Fisher v Hebburn Ltd

Fisher v Hebburn Ltd - [1960] HCA 80 - HCA 1960 case summary — Zoe

[36]

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.

[39]

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.

[41]

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.

[44]

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.

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties