Wilson v Wilson's Tile Works Pty Ltd

To adopt such an interpretation means in effect that the general provision contained in sub-s. (3) (b) is treated as explaining what is meant by the exclusion expressed by the crucial words in sub-s. (1) (b) and giving them another and qualified meaning. It means, in other words, that the exclusory expression "without his serious and wilful misconduct" is treated as an anticipatory and inadequately expressed reference to the provision to come afterwards contained in sub-s. (3) (b) and not as operating of itself and according to the literal meaning of the unqualified words to exclude all cases of serious and wilful misconduct. To authorize such an interpretation involving, as it does, a departure from the ordinary and natural meaning of the language of the provision, good and sufficient reason must appear for so modifying or qualifying what is expressed. That reason must be sought in the context supplied by sub-s. (3) (b); for it could be found nowhere else. But it is difficult to feel any confidence in the suggested inference to be drawn from that sub-section. What solid ground is there for supposing that it was not intended to state for itself the conditions upon which the special right to compensation the sub-section confers should depend? When that right was first dealt with by the Workers' Compensation Act, 1926 it was made subject to the condition that the injury should be received "without his own default or wilful act on the daily or other periodic journey". Act No. 36 of 1929, s. 3, omitted the whole provision but when it was restored by Act No. 13 of 1942 the condition was repeated in the same words. Obviously the condition was not then the same as the exclusion made by sub-s. (3) (b) and it was not in doubt that the latter provision was irrelevant. That was taken for granted in Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen [1] . By Act No. 20 of 1951 the words "serious and wilful misconduct" were substituted for the words "own default or wilful act". The substitution was effected in the accustomed manner by a simple direction that the former words should be repealed and the latter words should take their place. What warrant have we for importing the unexpressed intention that they should not, as did the words they replaced, operate fully and of their own force but should serve only as an abbreviated anticipatory reference to sub-s. (3) (b), which, no doubt, followed in sequence but in point of time long preceded the new enactment? Section 7 (1) (e) (iii) which contains the same phrase was introduced by Act No. 20 of 1951 and whatever is true of the phrase it contains "without serious and wilful misconduct" must be true of the words substituted in sub-s. (1) (b); but perhaps that fact is neutral.

A want of symmetry in the operation given legislatively to the place of serious and wilful misconduct leading to death in the case of injury on a journey and in the case of injury arising out of or in the course of the employment may be inelegant and it may be illogical. But that is hardly enough to authorize the adoption of an implication or an interpretation which overcomes the otherwise plain meaning of words. This particular enactment bears so much the impress of gradual and continual change, change no doubt proceeding from varying causes, that it is even more unsafe than it commonly is to reason a priori as to its meaning. In my opinion the judgment of Owen J. in which the other members of the Full Court concurred is right and the appeal should be dismissed.

The question involved in this appeal is whether there is implied in sub-s. (1) (b) of s. 7 of the Workers' Compensation Act, 1926-1957 (N.S.W.) the intention that this provision is a complete statement of the right to compensation given by the Act, where a worker has received injury on an occasion covered by the provision, so that sub-s. 3 (b) of s. 7 does not refer back to the former provision. If the answer to the question is that such an intention is not implied in sub-s. 1 (b), then where the injury is not without the serious and wilful misconduct of the worker and it results in his death or serious and permanent disablement, compensation is not disallowed, because sub-s. 3 (b) would refer back to sub-s. 1 (b). On the other hand, if the contrary is the right answer to the question, compensation is disallowed, because no exception is provided to the words "without his serious and wilful misconduct" in sub-s. 1 (b). The question turns upon what is to be presumed from the insertion of the words "without his serious and wilful misconduct" after the word "injury" in sub-s. 1 (b). Those words are not in sub-s. 1 (a). By the Workers' Compensation (Amendment) Act, 1951, s. 2 (b) (i), they were substituted for the words "without his own default or wilful act", thus adopting the disqualification imposed by sub-s. 3 (b) where death or serious and permanent disability does not result from "the injury received by a worker". This substitution was made after Slazengers (Aust.) Pty. Ltd. v. Burnett [1] in which it was decided that "injury" in sub-s. 1 (b) has its statutory meaning. "Injury" is defined by s. 6 (1). Before that case it had not been established that "injury" in sub-s. 1 (b) had its statutory meaning. Therefore, since Slazenger's Case [1] was decided, it cannot be said, that it is impossible to read sub-s. 3 (b) as referring back to sub-s. 1 (b) I think that it is possible to read sub-s. 3 (b) as referring back to sub-s. 1 (b) as well as sub-s. 1 (a) for a number of reasons, notwithstanding the words "without his serious and wilful misconduct" which appear in sub-s. 1 (b). First, sub-s. (3) is in form a proviso to the antecedent provisions. Secondly, sub-s. 3 (b) refers, without any express exception of an injury received on an occasion covered by sub-s. 1 (b), to "the injury received by a worker". The injury spoken of in sub-s. 3 (b) is of course an injury as defined by s. 6 (1). An injury to which sub-s. 1 (b) refers is such an injury, no less than the injury to which sub-s. 1 (a) refers. Thirdly, to read the words "without his serious and wilful misconduct" in sub-s. 1 (b), as implying that sub-s. 3 (b) has no application to an injury in respect of which sub-s. 1 (b) gives a right to compensation, produces disharmony between sub-s. 1 (a) and (b) and requires the implication of an exception in the case of the injury in respect of which sub-s. 1 (b) gives such right. Fourthly, the words "without his serious and wilful misconduct" in sub-s. 1 (b) may be regarded as anticipatory of sub-s. 3 (b) and the verbiage of this latter provision as overlapping that of sub-s. 1 (b). Sub-section 3 begins in this way: "Provided that - ". Fifthly, it would be strange, if the legislature intended that sub-s. 1 (b) should not be subject to any proviso in sub-s. 3, that it inserted sub-s. 1 (b) between sub-s. 1 (a) and sub-s. 3 (b). It seems to me that it is an extreme application of the words "without his serious and wilful misconduct" in sub-s. 1 (b) to construe them as negativing the application of sub-s. 3 (b) and thereby limiting the generality of the phrase "the injury to a worker" in that proviso. Such an extreme application is not, in my opinion, right. I think that the appeal should be allowed.

1. (1951) A.C. 13; (1950) 51 S.R. (N.S.W.) 1; 68 W.N. 34. 2. (1951) A.C. 13; (1950) 51 S.R. (N.S.W.) 1; 68 W.N. 34. Fullagar J.

The appellant is the widow of Brian Gladstone Wilson deceased, who was a worker employed by the respondent company. On 11th July 1957 the deceased, while on his way home from his place of employment, received injuries, from which he died on the same day. The appellant claimed compensation under the Workers' Compensation Act, 1926-1957 (N.S.W.). The Workers' Compensation Commission found that Wilson's injuries were "solely attributable to serious and wilful misconduct" on his part, but held that the appellant was entitled to compensation and made an award in her favour. This decision was, on a case stated under s. 37 of the Act, reversed by a Full Court of the Supreme Court of New South Wales [1] , and the appellant now appeals as of right to this Court. The case raises a narrow but difficult question of statutory interpretation, and affords a most unfortunate example of confusion in drafting.

The relevant section of the Act is s. 7, which is divided into eleven sub-sections. Sub-section (1) (a) gives the general right to compensation for "personal injury arising out of or in the course of employment". It is not suggested that the present case falls within this provision. Sub-section (1) (b), (c) and (d) provide that "where a worker has received injury without his serious and wilful misconduct" on (inter alia) his daily journey between his place of abode and his place of employment, he (or, in the case of death his dependants) shall be entitled to compensation. The final paragraph - par. (e) - of sub-s. (1) should be mentioned, not because it has any direct relevance in the present case, but because it refers to misconduct. It provides for the payment of compensation in respect of injuries received "without serious and wilful misconduct" during certain temporary absences from work. Sub-sections (1A). (2) (2A), (2B) and (2C) provide for a number of special cases, and then comes sub-s. (3), on which the appellant in this case relies. Before the amending Act of 1948 this sub-section read as follows: "(3) Provided that - (a) the employer shall not be liable under this Act in respect to any injury which does not disable a worker for a period of at least seven days from earning full wages at the work at which he was employed. But if he is disabled for that period, the compensation shall date from his receiving the injury; (b) if it is proved that the injury to a worker is solely attributable to the serious and wilful misconduct of the worker, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed; (c) no compensation shall be payable on account of any injury to or death of a worker caused by an intentional self-inflicted injury". Paragraph (a) of sub-s. (3) was repealed by the Act of 1948, but pars. (b) and (c), introduced by the words "Provided that", were left standing and still stand. The remaining sub-sections of s. 7 are, I think, neither directly nor indirectly material.

The position which thus emerges is simply this. If the only provision applicable to the case is s. 7 (1) (b), the appellant must fail, because it is involved in the finding of the Commission that Wilson's injuries were not "received without his serious and wilful misconduct", and an essential condition of the right given by s. 7 (1) (b) is not fulfilled. If, however, she can call in aid s. 7 (3) (b), she will be entitled to succeed, because Wilson's injuries did result in his death, and s. 7 (3) (b) exempts such a case from disallowance of compensation on the ground of serious and wilful misconduct.

The difficulties involved in reading sub-s. (3) (b) with sub-s. (1) (b) are very real. They become apparent if we write out, as Owen J. has done (1), the substantive provision in sub-s. (1) (b) for compensation in respect of injuries received on journeys, and follow it with the "proviso" contained in sub-s. (3) (b). We then get this: "Where a worker has received injury without his serious and wilful misconduct on the daily or other periodic journey between his place of abode and place of employment he (and, in case of death, his dependants) shall receive compensation in accordance with this Act. Provided that if it is proved that the injury is solely attributable to the serious and wilful misconduct of the worker, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed." His Honour not unjustly observed: "This does not seem to me to make sense." [1] . I would agree that, read literally it is illogical and self-contradictory. But it is what the statute has said, and we must give a meaning to the whole of it if we can. As Sir John Romilly said in De Winton v. Mayor of Brecon [2] , "If the Court finds a positive inconsistency and repugnancy, it may be difficult to deal with it, but, so far as it can, it must give effect to the whole of the Act of Parliament."

1. (1959) 76 W.N. (N.S.W.), at p. 767. 2. (1859) 28 L.J. Ch. 600, at p. 604.

The Supreme Court found the solution by treating par. (b) of sub-s. (3) as inapplicable to the "journey" provisions contained in par. (b) of sub-s. (1). It was presumably regarded as inapplicable also to the provisions of par. (e) of sub-s. (1).

This is, of course, not an impossible solution. But I think, with respect, that there are insuperable objections to it. It is an inescapable fact that par. (b) of sub-s. (3) is expressed as a proviso to everything that has gone before. But there is more than that. Sub-section (3) originally contained three provisos, and it now contains two. Proviso (a), while it stood, clearly applied to everything that had gone before. Proviso (c) clearly applies to everything that had gone before. It seems to me to be too drastic to isolate proviso (b) from its deceased brother and its living brother and to say that, whereas they are of general application, par. (b) is subject itself to an implied proviso. Surely one would say rather that, whatever else is obscure, it is clear that all three provisos were intended to have a qualifying and generally controlling effect. There is, moreover, no reason why "serious and wilful misconduct" should have a different effect on a claim for injury arising out of or in the course of employment from that which it has where the claim is for injury received on a journey. It is to be remembered that, as Dixon J. said in Hume Steel Ltd. v. Peart [1] , the general intention of the Act is that "injury received in the course of his journey is to stand in the same position as injury in the course of his employment". [2] It appeared to their Lordships in Slazengers (Australia) Pty Ltd. v. Burnett [3] ; that "the implication of this intention is irresistible". The construction which qualifies the operation of proviso (b) fails to give effect to this general intention. To these considerations should perhaps be added the established principle that, where two constructions of a Workers' Compensation Act are possible that which is favourable to the worker should be preferred.

1. (1947) 75 C.L.R. 242. 2. (1947) 75 C.L.R., at p. 257. 3. (1951) A.C. 13, at p. 21; (1950) 51 S.R. (N.S.W.) 1, at p. 5; 68 W.N., at p. 36.

The question in the case, as I see it, is whether a controlling effect should be given to proviso (b) in s. 7 (3), or whether the provisions of s. 7 (1) (b) should be given an effect which makes it exempt from the operation of proviso (b) despite the quite general language of proviso (b). For the reasons which I have given, I am of opinion that the former construction is to be preferred. It is true that on this construction proviso (b) performs more than the function of a mere proviso, and it is true, as has been seen, that we cannot apply it literally to s. 7 (1) (b) so as to produce a sensible result. But this kind of thing is unhappily a familiar enough phenomenon in the construction of modern statutes. It happens not seldom that it is impossible to read a statutory definition into a substantive provision of the Act without making what seems to be nonsense. A good recent example is to be found in Council of the Municipality of Randwick v. Rutledge [1] . In such cases the true intent of the statute is not given by a literal reading, but the general sense has to be gathered, and often it can only be gathered and truly stated by means of a certain moulding of "the naked words and mean". In the present case, I am unable to avoid the conclusion that the true intent of the Act is missed unless we give full force and effect to proviso (b) and treat sub-s. (1) (b) of s. 7 as modified accordingly.

Actually the construction which I adopt involves, to my mind, a much less drastic operation than the view which denies to proviso (b) a large part of the effect which its language naturally conveys. In truth I think that the difficulty of the case is entirely occasioned by a single word in proviso (b). That word is the word "solely". If that word were omitted, I think the position would hardly be open to serious doubt. For, despite the variation of language, there would be little difficulty in regarding the words "attributable to serious and wilful misconduct" in proviso (b) as neither more nor less then the logical contradictory of "without serious and wilful misconduct" in sub-s. (1) (b). We could then (although a negative form of expression would be more natural than the affirmative form adopted) readily enough regard proviso (b) as exempting cases of death and serious permanent disablement from the disqualifying words of sub-s. (1) (b). And this would be to attribute to it no more than the true function of a proviso. In fact, however, proviso (b) uses the words "solely attributable to", and that expression is not the logical contradictory of "without". It introduces a standard different from that adopted by sub-s. (1) (b). But this should, as I think, be taken to mean merely that sub-s. (1) (b) must be modified accordingly. In other words, we must interpret sub-s. (1) (b) in the light of proviso (b) - not reject proviso (b) in order to save a literal interpretation of sub-s. (1) (b).

I am not disposed to attach much importance to the history of the legislation. We have to interpret the Act as it stood at the relevant time. It should be mentioned, however, that that history does explain how the confusion arose. Sub-s. (3) of s. 7 has been in the Act from its original enactment in 1926, and the same confusion existed in that original Act. It disappeared in 1929, when the amending Act of that year omitted par. (b) from sub-s. (1) of s. 7. It was restored, however, by the Act of 1942, which re-introduced par. (b) and added pars. (c) and (d) to sub-s. (1) of s. 7. It seems a safe inference that the draftsman of the Act of 1942 overlooked the fact that it was not necessary to provide in s. 7 (1) (b) for "serious and wilful misconduct", because sub-s. (3) (b) was already taking care of that subject. If attention had been directed to this point, a choice would have presented itself between a modification of sub-s. (1) (b) and a modification of sub-s. (3) (b). I have no doubt that the former alternative would have been preferred. But, however this may be, we have to interpret the Act as we find it.

I agree that the Full Court was right and that this appeal should be dismissed.

It is clear that the claim for compensation that was made by the widow of a worker fell outside the actual words of s. 7 (1) (b) of the Workers' Compensation Act, 1926-1957 (N.S.W.) because the death of the deceased, which resulted from an injury received by him on a daily journey, was due to his serious and wilful misconduct. It was sought, however, to avoid the effect of the explicit language of s. 7 (1) (b) by doing one of two things - either by reading s. 7 (3) (b) as a limitation upon the exclusion in s. 7 (1) (b), or by reading s. 7 (1) (b) as dealing with nothing beyond the subject matter of s. 7 (3) (b). Neither course is, to my mind, admissible.

The first construction, as Owen J. demonstrates by bringing the two provisions together, is quite untenable. Any claim for compensation for injury due to serious and wilful misconduct upon a journey referred to in s. 7 (1) (c) is denied by s. 7 (1) (b), and it is not possible to read s. 7 (3) (b) as restoring to a limited extent what s. 7 (1) (b) denies. Section 7 (3) (b) is a provision restricting, not creating, rights to compensation. The alternative construction is no more acceptable. It is apparent that s. 7 (1) (b) deals with a much wider subject matter than s. 7 (3) (b) in that it disallows compensation in all cases where there has been injury through serious and wilful misconduct upon a journey to which it relates and is not confined to those cases where death or serious and permanent disablement have resulted from the injury. Furthermore, it is to be observed that there are other differences - though differences of minor importance - in the disenabling provisions of the two sub-sections; the former relates to injury "without his serious and wilful misconduct" whereas the latter relates to injury that is "solely attributable to the serious and wilful misconduct of the worker". It seems to me impossible to treat s. 7 (1) (b) as merely looking forward to s. 7 (3) (b) and as covering only cases that fall within the scope of the latter sub-section.

The conclusion that I have formed upon a reading of s. 7 as it now stands is, I think, reinforced by the history of the section, for, until the amendment of s. 7 (1) (b) in 1951, there was not even the superficial similarity between s. 7 (1) (b) and s. 7 (3) (b) which now exists by reason of the common use of the words "serious and wilful misconduct" in the description of disqualifying conduct. What is significant about the amendment of s. 7 (1) (b) is that, while maintaining the sub-section as a particular provision relating solely to injuries on journeys, it did not bring it into line with s. 7 (3) (b): all that was done was to substitute the words "serious and wilful misconduct" for the words "own default or wilful act" as the criterion for denying compensation in any case of injury upon a daily or other periodic journey; the other differences between ss. 7 (1) (b) and 7 (3) (b) were allowed to remain. Section 7 (1) (b) was retained and liberalized, but merely by narrowing the description of what amounted to disqualifying conduct in every case and not by adopting the scheme of s. 7 (3) (b).