General Motors Holden's Pty Ltd v Staska

On 27th March 1968 the appellant employer applied to redeem its liability to make weekly payments of compensation to the respondent whose incapacity by that time had become permanent. This application came on to be heard on 3rd June 1968. On 8th July 1968 the arbitrator made an award that the appellant's liability to make such weekly payments be redeemed by the payment of the lump sum of $4,694. This sum the arbitrator fixed on the footing that the total liability of the appellant in respect of weekly payments of compensation payable to the respondent was $5,200, i.e., the amount fixed by the 1955 amendment of s. 18 (3) of the Act which was current on the date of the respondent's injury. Against this award the respondent appealed to the Supreme Court of South Australia which by majority set aside the award and remitted the matter to the arbitrator to re-assess the lump sum to be paid in redemption of the appellant's liability upon the basis that the total liability of the appellant in respect of weekly payments of compensation payable to the respondent was $12,000, the amount fixed by the amendment of s. 18 (3) made in 1965.

By the time of the appellant's application to redeem its liability to make weekly payments of compensation to the respondent the Act had lastly been amended by Act No. 86 of 1966, which commenced on 1st December 1966. The relevant amendment was made by s. 6 which amended s. 28a of the Act so as to read:

28a. Notwithstanding anything in this or any other Act contained, the amount of compensation payable in respect of the death of a workman after the commencement of the Workmen's Compensation Act Amendment Act, 1966, shall be the amount of compensation payable under this Act at the time of the death of the workman whether the injury resulting in the death occurred before or after such commencement and the amount of the weekly payment of compensation payable to a workman for total or partial incapacity pursuant to this Part after the said commencement shall be the weekly rates of compensation in force from time to time, irrespective of when the injury occurred: Provided that this section shall not apply where compensation has been paid to the workman in respect of the injury pursuant to section 26 or section 28 of this Act nor shall it apply to the total liability of an employer under subsection (3) of section 18 of this Act.

Section 28a had been inserted in the Act by s. 9 of No. 52 of 1965 which commenced on 16th December 1965 as follows:

28a. Notwithstanding anything in this or any other Act contained, where -

(a) compensation has been paid to a workman pursuant to this Part;

(c) the workman subsequent to his return to work dies or suffers incapacity as a result of the injury in respect of which the compensation was paid,

the amount of compensation payable in respect of the death of the workman shall be computed and based upon the amount of compensation payable under this Act at the time of the death of the workman or, as the case may require, the amount of weekly compensation payable in respect of the subsequent incapacity shall be computed and based upon the rates of weekly compensation payable at the time of the subsequent incapacity.

Provided however that this section shall not apply where compensation has been paid to the workman in respect of the injury pursuant to section 26 of this Act.

No question arises in this case as to the proper weekly payment of compensation to be made to the respondent after the passing of s. 9 of the amending Act of 1965. Theretofore the rate of weekly payments of compensation payable to the respondent was that current at the time of his injury, namely, the rate worked out in accordance with the Act as it stood in 1956. But s. 28a effected a considerable change in the law. In the case of those workmen whose circumstances satisfied the requirements of the section, the rate of weekly payments of compensation was thereafter to be that which was current at the time incapacity supervened upon a return to work. Whether or not the change only operated with respect to workmen suffering such an incapacity after the commencement of this amending Act need not be considered for the respondent did suffer incapacity after its commencement, the incapacity stemming from an injury in respect of which compensation had been paid under Pt III of the Act and supervening upon a return to work. The result of the application of s. 28a in its 1965 form to the respondent's circumstances was that he became entitled to the rate of weekly payments of compensation set by the combined effect of s. 18 (1) and s. 18 (2) of the Act as amended up to the year 1963.

When s. 28a was amended to its 1966 form a further substantial change was made in the relevant law. It was now provided that for the future the amount of weekly payments of compensation payable to a workman for incapacity should be the weekly rates of compensation in force from time to time, irrespective of when the injury, out of which the incapacity arose, occurred. Again there is no need to determine whether or not this amendment only applied to those cases in which incapacity occurred after the commencement of the amendment: for not only did the respondent suffer his ultimate incapacity after the commencement of the Act, but the weekly rate of compensation in force after that date was the same as that in force before that date.

The question in the case is what is the amount of the total liability of the appellant in respect of weekly payments of compensation payable to the respondent which should be taken by the arbitrator as the basis of his computation of a lump sum to be paid in redemption of the appellant's liability to make such weekly payments. Apart from the amendments made to the Act in 1965 and 1966, it is clear that the liability of an employer to make weekly payments of compensation is to be determined as at the date of the injury. Thus to apply s. 18 (3) of the Act prior to the amendments it would be necessary to know the date of the receipt of the injury. Putting on one side, for the moment, the effect of the insertion of s. 28a in the Act, alterations to the figure set out in that s. 18 (3) only apply to the case of an injury received subsequent to the commencement of the amending Act.

The resolution of this case thus turns on the meaning and application of the two amending Acts, and particularly of the 1966 amendment. I have already indicated the difference between the 1965 and the 1966 form of s. 28a in so far as that section affects the rate of weekly payments of compensation. Neither increased the ceiling of a weekly payment set by s. 18 (2). The only other significant difference between the two Acts is that whereas the 1965 Act by s. 6 increased the amount of total liability as expressed in s. 18 (3), the 1966 Act did not. The critical question is what change, if any, did either Act make in the then current law as regards the total liability of an employer whose employee had suffered an injury on some date prior to the commencement of the amending provision.

The majority of the Full Court decided that the increase of the rate of weekly compensation payable, in the absence of a contrary intention to be found in the statute, automatically made "the maximum in force under s. 18 (3)" as then current, i.e., $12,000, applicable to the employer who was bound to make the increased weekly payments of compensation. Support was thought to be found for this conclusion in a passage from the judgment of this Court in Wattle Gully Mines v. Clementi [1] . The majority of the Full Court proceeded to hold that upon the respondent becoming entitled to the increased rate of weekly payments of compensation by reason of s. 28a in its 1965 form, he acquired a vested right under the 1965 Act to weekly payments "up to the total maximum in force at that time, namely, $12,000", a right which s. 28a in its 1966 form left untouched.

But it should be observed that s. 18 (3) does not give any rights: it sets a ceiling to a liability. Section 18 (1) and s. 18 (2) gives a right to weekly payments of compensation in respect of incapacity arising from a compensable injury. It is not accurate, in my opinion, to say of the incapacitated workman that he has a vested right to such payments up to a total sum. The amount he is entitled to will be determined by the nature and extent of his incapacity, which may never warrant the payment to him of any sum approaching the sum set as the total liability of the employer. If his circumstances do warrant weekly payments up to that sum, the employer's liability to make any further weekly payment ceases. The passage cited from the judgment in Wattle Gully Mines v. Clementi [1] does not, in my opinion, support the conclusion of the majority of the Full Court. It was addressed to a different matter altogether. In terms the reasons for judgment do not say that the workman's right is a right to weekly payments up to a total sum. It merely says that a reference in an amending Act to "rates or amounts of compensation" is large enough to include the amount of the total liability of an employer to pay compensation. Had the statutory words then under consideration been "rates or amounts of weekly payments of compensation", I cannot think that the same conclusion as was reached in that case would have been drawn or that it would have been said that the rates of weekly payments of compensation included the figure for the total liability of the employer to make such weekly payments. In my opinion, the proposition that an increase in the rate of weekly payments of compensation under this Act necessarily involves and carries with it an increase in the total liability of the employer to make such weekly payments cannot be sustained. Earlier amendments made to the Act in 1951 and 1953 indicate that weekly payments can be increased without thereby increasing the total liability of the employer and, as I shall mention, so does part of the proviso in s. 28a in its 1966 form. Indeed, counsel for the respondent with commendable frankness said he was unable to support the decision of the majority on this ground.

At the date of the appellant's application, of its hearing and of its disposal, s. 28a had reached the form I first quoted. It was the Act amended to 1966 which the arbitrator had to apply. He had then to determine what was the total liability of the appellant in respect of weekly payments of compensation under the Act. If s. 28a had not already wrought a change, it was the amount set in 1955, namely, $5,200. Clearly the 1966 Act itself made no such change. The final words of s. 28a are "nor shall it" (i.e., s. 28a) "apply to the total liability of an employer under sub-section (3) of section 18 of this Act". These words do not support the proposition that an increase in the rate of weekly payments of compensation automatically increased that total liability. Quite apart from the proviso, no part of s. 28a, in my opinion, does apply to the total liability of an employer in respect of weekly payments of compensation payable to an incapacitated workman. It is limited in relevant respects to the weekly payments themselves. The proviso emphasizes the lack of connexion between the increase of the rate of the weekly payments and the total liability in respect of them.

The matter therefore ultimately turns, in my opinion, on the question whether the 1965 amendment increased the total liability of the appellant in respect of weekly payments of compensation to the respondent.

I have already adverted to the view of the majority of the Full Court that s. 28a in its 1965 form gave to the respondent a vested right to receive weekly payments up to the figure then expressed in s. 18 (3) of the Act. The respondent's counsel sought to reach the conclusion that the total liability of the appellant for the purpose of the application of s. 28a in its 1966 form was the amount fixed by s. 6 of the 1965 amendment by the submission that, although it is textually silent on the matter, the proper interpretation of the 1965 amending Act as a whole, including as it does both s. 6, which raises the figure in s. 18 (3) for total liability and s. 28a, is that the total liability of all employers in respect of all injuries whenever received was thereby set at $12,000: that is to say, the increase in total liability did not depend on the workmen fulfilling the requirements of s. 28a: it operated in respect of all employers in respect of all compensable injuries, at least where incapacity occurred after the commencement of the amending Act. I am quite unable to accept this construction: indeed I can find no justification whatever for it. Section 28a in its 1965 form had at best a limited operation - a matter which no doubt excited its early amendment in the following year. I have already said that I cannot accept the view that there is a necessary relationship between the increase in the rate of weekly payments and the total liability of the employer so that an increase in the ceiling set by s. 18 (2) automatically results in an increase in the employer's total liability. Still less can I accept the submission that the mere presence of s. 28a in its 1965 form in the amending Act caused such a radical alteration as it is said to have worked in the normal application of amendments increasing the sum set in s. 18 (3) for total liability in respect of weekly payments of compensation. The change effected by the amending Act of 1965 was limited at best, in my opinion, to changing the rate of weekly payments of compensation in the case of injuries received before the commencement of the 1963 amendment of the Act, namely, 28th November 1963, from the rate prevailing at the time of the receipt of the injury to the rate prevailing at the date of the incapacity which supervened upon a return to work. The 1966 amendment increased that rate at least to the rate current at the date of incapacity.

As the 1965 amendment, in my opinion, made no change in the appellant's total liability, the clear effect of the proviso to s. 28a in its 1966 form is to ensure that the total liability of the employer remains as it was at the date of the receipt of the injury.

In my opinion, the total liability of the appellant in respect of weekly payments payable to the respondent, in fact and within the meaning of the proviso to s. 28a in its 1966 form, is the sum set as the limit of total liability by the Act as it was at the date of the injury, namely, $5,200. In my opinion, the arbitrator adopted the correct basis for the computation of a lump sum to be paid in redemption of the weekly payments of compensation payable to the respondent. His award ought not to have been disturbed. This appeal should, in my opinion, be allowed.

This appeal is from an order of the Full Court of the Supreme Court of South Australia directing, in an appeal by the workman from an award made in proceedings under s. 28 of the Workmen's Compensation Act, re-assessment of the liability of the employer for a weekly payment of compensation in respect of the incapacity of the workman for work - the incapacity is total and permanent. It results from an injury sustained by the workman in 1956 in relation to which the employer is liable under s. 4 of the Act. Rates of compensation for incapacity for work and the total liability of the employer in respect of weekly payments of such compensation have been increased by successive amending Acts passed since the injury occurred. There was a recurrence of the incapacity from the injury in November 1966 - "subsequent incapacity", within the meaning of s. 28a, as enacted and inserted in Pt III of the 1932-1963 Act, by s. 9 of the 1965 Act. The workman has been receiving from the employer weekly payments in respect of the incapacity at the rate, in force, under s. 18 (2). The rate of payment is higher than when the injury occurred. The 1963 Act raised the rate of compensation under s. 18 to its present standard. The "total liability" specified in s. 18 (3) is $12,000, in the case of a workman who is totally incapacitated. The limit of total liability in such a case was raised to this figure by s. 6 of the 1965 Act. At the time of the injury the limit of "total liability" provided by s. 18 (3) for incapacity for work was $5,200.

Since November 1966, the workman has received from the employer a weekly payment of $32.50, the amount of compensation payable under s. 18 (2). This is the weekly payment, the subject of the employer's application under s. 28 for redemption of liability. The question at issue is whether $5,200 or $12,000 is the highest limit of the employer's liability. The factors used by the arbitrator in the calculation of the lump sum payable in redemption of the liability, are $32.50 (weekly payment) and $5,200 (contingent total liability). The amount of the assessment in dispute is $4,694. The award in question provides for the payment of this amount by the employer to the workman.

The majority of the Full Court were of the opinion that the figure, $5,200, is irrelevant and that the relevant figure is $12,000. In my opinion this decision is right.

the amount of weekly compensation payable in respect of the subsequent incapacity shall be computed and based upon the rates of weekly compensation payable at the time of the subsequent incapacity. The section itself does not expressly impose a limit on total liability; it does not make an express reference to the provision of the Act under which the rates of weekly compensation for which it provides are payable. These matters are obviously left to be fixed by implication from s. 18. Section 28a and s. 18 are in Pt III of the Act. The two sections constitute a context in which s. 28a has to be construed. The latter is not a complete enactment without s. 18. The weekly compensation payable pursuant to s. 28a must be a weekly payment computed and based on s. 18. It is therefore a payment in a series of payments, the sum total of which cannot exceed $12,000, in case of total incapacity. If s. 28a is not beholden to s. 18 it is a mere declaration without operative effect. It is said that s. 18 (3) is not apt, because of the difference of verbiage between it and s. 28a, to apply to payments pursuant to s. 28a. The verbiage of s. 18 (3) relating to its application to payments under the section has not since the date of the injury suffered any amendment. If s. 18 (3) is not apt in the respect mentioned it would follow that neither $5,200 nor $12,000 is relevant to the matter. It is not said that there is no limit on the total liability of an employer under s. 28a. The words of the section dealing with rates of compensation have the effect that the compensation payable has to be in accordance with some sub-section of s. 18 applying to the particular workman. The rates have virtually to be computed and based on s. 18 not s. 28a. According to a permissible construction of the words "under this section" in s. 18 (3), the compensation payable, pursuant to s. 28a, is really "under" s. 18 (3). It follows that $12,000 is the limit above which the employer is not obliged to make any further payment in respect of the current incapacity. For the purposes of s. 28 (the redemption section) the employer's liability for the weekly payment of $32.50 should be assessed on that basis.

The object of s. 28a is to bring the rates of compensation for "subsequent incapacity" up to the level of the rates then in force under s. 18 (2), thereby giving the full benefit of the section in respect of both weekly payments and total liability to the workman - thus rendering inapplicable the limits on weekly payments and total liability in s. 18 existing at the time of the injury. If s. 28a does not attain that result, because on its true construction it does not relate to an injury which occurred before the commencement of the 1965 Act, the result is clearly attained by s. 28a as amended by the 1966 Act. The section assimilates the compensation, for which it provides, to weekly payments under s. 18. A weekly payment made pursuant to s. 28a is, as formerly, one of a series of payments due to terminate by virtue of s. 18 (3) when, in the case of total incapacity, the sum total paid would be $12,000. The last part of the proviso to s. 28a as amended is obscure. There is an indication of its meaning from the context. The context seems to indicate that the meaning of the last part of the proviso is that the provisions of the section relating to payment of compensation should not apply in the case of a workman to whom the employer had paid the total amount of his liability under s. 18 (3), if thereafter incapacity due to the injury recurs.

In my opinion the appeal should be allowed for the reasons appearing in the judgments of the Chief Justice and Owen J. which I have had the advantage of reading.

I think that this appeal should be dismissed. I have come to that opinion after some initial misgiving, because it differs from the view which other members of this Court take, and because I arrive at it by a path which is not the same as that taken by those members of the Supreme Court who reached the same conclusion as I do. I regret that I therefore only add a futile idiosyncrasy to existing discordance. I realize too that my opinion is naive. Nevertheless, I am unable to see that any question of the retrospective operation of statutes is involved in this case: and I do not think that we need be troubled by the antecedents of the present provisions of the Workmen's Compensation Act, 1923-1966 SA. The question seems to me to depend simply on the application of the provisions of that Act, read as a whole, read literally, and read prospectively as from 1st December 1966, ignoring earlier enactments.

The respondent suffered a compensable injury in May 1956. He returned to work and worked, off and on, until February 1967. He then, as a result of his injury, became permanently and wholly incapacitated for work. His right to compensation is not questioned. The only question is the amount for which the liability of his employer can be redeemed by payment of a lump sum. This depends upon what is the total liability of the employer under s. 18 (3).

In February 1967, when the respondent's existing state of incapacity began, the Act was in the form resulting from s. 2 of the 1966 amending Act, which reads:

This Act is incorporated with the principal Act and that Act and this Act shall be read as one Act. It was in that form when in 1968 the appellant applied in the Local Court of Adelaide to have the amount payable in redemption of its future liability settled by arbitration pursuant to s. 28 of the Act.

Section 28a, as enacted in 1966, stands in the Act in substitution for s. 28a in its earlier form as enacted and inserted in the Act by s. 9 of the amending Act of 1965. The 1965 provision seems to me to have entirely disappeared and ceased to operate after it was supplanted by the new form of s. 28a on 1st December 1966. I need not set out s. 28a in full. So far as relevant to this case, it is as follows:

Notwithstanding anything in this or any other Act contained, the amount of the weekly payment of compensation payable to a workman for total, or partial incapacity pursuant to this Part [scilicet Part III of the Principal Act] after the said commencement [scilicet the date, 1st December, 1966, when the 1966 amending Act commenced] shall be the weekly rates of compensation in force from time to time, irrespective of when the injury occurred: Provided that this section shall not apply to the total liability of an employer under subsection (3) of section 18 of this Act.

The words "this Act" here refer to the Act as amended.

The judge of the Local Court, in a learned and careful judgment giving reasons for his award, said of s. 28a:

I read the provision that the section should not apply to the total liability of an employer under s. 18 (3) as a legislative declaration that the appropriate amount to be taken as limiting the total liability of the employer in any particular case shall be the amount payable as at the date of the injury not as at the date of the incapacity. But, with respect to his Honour and to those who take the same view, I am unable to get that out of s. 28a.

It seems to me that the statement, in s. 28a, that it, that section, shall not apply to the total liability of an employer under s. 18 (3) means that it is to be entirely ignored in reading s. 18 (3) to ascertain what that total liability is. Section 18 (3) must I consider be read in its context in the Workmen's Compensation Act, 1932-1966, and as part of that Act, the statute by which this case is governed. The words of s. 18 (3) are clear:

The total liability of the employer in respect of payments under this section shall not exceed in the case of total incapacity six thousand pounds. That fixes the total liability of the appellant in this case at $12,000. That, in my view, was the amount to be taken into consideration in the application for redemption, which came on for adjudication when that provision was in force. The liability then sought to be redeemed was a liability arising from a total incapacity which arose after the provision had come into force. I think therefore that the order the Supreme Court made should stand. Owen J.

In May 1956 the respondent workman suffered personal injury by accident arising out of and in the course of his employment by the appellant and, by virtue of s. 4 of the Workmen's Compensation Act, the appellant thereupon came under a liability to pay him compensation in accordance with the provisions of the Act. As a result of the injury the respondent was incapacitated for work for various periods from December 1956 onwards and in February 1967 he became totally and permanently incapacitated. Section 18 (1), (2) and (2a) of the Act specifies the amounts of weekly payments of compensation to be made where a workman suffers incapacity as the result of an employment injury and sub-s. (3) of that section sets a limit to the total liability of the employer in respect of payments under the section. During the various periods when the respondent was incapacitated weekly payments of compensation were made to him and, in March 1968, the appellant applied under s. 28 of the Act for an order that its liability to make further payments be redeemed by the payment of a lump sum. The application came on for hearing in June 1968 and the learned arbitrator was called upon to decide what, at that date, was the statutory limit to the total amount which the appellant might be called upon to make by way of weekly payments, that being a matter which had necessarily to be decided in determining the amount of the lump sum to be paid in redemption of liability to make further payments.

The arbitrator held that the limit of the appellant's liability in respect of weekly payments to the respondent was the sum of £2,600, that being the figure specified in s. 18 (3) as it stood in May 1956 when the accident to the respondent occurred. The question is whether he was right in so deciding or whether, as the majority of the Supreme Court of South Australia held, the limit of the appellant's liability to the respondent in respect of weekly payments was a much larger figure, namely £6,000, fixed by an amending Act of 1965.

To clarify the position it is, I think, desirable to give an outline of a number of amendments made, between 1958 and 1966, to s. 18 and to a new section (s. 28a) which was introduced in 1965 and amended in 1966.

In 1958 s. 18 was amended by Act No. 42 of 1958. The amending Act increased the amounts of weekly payments for which s. 18 provided and increased the maximum liability fixed by sub-s. (3) to £2,750. It went on to provide that the increased figures should apply only in cases in which the workman's injury was caused by an accident occurring after the commencement of the amending Act. In 1960 a further amending Act (No. 11 of 1960) was passed which again amended s. 18 of the Principal Act by increasing the amounts of weekly payments and increasing the maximum liability from £2,750 to £3,000. Here again the amending Act provided that these increases should apply only in cases in which the injury was caused by an accident occurring after the commencement of the amending Act. In 1961 s. 18 was further amended by Act No. 47 of 1961 under which the weekly payments were increased and the maximum liability was increased from £3,000 to £3,250. This Act contained a provision similar to those in the two amending Acts which had preceded it declaring that the increases were to apply only in cases in which the injury was caused by an accident occurring after the commencement of the Act. A similar course was followed in 1963 when Act No. 55 of that year was passed. It increased the weekly payments under s. 18 and increased the maximum liability under s. 18 (3) to £3,500 and declared that these amendments should operate only in cases in which the injury was caused by an accident occurring after the commencement of the amending Act. Up to this stage the legislative pattern is plain enough. From time to time the amounts of weekly payments were increased as was the limit of liability and it was expressly provided in each amending Act that the increased figures should apply only in cases in which the accident causing injury occurred after the enactment of the amendment. But I think it is plain that, applying the ordinary rules of statutory interpretation, the various amended rates and maximum limits would have only applied to such cases had there been no express provision to that effect. The draftsman, however, very wisely decided to leave no possible doubt as to the legislative intention.

In the result these alterations to the original s. 18 had no effect on the maximum liability of the appellant to the respondent in respect of weekly payments. The limit of its liability continued to stand at the 1956 figure of £2,600. On 16th December 1965, however, further amendments to s. 18 (3) were made by Act No. 52 of 1965. Their effect was to make £6,000 the limit of liability in respect of weekly payments where the workman was totally incapacitated and to make £4,500 the limit in cases of partial incapacity. This amending Act did not contain, however, a provision such as had appeared in the earlier amending Acts declaring that the new figures setting a limit on the liability of an employer in respect of weekly payments should only apply in cases in which the injury was caused by an accident occurring after the coming into force of the amendment nor did it follow the course taken in the earlier amending Acts of increasing the weekly payments by stated amounts. What it did in this respect was to add a new section (s. 28a) to the Principal Act which provided that:

Notwithstanding anything in this or any other Act contained, where -

(a) compensation has been paid to a workman pursuant to this Part;

(c) the workman subsequent to his return to work suffers incapacity as a result of the injury in respect of which the compensation was paid,

the amount of weekly compensation payable in respect of the subsequent incapacity shall be computed and based upon the rates of weekly compensation payable at the time of the subsequent incapacity. The respondent came within the terms of this section. He was a person to whom compensation had been paid before 16th December 1965, he had returned to work and after 16th December 1965 he had suffered incapacity as a result of the injury in respect of which the compensation had been paid. He was therefore entitled to be paid and, as I understand it, was in fact paid weekly amounts of compensation at the rate payable at the time of that incapacity. I cannot, however, find anything in the Act of 1965 to rebut the presumptive rule of construction under which the amendments which it made to s. 18 (3) would apply only to cases in which the employment injury occurred after the amendments came into operation. Accordingly I am of opinion that the maximum liability of the appellant to the respondent in respect of weekly payments remained at the 1956 figure of £2,600. On 1st December 1966 yet a further amending Act came into operation (Act No. 86 of 1966) and its provisions were in force when the appellant's application for redemption was made and heard. It made no alteration in the maximum liability of an employer in respect of weekly payments and the only provision relevant to the present case was one which altered s. 28a - which had been introduced in 1965 - so as to read: Notwithstanding anything in this or any other Act contained, the amount of the weekly payment of compensation payable to a workman for total or partial incapacity pursuant to this Part after the said commencement - that is after 1st December 1966 - shall be the weekly rates of compensation in force from time to time, irrespective of when the injury occurred: Provided that this section shall not apply where nor shall it apply to the total liability of an employer under sub-section (3) of section 18 of this Act. If then, as I think was the case, the appellant's maximum liability to the respondent in respect of weekly payments was, up to 1st December 1966, that which was in force when the accident to the respondent occurred in 1956, the amending Act of 1966 contained nothing which would alter that position, a conclusion which, it seems to me, is reinforced by the concluding words of the new s. 28a.

In the Full Court it was held that the effect of s. 28a as introduced by the Act of 1965 was to entitle the respondent, during incapacity occurring after the commencement of the Act, to be paid weekly amounts of compensation at the rates payable at the time of that incapacity. With this I agree and no suggestion was made in argument that in this respect their Honours fell into error. The majority of the Court (Bray C.J. and Walters J.) considered, however, that in a case such as the present one, which fulfilled the requirements of s. 28a as introduced by the Act of 1965 the provision in that section that "the amount of weekly compensation payable in respect of the subsequent incapacity shall be computed and based upon the rates of weekly compensation payable at the time of the subsequent incapacity" automatically made applicable the increased maximum liability provisions for which the Act of 1965 provided. They were accordingly of opinion that the effect of s. 28a was to entitle the respondent, should he thereafter become, as he did, totally incapacitated, to a right to receive weekly payments at the rates in force at the time of his incapacity up to the maximum figure, namely £6,000, set by the Act of 1965. They went on to consider the terms of the amending Act of 1966 and found nothing in it which would operate to divest the respondent of the accrued right which they regarded as having become vested in him as the result of the Act of 1965. The line of reasoning which led their Honours to construe s. 28a as they did was based upon a passage from the judgment of this Court in Wattle Gully Mines v. Clementi [1] . The Court was there considering the meaning of the words "rates or amounts of compensation" used in a section of an Act amending the Victorian Workers' Compensation Act which amending Act provided that the provisions of the Principal Act, so far as they "relate to rates or amounts of compensation", should apply to every payment of compensation after the commencement of the amending Act irrespective of the date of occurrence or origin of the injury or disease giving rise to the right to compensation. The Court held that the words in the amending Act, "the provisions of the Principal Act so far as they relate to rates or amounts of compensation", were wide enough to include provisions in the Principal Act which placed a limit upon the total liability of the employer. It had been argued that the words in question did not include provisions of that kind and, in dealing with that argument, the Court said:

This argument gives too narrow a meaning to the phrase "rates or amounts of compensation". It may be, as the appellants submit, that the word "amounts" refers, in this context, to lump sum payments of compensation and does not include the aggregate amounts of weekly payments But however this may be, the provisions of the Principal Act which relate to "rates" of compensation must comprise the whole of the provisions of that Act which, in a case for which weekly payments are provided, regulate the extent of the employer's liability to make such payments. The rate of payments in such a case is not fully or accurately described by saying that it is so much a week; it is so much a week subject to the statutory limit upon the total amount to be paid [1] . But, with all respect, when regard is had to the question with which the Court was dealing in the Wattle Gully Mines Case, I do not think that that passage justifies the construction which the majority of the Full Court in the present case placed upon s. 28a. I agree with Mitchell J., who dissented in the Full Court, that s. 18 (3) as amended in 1965 applies only to cases in which the employment injury occurs after the date of the amendment and has therefore no application to the present case. 1. (1956) 94 C.L.R. 353. 2. (1956) 94 C.L.R., at p. 363.

For these reasons I would allow the appeal and restore the order of the learned arbitrator.