General Motors Holden's Pty Ltd v Staska

General Motors Holden's Pty Ltd v Staska - [1969] HCA 13 - HCA 1969 case summary — Zoe

[19]

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.

[22]

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.

[28]

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.

[45]

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.

[50]

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.

[51]

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:

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Judgment (53 paragraphs)

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