Geraldton Building Co Pty Ltd v May

Like workers' compensation legislation generally, the Act operates in general by imposing obligations on employers in respect of injuries which satisfy a formula determining compensability. The right of the worker to compensation is not expressly given: it derives from the existence of the employer's obligation to pay compensation. The extent of the right is coterminous with the extent of the obligation. The quantification of the compensation to be paid is to be in accordance with the provisions of schedules to the Act.

Prior to the passing of the amendment in 1970, s. 7 of the then operative legislation ("the 1967 Act"), so far as presently relevant, was in these terms:

(1) If in any employment personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions, is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule:

(a) Notwithstanding the provisions of the First Schedule to this Act, the compensation payable for the injuries mentioned in the first column of the table set out in the Second Schedule to this Act shall, subject to the provisions of this Act relating to that Second Schedule, be the amounts indicated in the second column thereof;

Nothing in the said table shall limit the amount of compensation payable for such injury during any period of total incapacity resulting from that injury and any sum so paid shall not be deducted from the compensation payable in accordance with the said table except in the case where and then only to the extent that the total of ten thousand dollars would be exceeded otherwise.

(b) For the purpose of the said table the expression "loss of" includes "permanent loss of the use of";

(c) For the purpose of the said table the expression "loss of" also includes the "permanent loss of the efficient use of", but in such case such percentage of the prescribed amount payable as is equal to the percentage of the diminution of the full efficient use, may be awarded, in lieu of the full amount.

(ii) When a worker has received the whole of the amount set out in the second column of the table and indicated as payable in respect of the loss of, or the permanent loss of, the efficient use of any part or faculty of the body referred to in the first column of the table - whether in one payment for permanent total loss of, or permanent total loss of the efficient use of - that part or faculty of the body - or in several payments, each of which has been made for a permanent partial loss of, or a permanent partial loss of the efficient use, of - that part or faculty of the body, then and in such case, the worker shall not be entitled to any further payment under the provisions of the table in respect of that part or faculty.

(f) The provisions of this subsection are subject to the proviso that no worker shall in any case (including the case of a worker suffering by the same accident more than one of the injuries mentioned in the Second Schedule) be entitled to receive more than ten thousand dollars compensation in addition to payment of such expenses as are provided for in paragraph (c) of the proviso to clause one of the First Schedule, which paragraph is hereby made applicable to workers entitled to compensation under this subsection, and to the proviso that if the principal place of residence of a dependant of a worker is elsewhere than in any part of the Dominions of the Crown, the dependant shall not be entitled to compensation under the provisions of this Act, unless the worker is wholly supporting the dependant when the injury is caused.

(g) Nothing in the foregoing provisions of this subsection or in the table shall limit the amount of compensation payable for any injury during any period of incapacity due to illness resulting from that injury, and the amount of compensation payable pursuant to the foregoing provisions of this subsection and the table shall be payable in addition to any weekly payments in respect of incapacity due to that illness, except in the case where and then only to the extent that the total of ten thousand dollars would be exceeded otherwise.

The Second Schedule to which s. 7 (3) refers consisted of two columns, in the first of which the loss of specific parts or functions of the body was listed and in the second opposite each such loss a specific sum of money appeared. The First Schedule to which s. 7 (1) refers expressed the manner in which recurrent compensation payable in respect of disabling injury should be quantified.

A major contrast of the two schedules is that to obtain recurrent compensation the injury, otherwise satisfying the requirements of compensability, must have affected the worker's capacity to earn remuneration whereas the appropriate amount of compensation under the Second Schedule was payable generally irrespective of the effect upon earning capacity of the loss of the part or function of the body.

It is apparent that the employer, in the event of compensable injury and consequential incapacity involving the loss of a scheduled part or function of the body, came at the time of the incapacity under an obligation to pay both recurrent compensation during incapacity and, in any event, lump sum compensation where appropriate. But the liability for such compensation attached at the date of the receipt of the compensable injury. At that time, assuming the reasonable possibility of incapacity to be present, a declaration of liability could be made.

Three provisions of the 1967 Act relevantly regulated these obligations: first, s. 7 (3) (f) placed a ceiling of $10,000 on the employer's total liability to pay compensation; secondly, payments of recurrent compensation for partial incapacity (but not of total incapacity) could be deducted from the amount payable as lump sum compensation (sub-s. (3) (a)); and, thirdly, payment of the lump sum compensation reduced appropriately by payments of recurrent compensation fully satisfied the employer's obligation to pay any compensation, except for certain medical and other stipulated expenses: as set out in paragraph (c) of the proviso to cl. 1 of the First Schedule (sub-s. (3) (f)).

A standing provision regulated the effect of amendments to the 1967 Act which altered the rate or amount of recurrent compensation and the ceiling of the total liability of the employer to pay compensation: see s. 4. A worker on compensation was to be entitled to the amended rate or amount of recurrent compensation and the employer liable up to the amount of the amended ceiling, i.e. in respect of an injury received before the amendment was made. This provision for increased entitlement and increased total liability expressly did not include Second Schedule amounts or the liability to make them: by s. 4 (5) (a) (operative since 1954 and still operative at the date of the receipt of the injury), "the amount of all payments, allowances and benefits being specific sums payable to a worker under this Act and all specific sums representing the maximum entitlement of the worker of the maximum liability of an employer thereunder shall" "be increased or decreased in proportion to any" alteration, as described in the sub-section, in the male basic wage declared by the State Court of Arbitration.

But to this provision there was an important and presently relevant qualification: "provided that nothing in this sub-section shall render an employer liable to pay any increased payment, allowance or benefit in respect of an accident occurring prior to the date on which the increase became operative except pursuant to sub-section (2) hereof". That sub-section, so far as it dealt with payments, dealt only with recurrent compensation. It was quite plain, therefore, that, apart from the effect of any amendment to s. 7 (3) by the 1970 Act, the amount of lump sum compensation was that for which the First Schedule specifically provided at the date of the receipt of the injury. Without express provision displacing s. 4 (5) (a), subsequent increases in the scheduled amounts would not increase the employer's liability for lump sum compensation in respect of injury received before the operation of any such increase.

It is appropriate to recall at this point that it has consistently been held both in England and in Australia that the liability of the employer attaches at the time of the receipt of the injury, at which time also the right to compensation for the worker himself arises. Section 7 (2) (a) of the Act, in making the employer's liability run from the date of the accident, is in conformity with this conclusion.

It might be as well also to point out that nothing in the decision of the Privy Council in Ogden Industries Pty. Ltd. v. Lucas [1] affected the settled construction of workers' compensation legislation which imposes, at the date of the receipt of a compensable injury, an obligation to pay compensation to the worker quantified as at the date of that receipt except in so far as the legislation otherwise provides. The basic principle in this area was untouched. Their Lordships in Ogden Industries Pty. Ltd. v. Lucas took the view that the obligation to pay compensation in respect of the death of a worker was not an obligation towards the worker but an obligation to those, and only to those, who on his death qualified as his dependants. Thus, the prescribed rate of benefit at the date of death, rather than at the date of receipt of the injury, was the appropriate amount of compensation. No questions such as arose in Ogden Industries Pty. Ltd. v. Lucas arise in this case.

I now turn to the amendments effected by Act No. 18 of 1970, for it is around the insertion into s. 7 (3) of the words "where the worker so elects" that the fate of this appeal turns.

Five relevant amendments were made in 1970. First, the ceiling of liability of the employer was increased by some $881. Secondly, the alteration of the basic wage by the State Industrial Commission was substituted for the alteration of the basic wage by the State Court of Arbitration. Thirdly, the words "where the worker so elects" were inserted in s. 7 (3) (a). Fourthly, the right of the employer to deduct payments of recurrent compensation from a lump sum payment was withdrawn. Fifthly, s. 7 (3) (f) was amended to read:

6. (3) (f) The provisions of this subsection are subject to the proviso that a worker who elects under paragraph (a) of this subsection shall not in any case (including the case of a worker suffering by the same accident more than one of the injuries mentioned in the Second Schedule) be entitled to receive more than the prescribed amount in addition to payment of such expenses as are provided for in paragraph (c) of the proviso to clause one of the First Schedule, which paragraph is hereby made applicable to workers entitled to compensation under this subsection until they so elect.

That is to say, first aid and ambulance or other service expenses, medicines and medical supplies, medical and surgical attendance and a listed number of other expenses incurred between the date of the injury and the date of the worker's election to be paid lump sum compensation were to be paid over and above the ceiling of the employer's total liability.

It was as a result of a calculation in accordance with the Act as so amended that the amount of $3,902 was said to be the appropriate lump sum compensation for the respondent's loss of almost complete sight of one eye in March, 1971.

It has been submitted, and the Supreme Court has held, that the effect of the insertion of the words "where the worker so elects" in s. 7 (3) (a) was to give the worker a right to be paid the compensation appropriate at the date of the exercise of his election to the loss on that date of the particular part or function of the body. That sum at the date of the respondent's "election" was $11,147, by reason of amendments made to the Act in 1973. It is the propriety of that view which is in question in this appeal.

It is a consequence of that view that the employer comes under no obligation to pay Second Schedule compensation until the exercise by the worker of the election of which s. 7 (3) (a) speaks but that, irrespective of the date of the receipt of the worker's injury, an obligation to pay compensation will attach at the date of the exercise of the election. The obligation thus arising, so it is said, is an obligation to pay as a lump sum compensation what is then payable under the Act in respect of a like injury received at that time.

The Act is not drafted as are some statutes of a like kind in which the obligation of the employer is expressed to be to pay compensation "in accordance with this Act". Here, s. 7 (1) imposed liability to pay compensation "subject as hereinafter mentioned" in accordance with the First Schedule. Section 7 (3) (a) provides that "notwithstanding the provisions of the First Schedule to this Act" the compensation payable for the injuries listed in the Second Schedule shall be the amounts in the second column of that schedule. But, in my opinion, nothing of consequence in this case is affected by this difference. In my opinion, the effect of the two provisions is that the obligation to pay compensation is derived from sub-s. (1), the First and Second Schedules as applicable quantifying the compensation. Thus, in my opinion, sub-s. (3) before the 1970 amendment did no more than quantify the compensation payable in respect of the loss of specific parts or functions of the body. It merely provided a means of determining how much had to be paid in satisfaction of the obligation imposed by s. 7 (1).

But the employer could decide when he would pay the appropriate lump sum compensation. He could thereby "pay out" the worker and ensure the total amount of his liability to pay compensation. This capacity in the employer exposed the worker to a distinct disadvantage.

The words "where the worker so elects" were inserted by the 1970 amendment into a provision which, in my opinion, dealt only with the amount of compensation to be paid. The construction of the Act which has found acceptance by the Supreme Court represents a drastic departure from what might properly be called usual concepts of workers' compensation legislation. But, of course, if the legislature has so provided, effect must be given to the expressed legislative will. However, in construing the Act, regard should be had to the consequences of any particular construction and the legislature credited with the intention of doing justice to both the affected parties.

I earlier called attention to a distinction between recurrent and lump sum compensation and that incapacity is not essential to the obligation to pay the latter. Not all the losses for which the Second Schedule provides are necessarily incapacitating.

Amongst the possible situations to be covered by the Act is the case of the loss by a worker of a specified part or function of the body without ensuing incapacity. In such a case, upon the respondent's submission and the decision of the Supreme Court as to the construction of s. 7 (3) (a), a worker who has suffered the loss of, e.g. an eye, without incapacity may defer indefinitely the exercise of his election, awaiting a sufficient increase in the compensation payable for the loss of an eye. Meantime, the employer is under no obligation to pay compensation in accordance with the Second Schedule, but has a contingent liability to pay a sum which cannot be calculated or assessed and which may bear no relationship whatever to the state of things obtaining at the date of the receipt of the injury. The employer must, of course, hold himself financially ready to meet whatever sum, in changed circumstances in the community, the legislation may subsequently fix. If that is what the legislature has provided, the apparent injustice of the result can make no difference. But has the legislature upon the proper construction of its legislation so provided?

In my opinion, the insertion of the words "where the worker so elects" ought not to be read as displacing the obligation which s. 7 (1) imposes. Rather, in my opinion, they should be read as doing no more than indicating the time at which the payments under the Second Schedule should be made. "Where" in the context of the Act as a whole and of s. 7 in particular relates, in my opinion, to time and has the significance of "when" rather than that of "if". Sub-section (3) adds a further amount to be paid in appropriate circumstances in respect of the obligation imposed by sub-s. (1). In its unamended form, it did not specify a time at or within which, what in some circumstances may be an additional payment, should be made. The insertion by amendment of the words "where the worker so elects" supplies this deficiency. In my opinion, to read the words inserted in s. 7 (3) as doing no more than give the worker control of the time at which the employer can pay him out by making a lump sum payment where a scheduled loss has occurred sorts well with the justice of the situation and with the context of workers' compensation legislation. The construction so far favoured, in my opinion, does neither.

It is perhaps worth emphasizing that s. 4 (5), which as I have said remained in the Act after the 1970 amendment, ensured no escalation of lump sum compensation, maintaining its amount as at the date of receipt of the injury, notwithstanding amendment of the Act. It would, in my opinion, be odd in the extreme if, with s. 4 (5) present, an intention were attributed to the legislature to bring about such a situation as I have earlier described, which exposes the employer to an increasing liability, determined simply by the choice of the worker to make a claim at an indefinite removal of time from the date of the receipt of the injury. It is observable that no time for the exercise nor manner of notification of the election is fixed by the Act, in itself a circumstance which tends against construing the election as the occasion for the imposition of liability on the employer to make a lump sum payment, related in amount to the time of the exercise of the option. The absence of such specification, on the other hand, is quite understandable if the election involves a request for a payment, the amount of which is not influenced by the time when the payment is made.

In my opinion, the proper construction and application of the Act in relation to the instant case is that the appellant on 11th March 1971 came under an obligation to pay to the respondent recurrent compensation during incapacity and, when requested by the worker, lump sum compensation under the Second Schedule as that schedule stood at the date of the injury. That amount calculated under the Act as at 11th March 1971 is the sum of $3,902.

Some discussion took place in the Supreme Court as to the effect of the amendment in 1973 to the 1970 Act, an amendment which preceded the election by the worker. But, in my opinion, the 1973 amendment did not affect the employer's obligation in this case. That obligation was not only vested but, as I have pointed out, s. 4 (5) had indicated that it should not be subject to escalation as recurrent compensation might be. This situation obtained though s. 4 (5) was repealed by the 1973 amendments. We are not here concerned with whether or not the amendments in 1973 had any retrospective operation. The events of 1971 had, in my opinion, fixed the obligation of the appellant in relation to lump sum compensation. Nothing in the amendments in 1973 evidenced any legislative intention to disturb that completed transaction, i.e. the receipt of compensable injury and the attachment of defined obligations in respect of it.

The respondent, because of the construction I would put upon s. 7 (3) in its amended form, could lengthen the period during which recurrent compensation would be payable, i.e. by not requesting the payment of Second Schedule compensation, and during that period could benefit by the escalation of the recurrent compensation by reason of changes in award wages. But the amount ultimately payable for Second Schedule compensation remained, in my opinion, as at 11th March 1971 without any escalation even though the employer's total liability could increase. No doubt this presented the worker with a problem in deciding when to ask for the payment of Second Schedule compensation. Loss in the purchasing power of the amount of that compensation must needs be weighed against the benefit of continuing recurrent compensation, though the deductibility of such payments and the ceiling of total liability as affected by the 1970 amendment must, of course, play their part in the resolution of the problem. The words inserted into s. 7 (3) (a) both gave to the worker the initiative in seeking payment of the lump sum compensation and the problem of deciding where his own best financial interests lay.

In my opinion, the Workers' Compensation Board arrived at the proper conclusion. I would allow this appeal and restore the Board's order.

This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia which, by a majority (Jackson C.J. and Wallace J., Brinsden J. dissenting), answered in favour of the respondent a question of law raised for the decision of that Court on a case stated under s. 29 (9) of the Workers' Compensation Act, 1912-1975 W.A. ("the Act").

The facts of the case fall within a short compass. On 11th March 1971 the respondent was employed by the appellant as a joiner. On that date he suffered an injury to his left eye, which resulted in permanent loss of vision assessed at eighty-five per cent loss of the efficient use of that eye. The injury arose out of or in the course of his employment. On 18th October 1974 the respondent elected to be paid compensation in accordance with the table set out in the Second Schedule to the Act. The election was made under the provisions of s. 7 (3) of the Act, whose effect it will be necessary to consider. The question then arose whether the respondent was entitled to payment in accordance with the provisions of that table as they were on 11th March 1971 or as they had become by 18th October 1974 in consequence of amendments made to the Act in the meantime. This is a question that might have been expected to present itself to the minds of those framing the legislation, but the Act, which is not notable for its perspicuity, does not provide an express answer to it. The Workers' Compensation Board of Western Australia held that the compensation should be calculated in accordance with the provisions in force at the earlier date, but at the request of the respondent submitted the following question for the decision of the Full Court:

On the facts as found is the Applicant [that is, of course, the present respondent] entitled to be paid compensation in accordance with the provisions specified in the table to the Second Schedule of the Workers' Compensation Act 1912-1975 as at the date of his election pursuant to s. 7 (3) of the said Act? The Court answered this question in the affirmative.

The respondent's right to receive compensation is conferred by s. 7 of the Act, which provides (inter alia) as follows:

(1) If in any employment personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions, is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule.

(a) Notwithstanding the provisions of the First Schedule to this Act, where the worker so elects, the compensation payable for the injuries mentioned in the first column of the table set out in the Second Schedule to this Act shall, subject to the provisions of this Act relating to that Second Schedule, be the amounts indicated in the second column thereof.

(f) The provisions of this subsection are subject to the proviso that a worker who elects under paragraph (a) of this subsection shall not in any case (including the case of a worker suffering by the same accident more than one of the injuries mentioned in the Second Schedule) be entitled to receive more than the prescribed amount in addition to payment of such expenses as are provided for in paragraph (c) of the proviso to clause one of the First Schedule, which paragraph is hereby made applicable to workers entitled to compensation under this subsection until they so elect.

(i) This subsection does not limit the amount of compensation that is payable to a worker for any period of incapacity resulting from the injuries referred to in paragraph (a) of this subsection unless he elects under that paragraph.

(j) Subject to paragraph (f) of this subsection, when a worker elects under paragraph (a) of this subsection, any amount of compensation that was paid or payable to him for any period of incapacity resulting from the injuries referred to in that paragraph and occurring before he so elects shall not be deducted from the amount payable in accordance with the table referred to in that paragraph.

These provisions were, with one exception, in force in their present form at the time when the respondent sustained his injury. The only amendment that has been made to them since that time was to s. 7 (3) (f): the words "the prescribed amount" which now appear were substituted for the words "ten thousand eight hundred and eighty-one dollars compensation" by the Workers' Compensation Act Amendment Act, 1973 ("the Amendment Act of 1973").

The provisions of the First and Second Schedules, by which the amount of compensation payable is fixed, were also amended by the Amendment Act of 1973. The provisions of the First Schedule are not directly material and it is unnecessary to refer to the manner in which they have been amended, but it should be mentioned that cl. 1 (c) of the schedule fixes the compensation payable when total or partial incapacity for work results from the injury by reference to the "weekly earnings" of the worker as defined in cl. 2, but provides that the total liability of the employer in respect of weekly payments shall not exceed "the prescribed amount" unless the Board so orders under s. 29 (7) (aa). By par. (c) of the proviso to cl. 1 (c) of the First Schedule it is provided (inter alia) that an additional sum is payable equal to the reasonable expenses incurred in respect of medical, hospital and similar expenses. Clause 10 of the First Schedule provides for payment of an immediate sum in redemption of weekly payments. The Second Schedule contains a table which, in its first column, describes certain injuries or disabilities and, in its second column states a percentage, which is described as "Ratio which the sum payable herein bears to the prescribed amount per centum". The expression "prescribed amount" which appears in the schedules, and in s. 7 (3) (f), is defined in s. 5 as follows:

"Prescribed amount" means the amount to the nearest dollar ascertained by multiplying by two hundred and eight the amount specified in the estimate, published each year by the Commonwealth Statistician, of the average weekly earnings per employed male unit for the June quarter in Western Australia. This definition was also inserted by the Amendment Act of 1973.

The fact that the Second Schedule was amended in 1973, that is after the date on which the respondent was injured but before he made his election, has given rise to the question in the present case. We are informed that if the respondent is paid compensation under the Second Schedule in its unamended form he will receive $3,902, whereas if that schedule is applied as it was at the date of the election he will receive $11,147.

Section 4 of the Act deals expressly with the effect of amendments on the payment of compensation in certain cases. That section has no direct application to the present case, but since reliance has been placed upon it as providing guidance to the intention of the legislature it is necessary to set out some of its provisions. They are as follows:

(1) Where the rate or amount of weekly payments and of the additional payments in respect of dependants referred to in paragraph (c) of clause 1 of the First Schedule to this Act and the total liability of the employer in respect thereof is amended whether by or pursuant to the Workers' Compensation Act Amendment Act, 1954, or by any subsequent Act the provisions of subsections (2), (3) and (4) of this section shall apply.

(2) Notwithstanding any rule of law or construction to the contrary or an agreement which provides otherwise the worker shall be entitled after the coming into operation of the amendment to receive weekly payments (including payments in respect of dependants) at the amended rate or amount and the employers' total liability in respect thereof and under subsection (3) of section seven of this Act shall be the amended total liability less the total of such payments made to the worker prior to the date the amendment becomes operative irrespective of whether the injury giving rise to the liability of the employer was caused to the worker before or after coming into operation of the amendment unless this section provides otherwise.

(4a) Notwithstanding any rule of law or construction to the contrary or an agreement which provides otherwise, where after the coming into operation of the Workers' Compensation Act Amendment Act, 1970 a worker, while he is being paid or is entitled to be paid weekly payments of compensation under this Act for an injury, incurs expenses in respect of that injury, for any of the services of the kinds referred to in paragraph (c) of the proviso to paragraph (c) of clause one of the First Schedule to this Act, compensation shall be payable for those expenses in accordance with the provisions for compensation relating to the expenses that are in this Act at the date they are incurred irrespective of whether the injury was caused before or after the coming into operation of those provisions.

(4b) Notwithstanding any rule of law or construction to the contrary or an agreement which provides otherwise, where, after the coming into operation of the Workers' Compensation Act Amendment Act, 1970, an employer is liable to pay compensation in respect of the death of a worker the compensation shall be payable in accordance with the provisions for compensation relating to the death of a worker that are in this Act at the date of his death irrespective of whether the injury relevant to compensation payable in respect of the death was caused before or after the coming into operation of those provisions.

Until the enactment of the Amendment Act of 1973, s. 4 contained another sub-section, (5), which was repealed by that Act, and which provided (inter alia) as follows:

(a) Where after the coming into operation of the Workers' Compensation Act Amendment Act, 1970 The Western Australian Industrial Commission alters the male basic wage, the amount of all payments, allowances and benefits being specific sums payable to a worker under this Act and all specific sums representing the maximum entitlement of the worker or the maximum liability of an employer thereunder shall, subject to the provisions of paragraphs (b) and (c) of this subsection, be increased or decreased in proportion to any such alteration in the male basic wage provided that nothing in this subsection shall render an employer liable to pay any increased payment, allowance or benefit in respect of an accident occurring prior to the date on which the increase became operative except pursuant to subsections (2), (4a), and (4b).

Provided that where any of the amounts, payments and benefits and the specific sums, representing the maximum entitlement of the worker or the maximum liability of an employer, are, subsequent to the coming into operation of the Workers' Compensation Act Amendment Act, 1970, amended by any amending Act, such amounts, payments, benefits or specific sums shall be subject only to any increase or decrease in proportion to any alteration in the male basic wage as declared by The Western Australian Industrial Commission after, but not before the coming into operation of such amending Act.

I may now approach the questions of construction which fall for decision. The initial question is when the right of the respondent to be paid compensation under the Second Schedule first accrued. It is of course clear that the liability of an employer to pay compensation to a worker, and the worker's correlative right to receive the compensation, arise when personal injury by accident is caused to the worker in the circumstances mentioned in s. 7 (1) of the Act. The liability referred to in s. 7 (1) is described as a liability "to pay compensation in accordance with the First Schedule", not as a liability to pay compensation "under the Act". However, it is submitted on behalf of the appellant that no new or further obligation is cast on the employer by s. 7 (3). In effect what is contended is that when the injury is sustained the employer becomes liable to pay compensation under the Second Schedule (if that is appropriate) as well as under the First, and that the election by the worker under s. 7 (3) does not give rise to any further liability in the employer, or right in the worker, but merely affects the time at which the payment under the Second Schedule is to be made. Put in another way, the combined effect of sub-ss. (1) and (3) of s. 7 is said to be that upon sustaining the injury the worker acquires an accrued right to compensation under both schedules, although whether or when he receives compensation under the Second Schedule depends on his election. This argument is supported by the fact that sub-s. (3) does not in terms impose any liability to pay, or create any right to receive, compensation. Further, reliance is placed on the concluding words of s. 3 (f) ("workers entitled to compensation under this subsection until they so elect"), which appear to recognize that an entitlement to compensation under the Second Schedule exists before an election is made.

The provisions of s. 7 (3) appear to be intended to give a worker the right to receive weekly payments during incapacity, partial or total, as well as the sum fixed by the Second Schedule, provided that the total does not exceed the "prescribed amount". In addition he may receive medical, hospital and the like expenses. The election brings to an end his right to receive the weekly payments and the additional payment for expenses. The election is in no sense a redemption of the weekly payments, and from a practical point of view the worker is not called upon to choose between the weekly payments and the additional amount for expenses on the one hand and the sum payable under the Second Schedule on the other, but between receiving the latter sum immediately, with the result that the other benefits cease to be payable, and continuing to receive the weekly payments and the additional payment for expenses, with the consequence that payment under the Second Schedule is postponed. It is not easy to see why it should have been thought desirable to give a worker this choice, and a consideration of the subject matter and objects of the legislation does not provide much assistance in answering the question of construction that now arises.

However, the ordinary and natural meaning of the words of s. 7 (3) (a) appears to me to be that the worker only becomes entitled to the compensation payable under the Second Schedule if and when he makes his election. The sub-section does not use the word "when", but "where", meaning "in a case in which", or in other words, "if". If the worker never elects he never becomes entitled. No doubt when the injury occurs the worker acquires a contingent right to payment under the Second Schedule, and might then obtain a declaratory judgment accordingly, but the right only becomes vested when he makes his election, and until he does so the employer is not liable to make any payment under the Second Schedule. It is possible that, for reasons of his own, a worker might never make an election (e.g. if the payments under the First Schedule were likely to exceed the prescribed amount and the worker wished to continue to receive further payments under cl. (c) of the proviso) and in that case the condition precedent to the accrual of the liability of the employer to make a payment under the Second Schedule would never be fulfilled. The words of s. 7 (3) (a), if given their natural meaning, have the result that the election determines not merely the time when compensation under the Second Schedule is to be paid, but whether compensation of that description is to be paid at all. It is true that the concluding words of s. 7 (3) (f), to which I have already referred, suggest that the entitlement of the worker under s. 7 (3), and therefore under the Second Schedule, arises before the election is made. This provision can be reconciled with s. 7 (3) (a) only if "entitled" in s. 7 (3) (f) is understood as meaning "contingently entitled". However, the words of s. 7 (3) (f) do not provide an indication of intention sufficiently clear to prevail over the natural meaning of those of s. 7 (3) (a). The provisions of s. 7 (1), which in terms impose only a liability to pay "compensation in accordance with the First Schedule", are not inconsistent with this view.

Once it is concluded that the liability of the employer to pay compensation under the Second Schedule does not arise until an election is made, it seems to me that it must follow, in the absence of any indication in the statute to the contrary, that the provisions of the Act in force at the time of the election govern the amount of compensation payable.

Section 7 itself does not contain any indication that the compensation payable under the Second Schedule should be assessed at any time other than that at which the liability to pay it accrues. The appellant submitted that the provisions of s. 4 do provide a contrary indication. Section 4 in its present form has nothing whatever to say as to the effect of an amendment to the Second Schedule. That section commences in sub-s. (1) by indicating that the provisions of sub-ss. (2), (3) and (4) apply where the rate or amount of weekly payments and of the additional payments in respect of dependants referred to in par. (c) of cl. 1 of the First Schedule and the total liability of the employer in respect thereof are amended. Sub-section (2) has the effect that, speaking generally, the weekly payments, and "the employers' total liability in respect thereof and under" s. 7 (3), are to be governed by any amendment notwithstanding that the injury had occurred before the amendment took effect. Sub-section (3) provides a certain exceptions to sub-s. (2). Sub-section (4) deals with insurance policies. Under sub-s. (4a) compensation for medical, hospital and similar expenses is to be paid in accordance with the provisions of the Act in force when the expenses are incurred, although the injury was caused before those provisions came into operation. Sub-section (4b) provides that compensation payable in respect of death is to be governed by the provisions in force at the date of death even if the injury was caused before those provisions came into operation. None of these provisions directly affects the present question.

It is, however, suggested that s. 4 is a code as to the effect of amendments made to the Act, or rather an exclusive statement as to the circumstances in which compensation shall be governed by the provisions of an amendment to the Act. However, in my opinion the provisions of s. 4 do not support the appellant's argument. With the exception of sub-s. (4b), they were obviously intended to deal with the situation that would arise when amendments made to the provisions of the Act governing the amount of compensation payable came into force after the date on which the workman was injured and the liability of the employer had arisen. They refer also to amendments made before the injury was caused - unnecessarily, one would have thought, but no doubt to prevent the possibility that an argument based on the principle expressio unius est exclusio alterius might have been accepted if the section had spoken only of amendments which became operative after the injury was caused. However, except for sub-s. (4b), they are not concerned with any case in which the injury to the workman has occurred before, but the right to compensation has accrued after, the amendment was passed. In the light of the decision in Ogden Industries Pty. Ltd. v. Lucas [2] , it should no doubt be concluded that sub-s. (4b) does deal with such a case, but the provisions of that sub-section, which may well have been inserted out of an abundance of caution, do not warrant the conclusion that it was intended that in all cases except that of death the provisions of the Act in force at the date when the injury was sustained were intended to govern the amount of compensation payable notwithstanding that the right to compensation did not accrue until after the amendments had been passed.

The provisions of s. 4 reveal in a general way that the legislature had adopted the liberal policy of making payments in accordance with the amended provisions of the Act, although the injury was caused before the amendments came into operation. It would defeat, rather than effect, the intention of the legislature if s. 4 was used to restrict the meaning of other sections of the Act which appear to be intended to embody a similar policy. It would in my opinion not be right to treat the presence of s. 4 as a justification for giving to s. 7 a meaning more restricted and less generous than the words of the latter section naturally bear.

In the argument for the appellant, reliance is placed upon s. 16 (1) of the Interpretation Act, 1918 W.A. (as amended), which provides (inter alia) that the repeal of an Act shall not affect any right acquired or accrued, or any liability incurred, prior to such repeal. Of course that section has no relevance if it is correct to say, as I have already said, that the respondent's right to compensation under the Second Schedule did not accrue, and the appellant's liability to pay such compensation was not incurred, until the respondent made his election. However, assistance for the appellant's argument is sought to be found in the repealed provisions of s. 4 (5) (a). It is said that under those provisions (which were in force when the injury was sustained) the right acquired by the respondent, and the liability incurred by the appellant, was to receive and pay respectively compensation under the provisions of the Act then in force, subject only to the other provisions of s. 4, and that the repeal of s. 4 (5) by the Amendment Act of 1973 did not affect the right already accrued and the liability already incurred. In my opinion, however, s. 4 (5) had no application to the circumstances of the present case. The first paragraph of s. 4 (5) (a) dealt with changes to the amounts specified (inter alia) in the Second Schedule by reason of an alteration in the basic wage. The second paragraph of sub-s. (5) (a) provided that where (inter alia) an amount specified in the Act was amended by an amending Act, such amount should be subject to a variation in proportion to an alteration to the basic wage only if that alteration occurred after the amendment. The provisions of s. 4 (5) would have been out of place once the Amendment Act of 1973 had introduced a reference to "the prescribed amount". Section 4 (5) (a) did not deal with the question whether, if the provisions of the Second Schedule were amended after an injury had been sustained, the amended provisions would govern the compensation payable if an election under s. 7 (3) was made subsequently. It had no effect on the rights or liabilities of the parties in the present case, and s. 16 of the Interpretation Act had no application.

Detailed reference was made in argument to the effect of the amendments made to the Act by the Workers' Compensation Act Amendment Act, 1970, which for the first time introduced the words "where the worker so elects" into s. 7 (3) (a), and inserted the two references to election into s. 7 (3) (f). It may be accepted that, before that amendment Act was passed, the worker's right to compensation under the Second Schedule accrued at the time when the injury occurred. However, it does not follow that it was intended that this situation should remain unaltered after the amendments of 1970, which on any view were intended to make a considerable change in the law. I have found it of no assistance in deciding the present question to contrast the provisions of the Act in force in 1970 with those in force after the amendments of that year took effect. Those amendments had of course come into operation before the earliest date that is material in this case, and it is the legislation as in force at that date that forms the starting point of the present inquiry.

The authorities to which we have been referred do not affect the conclusion I have reached on this matter. The question is entirely one of statutory construction. For the reasons I have given I consider that the respondent's right to compensation under the Second Schedule did not accrue until he made his election, and that the amount which he was entitled to receive under that Schedule was governed by its provisions as they were then in force. If I may adapt a phrase from the judgment of Fullagar J. in Fisher v. Hebburn Ltd. [3] the Amendment Act of 1973 operated prospectively, although its prospect began with the election and not with the injury.

The total liability of the appellant is not limited by the provisions of s. 7 (3) (f) as they were before the amendment that was effected to that paragraph by the Amendment Act of 1973 - s. 4 (2) clearly governs that question.

In my opinion the majority of the Full Court reached the correct conclusion and the appeal should be dismissed.

When, in 1971, the respondent worker, May, suffered injury by accident arising out of or in the course of his employment there was in operation what was then the latest in a long succession of amendments to the Workers' Compensation Act 1912 W.A., the Act of 1970. May's injuries involved him in an eighty-five per cent loss of vision. He became entitled to, and received, compensation in the form of weekly payments pursuant to s. 7 (1) of the Act. Once the extent of his loss of vision was determined he also became entitled, pursuant to s. 7 (3) of the Act, thereafter to elect to receive a lump sum in respect of his loss of vision.

He in fact made no such election until 1974, instead receiving weekly compensation payments. Meanwhile, in 1973, the legislation had once again been amended quite extensively. No longer was the quantum of a worker's entitlement under s. 7 (3) determined by a specification of particular amounts in the Second Schedule to the Act; instead that schedule provided that, for the various types of injuries, a particular percentage of the "prescribed amount" should be payable. The "prescribed amount" was so defined as to reflect the current level of weekly earnings in Western Australia.

The practical effect of the amendment was dramatic. If the respondent's election in 1974 entitled him to a lump sum calculated in accordance with this new provision he would receive over $11,000 instead of some $4,000 under the Act as it stood before the 1973 amendment.

The point for decision is a short one, whether or not the 1973 amendments enured for May's benefit upon the making of his election; in other words, whether or not the new Second Schedule payments were applicable to all who elected after the amendments came into effect or only to those who, unlike May, had also suffered injury by accident after that date. Looked at in isolation the provisions of s. 7 (3) of the Act, as amended in 1973, would appear readily enough to be applicable to an injured worker who makes his election in 1974. But it is said that if such a worker suffered the relevant injury by accident before the amendment was made it is the state of the law at that earlier time which will always thereafter provide the measure of his rights and of his employer's liability.

The amending legislation provides no express answer to this question; such indications of legislative intent as may be discerned or deduced are, I think, equivocal, some pointing in one direction, some in another. The accumulated scar tissue of sixty-five years of frequent amendment, aggravated rather than aided by the cosmetic device of successive reprints, makes unrewarding the search for any underlying pattern likely to reveal legislative intent; nor have I found profitable my examination of the history of successive amendments.

The point must, then, be resolved in the light of the principle that, in the absence of clear indications to the contrary, amending enactments are to be taken to have a prospective operation only (Fisher v. Hebburn Ltd., per Fullagar J. [4] ) so as not "to upset vested rights and liabilities which are complete in themselves" (Clement v. D. Davis & Sons Ltd., per Viscount Dunedin [5] ). As Dixon C.J. expressed it in Maxwell v. Murphy [6] there is a "presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired"; this may, no doubt, be extended beyond accrued rights and immunities to include accrued liabilities as was done in Fisher v. Hebburn Ltd., per Kitto and Menzies JJ. [7] . In Maxwell v. Murphy the Chief Justice explained the need for accommodation of this principle with the way in which the law treats the repeal of a statute and in doing so cited what was said by Blackburn J. in Butcher v. Henderson [8] : that repeal operates as to new matters as if the repealed provision never existed "yet as to transactions already completed under it it still has full effect". His Honour had earlier noted the description given by Lord Tenterden C.J. to such cases in Surtees v. Ellison [9] "transactions past and closed" [10] .

1. (1960) 105 C.L.R. 188, at p. 194. 2. [1927] A.C. 126, at p. 131. 3. (1957) 96 C.L.R. 261, at p. 268. 4. (1960) 105 C.L.R., at p. 202. 5. (1868) L.R. 3 Q.B. 335, at p. 338. 6. (1829) 9 B. & C. 750, at p. 752 [109 E.R. 278, at p. 279]. 7. (1957) 96 C.L.R., at p. 267.

The question is whether, if May be treated as entitled to the benefits of the 1973 amendments, this will upset vested rights and liabilities and give to those amendments other than a merely prospective operation. If not, he will, I think, be entitled to the benefits prescribed by the Second Schedule as it stood after its amendment in 1973.

The matter may, I think, be tested by asking whether or not May's right to a Second Schedule payment relevantly accrued to him, and the correlative liability was relevantly incurred by his employer, only upon election or, rather, much earlier at or shortly after he suffered injury by accident.

There was, no doubt, a contingent accrual and the incurring of a contingent liability once May, having suffered injury by accident, also suffered some loss of vision. But until he made an election in accordance with s. 7 (3) (a) all was contingent; he might make no such election, he might die before making it. This is not to deny the close connexion between s. 7 (3) (a) and the provisions of s. 7 (1); the former relies upon, and cannot operate effectively in the absence of, the provisions of the latter. But this fact is not, in my view, of itself decisive of the point and if accrual, in the relevant sense, of the right and liability in question only occurs upon election, the dependence of s. 7 (3) (a) upon s. 7 (1) should not operate to deprive May of the benefit of the 1973 amendment.

I have concluded that it is not until the making of an election under s. 7 (3) (a) of the Act that there is any such accrual of a right or such an incurring of a liability as will attract the doctrine in favour of the prospective operation of statutes. Until an election was made there were no "transactions already completed" under the provisions of the former s. 7 (3) (a), repealed by the 1973 amendments, which affected May and to which those repealed provisions might apply. May's election was wanting and until that occurred no right or liability relevantly accrued.

To give this operation to s. 7 (3) encounters a difficulty in the shape of the concluding words of s. 7 (3) (f) but, like Gibbs J., I would not, in the context of the present legislation, regard those words as sufficient to prevail over the plain meaning of s. 7 (3) (a) so long as it is, as I believe it to be, unaffected by any doctrine against retrospectivity.

The appellant has sought to rely upon s. 4 of the Act. I have the advantage of having read, and I agree, with what has been said by Gibbs J. both about this section generally and, in particular, about its sub-s. (5), as it stood before the 1973 amendment.

I would for the above reasons, dismiss this appeal.

This is yet another case involving the question whether a statute increasing the scale of benefits under workers' compensation legislation payable to an injured worker has an application when the injury resulting in incapacity took place before the statute comes into operation. The principle to be applied is not in doubt; it was expressed by Fullagar J. in Fisher v. Hebburn Ltd. in this way [11] :

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. [12] and Kraljevich v. Lake View and Star Ltd. [13] 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. 1. (1960) 105 C.L.R. 188, at p. 194. 2. [1925] 2 K.B. 64. 3. (1945) 70 C.L.R. 647.

The issue, then, in the present case is whether the Workers' Compensation Amendment Act, 1973 W.A. ("the amending Act") or the Workers' Compensation Act as amended by the amending Act manifests an intention that it should apply in respect of an injury caused before the amending Act came into operation. Immediately before that time the entitlement to compensation of an injured worker was governed by s. 7 and the First and Second Schedules of the Workers' Compensation Act, 1912-1970. The provisions of the Act as it then stood and of the amending Act have been set out in detail by Gibbs J. and I shall not repeat them.

If the respondent's entitlement is to be governed by the Act before it was amended in 1973 then the maximum amount which he can receive, having made an election under s. 7 (3) (a), is $3,902. If, however, his entitlement is to be governed by the amending Act he will receive $11,147. This is because the Second Schedule to the Act as amended in 1973 fixes the amount of compensation payable once an election is made. It does so by specifying in respect of a particular injury a percentage of the "prescribed amount" as the amount of compensation payable, the expression "prescribed amount" signifying, by virtue of a new definition contained in s. 5, a multiple of the estimate for "average weekly earnings" per employed male unit published by the Commonwealth Statistician for the June quarter in Western Australia. The Second Schedule to the Act before it was amended in 1973 did not fix the compensation payable by reference to a percentage of the prescribed amount; it contained a table specifying compensation for particular items on a significantly smaller scale.

It is evident that there is nothing in the form or content of the amending Act to displace the prima facie rule of construction to which I have already referred. But this does not dispose of the present case, because it is said that the election by the worker after the amending Act came into force is the relevant fact on which the amending Act, or more correctly the Act as amended, operates. Consequently in this case the real problem is to ascertain the extent of the liability imposed upon the employer by s. 7 (3) (a) in its amended form, the answer to the problem turning largely on the relationship which exists between s. 7 (1) and s. 7 (3) (a).

If s. 7 (3) (a) stood on its own as an independent provision imposing liability on an employer in the circumstances with which it deals, I should have little difficulty in concluding that it confers on an injured worker an entitlement to compensation in accordance with the Second Schedule as amended in 1973, notwithstanding that the injury occurred before, and the election took place after, that date. However, in my opinion s. 7 (3) (a) does not stand on its own as an independent provision imposing liability on the employer. It must be read in association with s. 7 (1) and when the two provisions are read together it will be seen that s. 7 (3) (a) is a qualification or variation of the primary obligation to pay which is imposed on the employer by s. 7 (1). That sub-section defines the conditions in which the employer is obliged to pay compensation, that is, where "in any employment personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions, is caused to a worker", and goes on to quantify the compensation by reference to the Scale and Conditions of Compensation contained in the First Schedule. The liability so created is expressed to be "subject as hereinafter mentioned", thereby making it clear that the liability so imposed is qualified by the later provisions of the section.

Section 7 (3) (a) does not contain within its four corners a comprehensive statement of the conditions in which the employer's obligation to pay arises. It proceeds on the footing that the conditions basic to the existence of liability have already been set forth in s. 7 (1) and goes on to provide that, where an election is made, the liability of the employer for particular injuries is to be ascertained in accordance with the Second Schedule. In my view, s. 7 (3) (a) is in form and substance a variation of the primary obligation to pay created by s. 7 (1).

Once s. 7 (3) (a) is viewed in this light, it is difficult to regard the provision as conferring on an injured worker a right which is independent of s. 7 (1) in the true sense of the word. No doubt s. 7 (3) (a) gives the worker an alternative right to compensation for injuries mentioned in the Second Schedule which he may elect to obtain. But it proceeds on the footing that the conditions basic to the existence of a liability to pay are those stated in s. 7 (1). To these conditions one factor is added, that is, the election to take a Second Schedule benefit when an injury mentioned in that Schedule has been sustained.

Under s. 7 (1) the liability of an employer to pay compensation arises when the injury or the accident causing injury occurs. At that time a correlative right accrues in favour of the injured worker. Although the liability is expressed in terms of a liability to pay compensation in accordance with the First Schedule, not in accordance with the Act, this seems to me to be of no relevance once the true relationship between s. 7 (1) and s. 7 (3) (a) is perceived and once it is recognized that s. 7 (3) (a) does no more than present the injured worker with a personal choice which he may exercise, the conditions basic to the existence of liability being those set out in s. 7 (1): cf. Ogden Industries Pty. Ltd. v. Lucas [14] .

In this context it would work a radical departure from the character of the Act as it existed before 1973 if s. 7 (3) (a) were held to create a liability to pay compensation and a correlative right to receive it, arising when the worker elects to take a Second Schedule benefit, not when the accident or injury occurs. Furthermore, it would produce a strange result indeed, for the right would then accrue at any time in the future after the occurrence of the accident or injury. Yet this, so it seems to me, is what the majority in the Full Court has decided. A clear indication that this approach is incorrect is to be found in s. 7 (3) (f) which speaks of workers being "entitled to compensation under this subsection" before they elect to take a Second Schedule benefit. A worker can only be entitled to compensation under s. 7 (3) in these circumstances because he has sustained a Second Schedule injury and the conditions stated in s. 7 (1) have been satisfied, election being the only matter outstanding. It may be said then that under the amending Act it is the occurrence of a Second Schedule injury and of the conditions stated in s. 7 (1), each taking place after the amending Act comes into force, that are relevant facts in determining whether a s. 7 (3) (a) liability arises. It is not enough to point to an election subsequently made if the other conditions basic to the existence of liability occurred before 1973.

Accordingly, I am unable to discern any basis for departing from the presumptive rule of construction, a rule which is enshrined in s. 16 of the Acts Interpretation Act, 1918 W.A. (as amended). The right of the worker in this case accrued when he sustained the injury in the accident and no later. That right was unaffected by the amendment made in 1973.

There is no need to discuss other cases which have little relevance here. However, of the Ogden Industries Case it should be said that there the issue related to the rights of dependants of a worker, not to the right of the injured worker himself.

In the result, I would allow the appeal and answer the question in the negative.

The scheme of the Workers' Compensation Act 1912-1975 W.A., is (as the Supreme Court of Western Australia decided) that the amount of the Second Schedule lump sum entitlement (payable upon the election of the worker) is to be determined by reference to the statutory amount at the date of election, not at the date of injury. Unless the worker elects, the liability of the employer for Second Schedule payments never arises. This is the effect of the words "where the worker so elects" in s. 7 (3) (a). I agree with the analysis of the Act by Gibbs J.

The Act and the amendments made in 1973 (see s. 4 regarding periodical payments, medical expenses) was obviously designed to enlarge benefits and overcome the effects of monetary inflation. It would be inconsistent with its general purpose that an election to receive a lump sum (and therefore to extinguish any right to periodical payments or expenses) would result in entitlement only to the amount payable as the Act provided at the date of the accident, rather than as it provided at the date of election.

As there is no legislative direction that the amount should be restricted to the lower amount operative at the date of the accident, the amount payable is that provided by the Act as at the date of election.