Railways, Commissioner for v Romeo

1. [1928] W.C.R. (N.S.W.) 155. 2. [1912] A.C. 590.

The award of the Workers' Compensation Commission in favour of the mother resident in Italy was upheld by the Supreme Court. The Commissioner now appeals by special leave to this Court on the ground that in sub-s. (2) of s. 71 the word "reciprocal" requires a substantial equality of provision in favour of dependants resident in New South Wales and that that requirement is not proved to have been fulfilled by the Italian law. It will be noticed that the ground in question implies that a worker must be resident in New South Wales before he can obtain compensation and if he is killed his dependants must severally be resident in New South Wales before they respectively can obtain compensation. This implication appeared not to be contested but I am not sure that it is the correct construction of the section. The section is open to the construction that it is enough to entitle a worker to compensation, or his dependants if he is killed, that he is resident in New South Wales, and that it is enough to entitle a dependant to compensation when the worker is not resident in New South Wales that the particular dependant is resident in New South Wales. However, this view of the provision was not made the subject of argument before us. It was the operation of the word "reciprocal" on which the appeal of the Commissioner ultimately rested and as his contention does not appear to be well founded it is enough to deal with that word. In my opinion the section means that the law of the foreign country, in this case Italy, in which residence is claimed by the applicant, should make provision for the payment of the compensation which that law concedes to its own residents so that it extends to New South Wales. That is to say, of course, the provision which that law concedes when the worker is killed or injured in that foreign country. Reciprocity does not mean equality in all respects or in all substantial respects between the laws of the two countries. The relevant respect in which reciprocity is demanded is that the foreign law shall extend to persons resident in New South Wales just as the New South Wales law will in that case extend to dependants resident in that country. There need be no equivalence between the measures of compensation. Probably there must be a uniformity in the provision which the law of the foreign country makes extending to dependants resident in New South Wales with the provision which it makes for those who are within its own borders. That is the reciprocity which appears to be required.

It is conceded for the purpose of the appeal that the law of Italy must be taken to meet this standard.

In my opinion this appeal should be dismissed. Sub-section (2) of s. 71 was introduced into the Workers' Compensation Act of New South Wales by Act No. 36 of 1929, s. 12. The sub-section reduces the wide application in favour of persons abroad which, as could be seen from the decision in Krzus v. Crow's Nest Pass Coal Co. Ltd. [1] , the Act might have. The effect of the sub-section is that only workers or dependants resident in New South Wales or in another part of the Dominions may apply under the Act; but residence in a foreign country became by reason of s. 12 of Act No. 36, 1929, a disqualification to apply unless the laws of that country make reciprocal provisions for the payment of compensation to the dependants resident in New South Wales of a worker killed or injured in such foreign country. The question for decision is what must the provisions of the foreign laws, which have to be considered, do in order to be "reciprocal" with the Workers' Compensation Act of New South Wales within the meaning of sub-s. (2) of s. 71. It seems necessary to exclude the provisions of the sub-section itself in order to determine this question because those provisions obviously do not intend that the foreign provisions to be considered should contain something reciprocal with the sub-section. Excluding these provisions of sub-s. (2) relating to foreign residents, the Workers' Compensation Act of New South Wales does, as the decision in Krzus's Case [1] shows, operate for the benefit of dependants resident in a foreign country of a worker killed on an occasion covered by the provisions of the Act. It is clear that in order to make "reciprocal provisions" the laws of the foreign country should at least provide benefits for workers or their dependants of the same kind as the New South Wales Act does and in bestowing those benefits should not draw any distinction adverse to dependants resident in New South Wales. The appellant concedes, and indeed the case stated shows, that in these respects the laws of Italy where the respondent is resident are reciprocal with the New South Wales Act. The argument for the appellant is that such a measure of reciprocity does not satisfy the condition imposed by sub-s. (2) of s. 71 upon the right of a dependant who is resident in a foreign country to apply for compensation. According to the argument the sub-section further requires substantial or practical equivalence in respect of classes of dependants and value of compensation. There is not sufficient information in the case to establish to what degree the Italian law approaches New South Wales law in these respects. But does sub-s. (2) of s. 71 require the measure of reciprocity for which the appellant argues? It would seem an appropriate general observation to make that it would be purely accidental if the laws of any foreign country analogous to the New South Wales Act met the argument. That any foreign legislature would modify its laws to bring them up to New South Wales standards if they were below them is, in my view, not a contingency which it could be conceived that the Parliament of the State contemplated in enacting sub-s. (2). It is reasonable to assume that in the case of this remedial class of legislation, although the Parliament was restricting the rights of dependants resident in foreign countries, it was not aiming at placing a condition on the right that might not be capable of being fulfilled; also that Parliament was aware that there were laws in force in foreign countries having the same general purposes as the workers' compensation laws of New South Wales. Parliament was evidently concerned with the possibility that a foreign country may have no laws analogous to the workers' compensation laws of New South Wales, or if it has, they do not give any remedy to a person resident out of the country, whereas the workers' compensation laws of New South Wales do not take any account of where a person seeking a remedy under those laws resides. To meet the situation Parliament did no more than provide in sub-s. (2) of s. 71 that the laws of the foreign country should make "reciprocal provisions". The provisions of the foreign law would be reciprocal with the provisions of the Workers' Compensation Act of New South Wales if it is a feature of those laws as it is of that Act, excluding sub-s. (2) of s. 71, that the benefits which they provide are not confined to the residents of the foreign country or withheld merely on account of residence in New South Wales. In my opinion, it is sufficient for the purposes of the sub-section if there is at least that degree of reciprocity. I cannot agree that the measure of reciprocity required is as large as that for which the appellant argues. If the argument is right, it would not be surprising that a dependant, who is resident in a foreign country, of a worker at the time of his death covered by the Workers' Compensation Act of New South Wales, could only seldom, if ever, apply for compensation. The words "reciprocal provisions" in sub-s. (2) of s. 71 might, of course, be construed as requiring as full a measure of reciprocity as that for which the appellant argues. They might, on the other hand, mean that the laws of the foreign country have the same substantial purposes as the workers' compensation laws of New South Wales and admit the right of dependants resident in New South Wales to apply under them. If they do the foreign laws are reciprocal in principle. In my opinion, the latter which is the more liberal construction is to be preferred having regard to the remedial character of the Workers' Compensation Act of New South Wales. Accordingly I would uphold the views of both his Honour Judge Dignam and of the Supreme Court on this question of construction.

1. [1912] A.C. 590. 2. [1912] A.C. 590. Taylor J.

This appeal is concerned with the construction and application of s. 71 (2) of the Workers' Compensation Act, 1926-1958 N.S.W. which provided that compensation should be payable to a worker or his dependants only where such worker or his dependants were resident in New South Wales or in any other part of His Majesty's Dominions, or in a foreign country whose laws made reciprocal provisions for the payment of compensation to the dependants resident in New South Wales, of a worker killed or injured in such foreign country.

In the application by the mother, resident in Italy, of a worker who died in New South Wales as the result of injuries received by him in that State whilst travelling from his place of employment to his place of abode, the Workers' Compensation Commission found that the laws of Italy made such reciprocal provision. Upon appeal to the Full Court of the Supreme Court it was held that there was evidence before the Commission upon which it was entitled so to find and this appeal is now brought from the order of the Full Court.

The question of what was the relevant Italian law is, of course, a question of fact and oral evidence was given before the Commission on this issue. But the evidence is far from clear and it is a matter of some regret that the case stated contains no reference to a finding on this issue. However the Commission, in terms, held that the laws of Italy made reciprocal provisions for the payment of compensation to the dependants resident in New South Wales of a worker killed or injured in Italy but we have no indication of what the Commission considered to be the substance of the laws which, according to its finding, made such reciprocal provision. However, the difficulty which this introduces into the case was substantially removed by Mr. Jenkyn's concession that there was evidence before the Commission which would justify a finding that there were in force in Italy at the relevant time laws which may be generally characterized in local terminology as workers' compensation legislation and that the benefits provided by this legislation by way of compensation extended to the dependants of a worker who were resident in New South Wales. It should be observed that this concession was made solely in order to allow us to dispose of the appeal after consideration of the arguments which counsel addressed to us concerning the construction of s. 71 (2). For the purpose of this argument counsel for the appellant indicated that, notwithstanding his concessions, there were marked differences between the substance of the Italian law and the substance of the local law. In particular, "worker" in the New South Wales legislation has a much wider connotation than the corresponding term in the Italian legislation. Likewise "dependant", as understood in the local legislation, embraces a wider field than is contemplated by the Italian legislation. Indeed, the benefits under the Italian law are said to accrue to specified relatives and they so extend, it seems, irrespective of dependancy. No doubt, also, there are differences in the range of benefits available under the two sets of laws and in the prescription of the circumstances giving rise to liability. What these differences are, however, is not a matter with which we need be concerned for the primary and fundamental argument of the appellant is that, in order that the condition which the sub-section prescribes may be taken to be fulfilled, it must appear that there is in force in the foreign country a law which extends to dependants in this country benefits substantially similar to those which, in the like circumstances, would be payable under the New South Wales Act if the death of the worker had occurred in New South Wales. And, for good measure, it is asserted that the foreign legislation must be seen to afford such benefits to persons resident in New South Wales who fall into the wider class of dependants as that term is defined by the local Act. In other words, it is contended that there can be no reciprocity unless there is a substantial similarity between, on the one hand, benefits provided by the New South Wales legislation to dependants residing in the foreign country and, on the other hand, the benefits provided by the foreign law to dependants of a foreign worker who are residing in this State.

The short answer to this contention is that the sub-section does not erect any such condition. In terms it provides that where a worker's dependants reside in a foreign country compensation shall be payable only if it is a foreign country whose laws make reciprocal provision for the payment of compensation to the dependants resident in this State of a worker killed or injured in such foreign country. The condition expressed by these words does not require the existence in the foreign country of legislation which would ensure to persons resident in New South Wales rights similar in every respect, or substantially similar, to the rights which would arise if the worker in question had sustained in New South Wales an injury, resulting in his death, which arose out of or in the course of his employment. All that the sub-section requires is that the foreign law, such as it is, shall afford to residents of New South Wales the same rights as those to which they would be entitled if they resided in Italy. It is in this sense that reciprocity is contemplated. That is, that the limitations imposed by the sub-section with respect to the residents of any foreign country shall not apply if the foreign country concerned does not restrict the operation of its laws relating to the payment of workers' compensation for the benefit of residents of that country only but, on the contrary, provide that they shall operate for the benefit of persons, otherwise entitled, who are residents of New South Wales. The assumption that the foreign law and the local law cannot be reciprocal unless they provide similar or substantially similar benefits finds no foundation in the sub-section and the argument of the appellant to the contrary must be rejected.

This view of the sub-section also disposes of the subsidiary arguments advanced by the appellant and in the result I agree that the appeal should be dismissed.

To obtain special leave to appeal in order to contend that, where the only dependant of a worker resident in New South Wales whose death in New South Wales was due to injury arising out of or in the course of his employment was a mother in Italy, workers' compensation was not payable under the Workers' Compensation Act of New South Wales unless it was shown that the laws of Italy relating to workers' compensation were identical or substantially identical with those of New South Wales, the appellant conceded for the purposes of the appeal that the workers' compensation laws of Italy gave dependants resident in New South Wales of a worker killed in Italy the same rights as those laws gave dependants living in Italy.

In my opinion the appellant's contention must be rejected and the concession that has been made concludes the case in favour of the respondent.

Section 71 (2) became part of the New South Wales Act in 1929 following upon the decision in Caraci v. Cerutti, Spilstead & Co. [1] in 1928 that under the New South Wales Act as it stood an employer was bound to compensate a resident in a foreign country who was a dependant of a worker killed in New South Wales. By the sub-section the Parliament of New South Wales adopted residence as a limitation and restricted the payment of compensation to workers or dependants (i) resident in New South Wales or (ii) resident in any other part of His Majesty's Dominions or (iii) resident "in a foreign country whose laws make reciprocal provisions for the payment of compensation to the dependants resident in New South Wales, of a worker killed or injured in such foreign country".

The sub-section, and particularly the last part of it, presents difficulties that I do not find it necessary to resolve here where it seems to me the immediate question is, in substance, what is meant by "reciprocal provisions" in the third provision of the sub-section. The appellant's contention was that it means that the workers' compensation laws of the foreign country must be the same or substantially the same as those of New South Wales, so that dependants resident in New South Wales of a worker killed or injured in a foreign country would get the same compensation under its laws as they would have received if the death had occurred in New South Wales in circumstances entitling dependants to workers' compensation. On the other hand, the respondent's contention was, in substance, that what is meant is that the laws of the foreign country must make provision for dependants resident in New South Wales of a worker killed or injured in that country no less favourable than s. 71 (2) of the New South Wales Act makes for dependants resident in a foreign country of a worker killed or injured in New South Wales.

Like the Full Court, I reject the appellant's contention. I do not think that the application of the third category described in s. 71 (2) requires a comparison of the whole of the workers' compensation laws of New South Wales with the whole of the workers' compensation laws of the foreign country; the comparison required is between so much of the laws of the foreign country of the dependants' residence as gives rights to residents of New South Wales and so much of the New South Wales laws as gives rights to dependants resident in the foreign country (i.e. s. 71 (2) itself). This construction gives an acceptable meaning to the word "reciprocal" whereas the appellant's contention requires a departure from its meaning which becomes apparent as soon as the provision is altered and extended to say expressly what the appellant contends it means - viz. "whose laws make the same or substantially the same provision for the payment of compensation to the dependants resident in New South Wales of a worker killed or injured in such foreign country as does New South Wales law for New South Wales dependants of a worker killed or injured in New South Wales ". If, however, the word "reciprocal" were to be omitted where it stands in the sub-section and the sub-section were to be extended by adding words such as "corresponding with those made by the laws of New South Wales for payment to the dependants resident in the foreign country of a worker killed or injured in New South Wales", all that would have been done would have been to achieve by using more words the same effect that, according to the construction which commends itself to me, the sub-section now has by virtue of the word "reciprocal".

Not only do I think that the interpretation that I have adopted gives full weight to the word "reciprocal" but it makes the final part of the sub-section workable. It is idle to suppose that a foreign country would ever have workers' compensation laws the same or substantially the same as those of New South Wales - if there were nothing more, currency differences and variations in value would almost of necessity preclude this - so that the adoption of the appellant's argument would in practice mean that the final part of sub-s. (2) of s. 71 would be a dead letter. Furthermore, it is fair to observe that if what the appellant contends for had been meant, it could very easily have been said.

It only remains for me to say that the concession made shows that the Italian law makes more generous provision for foreign residents vis-à-vis local residents than does the law of New South Wales for foreign residents vis-à-vis local residents. In Italy, according to the concession, there is no difference; in New South Wales that was the position until s. 71 (2) limited the rights of dependants in a foreign country as therein provided. It may be that a less generous provision in foreign law in favour of dependants resident in New South Wales than that which is found in s. 71 (2) in favour of residents of a foreign country would not be reciprocal, but there is no doubt in my mind that an equal or a more generous provision is reciprocal.

I am therefore of the opinion that the appeal should be dismissed.

I agree in the conclusion of the Chief Justice for the reasons that he has given.