is to be payable as if that incapacity was so resultant. It is to be payable in spite of another "existing incapacity", and "existing" means existing at the time when the incapacity which is now to be compensable occurs. It seems to me that sub-s. (2A) must be read as limited to incapacities occurring after 27th June 1951, but not as limited to injuries occurring after that date.

1. (1947) 75 C.L.R. 169. 2. (1947) 75 C.L.R. 169.

On this reading of sub-s. (2A), it applies to the appellant. For it is agreed between the parties that the date of the medical certificate (7th July 1955) should be treated as the date on which he became incapacitated by pneumoconiosis. If this had not been agreed, the appellant might have been in great difficulties, because the New South Wales Act contains no provision corresponding to s. 20 of the Victorian Act.

Even if I took a different view of the construction of sub-s. (2A) of s. 7 of the Act, I should still be of opinion that the appellant was entitled to compensation by virtue of sub-s. (5) of s. 7. Sub-section (5) provides: "For the purposes of sub-sections four and (4A) of this section and of sections forty-four and fifty-three of this Act the injury shall be deemed to have happened at the time of the worker's incapacity." If this sub-section applies to the appellant, his case is within sub-s. (2A), even if sub-s. (2A) is regarded as applying only in respect of injuries (as distinct from incapacities) occurring after 27th June 1951.

According to the express terms of sub-s. (5), the "deeming" of the injury to have happened when, and not until, incapacity results is to be made only for the "purposes" of s. 7 (4) and (4A) and ss. 44 and 53. It is said to follow that it is not to be made for the "purposes" of s. 7 (2A). So far, therefore, as s. 7 (2A) is concerned, the time of the happening of the injury is left to be proved by evidence, and Dawkins's Case [1] will be fatal to a worker in the position of the appellant, unless he can prove that he suffered his injury (which, in the case of a disease, is the contracting of the disease) after 27th June 1951.

This argument involves, I think, a misapplication of the expressio unius maxim. Of the four provisions of the Act which are mentioned in sub-s. (5) of s. 7 we need consider only the first, because that is the provision which applies to the appellant. That provision is sub-s. (4), which provides: "Where the injury is a disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in whose employment the worker is or who last employed the worker". The object of this provision is clear enough. It is to indicate - where the disease is one which is contracted by a gradual process, so that it may be impossible to say in whose employment it was contracted - the employer who is to be liable to pay compensation. What it means is that that employer is to be liable who is the employer at the time of the injury or the employer who last employed the worker before the injury. In order to ascertain who that employer is, it is necessary to fix the time of the injury, and this is what is done by sub-s. (5). It is done by "deeming" the injury to have happened on the date when incapacity supervened. The expression "for the purposes of" is a loose and vague expression. "For the purposes of sub-s. (4)" is not an expression adapted to have any limiting effect on the operation of the substantive provision which follows. It means no more, in my opinion, than "In cases to which sub-s. (4) applies" - i.e. to cases where the injury is a disease contracted by a gradual process. If a case falls within sub-s. (4), then the date of injury must be deemed to be the date of incapacity, and all the provisions of the Act relating to compensation in respect of incapacity, including s. 7 (2A), apply accordingly.

For these reasons I am of opinion that the appellant is entitled to compensation under the Act. Such a result in the circumstances of the present case may, as Dixon J. observed in Williams v. Metropolitan Coal Co. Ltd. [1] , be thought somewhat remarkable. But we can only construe the Act as we find it.

The case stated raises two other questions, both of which relate to the amount of compensation payable. There is difficulty in applying at all to the particular case the general provisions of the Act relating to quantum, because here again the New South Wales Act is silent as to matters which are specifically dealt with in the English and Victorian Acts. But I think that the term the employer in s. 9 (1) (a) must be read as meaning the employer by whom compensation is payable, and that the earnings on which the required compensation must be made are the earnings of the appellant when he was in the employ of the respondent.

The first of the two remaining questions arises out of an amendment to s. 14 (1), which was made by the same Act of 1951 which introduced sub-s. (2A) into s. 7. That amendment added a new par. (e1) after par. (e) of s. 14 (1). The new paragraph, so far as material, provides: "Where a worker has been absent from work by reason of illness, strikes, lockouts, tempestuous weather, intermittency of employment, slackness of trade, or any other reasonable cause, the average weekly earning of the worker shall, notwithstanding the foregoing provisions of this section - (i) In the case of an adult worker be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater". I think it necessarily follows from what I have said in relation to s. 7 (2A) that this provision must be regarded as applicable to the case of the appellant.

The remaining question is whether the appellant is entitled, in addition to what is payable under s. 9 (1) (a), to a weekly payment under s. 9 (1) (b) in respect of his wife. He can only be so entitled if his wife was "dependent on his earnings" at the date of the certificate of the Medical Board. At that time he was earning nothing, but was, as has been said, in receipt of a pension. His wife may be said to have been dependent on his pension, but she cannot be said to have been dependent on non-existent earnings.

The appeal should, in my opinion, be allowed. The questions asked by the case stated can hardly, I think, be answered satisfactorily. It is better, I think, to make declarations defining the rights of the appellant.

This is an appeal from a judgment of the Supreme Court of New South Wales (Full Court) deciding that, on the facts appearing in a case which had been stated for the opinion of that Court by the Workers' Compensation Commission of New South Wales, the present appellant was not entitled to an award of compensation under the provisions of the Workers' Compensation Act, 1926-1957 N.S.W..

The appellant has spent all his working life in coal mines. From 1929 to 1949 he was employed as a coalminer by the respondent. He ceased work in April 1949, having become totally incapacitated for work by reason of Buerger's disease. This disease was neither caused nor aggravated by his work in coal mines. His total incapacity resulting from Buerger's disease has continued ever since.

At some time while he was employed in coal mines the appellant must have contracted pneumoconiosis from the inhalation of dust in the course of his work; for in 1955, not having been subjected since he left the mines to conditions from which that disease might have been contracted, he was found to be suffering from it. He was then in such a condition as a result of it that he would have been thereby incapacitated for work if he had not been already incapacitated by Buerger's disease. It is agreed between the parties for the purposes of the case that the condition which would thus have incapacitated him was reached on 7th July 1955. He was then aged sixty-six years.

The appellant makes no claim to compensation in respect of the incapacity resulting from Buerger's disease. It is clear that he could not succeed in such a claim, for there is nothing with respect to his contraction of Buerger's disease to take the case out of the general propositions prevailing under the New South Wales Act, that there is no right to compensation save in respect of an "injury", and that "injury", being defined by s. 6 to include a disease which is contracted by the worker in the course of his employment and to which the employment was a contributing factor, includes no disease as to which the conditions thus described are not fulfilled: Slazengers (Australia) Pty. Ltd. v. Burnett [1] ; Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [2] ; Australian Iron and Steel Ltd. v. Connell [3] .

1. (1951) A.C. 13; (1950) 51 S.R. (N.S.W.). 2. (1959) 102 C.L.R. 482. 3. (1959) 102 C.L.R. 522.

The claim which the appellant makes is in respect of the pneumoconiosis. He has established that he contracted that disease by inhaling dust while working as a coalminer. Accordingly he has established that he received an "injury". Nevertheless two difficulties would stand in the way of his obtaining an award against the respondent if he were to rely solely upon the general provisions of the Act. One difficulty is that he has not proved, and almost certainly could not prove, in whose employment he was when he "contracted" the disease, and the general provisions of s. 7 (1) (a) entitles a worker who has received an injury to receive compensation from "his employer" only, that is to say his employer at the time of the injury. The other difficulty is that under the provision which governs the payment of compensation in the ordinary case (s. 9) compensation is payable only when total or partial incapacity for work results from the injury, and the appellant's incapacity resulted not from the pneumoconiosis but from the Buerger's disease (Dawkins v. Metropolitan Coal Co. Ltd. [4] ).

The first difficulty is common to all or most cases where the disease constituting the injury is of such a nature as to be contracted by a gradual process; and for that class of case it is over-come by a special provision, contained in the first paragraph of sub-s. (4) of s. 7, that where the injury is such a disease compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. There are two other paragraphs. The second makes any employer who, during the twelve months preceding the worker's incapacity, employed him in any employment to the nature of which the disease was due liable to make contributions to the employer by whom compensation is payable; and the third paragraph requires the worker, or his dependants, to furnish the employer, from whom compensation is claimed with such information as to the names and addresses of all other employers who employed the worker during the twelve months preceding the "injury" as he possesses. It has been held that the effect of the first paragraph in the context of the whole sub-section is "that, if a disease amounting to personal injury is contracted by a gradual process in an occupation, a worker so contracting it is entitled to receive from the employer in whose employ he is pursuing the occupation at the time of his incapacity, or from the last employer who before his incapacity employed him in such an occupation, compensation in accordance with the Act". (Smith v. Mann [1] ; Williams v. Metropolitan Coal Co. Ltd. [2] .) (Since it is clear from the reference to dependants in the third paragraph that the sub-section applies in cases of death as well as in cases of incapacity, completeness of statement requires that after the word "incapacity" where last occurring in this quotation the words "or death" should be added.)

1. (1932) 47 C.L.R. 426. 2. (1948) 76 C.L.R. 431, at p. 448.

The other difficulty also is of a kind to which a special provision has been directed. Sub-section (2A) of s. 7 provides that compensation shall be payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity of the worker, and that such compensation shall be payable as if such total or partial incapacity had in fact resulted from the injury. The expression "existing incapacity" is defined by the sub-section to mean total incapacity by disease or otherwise - (a) not entitling the worker to compensation under the Act, and (b) existing at the time when the total or partial incapacity would otherwise have resulted from the injury. The respondent contends, and the Supreme Court has held, that this sub-section does not avail the appellant. His receipt of "injury", the contraction of the pneumoconiosis, must have occurred while he was employed in the mines, and therefore at a time not later than April 1949. But the sub-section was not in the Act at that time. It was inserted by the amending Act No. 20 of 1951, which commenced on 27th June 1951, and in that Act no intention appears that the provision shall have a retroactive operation. Therefore, it is said, sub-s. (2A) does not apply to any case in which the disease which is relied upon as an "injury" was contracted before the commencement of the 1951 Act.

The first answer which the appellant offers accepts the assumption that the alternative to allowing sub-s. (2A) a retroactive operation is to treat it as applying only to cases of injury after the commencement of the 1951 Act. He turns to a provision found in sub-s. (5) of s. 7 that, for the purposes of sub-s. (4) and certain other specific provisions of the Act, the injury shall be deemed to have happened at the time of the worker's incapacity. As applied to the present case, this means that the appellant's pneumoconiosis shall be deemed to have been contracted on 7th July 1955. But that is only for the purposes of sub-s. (4) and the other specially mentioned provisions. It is not for the purposes of sub-s. (2A). Consequently, if sub-s. (2A) be read as if it contained words limiting its application to cases of injury received after the commencement of the 1951 Act, sub-s. (5) cannot mean that for the purposes of the limitation the injury shall be deemed to have happened at the time of the resulting incapacity.

To this the appellant replies that it is enough that sub-s. (5) is expressed to apply for the purposes of sub-s. (4). As Dixon J. said in Williams v. Metropolitan Coal Co. Ltd. [1] , the direction, being quite general, must operate for all the purposes of sub-s. (4); and the appellant's contention is that it does not stop short of requiring that the injury be deemed to have happened at the time of the incapacity whenever it becomes relevant to consider the date of the injury in applying sub-s. (4) to a particular case. This means, says the appellant, that the fiction is to be observed for all purposes when dealing with a claim to compensation in respect of a disease contracted by a gradual process, because in such a case the general right to receive compensation in accordance with the Act, which in the ordinary case is given by sub-s. (1) of s. 7, is given, not by that sub-section, but by that sub-section as modified by sub-s. (4). Since under sub-s. (1) standing by itself the right arises on the receipt of an injury, in a case within sub-s. (4) it would arise on the contraction of the disease, but for sub-s. (5). By substituting the time of incapacity for the time of injury for the purposes of sub-s. (4), sub-s. (5) makes the right arise at the time of incapacity; so that even if sub-s. (2A) applies only where injury was received after the 1951 Act, in a case falling within sub-s. (4) it must apply where the incapacity arose after that Act.

This argument the respondent seeks to meet by contending that there is no purpose of the first paragraph of sub-s. (4) for which it is material to fix the date of the injury, and that therefore sub-s. (5) does not affect the operation of sub-s. (1) as modified by sub-s. (4). The argument points out that the only reference to time in the first paragraph is in the word "last", and that word, as has already been mentioned, has been held to mean last before the incapacity, not last before the injury. In the second paragraph the only time referred to is the period of twelve months preceding the incapacity, again not the injury. Only in the third paragraph is there any reference to the time of injury. And there is a special reason why sub-s. (5) should have been directed to that paragraph. As originally passed in 1926, sub-s. (5) was expressed as an enactment for the purposes of ss. 44 and 53 only, those being sections concerned with notifying the Commission and the employer of the receipt of injury by a worker. The reference to "injury" in the third paragraph of sub-s. (4) was out of harmony with the rest of the sub-section: one would have expected the expression "incapacity or death" to be used instead. The amending Act of 1929 might have taken the course of altering the paragraph accordingly; but for cases of incapacity at least it achieved the same result by making sub-s. (5) apply to sub-s. (4). This, says the respondent, is the whole explanation of the reference in sub-s. (5) to the purposes of sub-s. (4). The argument is, we think, mistaken. It is true that while, in general, a claim by a worker that a disease which has incapacitated him is compensable as an injury is, because of the definition of "injury", a claim that he contracted it in the course of his employment and that the employment was a contributing factor to it, yet where the disease is one of gradual onset the claim is, because of sub-s. (4), only a claim that his contraction of it was due to the nature of a particular kind of employment. The first paragraph of sub-s. (4) undoubtedly does make the time of contracting the disease in the course of that kind of employment immaterial to the existence of a right to compensation; but in order to work out its direction that "compensation shall be payable" it is necessary to go to later provisions, such as those contained in ss. 9 and 14, which again and again require for their application that the date of the injury in the particular case be ascertained. There are, therefore, purposes of the first paragraph of sub-s. (4) to which sub-s. (5) applies.

But it is not satisfactory to decide the case on this ground, because the initial assumption, that sub-s. (2A) is to be construed as applying only to cases of injury received after the commencement of the 1951 amending Act, is unjustified. The respondent's argument treats it as undeniable in face of the decision of this Court in Kraljevich v. Lake View and Star Ltd. [1] . That decision depended upon what Dixon J. [2] described as the structure and substance of the enactments consisting of s. 6 (1) and cl. 18 of the first schedule of the Workers' Compensation Act, 1912-1941 W.A.. The first of these enactments provided that "if in any employment permanent injury by accident is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule"; and the second laid down a method of assessing the lump sum by which weekly payments of compensation provided for in the first schedule might be redeemed. An amendment altering the method of assessment of the lump sum was held to apply only to cases of injury by accident after the commencement of the amendment, the reason being that the effect of s. 6 (1) was to make the right of the worker to receive compensation under the Act, and the correlative liability of the employer to pay that compensation, accrue immediately on the happening of the injury, and no intention to affect accrued rights or liabilities appeared in the amending Act.

1. (1945) 70 C.L.R. 647. 2. (1945) 70 C.L.R., at p. 653.

It will be observed that the decision in Kraljevich v. Lake View and Star Ltd. [1] , was not based upon any actual intention discovered from the terms of the amending Act. The language used in the Act was quite general; and the limitation placed upon the operation of the amendment was dictated by the established rule of construction which raises a presumption against construing legislation as interfering with accrued rights and liabilities. As Dixon C.J. expressed it in Maxwell v. Murphy [3] and again in Chang Jeeng v. Nuffield (Aust.) Pty. Ltd. [4] , the general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. Now, sub-s. (2A) of s. 7 of the New South Wales Act is expressed in general terms also; and if a construction is to be placed upon it which excludes from its application the class of cases in which a disease of gradual onset was contracted before the commencement of the 1951 Act, the justification must be found in the same rule of construction. What has to be identified for this purpose is the point of time at which a right to receive or a liability to pay compensation in accordance with the Act accrues in the case of a disease of gradual onset. In other cases the point of time is shown by s. 7 (1) to be the date of receipt of the injury: Stevens v. Railway Commissioners for N.S.W. [1] ; Gammage v. Metropolitan Meat Industry Commissioner [2] ; Australian Iron and Steel Ltd. v. Coal Mines Insurance Pty. Ltd. [3] , the reason being that immediately upon the happening of that event the worker's employer comes under a statutory liability to pay compensation in accordance with the Act, to the worker if incapacity for work results and to his dependants if death results. It is nothing to the point that the liability thus arising does not entail any payment unless and until incapacity or death supervenes: the liability exists none the less. But in the special case where the injury is a disease contracted by a gradual process, the receipt of the injury, the contraction of the disease, does not give rise to any liability, present or future, actual or contingent, on the part of the then employer or any employer. For it is impossible to construe sub-s. (4) as creating rights and liabilities additional to those provided for by sub-s. (1). Its evident intention is to exclude the cases to which it applies from the operation of sub-s. (1) considered by itself, and to make for those cases the provision which sub-s. (1) would make if the words "from his employer" were omitted and there were inserted in their place the words "from the person who, at the time when incapacity or death results, if it does result, is employing the worker in an employment to the nature of which the disease was due, or is the last who employed him in such an employment". It is true that sub-s. (5) is not to be taken as establishing a conclusive presumption that incapacity and injury are all one: Dawkins v. Metropolitan Coal Co. Ltd. [4] ; but, putting sub-s. (5) on one side, the situation is similar to that which Judge Gamble described in a passage quoted by Dixon C.J. in Nash v. Sunshine Porcelain Potteries Ltd. [5] : "When it is borne in mind that primary liability is placed upon the last employer in that particular kind of employment just because he is the last such employer, it is clear that the actual date of the contraction of the disease is as between the worker and the employer wholly irrelevant". There is, then, in a case of a gradually contracted disease, no accrued right, and no accrued liability, until incapacity (or death) results. The conclusion seems inevitable that the presumption upon which the reasoning of the Court in Kraljevich's Case [6] proceeded does not justify any larger qualification upon the generality of sub-s. (2A), in its application to injuries consisting of diseases of gradual onset, than that which excludes cases where, before the commencement of the 1951 Act, the condition arose which would have spelt incapacity if the worker had not been suffering from an existing incapacity.

1. (1945) 70 C.L.R. 647. 2. (1957) 96 C.L.R. 261, at p. 267. 3. (1959) 101 C.L.R. 629, at pp. 637, 638. 4. (1930) 31 S.R. (N.S.W.) 138. 5. (1947) 48 S.R. (N.S.W.) 99. 6. (1951) 52 S.R. (N.S.W.) 47. 7. (1947) 75 C.L.R., at p. 188. 8. (1959) 101 C.L.R. 353, at p. 363. 9. (1945) 70 C.L.R. 647.

The result of this view in the present case is that the appellant is entitled to compensation as against the respondent on the notional footing required by sub-s. (2A) that on 7th July 1955 he became totally incapacitated for work as a result of pneumoconiosis. Two further questions then arise as to the basis upon which the quantum of the compensation was assessed by the Workers' Compensation Commission. They both arise under sub-s. (1) of s. 9, which contains provisions as to the amount of the compensation to be paid in consequence of the right given by s. 7. The sub-section provides that, subject to ss. 9, 10 and 11 (this qualification does not affect the present case), where total or partial incapacity for work results from the injury the compensation payable by the employer under the Act shall include certain payments which are described in the paragraphs which follow. They are weekly payments during the period of the incapacity. We are here concerned with the first and second only. The first, provided for by par. (a), is a weekly payment in respect of the worker himself. The paragraph consists of two parts. Its second prescribes a fixed maximum and a fixed minimum amount. The first part, after providing in general terms for the weekly payment in respect of the worker, prescribes that the payment shall not exceed seventy-five per centum of the worker's average weekly earnings for the previous twelve months if he has been so long employed by the employer, but if not, then for any less period during which he has been in the employment of the same employer. The calculation so provided for cannot be followed in a case such as the present where the happening of the injury is notionally post-dated by s. 7 (5) to the time of the incapacity and that time is twelve months or more after the cessation of the worker's employment by "the employer", that is to say the employer who is liable for the compensation. The fact, however, that the calculation cannot be made does not defeat the general direction that a weekly payment in respect of the worker, within the limits fixed by the second part of the paragraph shall be included in the compensation. The judge who heard this case therefore had power to determine, in the exercise of a judicial discretion but within the fixed limits, what weekly payment was appropriate to the circumstances. He was entitled to be guided by a calculation made by analogy to that provided for in the first part of par.(a), ascertaining what amount would be equal to seventy-five per centum of the worker's average weekly earnings during the last twelve months of his actual employment by the respondent. There could have been no objection to his adapting for this purpose the provisions of s. 14, a section which lays down in sub-s. (1) certain rules to be observed in ascertaining "average weekly earnings", applying the rule which would have been appropriate to the case if it had referred to the time when the last employment ended instead of the time of the incapacity or injury. One of the rules, designated (el), provides how the average weekly earnings shall be determined in the case where a worker has been absent from work by reason of illness, strikes etc., "or any other reasonable cause". We have heard argument as to whether this rule has a direct application here, in view of the fact that it was not enacted until 1951. But it does not matter, we think, how the presumption against retrospectivity applies in these circumstances: the rule in any case cannot be directly applied, because of the terms in which s. 9 (1) and the rule itself are expressed. In fact, the judge seems to have proceeded on a theory that as a direct consequence of, or implication from, s. 7 (5) it was necessary to apply s. 9 (1) (a) and s. 14 (1) (el) by treating the appellant as having been, at the notional date of his injury, in a notional employment by the respondent at the wage he was receiving when he was last in its employment, and as having been absent from work because of illness or other reasonable cause. The learned judges of the Supreme Court thought that the theory could not be supported on the terms of the Act, and indeed it is not easy to see any justification for it. But what the primary judge actually did was this: he found that, applying s. 9 (1) (a) to the notional situation which he assumed, the average weekly earnings would be £12 3s. 0d. if s. 14 (1) (el) were regarded as applicable and £8 if it were not. He considered that s. 14 (1) (el) should be held to apply, and as seventy-five per centum of that figure was more than the maximum fixed by the second part of s. 9 (1) (a) he awarded, in respect of the worker, the fixed maximum. That, as the Act stood on 7th July 1955, was £8 16s. 0d. per week. In our opinion it was within his power to award that amount in order to give effect to the general provision with which s. 9 (1) (a) begins.

The second weekly payment under s. 9 (1) is provided for by par. (b). By that paragraph the compensation payable by the employer under the Act is made to include, in addition to the compensation payable under par. (a), a weekly payment, during the incapacity, of (inter alia) a stated sum per week in respect of the wife of the worker who is totally or mainly dependent on the earnings of the worker "at the date of the injury", or who becomes so dependent after such date. It is to be noted that the Commission is not given any discretion as to this amount, and consequently if the paragraph does not apply to the present case by the direct force of its terms there is no room for the employment of any analogy. At all material times the appellant was a married man. Until he ceased work in April 1949, his wife was totally dependent on his earnings. She has been totally dependent on him ever since, except in so far as she may have been in receipt of a pension of her own; but his means have been confined to a pension or pensions. At the date when his notional incapacity from pneumoconiosis is to be taken as having resulted, namely, 7th July 1955, he had no earnings, and his wife therefore could not be described as dependent on his earnings. Accordingly the award to which the appellant was entitled could not properly include any additional compensation under par. (b).

For these reasons we would allow the appeal and substitute for the answer given by the Supreme Court to the questions in the stated case the following answer: "On the facts appearing from the stated case the worker was entitled to an award of compensation consisting of weekly payments in respect of himself which it was within the discretion of the Commission to fix at £8 16s. 0d., but he was not entitled to any weekly payments in respect of his wife".

Sub-section (4) of s. 7 of the Workers' Compensation Act, 1926-1954 N.S.W. is concerned with a disease "of such a nature as to be contracted by a gradual process". That is not the same thing as a gradual process of degeneration caused by a disease whether of infective or autogenous origin. It may be possible in that case to say when the disease began or was contracted, but it is not possible to say, using words in their ordinary sense, of a disease falling within the description in sub-s. (4) that it was "contracted" at a particular time or during the course of employment by a particular employer. It is contracted by a gradual process. An industrial disease of that kind is generally the consequence of continuing exposure to conditions that are deleterious by cumulative effect. Sub-section (1) of s. 7 could not, without giving its words an unnatural sense, be applied to such diseases. Sub-section (5) therefore makes the time when incapacity occurs the time when the "injury" is deemed to have happened. Provisions of the Act which would otherwise not be applicable are thus made to apply to incapacity arising from diseases gradually contracted. In cases of that kind the time when the right to compensation arises and a liability in the employer is created - and that is the critical time in this case - is then when incapacity occurs. The liability arises then, and not till then; and it then falls upon the last employer of the worker in an employment in the disease producing industry, but with the statutory right of contribution by earlier employers of the worker in that industry. In these circumstances, and taking our stand at the date when the 1951 amendment came into operation - as I consider we should - the result is that sub-s. (2A) of s. 7 is applicable in this case. It had come into operation before 7th July 1955, the date which it was agreed should be treated as the date the appellant became incapacitated by pneumoconiosis. The consequences of this are dealt with in the judgment of Kitto and Menzies JJ. which I have had the advantage of reading and with which I substantially agree. I would therefore allow the appeal and answer the question in the stated case as they propose.