Ogden Industries Pty Ltd v Lucas [1967] HCA 30;

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; - HCA 1967 case summary — Zoe

[30]

23. It was submitted that because the identity of the worker's dependants cannot be known till his death no liability to pay them compensation could arise until that death occurs. Of course, it is true enough as I have said that regarded merely as a liability to pay specific persons a specific sum of money, that liability of the employer to the dependants themselves did not arise until the worker's death. But, in my opinion, the liability of the employer to pay the dependants should the worker die of his compensable injury did none the less accrue on the receipt by the worker of that injury. There is nothing strange to my mind in the concept of such a liability thus attaching, the injury having been received by an identified worker in known circumstances. This is so, even though persons who at the date of the death of the worker satisfy the statutory description of dependants would not have done so had death occurred immediately upon receipt of the injury either because they did not then exist, or because they did not then bear the requisite relationship to the worker. Thus the widow of a worker who was married to him after the receipt of his injury may, in my opinion, qualify as one of his dependants. It was to this result, deriving from the construction of the statute then in question, that reference is made in Gammage v. Metropolitan Meat Industry Commissioner (1948) 48 SR (NSW) 99, at p 101 . Sir Frederick Jordan was not, in my opinion, suggesting that the liability to dependants had a different origin to that of the worker himself. He was merely contrasting the express provisions of the statute as to the extent or ambit of the compensation payable in the case of incapacity with that payable on death. But this conclusion does not to my mind deny the possibility of the employer carrying a liability towards dependants as from the receipt of the injury. The significant thing is that the compensation which the Act provides should be secured to the worker from the time of the injury includes the payment to be made to his dependants on his death from that injury when death occurs. I find no difficulty myself in regarding s. 5 (1) as aptly expressed to impose an immediate obligation on the employer to pay that compensation which the Act specifies in the events which it describes if and when they occur. (at p551)

[35]

28. It is now necessary to consider the effect, if any, which s. 5 (3) of the Acts Interpretation Act has upon the situation of an employer so placed. Usually an interpretation Act provides for the reference in one Act to another to include a reference to that other amended from time to time. But the Victorian Acts Interpretation Act expressly says that a reference in an Act to itself shall be read as a reference to itself as amended. There are competing views as to the precise application of this provision in relation to such circumstances as the present. On the one hand, it may be said that by reason of s. 5 (3) of the Acts Interpretation Act, s. 5 (1) should be read before its amendment as if it imposed upon the employer a liability to pay compensation in accordance with the provisions of the Act as amended from time to time. On the other hand, it may be said that s. 5 (3) only refers to the Act as amended after its amendment and applies only with respect to matters which fall within the operation of the Act after its amendment. If the former view were adopted, there would be no need to consider whether s. 7 of the Acts Interpretation Act applied to the liability which the employer incurred on the receipt of the injury because s. 5 (3) would on that view constantly co-relate the employer's liability to the current provisions with respect to compensation of the Act as amended. If on the other hand the latter view is accepted, it becomes necessary to consider whether s. 7 has kept on foot the provisions of s. 9 in the 1958 Act in relation to this worker's injury. In my opinion, the latter view of the operation of s. 5 (3) is the correct one. It merely enables the amended Act to be applied to those facts and circumstances to which it is intended upon its true construction to apply as if all references in the Act in its unamended form were to the Act as amended. The sub-section has no bearing, in my opinion, on the facts of the instant case unless upon its true construction the Amendment Act applies to injuries received before its commencement. (at p553)

[68]

8. The operation of s. 9, including its appended clauses, is merely to quantify what it describes as "the compensation", by providing for the three possible cases in which an injury within s. 5 (1) may result in loss of earning capacity, namely the cases of death, of total incapacity and of partial incapacity. The section creates no liability in the employer to pay the compensation thus provided for. That is the work of s. 5 (1), which operates, in any case of compensable injury, to subject the employer to a liability to pay whatever compensation the provisions of the Act may prescribe as appropriate to the circumstances of the case. They may prescribe different amounts at different times as the condition of the worker alters. They may prescribe different recipients at different times as events unfold, as for instance periodical payments to the worker while he lives and lump sums when he dies to such persons as then fill particular descriptions. If one were to ask at the time of the injury what liability for workers' compensation the injury entails for the employer the answer (unless death was certain and imminent) would need to be expressed in terms of contingencies. It would need to cover every possible eventuality for which the Act makes provision as it applies or may apply to the particular case. It would be a kaleidoscopic answer, and in none of its applications would it provide a specific sum of money payable certainly to a definitely ascertained person, for that is not the sense in which the word "liability" is used in this connexion. The event that makes ultimately payable whatever compensation the Act provides in the varying situations that may later arise is the receipt of the injury by the worker. Upon that event "the provisions of this Act" - provisions which regulate the quantum of payments, the periods in respect of which and the times at which they are to be made and the persons to whom they are to be made - fasten upon the employer at that time to create a situation of liability and they proceed, as events thereafter occur, to issue in specific debts presently payable to ascertained persons. That this is the situation has long been established by such well-known cases as Lysons v. Andrew Knowles & Sons Ltd. (1901) AC 79 and Ball v. William Hunt & Sons Ltd. (1912) AC 496 . (at p564)

[69]

9. The general principle of construction, as it has often been stated for the resolution of questions of the same general description as that which is now before us, is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilites which the law had defined by reference to past events : Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 267 ; Chang Jeeng v. Nuffield (Aust.) Pty. Ltd. [1959] HCA 40; (1959) 101 CLR 629, at pp 637, 638 ; Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188, at p 202 . This principle is too narrowly interpreted, I think, if it is treated as referring only to rights or liabilities which are vested, in the sense that the individuals against whom or in whose favour they are to enure are finally ascertained and the amounts fixed. The sense of it is that which Fullagar J. expressed succinctly in Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188, at p 194 by saying that an amending enactment, or for that matter any enactment, is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. His Honour added that this rule has been frequently applied to amending statutes relating to workers' compensation, and that it has often been held that such amendments apply only in respect of "accidents" or "injuries" occurring after their coming into force. In the particular case his Honour thought, as did the whole Court, that the amending enactment there in question operated prospectively by attaching its legal consequences to future events other than accident or injury. That was the result, however, of a peculiar provision, having features which are not present in the Act we have to construe. In the absence of such features it has always been considered, so far as I am aware, that the principal provision, that if an employment injury be caused to a worker his employer shall be liable to pay compensation in accordance with the Act, operates at the moment of the injury to create a liability the ambit of which is to be ascertained by the application of other provisions to the appropriate facts. Here, it seems to me, the general principle as his Honour stated it reaches back to the occurrence of the injury ; it reaches to intermediate facts or events too, but the injury attracts both its terms and its reason. The injury is an event to which legal consequences are attached, as I have pointed out, by s. 5 (1), those consequences being ascertained by incorporating into the section, in order to fill out the expression "the provisions of this Act", the whole of the provisions which regulate the entitlement to compensation and the payment of it, and in particular s. 9 (1) and cl. 1 (a)(i) of the appended clauses as they stand at the time. These legal consequences, this situation of liability, is not changed by a subsequent amendment of cl. 1 (a) (i), for s. 5 (1) has done its work once for all : it applied the old cl. 1 (a) (i) to the particular case so that if death should result from the injury or be materially contributed to by it payments therein provided for will have to be made. There is nothing to make s. 5 (1) do its work a second time, and make the new cl. 1 (a) (i) produce a new result in the particular case. (at p565)

[77]

17. The word "disease" is defined by s. 3 (1) to include (inter alia) "any physical . . . disorder . . . whether of sudden or gradual development . . .". A pulmonary oedema I take to be a swelling of the tissue of the lungs due to an accumulation of serous fluid, and accordingly, if considered by itself, a physical disorder and a "disease" by definition. The respondent's contention is that for the purposes of the Act it should be considered by itself, and that when the subsequent question has to be answered, namely whether the worker's death resulted from the oedema or was materially contributed to by it, the fact that it formed a stage in the development of another disease simply means that if the death resulted from, or was materially contributed to by either of the diseases it resulted from or was contributed to by both. If this be correct, the case is reduced to the question whether the agreed facts warrant a conclusion that the work done by the worker in his employment contributed, even though through the medium of other effects upon him and after a period of time, to a hastened occurrence of the pulmonary oedema. To this question there could be, I think, but one answer, namely that they do warrant that conclusion. It is agreed that the work done by the worker in his employment in and after December 1964 aggravated and accelerated a coronary artery disease (namely coronary atheroma) and consequential myocardial degeneration, and (thereby) caused a coronary occlusion and myocardial infarction which occurred on 18th February 1965. A second coronary occlusion and myocardial infarction occurred shortly before 7th June 1965 while the worker was in hospital, and as to these the agreed fact is that "the underlying pathological basis for the said coronary occlusion and myocardial infarction was the degeneration of the coronary arteries and myocardium to which the work aggravation of such degeneration contributed". This somewhat murky piece of jargon seems to me to mean that the second episode was contributed to by the degeneration which itself had been contributed to by the employment. On 7th July 1965 the pulmonary oedema manifested itself. The parties agree, as I interpret their statement of facts, that it arose out of the employment in the sense that (i) the work of the employment had the effect of aggravating and accelerating, first, the coronary artery disease, then the ensuing myocardial degeneration, and then the resultant coronary occlusions and myocardial infarctions; and (ii) the pulmonary oedema was the terminal event in the cardiac disease thus accelerated and aggravated. A question of remoteness is here involved, but from (i) and (ii) taken together the Board was no doubt entitled to conclude that the work which the worker did up to 18th February 1965 accelerated the oedema by so hastening the course of the entire coronary artery disease that the stage of oedema was reached sooner than it would have been if the work had not been done. (at p569)

[83]

3. It appears that the deceased worker left three dependants, his widow who is the present respondent and two children under the age of sixteen years who were wholly dependent upon him. The question is, of course, whether they are entitled to receive as compensation the sum of 4,700 pounds ($9,400) or 2,400 pounds ($4,800) and the question arises because the legislature did not by its amending Act declare whether the increased amount should be payable to the dependants of any worker whose death has resulted on or after 1st July 1965 from an injury sustained in the course of his employment either before or after the passing of the amending Act, or, whether it should be payable only in respect of the death of any worker whose death has resulted from a compensable injury received after the passing of that Act. Perhaps it was thought that the matter was too clear for words and that it would never be thought that the dependants of one of two workers dying on the same day as the result of compensable injuries would be entitled to receive the higher amount of compensation whilst the dependants of the other would be entitled to receive only the smaller amount. Additionally, as will appear, if the amending Act were to be construed so as to give it such an operation, the further result would follow that the class of "dependants" in the one case might well be different from the qualifying class in the other. Yet the case has involved a hearing before the Workers Compensation Board, another hearing, upon appeal, lasting four days before the Full Court of the Supreme Court and has occupied the attention of this Court for more than three days. I merely observe that the heavy expense which has been incurred and which, of course, must be borne by one of the parties would have been unnecessary if the legislature had simply declared its intention in the matter. This, I point out, is not an unusual type of case; there have been many of the same character in recent years and this Court has had occasion to remark upon the absence from amending statutes of provisions defining the ambit of their operation. (at p571)

[92]

7. In Australian Iron & Steel Ltd. v. Coal Mines Insurance Pty. Ltd. (1951) 52 SR (NSW) 47 Street C.J. referred to a passage from the judgment of the Judicial Committee in Victoria Insurance Co. Ltd. v. Junction North Broken Hill Mine (1925) AC 354, at pp 356, 357 , in which it was said that: "In the case of an accident liability arises only in the employer who was the employer at the date of the accident. It is a condition of liability that the person said to be liable shall have been employer at that date. The accident must arise 'in the course of the employment' . . . The date of contraction of the disease and not the date of its ascertainment . . . is the date for fixing liability." But in that case the only question was whether the employer's liability to make payment of compensation to a worker suffering from a "scheduled disease" was a legal liability which arose as soon as the disease was contracted, or, only when the worker became disabled thereby. No question arose concerning an employer's liability to pay compensation to the dependants of a deceased worker and their Lordships were not concerned with, and did not direct their attention to, any such question. However, Street C.J. proceeded to say (1951) 52 SR (NSW), at p 50 : "The law was laid down in similar fashion by the House of Lords in Clement v. D. Davis & Sons Ltd. (1927) AC 126 , in which case Moakes v. Blackwell Colliery Co. Ltd. (1927) AC 126 , was expressly approved. In the course of his judgment Viscount Dunedin, said : - 'One finds that, in the case of accidents arising out of and in the course of employment in the past, certain rights and certain liabilities accrue at once to the workman and his dependants on the one hand and the employer on the other. The exact pecuniary amount had to depend on the particular circumstances and the quality of the injury, the supervention of death, and the state of the workman's family, but the method of calculation was fixed once and for all' (1927) AC, at p 131 ." Herron J. also accepted the view that the point was resolved by the decisions in Moakes' Case (1925) 2 KB 64 and Clement's Case (1927) AC 126 and observed : "These cases are all to the same effect, namely that there is an accrued right in the workman immediately on the happening of the injury to have his compensation determined in accordance with the laws then existing and that the right of the workman who suffers from an accident accrues immediately on the happening of the injury . . . By a parity of reasoning the rights of the dependants accrue immediately upon the happening of the injury and the date of death is not relevant to the determination of their rights or the measurement thereof" (1951) 52 SR (NSW), at p 56 . One may, perhaps, ask to whom do the "rights of the dependants accrue immediately" when at that stage it is impossible to say who the "dependants" are or, rather, who they will ultimately turn out to be. The third member of the Court expressly refrained from dealing with the point and determined the case on the construction of the policy of insurance before the Court. (at p574)

[99]

9. It is to be observed that neither in Moakes' Case (1925) 2 KB 64 nor Clement's Case (1927) AC 126 was any reference made to the definition of "dependants" although this term was, so far as relevant to the present inquiry, defined to mean "such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent". But no doubt it was thought that the presence of s. 30 in the amending Act, upon its proper construction, made any reference to it unnecessary. Further it is to be observed - and this factor played a critical part in the decision - that under the Act prior to its amendment weekly payments of compensation made by the employer operated in diminution of any ultimate liability on the part of the employer to the dependants of the workman in the event of his death as the result of the injury which gave rise to his right to compensation. Indeed, in Clement's Case (1927) AC 126 it appeared that the weekly payments of compensation up to the time of the death of the workman exceeded the amount of compensation which, in the absence of such weekly payments, would have been payable to his dependants when ascertained. This consideration had a decisive effect on the construction of s. 24 (2) for to have construed it otherwise than their Lordship did would have been to give the amending Act a truly retrospective operation since such a construction would have operated to deprive the employer of what was, in effect, a right of set off which he had acquired under the principal Act. Finally, I add that I do not find in the speeches delivered in the case any general agreement with Viscount Dunedin's general proposition that "in the case of accidents arising out of and in the course of employment in the past, certain rights and certain liabilities accrue at once to the workman and his dependants on the one hand and the employer on the other". Indeed, if there had been general agreement with this proposition it would have been quite unnecessary to consider the question of retrospectivity on the narrower ground, that is to say, that the employer had an accrued right to set off weekly payments made to the worker against any future liability to his dependants. (at p577)

[103]

13. In these circumstances it is unnecessary for me to express any opinion on the contention that, on the admitted facts, the deceased suffered a further compensable injury on 7th July 1965 which contributed to his death on that day. However, in view of the opinions expressed by other members of this Court it is desirable that I should do so. The statement of agreed facts sets out that the personal injuries sustained by the deceased consisted of : (a) coronary occlusion ; (b) myocardial infarction ; (c) aggravation and acceleration by the effect of work of coronary artery disease ; and (d) aggravation and acceleration by the effect of work of myocardial degeneration. As stated these "injuries" were sustained by the worker respectively in December 1964, February 1965, March 1965 and June 1965. Thereupon, the statement relates that on 7th July 1965, whilst in hospital undergoing treatment for the consequences of his earlier injuries he died of pulmonary oedema. "The pulmonary oedema", it was said, "was a sudden physiological change for the worse in the lungs of the worker which occurred on 7th July 1965 and it arose out of the work-aggravated and accelerated coronary artery disease and work-aggravated and accelerated myocardial degeneration and out of both the coronary occlusions and myocardial infarctions previously referred to and was the terminal event in a long history of cardiac disease. Death resulted from the aggravated and accelerated coronary artery disease the aggravated and accelerated myocardial degeneration and the coronary occlusions and myocardial infarctions and pulmonary oedema and each of them taken separately (with respect to the pulmonary oedema in the sense referred to previously) arose out of the employment". On these agreed facts the Board found that on 7th July 1965 the worker had suffered a further injury from which he died on the same day and that by virtue of s. 8 of the Act it was deemed to have arisen in the course of his employment. On the authority of James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 it was contended by the respondent that it was open to the Board so to find. But, in my view, the presence of the word "disease" in the first limb of the definition of "injury" as it stood at the time when James Patrick & Co. Pty. Ltd. v. Sharpe (1955) AC 1 was decided was critical to the decision in that case. Accordingly it does not support the contention that what, according to the agreed facts, could have been no more than the terminal event, sudden or otherwise, in a long history of heart disease, was an "injury" within the meaning of that term as defined by the 1958 Act as amended in 1965. In that definition the word "disease" does not appear in the first limb ; diseases are expressly dealt with in the second limb and so far as the recurrence, aggravation or acceleration of a disease is concerned it must, notwithstanding s. 8, be shown that the employment was a contributing factor. I would reject the respondent's contention on this point. (at p580)

[123]

14. The words "any right privilege obligation or liability acquired accrued or incurred", which the Acts Interpretation Act uses, and the same words when used by judges, are all general and abstract terms. Each of them could be the heading of a chapter in a work of analytical jurisprudence. Section 5 (1) speaks of the employer being "liable to pay compensation". The word "liable" here at once attracts the idea of a "liability". But it is not necessary to be a disciple of Hohfeld, or wedded to the terminology of his analysis of legal rights and duties, to see that both words are, using his phrase, "chameleon-hued". And it is necessary to be cautious in going from the word "liable" as used in s. 5 (1) to the word "liability" as used in other contexts. "Liability" can be, and often is, used as a synonym for "duty" or "obligation" ; but Sir George Paton in his book Jurisprudence, 3rd ed. (1964), by Professor Derham p. 242, uses it in an opposed sense. "Obligation", he says, "should be sharply distinguished from liability. Obligation relates to what a person ought to do because there is a duty laid upon him : liability to what he must do because he has failed to do what he ought." The term "liabilities" when used to describe unpaid debts reflects this meaning. For Salmond and Hohfeld "liability" has still another meaning. It describes a person's liability to be, by the power of someone else, made subject to a duty. In that sense it is the opposite of "immunity". It seems to me that without descending to too much refinement there are at least three main senses in which lawyers speak of a liability or liabilities. The first, a legal obligation or duty : the second the consequence of a breach of such an obligation or duty : the third a situation in which a duty or obligation can arise as the result of the occurrence of some act or event. It is in the third sense that s. 5 (1) speaks of an employer as liable to pay compensation in accordance with the Act. But I do not think it is the sense in which it is said that an amending Act does not disturb existing liabilities arising out of past transactions. That to my mind describes a liability having become complete by past events rather than a situation in which some future event must occur to make the effect of past events create a completed liability. The position was put in the first edition of Halsbury's Laws of England, vol. 20, p. 153, as follows : "The liability to pay compensation under the Workmen's Compensation Act attaches to the relation of employer and workman, and is quite irrespective of negligence . . . . it is an obligation placed upon every employer of labour to make pecuniary compensation to a limited extent, whenever death or disablement happens to a workman in the course of his employment." The obligation "to pay compensation in accordance with the Act" arises when incapacity or death ensues from the injury - and, in the case of death, only if the worker leaves dependants. It is said that s. 5 (1), speaking as it does from the happening of the injury, by its reference to a liability to pay in accordance with the Act means that the pecuniary liability, if it should thereafter arise, is to be quantified in accordance with those provisions, that they measure the limit of a contingent liability ; and thus create an immunity against its increase not disturbed by the amending Act. The argument is powerful, but I have come to the conclusion that it puts too much weight upon the words "in accordance with the provisions of this Act". The amending Act gives these words a new content of meaning as from the date it came into force. In reading the Act after 1965 in relation to the liability in respect of deaths thereafter, we ought I think to read s. 5 (1) when it speaks of "compensation in accordance with this Act" as speaking of this Act as amended : cf. Rattan Singh v. Commissioner of Income Tax (1967) 1 WLR 625 . Lord Tenterden C.J. in Surtees v. Ellison (1829) 9 B & C 750, at p 752 [1829] EngR 594; (109 ER 278, at p 279) , said : "It has been long established, that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed." The only matter which was past and closed when the 1965 Act came into operation was, it seems to me, that the worker had suffered an injury of a kind which, if death ensued, would entitle his dependants to compensation. An alteration of the definition of "injury" would not alter this (in the absence of an express provision that it should do so). But when the Act of 1965 came into operation it provided a new measure of the actual pecuniary liability of the employer which would arise when a worker died leaving dependants. Whether the present respondent can have the benefit of the new measure depends upon ascertaining, by permissible means, the intention of the Parliament of Victoria. It is to be decided, I think, by bearing in mind that the amendment was enacted to take its place in an existing and continuing system of workers' compensation law, and to be construed in the light of s. 5 (3) of the Acts Interpretation Act. (at p585)

[127]

18. In Clement v. D. Davis & Sons Ltd. (1927) AC 126 , the case to which Lord Reid referred, and in Moakes v. Blackwell Colliery Co. (1925) 2 KB 64 , the case it affirmed, the critical consideration was the effect of a particular section, s. 30, in the Act there in question. That Act had increased the compensation the dependants of a workman would become entitled to on his death. Section 30 was an express provision that the new benefits should not apply in the case of deaths resulting from accidents which had happened before the Act was passed. It was held, mainly because of this provision, that certain rights of set-off or deductions, by which the employer's contingent liability in the case of death had been limited, continued to operate in relation to deaths resulting from accidents before the Act came into operation. The decision thus turned upon the terms of the Act rather than upon any general canon of construction. Lord Dunedin, however, approached the question with some general observations as follows : "When you are construing an Act which makes changes in the law, which changes can be well referred to what the law is to be after the passing of the Act, you will not consture the words unless they are clearly to that effect so as to upset vested rights and liabilities which are complete in themselves. Applying that canon to the construction of the provisions now in question, one finds that, in the case of accidents arising out of and in the course of employment in the past, certain rights and certain liabilities accrue at once to the workman and his dependants on the one hand and the employer on the other. The exact pecuniary amount had to depend on the particular circumstances of the quality of the injury, the supervention of death, and the state of the workman's family, but the method of calculation was fixed once and for all, and therefore it would not be probable that an Act which was greatly extending benefit and liability would apply to the accidents of the past, and s. 30 makes this quite clear to a great extent by expressly declaring that the additional benefits conferred by ss. 2 to 10 are not to enure to any class arising out of accidents in the past" (1927) AC, at p 131 . His Lordship then considered the words of the Act in question and concluded : "I am therefore of opinion that the proper interpretation of the section is in accordance with, and not against, the antecedent probability of what would have been expected" (1927) AC, at p 132 . (at p588)

[128]

19. Of course, no one would dispute that, unless the contrary appears, you do not construe an amending Act "so as to upset vested rights and liabilities which are complete in themselves". But, for reasons I have already given, I cannot regard that description as applicable to the position existing in the present case on 1st July 1965. It is significant that Lord Sumner, speaking after Lord Dunedin in the same case, spoke of the employer as having before the death of the workman a "contingent liability, which would accrue in the event of that workman's death" (1927) AC, at p 134 . Contrast this with Lord Dunedin's statement that upon the happening of an accident "certain rights and certain liabilities accrue at once" (1927) AC, at p 131 . And then recall what Lord Dunedin had said many years before in his dissenting judgment in United Collieries Ltd. v. Simpson (1909) AC 383 . And then add what Lord Loreburn said in the same case, speaking of the nature of the right of the dependant of a deceased workman : "Now where the Act says that the employer is liable to make compensation in the event of death in case there are dependants,. . . that certainly looks like a debt arising on the death from employer to dependants" (1909) AC, at p 389 ; and later : "If there is this right, when does it arise or become vested? The statute evidently treats it as arising because of the workman's death. It seems to follow that it arises on the workman's death, unless some other event is fixed" (1909) AC, at p 389 . Next take what in the same case Lord Macnaghten said (1909) AC, at p 393 : "The measure of liability is to be found in the First Schedule. But the liability falls upon the employer on the happening of the accident. It is the accident and nothing else which creates the liability. . . . The Act itself treats the liability as a subsisting liability from the very moment of the accident and as a present right." Then observe that Lord Birkenhead, in King v. Port of London Authority (1920) AC 1 , spoke of "the incapacity, which is a condition precedent to liability under the Act" (1920) AC, at p 10 . (at p588)

[130]

21. It is for this reason that I do not think much is to be gained by quoting sentences and passages from Australian judgments in which an employer's liability and an incapacitated worker's right are described as alike arising at once on the happening of injury or accident. I would merely notice that some of these occur in cases in which the injury to the worker had at once disabled him ; he was incapacitated then and there ; so that there was indisputably and simultaneously an accrued liability and a vested right. Kraljevich's Case [1945] HCA 29; (1945) 70 CLR 647 is a good example. The worker there was injured and incapacitated in 1944. His right to compensation then arose. It was by reason of the incapacity then vested and complete : his employer's corresponding liability thus fell to be defined and quantified according to the law then in force. Similarly in Stevens v. Railway Commissioners for N.S.W. (1930) 31 SR (NSW) 138 a workman met with an accident which incapacitated him from work. It was said by the Supreme Court that "there was an accrued right to the workman immediately on the happening of the injury to have his compensation determined in accordance with the then existing law". There the right unquestionably accrued on the happening of the injury. Why? Because the incapacity occurred then. The judgment of Jordan C.J. in Gammage v. Metropolitan Meat Industry Commissioner (1947) 48 SR (NSW) 99 was referred to, mainly for the dicta in it. But no question like that in the present case arose there - and no such question could have arisen. The worker was immediately incapacitated by an employment injury. There was no amending Act. The question was simply whether upon the construction of the Act as it stood his rights to weekly payments during incapacity were fixed at the date of his incapacity, which was the date of his injury, or were enlarged by his having next day married a wife. The learned Chief Justice, holding that his marriage did not entitle him to additional benefits, his wife not being a dependant when the right to compensation accrued, pointed out that the position is of course different in case of a worker's death for then the dependants are ascertained at the date of death. In Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188, at p 203 , my brothers Kitto and Menzies did say that in cases other than those of disease of gradual onset the time at which liability arises is when the injury occurs. And in their judgment I said I substantially concurred. But that case was concerned with the question of when liability arises, and on what employer it falls, if incapacity occurs as a result of a disease contracted by a gradual process. The question which arises in this case did not there arise; and I do not regard an incidental remark in that case as compelling a conclusion in this case. In Van Kooten v. Haslington (1964) 64 SR (NSW) 387 the Supreme Court of New South Wales expressed a view which is the opposite from the conclusion that I have reached. And in the present case the Supreme Court of Victoria followed the New South Wales decision. It is, however, plain from the judgment of Walsh J. in the Supreme Court of New South Wales that he would have taken a different view if he had not felt constrained by authority binding on him. I am not troubled to the same extent as his Honour was ; and feel free to come to a different conclusion from that which the Supreme Courts reached. (at p590)

[137]

28. The oedema is described in the statement of agreed facts as "a sudden physiological change for the worse in the lungs of the worker" - and as "the terminal event in a long history of cardiac disease". I do not think either statement is helpful. As to the latter, the "terminal event" of the worker's cardiac disease was his death. It is I consider a false idea of cause and consequence - false that is for present purposes - to isolate a particular pathological condition or episode occurring in the course of the progress of a disease ; and then, because it is the condition existing at the point of death, or is an episode which immediately precedes death, to say that from it death results. I have at other times stated my views on this topic. As I have seen no reason to change them I shall not enlarge upon the matter here, merely refer to what I wrote in The Commonwealth v. Butler [1958] HCA 56; (1958) 102 CLR 465, at pp 479, 480 . Turning to the reference to "a sudden physiological change for the worse" : this seems to have become an almost hallowed phrase in workers' compensation law. But neither its meaning nor its proper application has been made clear by the manner of its use here. When the words "injury by accident" were in the Act it served a purpose for the interpretation of that composite expression. But the word "accident" does not appear now. As the Act now stands two things at least can be said. One is that the words "physiological change for the worse" do not appear in the Act. The other is that they are not a synonym for injury. A physiological change for the worse means, I suppose, the occurrence of some pathological condition, or the appearance of some symptom or manifestation of a pathological condition. It is not, I take it, a description aptly applicable to anatomical injuries, such as broken bones and cut fingers, and I imagine it would not be aptly applied in functional disorders of the mind - at all events according to the present use of words and the present knowledge of metabolism as affecting mental processes. Whatever application it has must therefore be in relation to the inclusion of diseases in the definition of injury. I have on other occasions discussed some of the difficulties inherent in these words "sudden physiological change" and I shall not go over the same ground again here : see Darling Island Stevedoring and Lighterage Co. Ltd. v. Hussey [1959] HCA 55; (1959) 102 CLR 482, at p 520 ; The Commonwealth v. Hornsby [1960] HCA 27; (1960) 103 CLR 588, at p 608 . (at p593)

[138]

29. The proposition that the oedema was an injury, depends not on any descriptive phrase derived from judgments in other cases, but on the definition of injury in the amending Act, which had come into operation on 1st July 1965, some days before the oedema occurred. It seems to me that it is impossible to bring this occurrence within that definition. It was not in itself a disease contracted in the course of employment. Was it the aggravation or acceleration of a pre-existing disease ? It seems to me that it cannot be said that it was. "Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. "Acceleration" I have previously said and venture to repeat "probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli": Federal Broom Co. Pty. Ltd. v. Semlitch [1964] HCA 34; (1964) 110 CLR 626, at pp 639, 640 . To this view I adhere. On the facts as stated, it may I think be accepted that the deceased worker's employment before 1st July 1965 hastened the progress of his heart disease. But I do not think that the facts as stated can support a finding that the oedema which occurred on 7th July was the consequence of an acceleration then occurring and to which the employment was then a contributing factor. The Act looks not to the consequence of acceleration but to the fact that by some external stimulus the disease has been accelerated in its progress. It is the fact of the worker's employment having accelerated the progress of the disease which attracts the definition of injury. In the present case the disease was running its course when the worker entered hospital. There is nothing, I think, to show that after 1st July any incident of his employment - assuming the employment to be then still subsisting - further accelerated his disease so as to bring his death nearer. (at p594)

[147]

8. The conclusion to which I have come is that the substituted clause was intended to cover all cases in which the worker's death occurred after it began to operate despite the fact that the death resulted from an injury occurring before that substituted clause began to operate. Notwithstanding a number of authorities to which we were referred, I am of opinion that it is when the death of the worker occurs that liability is incurred by the employer to compensate those, if there be any, who are then found to be his dependants and the right to compensation vests and that it is the law in force at the time of the death that is to be applied in measuring the extent of that liability and of the corresponding rights. This was the view expressed by that outstanding judge Ferguson J., speaking for the Full Supreme Court of New South Wales, in Dwyer v. Broken Hill South (1928) 2 WCR 207 . His Honour said : " . . . the first time when any question arose as to the widow's claim was upon her husband's death, and the amount that she was to receive was to be determined then, and was to be determined, it seems to me, in accordance with the law then in force . . ." (1928) 2 WCR, at p 209 . For the appellant, however, it was submitted that to so decide would be to run counter to a number of cases both here and in England in which, it is said, the proposition is laid down that it is at the moment of injury that the employer incurs a liability to compensate those who, if and when the worker later dies, are then found to be his dependants and that it is at that moment of time that the right of those dependants to receive compensation accrues. These authorities begin with Moakes v. Blackwell Colliery Co. (1925) 2 KB 64 and Clement v. D. Davis & Sons Ltd. (1927) AC 126 and it is necessary to examine these decisions in some detail. In Moakes' Case (1925) 2 KB 64 a workman had been injured in October 1920 whilst working in the employer's colliery and was thereby incapacitated. Weekly payments of compensation calculated in accordance with the Workmen's Compensation Act of 1906 (the principal Act) were made to him until the end of 1923. On 1st January 1924 an amending Act, the Workmen's Compensation Act of 1923, came into force. It provided for an increase in the rate of weekly payments and in fact payments at the new rate were made until 1924 when the injured man died as a result of his injuries, leaving dependants. The weekly payments made up to the date of death totalled 204 pounds 5s. 0d. and, by par. 1 (a) (i) of the First Schedule to the principal Act it was provided that where death resulted from the injury and the workman left dependants wholly dependent upon his earnings, the maximum amount of compensation payable in respect of the dependants should not exceed 300 pounds. The paragraph also provided that where weekly payments of compensation had been made to the workman during his lifetime the amount of those payments was to be deducted from the lump sums which would otherwise have been payable to his dependants upon his death. In the case which was under consideration this meant that under the principal Act the amount payable by the employer to the dependants would have been 95 pounds 15s. 0d., that being the difference between the maximum of 300 pounds set by par. 1 (a) (i) and 204 pounds 5s. 0d. the amount of the weekly payments made during the workman's life. The Act of 1923 had, however, by s. 2, increased the amounts payable under the principal Act in respect of dependent children and had set a higher limit, 600 pounds in place of 300 pounds, on the total figure which dependants might recover. It had also provided, by s. 24 (2), that "no deduction shall be made under paragraph 1 (a) (i) of the First Schedule to the principal Act, as amended by s. 2 of this Act, in respect of the amount of any weekly payments made under the principal Act, so as to reduce the sum payable in respect of the children of the workman under the said s. 2, nor so as to reduce the amount payable under the principal Act below 200 pounds". (at p598)

[148]

9. The amending Act went on to declare, by s. 30, that a number of the sections of that Act, including s. 2, should not apply to any case in which the accident had happened before the Act began to operate. The question that arose was whether the dependants were entitled to be paid not less than the 200 pounds to which s. 24 (2) referred or whether, as the employer contended, the amount of its liability was to be ascertained in accordance with par. 1 (a) (i) of the First Schedule to the principal Act as it stood before it was amended by the Act of 1923. The decision of the Court of Appeal, given on the same day as that on which the argument took place, was in favour of the employer and, from an examination of the judgments, the reasoning which led to this conclusion seems to me to have been based upon two considerations. In the first place, s. 2 of the Act of 1923 had amended par. 1 (a) (i) of the First Schedule to the principal Act but, by s. 30 of the amending Act, it was declared that s. 2 was not to apply to cases in which the accident had happened before the amending Act came into force. It followed that s. 24 (2) of the amending Act, which dealt with the deductions that might be made under par. 1 (a) (i) as amended by s. 2, could have no application to the case since the accident which caused the workman's injury had occurred before 1st January 1924. This appears from the judgment of the Master of the Rolls, where his Lordship said : "After careful consideration of the argument presented here, it appears to me that sub-s. (2) of s. 24 is, by virtue of s. 30, not to have its operation upon the case of an accident which happened before the commencement of this Act ; and, if that be so, then the deductions which are to be made must be estimated according to the system which obtained before the Act of 1923 came into operation. Upon that ground I am of opinion that the learned judge came to a wrong conclusion . . ." (1925) 2 KB, at p 69 . Scrutton L.J. appears to have taken the same view and Sargant L.J., said that "Inasmuch as the first branch of s. 24 (2) only applies to future accidents, so a similar limitation must be given to the second branch of sub-s. (2) also" (1925) 2 KB, at p 72 . In the second place, the English Act, unlike its Victorian counterpart, provided that where death resulted from an injury, the employer was entitled to set off against the payments that would otherwise have been payable to the worker's dependants the amount of the weekly payments of compensation made to the worker between the date of injury and the date of death. If, for example, those weekly payments had equalled or exceeded the amount that would have been payable to dependants on the worker's death the employer would have been under no further liability. To apply the amending Act to such a case would have the effect of reimposing a liability which had been wholly or partly discharged before that Act came into operation. In the course of the judgment of the Master of the Rolls, however, his Lordship, referring to the right to be paid compensation whether on death or partial or total incapacity, used the phrase, "But in all those three cases, it is from the injury that the right to compensation arises" (1925) 2 KB, at p 67 and Scrutton L.J. said : "It seems to me that when the accident happened the employers incurred a liability by reason of the provisions of the Act if certain subsequent events happened . . ." (1925) 2 KB, at p 70 . (at p599)

[149]

10. In later cases the two passages which I have just quoted have been regarded as laying down the proposition that in a case in which a workman dies as a result of an employment injury, the rights of his dependants to compensation - if at the time of his death there are such persons - accrue and the liability of the employer to pay compensation to them is incurred when the injury occurs and that these rights and liabilities are governed by the law in force at that date. In one sense it is correct to say, as did the Master of the Rolls, that the right to compensation arises from the injury since there can never be any dependants and therefore never anyone with a right to receive compensation on the worker's death unless he first suffers an employment injury from which his death results. But with all respect, I find it difficult to see how it can properly be said that at the time of the injury the employer comes under a liability to pay compensation to such dependants as may thereafter be found to exist at the date of the worker's death or that at the time of injury any right to compensation accrues to those who may not even then be in existence. It may be, as some of the authorities here and in England seem to say, that the moment an employment injury occurs the employer incurs a liability to pay compensation to the worker and the latter is vested with a corresponding right to receive it should the injury result in incapacity. With all respect I doubt whether this is a correct statement of the position except perhaps where incapacity is immediately caused by the injury. But even if this be the law, it can at least be said that the person in whom the right is said to have vested and to whom the liability is said to have been incurred is in existence and can be identified at the moment of injury. When one is considering, however, the rights of dependants this is not so and it seems to me, with all respect to those who think otherwise, that it is wrong to speak of a liability having been incurred to and a right having vested in a dependant before the worker's death. (at p600)

[150]

11. Clement v. D. Davis & Sons Ltd. (1927) AC 126 was a case in which the facts were somewhat similar to those in Moakes' Case (1925) 2 KB 64 . The workman had suffered an employment injury in 1918 and had died in 1925 as a result of it. During his lifetime and up to 1st January 1924 when the amending Act of 1923 came into force, his employer had made weekly payments of compensation totalling 363 pounds 7s. 6d. so that, at the date when the Act began to operate, the amounts so paid exceeded the maximum sum of 300 pounds specified in par. 1 (a) (i) of the First Schedule to the principal Act as it was before its amendment. If the workman had died the day before the coming into force of the amending Act and had left dependants, the employer would have been under no liability to pay them compensation since the weekly payments which had already been made and for which he was entitled to claim credit had exceeded 300 pounds. It was argued for the employer that the case was governed by the Schedule as it stood before the amendments made by the Act of 1923 and that it was therefore under no liability to make any payment to the dependants and, in support of this contention, reliance was placed upon Moakes' Case (2). The appellant, the workman's widow, claimed that par. 1 (a) (i) of the Schedule as amended by the Act of 1923 was to be applied and that the employer was not entitled to be credited with the amount of the weekly payments that had been made because this would mean that the amount payable to her would be reduced below 200 pounds contrary to the amendment of the paragraph made by s. 24 (2) of the amending Act. Their Lordships were of opinion that Moakes' Case (1925) 2 KB 64 was rightly decided and upheld the employer's contention. Here again it seems to me that the determining factors were those which I have already mentioned in dealing with Moakes' Case (1925) 2 KB 64 . Viscount Dunedin, after referring to s. 24 (2) of the Act of 1923, went on : "My Lords, I am of opinion that the result come to by the Court of Appeal is right. The direction as to a deduction not being allowed to reduce the amount payable to less than 200 pounds is only a deduction which is to be made from the sum calculated on par. 1 (a) (i) of the First Schedule as amended by s. 2, and the Schedule as amended by s. 2 is a Schedule which can only apply to new accidents, because the amendments effected by s. 2 are specifically excluded from applying to old accidents" (1927) AC, at p 132 . Lord Sumner said : "Before that Act" (that is the Act of 1923) "an employer, who had on his books a continuing present liability to make weekly compensation payments to an injured man, would also, week by week, be entitled to write down pro tanto the contingent liability which would accrue in the event of that workman's death. In the present case the employer had thus written it off altogether. Week by week his payments had vested in him a corresponding right - a diminution of his contingent liability until it reached zero. Unless the Act of 1923 somewhere clearly states that the earlier legislation, under which that result had been automatically brought about before the Act of 1923 came into force, is retrospectively altered by its provisions, I am of opinion that the statutory presumption against a retrospective operation must prevail" (1927) AC, at pp 133-134 . Lord Wrenbury considered that the effect of s. 30 of the amending Act excluded the operation of s. 24 (2) in the case of accidents occurring before the Act of 1923 came into force and, as I read his judgment, Lord Blanesburgh was of the same opinion. In the course of his judgment, however, Viscount Dunedin had said : "When you are construing an Act which makes changes in the law, which changes can be well referred to what the law is to be after the passing of the Act, you will not construe the words unless they are clearly to that effect so as to upset vested rights and liabilites which are complete in themselves. Applying that canon to the construction of the provisions now in question, one finds that, in the case of accidents arising out of and in the course of employment in the past, certain rights and certain liabilities accrue at one to the workman and his dependants on the one hand and the employer on the other. The exact pecuniary amount had to depend on the particular circumstances of the quality of the injury, the supervention of death, and the state of the workman's family, but the method of calculation was fixed once and for all, and therefore it would not be probable that an Act which was greatly extending benefit and liability would apply to the accidents of the past, and s. 30 makes this quite clear to a great extent by expressly declaring that the additional benefits conferred by ss. 2 to 10 are not to enure to any class arising out of accidents in the past" (1927) AC, at p 131 . The first part of this last quotation is the only passage that I have been able to find in the case in support of the view that the liability of the employer in incurred and the rights of dependants accrue when the employment injury is suffered. And it is, to my mind, significant that in neither of these cases was any reference made to the difficulty of reconciling this idea with the fact that it is not until the death of the worker that it can be known whether there are any dependants and, if so, who they are. (at p602)

[151]

12. What was said in the judgments of Viscount Dunedin in Clement's Case (1927) AC 126 and of the Master of the Rolls and Scrutton L.J. in Moakes' Case (1925) 2 KB 64 as to the liability to dependants arising at the date of the injury may perhaps be compared with passages to be found in some of the judgments in an earlier case of United Collieries Ltd. v. Simpson (1909) AC 383 . There Lord Loreburn, speaking of the right of a dependent widow to compensation, said : "If there is this right, when does it arise or become vested? The statute evidently treats it as arising because of the workman's death. It seems to follow that it arises on the workman's death, unless some other event is fixed" (1909) AC, at p 389 . Lord Shaw said : "My Lords, upon the death in July 1907 of Simpson, a workman in the appellant's employment, a liability emerged under the Workmen's Compensation Act 1906, upon his employer to compensate his mother as his sole dependant" (1909) AC, at p 395 . And : "With regard to the liability itself, it appears to me that under s. 1 of the statute that liability emerges if (1) the death or injury have occurred by accident arising out of or in the course of the employment ; (2) that the person injured should be a workman; and (3) that the workman should leave dependants, that is to say that dependants should be in existence at the time of death" (1909) AC, at pp 398-399 . Lord Macnaghten said, however: "It is enacted in s. 1 that, if in any employment personal injury by accident such as therein described is caused to a workman, his employer is liable to pay compensation in accordance with the First Schedule of the Act. The measure of liability is to be found in the First Schedule. But the liability falls upon the employer on the happening of the accident. It is the accident and nothing else which creates the liability. . . . The Act itself treats the liability as a subsisting liability from the very moment of the accident and as a present right" (1909) AC, at p 393 . But from what immediately followed in his Lordship's judgment, it rather appears that he there was speaking of the right of the injured workman and not of his dependants as having arisen on the happening of the accident. Later, he used the phrase "in the case of death, when the liability has once accrued and the right of the dependant has come into existence it falls upon the employer to satisfy the liability . . ." (1909) AC, at p 394 . (at p603)

[152]

13. We were referred also to Australian Iron & Steel Ltd. v. Coal Mines Insurance Pty. Ltd. (1951) 52 SR (NSW) 47 , a case which was concerned with the construction of an insurance policy issued under the New South Wales Workers' Compensation Act. In that case two members of the Court (Street C.J. and Herron J. as he then was) were of opinion that Moakes' Case (1925) 2 KB 64 and Clement's Case (1927) AC 126 established the principle that the rights of dependants vest when the injury occurs. In Van Kooten v. Haslington (1964) 64 SR (NSW) 387 the same view was taken although Walsh J. expressed the opinion that, having regard to the definition of "dependants", it would, but for the cases, have been difficult to contend that a claim which is made by a dependant in respect of the death of a worker is a claim to enforce a right which arose or accrued as soon as the injury occurred. Finally we were referred to Fisher v. Hebburn Ltd. [1960] HCA 80; (1960) 105 CLR 188 . In that case, a mine worker had become totally incapacitated by Buerger's disease in 1949. The disease was in no way connected with his employment and was not compensable. In 1955 a Medical Board appointed under the Workers' Compensation Act certified that he was suffering from pneumoconiosis contracted in the course of his work as a miner which disabled him for all work and that he was also suffering from Buerger's disease, not associated with his work as a miner, which also incapacitated him for work. The worker had contracted pneumoconiosis in the course of his employment as a miner and, being a disease of such a nature as to be contracted by a gradual process, it was a compensable injury under the Workers' Compensation Act, the compensation being payable by the employer who last employed him. In 1947 it had been decided in Dawkins v. Metropolitan Coal Co. Ltd. (1947) 75 CLR 169 , that a worker who was already totally incapacitated by a non-compensable injury and afterwards was found to have developed a diseased condition arising out of or in the course of his employment which would itself have totally incapacitated him had it not been for the fact that he was already incapacitated by a non-compensable disease was not entitled to compensation because his incapacity could not be said to have resulted from the second injury. Following this decision the Act was amended in 1951 by adding a new sub-s. (2A) to s. 7 of the Act. Section 7 is the section in the New South Wales Act which corresponds with s. 5 (1) of the Victorian legislation and the new sub-s. (2A) provided that: "Compensation shall be payable in respect of an injury which, but for existing incapacity, would have resulted in total or partial incapacity of the worker. Such compensation shall be payable as if such total or partial incapacity had in fact resulted from the injury" and that "existing incapacity" meant "total incapacity by disease or otherwise - (a) not entitling the worker to compensation under this Act; and (b) existing at the time when the total or partial incapacity would otherwise have resulted from the injury." The question then in Fisher's Case [1960] HCA 80; (1960) 105 CLR 188 was whether the pneumoconiosis, which must have been contracted by the worker before 1949 when he last worked as a miner and before he was incapacitated by Buerger's disease, was compensable by virtue of the amended s. 7. It was held that it was. In the course of the joint judgment of Kitto and Menzies JJ., their Honours said: "What has to be identified for this purpose is the point of time at which a right to receive or a liability to pay compensation in accordance with the Act accrues in the case of a disease of gradual onset. In other cases the point of time is shown by s. 7 (1) to be the date of receipt of the injury: Stevens v. Railway Commissioners for N.S.W. (1930) 31 SR (NSW) 138 ; Gammage v. Metropolitan Meat Industry Commissioner (1947) 48 SR (NSW) 99 ; Australian Iron & Steel Ltd. v. Coal Mines Insurance Pty. Ltd. (1951) 52 SR (NSW) 47 , the reason being that immediately upon the happening of that event the worker's employer comes under a statutory liability to pay compensation in accordance with the Act, to the worker if incapacity for work results and to his dependants if death results. It is nothing to the point that the liability thus arising does not entail any payment unless and until incapacity or death supervenes: the liability exists none the less (1960) 105 CLR, at pp 202, 203 " and on this counsel for the appellant relied as showing that their Honours had accepted the interpretation that had been placed on the decisions in Moakes' Case (1925) 2 KB 64 and Clement's Case (1927) AC 126 . This is no doubt correct but the matters which have been debated before us were not argued in Fisher's Case [1960] HCA 80; (1960) 105 CLR 188 and were not, I think, present to their Honours' minds. With all respect, I cannot subscribe to the view that, for the purposes of applying the prima facie rule that a statute is to be presumed not to operate so as to affect liabilities incurred or rights accrued prior to the commencement of the statute, an employer's liability to a worker's dependants is incurred and the rights of the dependants accrue at the date of the injury from which death later results. (at p605)

[153]

14. If, however, I am wrong in this, a further point arises and it becomes necessary to consider whether or not the substituted cl. 1 (a) (i) appended to s. 9 of the Victorian amending legislation does not, on its true construction, apply to a case in which the worker's injury happens before and his death occurs after the substitution was made. A passage from the judgment of Fullagar J. in Fisher's Case [1960] HCA 80; (1960) 105 CLR 188 seems to me to be in point and I agree with it. His Honour said: "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. (1925) 2 KB 64 and Kraljevich v. Lake View and Star Ltd. [1945] HCA 29; (1945) 70 CLR 647 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. This is, I think, the case here. I think the prospect of sub-s. (2A) begins with incapacity and not with injury. It applies, in my opinion, on its true construction, to all cases in which incapacity occurs after its commencement, whether the 'injury', from which the incapacity resulted, occurred before or after its commencement. It is true that it begins with a reference to compensation 'payable in respect of an injury'. But compensation is not payable until incapacity results from an injury. . . . It seems to me that sub-s. (2A) must be read as limited to incapacities occurring after 27th June 1951, but not as limited to injuries occurring after that date" (1960) 105 CLR, at pp 194, 195 . Section 5 (1) of the principal Act must, of course, be read with s. 9 (1) which is in these terms: "Where the worker's death results from . . . the injury the compensation shall be a sum in accordance with the provisions of the clauses appended to this section" and with the substituted clause. The subject matter with which s. 9 (1) and that clause deal is the amount to be paid to dependants upon the death of the worker. That is their concern and it seems to me that when the substituted clause was introduced in 1965, "its prospect" began with death and not with injury, to adapt the words of Fullagar J., and that it should be construed as applying to all cases in which death should thereafter occur as the result of injury whenever it was that the injury was suffered. (at p606)

At a glance

Court

Decision date

Source

Judgment (154 paragraphs)

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 (20 September 1967)

Parties

Legislation Cited (7)

Cases Cited (12)