Rooney v The Workers' Compensation Dust Diseases Board of NSW

Judgment 1In this appeal I have to decide what the words in an act of Parliament mean. Speaking in Parliament of the same Act over 50 years ago, a Minister referred to "the obscurity of the law". The Crown Solicitor was quoted by the Minister as saying that the Act is "so indefinite that it is frequently impossible to advise with confidence as to its true effect". Counsel for the plaintiffs in this case somewhat more generously described the Act as "delphicly drafted". 2One can therefore understand my appreciation that both competent counsel in this case have gone ahead of me to cut through the legislative undergrowth in order to expose the statutory limb that needs judicial pruning. 3The story starts tragically. A woman worked for a bank. The bank was doing some renovations in about 1981. The work involved dust particles and as a result she contracted mesothelioma. She retired from the bank in 2003 and died in 2009. She was also a mother and left three dependent children. Her husband had died before her. Because the dust she was exposed to at the bank caused her death, her children claimed compensation under the Workers' Compensation (Dust Diseases) Act 1942 (NSW) (which I will call "the Dust Diseases Act"). 4The children were awarded compensation by the Workers' Compensation Dust Diseases Board of NSW. There was no dispute about the woman's death being caused by the dust or about her children's entitlement to compensation but there is a dispute about the rates of compensation which the children should be awarded. The children say that they should be awarded compensation at higher rates and have appealed against the decision granting them lower rates. 5The woman's name is the late Mrs Anna Rooney. Her children are the plaintiffs and the Board is the defendant and the appeal has come before me. 6At this stage I will make two preliminary observations. The first is that the Dust Diseases Act is a form of workers' compensation legislation, so it picks up some of the main New South Wales workers compensation law, being the Workers Compensation Act 1987 (NSW). (I will refer to that Act as "the Workers Compensation Act.") The second observation is that mesothelioma, like other dust diseases, is a disease of gradual onset. That means that a person can go on for years without realising that they have the disease. A question can arise as to when the injury itself occurred. The rates of compensation are fixed according to the Workers Compensation Act. Although the Workers Compensation Act applies whether the injury was received before or after the Workers Compensation Act (Sch 6, Pt 2, cl 1), the amount of compensation can depend on whether the injury was received before or after the Act, (Sch 6, Pt 2, cl 2). With a disease of gradual onset, it is difficult to determine when the "injury" was received, but it needs to be fixed at a specific date so as to determine the appropriate rate. So Parliament stepped in and provided a mechanism for fixing the date of injury. That mechanism is contained in s 8(3A) of the Dust Diseases Act. It provides as follows - "In the application to any award of the provisions of the Principal Act [Workers Compensation Act] and the 1998 Act, the injury to the person who is or whose dependants are entitled to the award shall be deemed to have happened at the time when that person was last employed as a worker in an occupation to the nature of which the disease contracted by him was due: Provided that if the board, on the report of the medical authority, is satisfied that such person's employment in such occupation did not materially contribute to the person's disablement or death it may, for the purposes of this subsection, disregard that employment and have regard to the last previous employment of such person which the board, on the report of the medical authority, is satisfied did materially contribute to such person's disablement or death." 7The question therefore is when Mrs Rooney "was last employed as a worker in an occupation to the nature of which the disease contracted by her was due". The defendant says that I must look at the evidence regarding Mrs Rooney's last exposure to dust. It says the evidence points to around 1981 so that the old rates of compensation apply. The plaintiffs on the other hand say that Mrs Rooney was always employed in the same occupation so that she was still in that occupation when she retired in 2003. That would mean that compensation should be paid to her children at the more recent higher rates. 8Let me elaborate on the defendant's argument. When Parliament said in the subsection "employed as a worker in an occupation to the nature of which the disease contracted by him was due", it meant the word "occupation" to refer to the actual physical processes and activities which exposed the worker to dust. The words "employed" and "employment" mean the same as "occupation" and they all refer to the physical processes and activities. The defendant says that one has to therefore look back to when the dust exposure happened. In this case the evidence suggests that it happened in about 1981. The injury should therefore be deemed to have happened back then and the rate fixed accordingly. 9One of the problems with this argument is that Parliament has used separate words, "employed/employment" and "occupation". The different words point to different concepts which therefore suggests that they should have distinct meanings. The plaintiffs say they do have distinct meanings. The defendant says it was unfortunate that different words were used, but that Parliament's intention is quite clear. For reasons that I will develop below, I think Parliament deliberately chose different words and intended them to have different meanings. 10First I should make a finding about Mrs Rooney's occupation. Mrs Rooney's occupation for the whole of the relevant period in this case is described as a "teller and assistant manager". She retired from that occupation in 2003. On the face of it that would appear to be two occupations. But Mrs Rooney was employed in the banking sector. The banking sector no doubt employs lawyers and computer technicians and perhaps even gardeners. Mrs Rooney was in a sequence of jobs which, in my opinion, could be encompassed by the occupational title of Bank Officer. To my mind, she has been in that one occupation for the whole of the relevant period. In any event, there is no evidence that she changed occupations. 11The word "occupation" means, in accordance with the Macquarie Concise Dictionary (5th ed) (MFI 4), "one's habitual employment; business, trade or calling". It is not a description of the actual processes involved. If the late Mrs Rooney had been asked "What is your occupation?" she was more likely to answer "I am a bank officer/teller/manager" than to say "I work in a job where I assess loan applications/accept cash from customers to place in the bank." The meaning of the word "occupation", as suggested by the dictionary, focuses on the habitual employment rather than the process itself. 12The answer to the question at issue in this case will be provided by determining when Mrs Rooney was last employed in that occupation as a bank officer. In other words, once the occupation is identified, the question becomes when did she exit that occupation. The answer to that question is 2003 and that resolves the case. But in deference to both counsel's careful and helpful arguments, I will add more to my reasons. 13I should add here that the plaintiffs were represented by Mr S Robertson of counsel and the defendant by Mr J L Sharpe of counsel. 14Giving the word "occupation" the meaning argued for by the plaintiffs makes it easier for a worker to prove their case in Court. Legislation such as this is remedial in its character and should be construed beneficially: Bird v The Commonwealth [1988] HCA 23; 165 CLR 1; 78 ALR 469 at 9 (per Deane and Gaudron JJ). Specifically, "where two constructions of a workers compensation act are possible, that which is favourable to the worker should be preferred." (Wilson v Wilson's Tile Works Pty Ltd [1960] HCA 63; 104 CLR 328; ALR 715 at 335 as approved by Deane and Gaudron JJ in Bird.) 15Having said that, in my opinion Parliament did not intend the determining of rates of compensation to involve a fact finding about when a worker was last exposed to dust. The intention of Parliament was to make it easier rather than harder for the worker. To explain the basis of that opinion, fixing a date when a worker was last engaged in a dust producing process may be quite complex and require a good deal of evidence. It would produce expensive litigation. Whether or not an occupation as such is dust-related is a more general question and may be less controversial. The entitlement has already been fixed and at least one occupation identified. Rather than fixing on which work processes actually contributed, the Act has fixed on the occupation, as such, which is dust related. 16My conclusion about the intention of Parliament is reinforced by the second reading speech of the Minister who referred to the disease as "one that can result only from a person's occupation." (New South Wales Legislative Assembly, Second Reading Speech Workers Compensation (Silicosis) Amendment Bill (Hansard), 28 March 1957 at p 4220 by Mr Lander, Minister for Housing.) Speaking of "the date of injury", the minister said that it was "the date when he was last employed in an industry in which a silica hazard exists." This suggests that the intention of the legislation was to focus on the occupation rather than the working processes which may have produced the disease. So the intention of Parliament was to make the fixing of dates easier by deeming the date of the injury as when a person exited that industry. The process of isolating the date when the disease was first contracted would be too complex. As the minister said, the disease's "initial onset is so gradual that it is likely to go unnoticed. By the time the symptoms are obvious, X ray changes usually show the condition to be well established." (Page 4220) (The second quotation was from p 4223.) 17Returning to Parliament choosing different words, the words "occupation" and "employment" are used elsewhere in the Dust Diseases Act - in the definition section, s 3(1). "Dust occupation" is defined to mean "industry or process described as a dust occupation". The word "process" is defined to include "occupation and any description of manual labour". I gain comfort from the definition of dust occupation meaning "industry". The definition of "process" makes a distinction between "occupation" and "any description of manual labour". A "description" of manual labour in that context is more likely in my opinion to be the identifying of a job than an extended description of the activities involved. In s 6(3) there is reference to "class or classes of employment... in any industry or process, which employment is of such a nature as to expose the worker to the risk of contracting a dust disease". Again the distinction is made between the concepts of "employment" and "industry" and "process" (in the sense of "occupation"). Indeed in s 8(3A) itself, the proviso makes a clear distinction between "employment" and "occupation" and gives each word different work to do. 18The defendant's interpretation would mean that the work "occupation" refers to the actual processes of the work which brought about the disease. Mr Sharpe referred to the Court of Appeal decision in CIC Workers' Compensation (NSW) Ltd v Alcan Australia Ltd (1994) 35 NSWLR 169. In that case, the Court had to interpret the phrase "employment to the nature of which the disease was due" and it concluded that the word referred to "the engagement in a form of activity which exposed [the worker] to a risk of disease" (at 177B). One problem with the defendant's argument and its reliance on CIC Workers' Compensation (NSW) Ltd is that Parliament has used two different expressions in the same provision of this Act, namely "employed" and "occupation". The question in the CIC case was whether "employment" refers to the "processes involved in the work or to the contract of employment". The Court, in the judgment of Gleeson CJ (as his Honour then was) with whom Mahoney JA (as his Honour then was) and Meagher JA agreed, referred to "almost seventy years of consistent authority, which includes decisions of the High Court of Australia and the House of Lords, upon the meaning in cognate legislation of the very words that were chosen by the New South Wales legislature for use" in the provision there under consideration which was s 151AB of the Workers Compensation Act. That line of authority referred to by his Honour pointed to an interpretation consistent with the processes of work rather than the contract of employment. With the Dust Diseases Act Parliament has not used the word "employment" but the word "occupation". It can be assumed that Parliament was aware of the effect of the line of authority referred to by the Court of Appeal. This supports the conclusion that Parliament deliberately chose a different word because Parliament had a different intention. That different intention in my opinion is consistent with the plaintiffs' argument in this case put forward by Mr Robertson. 19The purposes of the two provisions are also different. In the CIC case, the Court was looking at one employer but different insurers. At 171AB of the CIC case, the Court said the following: "Section 151AB deals with the problem of insurance that is particularly likely to arise in the case of occupational diseases contracted gradually by workers. The general purpose of the section is stated within it. It is to identify, from amongst a number of insurers under policies of insurance obtained by a single employer for different periods, one insurer which is to indemnify the employer for the full amount of the employer's liability to a worker who has contracted an occupational disease of the kind mentioned." The provision of the Dust Diseases Act which I am interpreting, however, looks for one relevant occupation. The focus is on an "occupation to the nature of which the disease is due". That occupation could have been undertaken with various different employers and the disease developed over the period with all the employers. The purpose of this provision is to fix a point in time, a date. The legislation provides a mechanism for fixing that date and that mechanism is to choose the last occupation. Its importance is to determine the date of injury and therefore the prescribed rates. Its purpose is not to fix liability on an insurer as was the case in the CIC case. The provision in this case focuses on the "occupation to which the disease is due". The date is the last day the worker was engaged in that occupation. It does that because of the difficulty in determining the onset of the disease. 20But the legislation gives the Board an out. Perhaps the worker was involved in more than one occupation. If Mrs Rooney, for example, had moved before 1987 to another occupation - such as a gardener or a sales representative but still with the bank - and that occupation was not one "to the nature of which the disease contracted by [her] was due" then the rates would be fixed at the date when she ceased being a bank officer, even though she continued to be employed by the bank. 21It is for those reasons that I accept Mr Robertson's argument on behalf of the plaintiffs in this case. 22I should dispose of one final matter. Mr Sharpe on behalf of the Board argued that the proviso to s 8(3A) applied in this case in that there has been, he argued, a "report of the Medical Authority". Mr Sharpe referred to the report behind tab 13 in exhibit A. That to my mind is not a report which complies with the proviso. The report itself is not in terms which are consistent with the legislation. In any event, the only occupation which Mrs Rooney was relevantly engaged in in this case was the one that I have found and it is from that occupation that she retired in 2003. I do not accept Mr Sharpe's arguments regarding the applicability of the proviso in this case. 23For those reasons, I find in favour of the plaintiffs in these proceedings.