Nash v Sunshine Porcelain Potteries Pty Ltd

Under s. 5 (1) a worker may establish a right to compensation by showing that he has sustained an injury in the course of his employment and in undertaking this task he will of course have the benefit of the provisions contained in s. 8 of the Act. Compensation under s. 5 (1) may be recovered whether the injury is traumatic in origin or whether it is the result of a disease or the aggravation acceleration or recurrence of any pre-existing injury or disease. But in each of these types of cases it is essential that the necessary connection between the so-called injury and a relevant employment be established. Section 12, however, does not in terms depend for its operation upon proof of any actual relationship between a worker's employment and the disease from which he is found to be suffering; it is sufficient if "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement". Then when the prescribed conditions are found to exist he "shall be entitled to compensation under this Act as if the disease were a personal injury arising out of or in the course of that employment". But, in my view, s. 12 is, in effect, no more than a "deeming" provision which, in appropriate circumstances, will enable a worker to bring his case, not otherwise within the provisions of s. 5 (1), within the provisions of that section. In effect he is put in the same position as if he had sustained personal injury arising in the course of his employment. But it would be a strange result if in the first two types of cases referred to compensation could be recovered under s. 5 (1) only in respect of injuries arising out of an employment after the commencement of the Act whilst, in the case of a worker suffering from an industrial disease and whose right ultimately depends upon s. 5, it is immaterial whether the relevant employment was before or after that event. I am unable to accept the view that the right to compensation in such a case is solely dependent upon s. 12 and for the reasons which I have briefly stated the appeal should, in my opinion, be dismissed.

The question in this case arises under the consolidating Workers Compensation Act 1951 (No. 5601), as amended in 1953 by Acts Nos. 5676 and5715. But the problem really arises as a result of the Workers' Compensation Act 1946 (No. 5128). That Act substituted a new s. 18 for the previously existing s. 18 of the Workers' Compensation Act 1928, the then principal Act. This s. 18 is now s. 12 (1) of the 1951 Act; but for the solution of this matter we must, I think, take our stand at 1946. Whatever rights the appellant got under the 1946 enactment were preserved for her by s. 2 of the 1951 Act; and that Act did not improve her position from what it was when the 1946 enactment came into operation on 1st September 1946. The difficulty in this case lies in deciding within what period of time the events and circumstances which under the Act artificially assimilate industrial diseases to traumatic injuries must have happened or existed. Immediately before the enactment of s. 18 in 1946 only certain industrial diseases were compensable, and silicosis was not one of them. Moreover, a compensable disease could then produce entitlement to compensation only if the disablement resulting from the disease occurred while the worker was employed in work of the kind which caused the disease, or had been so employed within twelve months of the date of disablement. In 1946 this was radically changed. By the new s. 18, firstly, all industrial diseases became compensable; and secondly, a worker was to be entitled to compensation if he became disabled by an industrial disease at any time after being in the employment causing the disease, and not only when the disablement occurred within twelve months.

An applicant for compensation must after 1946 establish that "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement". To avoid giving this provision any retrospective effect it might be construed as meaning "any employment in which (after the enactment came into operation) the worker was employed at any time". But the manner of the 1946 amendment was to substitute a new s. 18 for that in the existing Act. The actual or prospective rights it gave to workers were thus introduced into an existing system of compensation. I have found this a difficult case. Judgments given in other cases more or less comparable with this are not all easily reconcilable; but I have come to the conclusion that to determine who are entitled to the benefit of the rights given by the 1946 amendment the language of the statute should be applied quite literally, reading s. 18 in the context into which it was inserted. The words "at any time" then seem to me decisive. They no doubt were inserted to replace the former limitation of twelve months; but, in my view, these words when originally enacted gave a retroactive operation at the outset to the provisions concerning disability arising from industrial disease, the limit of retrospectivity being twelve months. The possible consequences of the extension made in 1946 may not have been in contemplation. To create a liability in an employer in cases where the employment had ceased years earlier, as here, might certainly cause considerable hardship for the employer; and this result was perhaps not intended by the legislature. But I do not feel that, in all the circumstances, any general presumption against retrospectivity should displace or qualify what I consider to be the express meaning of the words.

I do not think it necessary under the section that an applicant be actually in employment at the time of the medical certificate or of the disablement. I may add, although the question does not arise here, that, as I read the section, it would always be open to an employer to contend that an applicant for compensation had not contracted a disease at all. The worker must prove that "the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement"; and the employer could, I think, contend that the medical certificate was based on a mistaken diagnosis. Furthermore, in my view the effect of the section is to bring persons who become disabled by industrial disease within the purview of the Act. They become entitled to compensation "as if the disease were a personal injury by accident". It is, I think, necessary to measure the entitlement according to s. 9 as affected by s. 18 of the 1951 Act.