Wyper v Hetton Bellbird Collieries Ltd

For the reasons which I have given in Fisher's Case [1] I am of opinion that the relevant date is the date of the worker's incapacity, and, as I have said, it is agreed that that date is the date of the certificate of the Medical Board, viz. 19th October 1954. The provision to be applied is, therefore, s. 8 (1) (a) as it stood in 1954.

In my opinion, the appeal should be allowed, and the questions asked by the case stated should be answered: 1 (a) No; (b) No; (c) No; 2 No.

In this case the appellant is the widow of a worker who was a coalminer until 1947, and at some unascertained time while working in that capacity contracted pneumoconiosis. It is admitted by the respondent, who was the employer who last employed the worker in coal-mining, that incapacity resulted from the disease on 19th October 1954. The worker died in 1956, and the respondent concedes that thereupon the appellant as his widow became entitled to an award of compensation under the provisions of par. (a) of sub-s. (1) of s. 8 of the Workers' Compensation Act, 1926 N.S.W., as amended. That paragraph was amended in 1948, 1951 and 1953. The Workers' Compensation Commission held that the paragraph was to be applied as it stood after 1953. The Supreme Court, on the other hand, considered that it should be applied as it stood in 1947.