Australian National Railways Commission v Beesley

AUSTRALIAN NATIONAL RAILWAYS COMMISSION v BEESLEY AND BRIDGESTONE AUSTRALIA LIMITED
v WRIGHT AND HAY
[1999] SASC 170

Full Court: Prior, Lander and Wicks JJ

PRIOR J The Industrial Relations Court has stated a case in these two matters. In both two questions are asked:-
Did the respondent suffer an injury for which the appellant is liable pursuant to the Worker’s Compensation Act 1971; and
Is the worker’s date of injury to be fixed by application of s8(4) of that Act.

With respect to the first matter a further question is asked namely, if the two questions are answered in the affirmative is there appealable error in deeming the injury to have occurred on 23 April 1996.
In the first matter, the respondent was a person employed in the railways of this State between 1944 and 1950. He was exposed to asbestos. The evidence established that the worker was symptom free until early 1995. After that his symptoms worsened with a formal diagnosis of mesothelioma being made on 23 April 1996 as a result of an open lung biopsy being performed that day. The worker died on 4 March 1998 a week after the decision of the Industrial Relations Court. It applied a decision of the Full Industrial Court, Benson v James Hardie & Co Pty Ltd[1]. That decision is said to be erroneous by the parties found liable to the workers in accordance with that decision. That case concerned a claim for compensation for total incapacity related to the same disease. The applicant’s claim was that the disease was contracted by him in the course of his employment. The claim was disputed on the ground that the worker suffered injury before the commencement of the Worker’s Compensation Act 1971 and that the applicant could not bring himself within the provisions of s7 of the Act. That section provided that the Act was to apply only to and in relation to a workman who had suffered an injury that occurred after the commencement of the Act. However, that provision was subject to a particular qualification. The qualification was, “except as expressly provided in this Act.”
[1] (1976) 43 SAIR 1120
The single judge and the Full Industrial Court both held that s8(4) applied with the date of the occurrence of the worker’s injury being artificially fixed at the date of his incapacity for work as a result of contracting the disease of asbestosis in the course of his employment.
S8(4) and s8(5) provide:-
“(4).. For the purposes of this Act, in the case of an injury that is a disease, that injury shall be deemed to have occurred on the day upon which the workman became totally or partially physically or mentally incapacitated by reason of that injury or when that day cannot be ascertained the day on which a legally qualified medical practitioner has certified that the workman was so incapacitated by reason of that injury but the day on which the injury occurred shall not be ascertained by reference to the day so certified where the Court is satisfied that the injury occurred before the commencement of this Act.
(5)Where the Court is satisfied that the injury referred to in subsection (4) of this section occurred before the commencement of this Act, the Court shall if it is material to do so, fix a day that in its opinion is the nearest day, that can be determined having regard to all the circumstances, to the day on which that injury occurred and the day so fixed shall be deemed to be the day on which that injury occurred.”
In the other matter the personal representatives of a deceased worker sought an assessment under s70 of the 1971 Act on behalf of a person who died on 13 June 1996 from mesothelioma. It was not disputed that this person first became totally or partially incapacitated because of that disease on 7 May 1994, the deceased being employed by the respondent to the application between 1948 and 1953 and then being exposed to asbestos which resulted in his subsequently contracting mesothelioma. The employer submitted that the personal representative of the deceased had no entitlement to compensation pursuant to any of the provisions of the Workmens Compensation Act 1932, the 1971 Act or the Workers Rehabilitation Compensation Act 1986. In that case the only claim before the Industrial Relations Court was under the 1971 Act. The court allowed the claim, holding that Benson was authority for the proposition that but for its repeal the 1971 Act applied to the injury the subject of the claim then before the court. The transitional provisions contained in the 1986 Act meant that the 1971 Act continued to apply in respect of a disability attributable to a trauma occurring before a particular date well after the exposure to asbestos between 1948 and 1953.
Other provisions of the 1971 Act of particular relevance are s6(2) and s6a. They provide:-
“6(2).. All proceedings, including, but without limiting the generality of the expression, proceedings by way of recording a memorandum of agreement pursuant to the repealed Act, that could have been commenced under the repealed Act immediately before the commencement of this Act but had not been so commenced shall be commenced, continued and completed in all respects (except as is expressly provided by this Act) as if this Act had not been enacted.
6aWhere any injury was caused to a workman before the commencement of this Act and up to the time of that commencement proceedings under the repealed Act in relation to that injury could not have been commenced but on or after the commencement of this Act such proceedings could have been commenced, had this Act not been enacted, then this Act shall apply and have effect and be deemed always to have applied and had effect in all respects to and in relation to those proceedings as if they were proceedings that could have been commenced under the repealed Act immediately before the commencement of this Act.”
Before this Court it was submitted that the decision in Benson was based on a concession made by counsel as to the application of s6(2) and s6a of the Act and that that concession was wrongly made. Secondly, it was submitted that Benson’s case is inconsistent with the decision of the High Court in: Favelle Mort v Murray[2]. It was also said that Benson is inconsistent with the decision of the Full Court of this Court in Sporsen v General Motors Holden’s Ltd[3].
[2] (1976) 133 CLR 580
[3] (1984) 37 SASR 331
The 1971 Act was repealed by the Workers Rehabilitation and Compensation Act 1986. That Act came into force in 1987. In transitional provisions contained in Sch1 to the Act, cl2(1) provided that the repealed Act “continues to apply in respect of a disability that is attributable to a trauma that occurred before the appointed day.” The appointed day is the day on which the Worker’s Compensation Act 1971 was repealed. That date is 30 September 1987. The definition of disability in the 1986 Act includes a disease. Trauma is defined to mean, “an event, or series of events, out of which a compensable disability arises”. It was submitted for the second employer that the repealed Act could only apply in this case if injury was caused by trauma sustained in the period of its operation or, alternatively, because of the operation of the deeming provision in s8(4) of the 1971 Act. Given that the 1971 Act could not apply by reason of trauma causing injury within the period of its operation, it was said that neither could the 1971 Act apply by reason of any deeming provision because by the time the mesothelioma was ever suffered in these cases the 1971 Act had already been repealed so that one could not speak of the repealed Act continuing to apply in respect of something it never had application to before its repeal. The mesothelioma was said only to have been suffered and certificates could only be given if incapacity started well after the repeal of the 1971 Act.
In the first matter the evidence from a physician was that mesothelioma is:
“one of the manifestations of exposure to asbestos, (being) the expression which is a malignant transformation in the outer envelope of the lung... for which current therapy does not provide an intervention that successfully can change the natural progress which is the evolution of malignancy to the stage whether the patient either dies of that cause or an intervening event.”
Mesothelioma is “characterised by a very very long lag time which isn’t unusual - there may be some 30 odd years between the exposure and the subsequent experience of the problem.” In Mr Beasley’s case there was no dispute that the cause of his mesothelioma manifesting itself some 40 years after the event was the ingestion of asbestos fibres during the course of his employment with the railways. In my view the disease of mesothelioma is attributable to a series of events out of which the disease arose and that those series of events occurred before the repeal of the Worker’s Compensation Act as much as it can be said that the disease is attributable to events occurring after the repeal of the 1971 Act. The physician’s evidence was that fibres having become lodged in the lung activate the disease process.
Against that background I think the submissions put on behalf of the applicant workers are correct and that the 1971 Act applies in virtue of the transitional provisions contained in the current 1986 Act. That being so the primary provisions are s7 and s8; s8 being a particular provision for injuries that are diseases. That section requires that the date of occurrence of those injuries is to be determined by reference to the fiction contained within the section contrary to the submission put on behalf of the employers. I do not think that s6(2) and s6a have any application to this case given that there are no injuries occurring before 1 July 1971. Section 6a has no application to injuries occurring after the commencement of the 1971 Act. I agree with the submission that none of the transitional provisions in the 1971 Act, namely, s5, s6 and s6a, have application to the present cases. The construction advanced on behalf of the workers is consistent with the reasoning of two of the judges in Sporsen v GMH[4]. In this case the injury is not the ingestion of fibres alone but that together with the development of the morbid condition. That occurred well after the commencement of the 1971 Act. Its provisions continue to apply because of the transitional provisions in the 1986 Act. There is nothing in the observations made in Favelle Mort v Murray[5] that calls for this Court to overrule the longstanding authority of Benson v James Hardie & Co Pty Ltd[6]. If there be greater force in the propositions put on behalf of the employers than this approach acknowledges I would none the less adhere to the longstanding approach by the Industrial Court and, to the extent that it is applicable in consequence of provisions in the 1986 Act, I would decline to reverse it upon the grounds advanced before the court.[7] The construction preferred is benign and liberal. It is the most favourable to the worker. Employees’ compensation legislation is remedial and should be construed beneficially. This has been said often enough. In Bird v The Commonwealth[8] Deane and Gaudron JJ said:
“Moreover, it is well to remember that employee’s compensation legislation, such as the Act and the regulations, is remedial in its character ‘and, like all such Acts, should be construed beneficially’: Bist v London & South Western Railway Co.[9]. The ‘established principle’ was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson’s Tile Works Pty Ltd[10]: ‘where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred.’ If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case: cf Pearce, Statutory Interpretation in Australia[11]. Indeed, in McDermott v Owners of SS Tintoretto[12], a case in which the House of Lords read words into a provision of a Workmen’s Compensation Act in favour of the employee, Lord Shaw[13] commented that he regarded it ‘to be quite unsound, and to be productive of wrong and mischief’ to interpret such a remedial statute ‘in the spirit of meticulous literalism’. That comment of Lord Shaw was quoted with approval (‘a valuable contribution’) by Isaacs J in this Court in George Hudson Ltd v Australian Timber Workers’ Union[14].”
[4] (1984) 32 SASR 331 at 336
[5] (1976) 133 CLR 580
[6]      (1976) 43 SAIR 1120
[7]      See Babaniris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13, 22-23, 27-32
[8] (1988) 165 CLR 1 at 9
[9] [1907] AC 209 at 211
[10] (1960) 104 CLR 328 at 335
[11]     2nd ed (1981) pp137-138
[12] [1911] AC 35
[13] [1911] AC at 46
[14] (1923) 32 CLR 413 at 436-437
Those remarks were made in the course of a dissenting judgment. However the principle is plain and in my view clearly applicable to the issues now before this Court.
The two questions common to each case stated should be answered in the affirmative. I would decline to answer the third question asked in the first matter for the reasons given by Lander J.

LANDER J I have had the advantage of reading in draft the reasons of Prior J and Wicks J.
Regrettably I do not agree with either of their Honour’s reasons or the result at which they have arrived.

Introduction

As their Honours reasons show both matters came to this Court as a case stated. Both matters raise the same questions of law namely the interpretation of the Workers Rehabilitation and Compensation Act 1986 (the 1986 Act), the Workers Compensation Act 1971 (the 1971 Act) and the Workmens Compensation Act 1932 (the 1932 Act) and the correctness of a decision of the Full Court of the Industrial Court, Benson v James Hardie & Co Pty Ltd (1976) 43 SAIR 1120.
In short both matters raise the question of which of the three Workers Compensation Acts govern an application for workers compensation in the circumstances mentioned in the cases stated.
It is the workers contention in each matter that the deceased’s workers entitlements are governed by the 1971 Act. On the other hand the employer in each matter contends that the deceased’s worker’s entitlements are to be found only in the 1932 Act. No party has suggested that the 1986 Act provides for the worker’s entitlement.
Both cases are said to be stated under s48 of the 1971 Act. That section provides:
“48... In any proceedings under this Act before the Full Industrial Court, that court may state a case for the consideration of the Full Court as defined by section 5 of the Supreme Court Act 1935, as amended.”
Of course the 1971 Act was repealed by the 1986 Act but there are transitional provisions and saving provisions in the 1986 Act which must be examined.
These are cases stated. They are not appeals. This Court must proceed upon the limitations inherent on a consideration of a case stated: Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373.
In R v Rigby (1956) 100 CLR 146 pp150, 151 the Court (Dixon CJ, McTiernan Webb, Kitto and Taylor JJ) said:
“Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties. The question may be one of the relevance of evidence and then the nature of the evidence becomes in a sense an ultimate fact for the purpose of that question. But that is not a common case: see Humphryis v Spence, and cf. Couglin v Thompson. The general rule is clearly stated by Isaacs J in the three following passages: ‘It cannot be too clearly understood that on a ‘case stated’ the facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless the power is, by express words or by necessary implication, specially conferred by some enactment’ - Mack v Commissioner of Stamp Duties (N.S.W.). ‘Unless care is taken to distinguish between ‘inference’ and ‘implication’ confusion is likely to occur. An implication is included in what is expressed: an implication of fact in a case stated is something which the Court stating the case must, on a proper interpretation of the facts stated, be understood to have meant by what is actually said, though not so stated in express terms. But an inference is something additional to the statements. It may or may not reasonably follow from them: but even if no other conclusion is reasonable, the conclusion itself is an independent fact; it is the ultimate fact, the statements upon which it rests however weak or strong being the evidentiary or subsidiary facts’ - The Merchant Service Guild of Australasia v The Newcastle and Hunter River Steamship Co Ltd [No. 1]. ‘It has been authoritatively decided by this Court in several cases that no inferences of fact can be drawn by the Supreme Court or this Court in such circumstances; among those cases are Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd [No. 1]; Schumacher Mill Furnishing Works Pty Ltd v Smail; Boese v Farleigh Estate Sugar Co Ltd; Mack v Commissioner of Stamp Duties (N.S.W.); Alexander v Menary. In the absence of explicit statement of facts, including inferences, the Court engaged in dealing with the case stated may perhaps gather the necessary facts from the construction of the case itself as stated, in the way expounded by Lord Atkinson in Usher’s Wiltshire Brewery Ltd v Bruce’ - Dickson v Commissioner of Taxation (N.S.W.). See further per Jordan CJ in Dennis v Watt.”
The answers to the case stated must be given upon the facts stated. It is not for this Court to go to the evidence or to draw inferences of fact from the facts stated in order to supplement the facts stated.

Australian National Railways Commission v Beesley

In light of the above the following facts are only given by way of history. Mr Beesley, who was born on 26 January 1927 was employed by the South Australian Railways between January 1944 and 1950. During that time he was exposed to asbestos.
However, the deceased was symptom free until 1995 when symptoms developed. On 23 April 1996 an open lung biopsy was performed and a diagnosis of mesothelioma was made. At that time the deceased’s condition was diagnosed as terminal.
On 2 September 1997 the deceased applied for compensation and in particular an assessment of compensation pursuant to s69 or s70 of the 1971 Act. He also sought medical expenses pursuant to s59 of that Act.
The Australian National Railways Commission, being the successor to the South Australian Railways, accepted that the deceased had been exposed to asbestos over the period claimed and, as a result of that exposure, had contracted mesothelioma as claimed.
It argued, however, that if the deceased was entitled to compensation his entitlement was pursuant to the 1932 Act.
It further argued that the decision of the Full Industrial Court in Benson v James Hardie & Co Pty Ltd, which was contrary to its submission, was wrongly decided.
The learned Judge found inferentially that the deceased was employed over the period claimed and had been exposed to asbestos over that period. He further found that the deceased was symptom free until early 1995. At that time his condition became symptomatic and continued to worsen until the formal diagnosis of mesothelioma on 23 April 1996. He found that at the time of the hearing before him the applicant was grossly debilitated and totally incapacitated for work.
The learned Judge declined to depart from the decision in Benson v James Hardie & Co Pty Ltd and followed the reasoning in that case. He concluded, in those circumstances, that the 1971 Act applied in respect of the deceased’s application and made an assessment of compensation under s70 of the 1971 Act. He also ordered the employer to pay the worker’s s59 expenses.

The Australian National Railways Commission asked the learned Trial Judge to state a case to this Court but the learned Trial Judge refused.
The employer appealed from that decision. The Full Court of the Industrial Court acceded to the employer’s request to state a case to this Court and a case was stated in the following terms:
“1..... Thomas Herbert Beesley (‘the Worker’) was employed by the Appellant between 1944 and 1950. He was exposed to asbestos during the whole of that employment. After the employment with the Appellant ceased the Worker was not otherwise exposed to asbestos in employment. The Worker developed mesothelioma. That condition arose solely out of the Worker’s exposure to asbestos during the course of his said employment with the Appellant.
2.The Worker lodged an application for compensation dated 2 September 1997 and the Appellant denied the Worker’s claim by way of an Answer dated 5 September 1997. A copy of the said Application is annexed hereto and marked ‘A’. A copy of the said Answer is annexed hereto and marked ‘B’.
3...... The Application was heard by his Honour Judge Cawthorne on 24 November 1997.
4.At the hearing the Appellant did not dispute responsibility for the injury but disputed liability under the Workers Compensation Act 1971 (‘the 1971 Act’) and argued that such liability as may occur was subject to the provisions of the Workmen’s Compensation Act, 1932 (‘the 1932 Act’). A copy of the exhibits tendered at the hearing are attached and marked ‘D’.
5...... In a judgment dated 25 February 1998, his Honour Judge Cawthorne held that the injury was deemed to have occurred on 23 April 1996 and that the Appellant was liable pursuant to the 1971 Act. A copy of the Reasons for Decision published by Judge Cawthorne is attached and marked ‘E’.
6.The Worker died on the 4th day of March 1998.
7...... Valma Maureen Beesley is the legal personal representative of the Worker and Executrix of the Will of Worker.
8.The Appellant filed a Notice of Appeal dated 11 March 1998 asserting, inter alia, that the learned trial Judge erred in law in:-
8.1deciding that the Respondent/Worker was entitled to compensation pursuant to the provisions of the 1971 Act,
......... 8.2 applying section 8(4) of the 1971 Act in the circumstances; and
8.3deeming that the Respondent’s injury occurred on 23 April 1996.
......... A copy of the said Notice of Appeal is attached hereto and marked ‘F’.
9.By order of the Full Industrial Court made on 26th day of August 1998 Valma Maureen Beesley was substituted for the Worker as the Respondent to the Appeal.
10.... The Full Court of the Industrial Relations Court considers that the said Appeal raises points of law of general importance as similar points arise in other actions currently before the Court. The Court notes also that the Appeal brings into question a previous decision of the Full Industrial Court, namely, Benson v. James Hardie & Co Pty Ltd (1976) 43 SAIR (Part 2) 1120 which has been followed by this Court to this time. It has therefore formed the opinion that it is desirable, on the application of the Appellant, to reserve the following points of law for consideration of the Full Court of the Supreme Court pursuant to the provisions of section 48 of the 1971 Act and section 48(1)(d) of the Supreme Court.
11.11.1 Did the Respondent suffer an injury for which the Appellant is liable pursuant to the 1971 Act?
11.2Is the Worker’s date of injury to be fixed by application of section 8(4) of the 1971 Act.
11.3If yes to paragraph 11.1 and 11.2 hereof, is there appealable error in deeming the injury occurred on the 23 April 1996.”

Bridgestone Australia Ltd v Wright and Hay

Again the following facts are provided by way of history.
In this case a worker John Henry Hay, who was employed by Bridgestone Australia Ltd between 1948 and 1953, was also exposed to asbestos. He also contracted mesothelioma.
He first became totally or partially incapacitated by reason of his disease on 7 May 1994 and died on 13 June 1996.
Ronda Ann Wright and Phyllis Rene Hay are the personal representatives of the deceased and executors of his will.
They brought an application as the personal representatives of the deceased claiming an assessment of compensation pursuant to s70 of the 1971 Act and expenses pursuant to s59 of that Act.
That matter was heard by the same Judge who heard the matter of Australian National Railways Commission v Beesley.
Again his Honour followed the decision of the Full Industrial Court in Benson v James Hardie & Co Pty Ltd and cases decided in that court since that time.
The learned Trial Judge adopted his reasons in Beesley v Australian National Railways Commission for concluding that the decision in Benson v James Hardie & Co Pty Ltd was binding on him and determinative of the matter.
Bridgestone Australia Ltd appealed from that decision and the matter came before the Full Industrial Relations Court who stated a case to this Court.
The case stated is in the following form:
“1..... John Henry Hay (‘the Worker’) was employed by the Appellant between 1948 and 1953. During that time he was exposed to asbestos. After the employment with the Appellant ceased the Worker was not otherwise exposed to asbestos in employment. As a result of the exposure in the course of his employment by the Appellant he subsequently contracted mesothelioma. He first became totally or partially incapacitated by reason of his disease on 7 May 1994. He died as a result of the disease on 13 June 1996.
2.The Respondents lodged an application for compensation dated 27 May 1997 and the Appellant denied the Worker’s claim by way of an Answer dated 1 July 1997. A copy of the said Application is annexed hereto and marked ‘A’. A copy of the said Answer is annexed and marked ‘B’.
3...... The Application was heard by His Honour Judge Cawthorne on 16 March 1998.
4.At the hearing the Appellant did not dispute responsibility for the injury but disputed liability under the Workers Compensation Act 1971 (‘the 1971 Act’) and further under any other legislation. A copy of the transcript of evidence before Judge Cawthorne is annexed hereto and marked ‘C’. A copy of the Statement of Agreed Facts is annexed hereto and marked ‘D’.
5...... In a judgment dated 24 April, 1998 His Honour Judge Cawthorne held that the Appellant was liable pursuant to the 1971 Act. A copy of the Reasons for Decision published by Judge Cawthorne is annexed hereto and marked ‘E’.
6.Ronda Ann Wright and Phyllis Rene Hay are the legal personal representatives of the Worker and Executors of the Will of the Worker.
7...... The Appellant filed a Notice of Appeal dated 11 March 1998 asserting, inter alia, that the learned trial judge erred in law in:
(1)deciding that the Respondents were entitled to compensation pursuant to the provisions of the 1971 Act;
(2)the application of section 8(4) of the 1971 Act in the circumstances;
and
(3)the application of clause 2(1) of the Transitional Provisions of the Workers Rehabilitation and Compensation Act 1986 (First Schedule).
......... A copy of the said Notice of Appeal is annexed hereto and marked ‘F’.
8.The Full Court of the Industrial Relations Court considers that the said Appeal raises points of law of general importance as similar points arise in other actions currently before the Court. The Court notes also that the Appeal brings into question a previous decision of the Full Industrial Court, namely, Benson v James Hardie & Co Pty Ltd (1976) 43 SAIR (Part 2) 1120 which has been followed by this Court to this time. It has therefore formed the opinion that it is desirable, on the application of the Appellant, to reserve the following points of law for consideration of the Full Court of the Supreme Court pursuant to the provisions of section 48 of the 1971 Act and section 48(1)(d) of the Supreme Court Act.
9.(1) Did the Worker suffer an injury for which the Appellant is liable pursuant to the 1971 Act?
(2)Is the Worker’s date of injury to be fixed by application of section 8(4) of the 1971 Act?”
The facts in the two matters are essentially the same. In both matters the worker was exposed to asbestos for about five years in the 1940’s and early 1950’s and well before the enactment of the 1971 legislation. In both cases the worker developed mesothelioma but did not suffer any symptoms prior to the diagnosis of that disease until the early 1990’s, well after the repeal of the 1971 Act. In both cases the mesothelioma which the worker contracted was directly attributable to the exposure to asbestos in the course of their employment.
The first two questions in both cases are identical. There is a third question in Australian National Railways Commission v Beesley which needs to be separately addressed.

Remedial Legislation

I accept, of course, the proposition that Workers Compensation Legislation is remedial legislation and if there is any ambiguity in the legislation itself it ought to be construed beneficially. As Isaacs J said, in Bull v Attorney General (NSW) (1913) 17 CLR 370, speaking of remedial legislation apart from Workers Compensation Legislation:
“This means, of course, not that the true signification of the provision should be strained or exceeded but that it should be construed to as to give the fullest relief which the fair meaning of its language will allow.”
In Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 22 Wilson and Dawson JJ said:
“We come to this conclusion with reluctance, because of the anachronistice (sic) nature of the provision. Unfortunately, we are unable to discern any ambiguity in the Act such as would open the Act to the kind of beneficial construction that is appropriate to a statute dealing with workers’ compensation. This is not a case where there is an acknowledged right to compensation which is not to be denied or restricted because of difficulties in fitting the clauses relating to the computation of compensation to the circumstances of the case; see Nash v Sunshine Porcelain Potteries Ltd (1959) 101 CLR 353 at 361 and the cases there cited. Nor is it a case that attracts ‘the established principle that, where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred’ per Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335.”
Deane and Gaudron JJ referred to the dictum of Fullagar J in Wilson v Wilson’s Tile Works Pty Ltd in Bird v Commonwealth (1988) 165 CLR 1 at 9:
“Moreover, it is well to remember that employee’s compensation legislation, such as the Act and the regulations, is remedial in its character ‘and, like all such Acts, should be construed beneficially’: Bist v London & South Western Railway Co. The ‘established principle’ was correctly identified by Fullagar J in the course of his dissenting judgment in Wilson v Wilson’s Tile Works Pty Ltd:
......... ‘where two constructions of a Workers’ Compensation Act are possible that which is favourable to the worker should be preferred.’
If a person or a case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case: cf. Pearce, Statutory Interpretation in Australia, 2nd ed. (1981) pp 137-138.”
It seems to me on the authorities that the ordinary rules of statutory construction apply to this legislation. If, however, an ambiguity is demonstrated or, if the legislation is capable of two constructions one of which is favourable to the worker, then in either of those cases the legislation should be given a beneficial construction to the advantage of the worker.

The 1986 Act

The starting point in a determination of the principal issue in the two cases stated must be the 1986 Act. That is because s125 of the 1986 Act repealed the 1971 Act. Section 4 of the 1971 Act in turn repealed the 1932 Act. The 1971 Act, of course, will only have such operation as the 1986 Act now allows.
The 1986 Act only applies to a compensable disability which arises from employment after the enactment of the Act: Gilbarco v Victory (1989) 51 SASR 113; Catholic Church Endowment Society v Huntley (1996) 185 LSJS 105 and Workers Rehabilitation and Compensation Corporation v Commercial Motor Industries (1996) 185 LSJS 215.
What then of workers who suffered disabilities prior to 1986 arising out of their employment which would have been compensable under the 1971 Act; or workers who have suffered disabilities arising out of their employment in a series of events both before and after the enactment of the 1986 Act?
The Transitional Provisions of the 1986 Act are included in Schedule 1 of that Act. The Schedule forms part of the Act: s19 Acts Interpretation Act 1915.
Clause 2(1) of Schedule 1 provides:
“2(1)........ Subject to this clause, the repealed Act continues to apply in respect of a disability that is attributable to a trauma that occurred before the appointed day.”
The appointed day is the day of repeal of the 1971 Act.
Trauma is defined in the 1986 Act in the following terms:
“‘Trauma’ means an event, or series of events, out of which a compensable disability arises.”
Compensable disability is defined in s30 s(1) of the 1986 Act. Section 30 s(1) provides:
“Subject to this Act, a disability is compensable if it arises from employment.”
A trauma therefore is not the disability but is an event or series of events out of which the compensable disability arises.
There is a difficulty in applying the definition of trauma into the Schedule to the 1986 Act: United Yellow Cab Services Pty Ltd v WorkCover (1993) 60 SAIR 389; Workers Rehabilitation and Compensation Corporation vCommercial Motor Industries (1996) 185 LSJS 215. The difficulty is obvious.
A trauma means an event out of which a compensable disability arises. A compensable disability can only arise under the 1986 Act but cl 2(1) refers to traumas before the 1986 Act. I do not think that trauma in cl 2(1) can have the meaning that trauma is given in the definition section. I think cl 2(1) is using trauma in the sense of an event or events giving rise to an entitlement to workers compensation before the day of repeal of the 1971 Act. In other words I think trauma in cl 2(1) means an event or series of events out of which an entitlement to compensation arose prior to the appointed day, ie the repeal of the 1971 legislation.
I think that must be the correct construction because otherwise one would have thought Parliament would have used the expression “compensable disability” rather than “disability” in cl 2(1). In my opinion, Parliament has deliberately used the word “disability” to indicate a disability not being a compensable disability. Clause 2(1) only applies to workers who have suffered all of the events which gave rise to a disability before the appointed day in the 1986 Act, although the disability itself may not have arisen before that day.
That construction would be consistent with the intention of Parliament to make the 1986 Act applicable only to compensable disabilities arising from employment after the repeal of the 1971 Act.
Clause 2(2) of the Transitional Provisions deals with a disability that is partially attributable to a trauma before the day of repeal of the 1971 Act and partially attributable to a trauma after that date. It refers to antecedent rights which assumes that the trauma mentioned in that sub clause which occurred before the repeal of the 1971 Act must have given rise to an entitlement to compensation under the repealed 1971 Act, otherwise there would be no antecedent rights.
Clearly the cl 2(2) trauma cannot have the meaning in the definition because no-one could have accrued antecedent rights if trauma means an event or series of events out of which a compensable disability arises. A compensable disability can only arise after the appointed day.
Section 30 therefore, because it is expressed to be subject to the Act, is subject to the operation of cl 2(1) of the Transitional Provisions. For the reason already stated, the Schedule is part of the Act.
If therefore the disability is attributable to a trauma that occurred before the appointed day then the 1971 Act applies.
Clause 2(1) does not require, for the operation of the 1971 Act, that the trauma occur after the commencement of 1971 Act and before the day on which the 1971 Act was repealed by the 1986 Act. It merely requires that the trauma occur before the repeal of the 1986 Act.
I therefore respectfully disagree with Wicks J who, if he was free to do so, would limit the operation of cl 2(1) of the Transitional Provisions to a trauma which occurred during the time of the operation of the 1971 Act. Wicks J would hold that cl 2(1) cannot apply because the 1971 Act has been repealed and cannot therefore ‘continue to apply’. But with respect the 1971 Act itself does apply to injuries which occurred before the commencement of the Act [s6(1); s6(a); s6a; s69(8); s69(a); s74]. In my opinion once cl 2(1) is invoked the 1971 Act continues to apply to the extent it did before its repeal to an injury or disability which occurred before its commencement.
In my opinion the 1986 Act cannot apply in these matters for two reasons. First the 1986 Act is directed to a disability only if it arose from employment since the commencement of the 1986 legislation, ie after the repeal of the 1971 Act; Gilbarco v Victory (supra); Catholic Church Endowment Society v Huntley (supra) and Workers Rehabilitation and Compensation Corporation v Commercial Motor Industries (supra). Secondly, by reason of cl 2(1) the 1986 Act specifically provides that the 1971 Act shall continue to apply to any disability which is a consequence of trauma prior to the repeal of the 1971 Act.
I do not think that s113(1) of the 1986 Act can be invoked to construe the 1986 Act as applying to injuries suffered before the 1986 Act. That provides:
“A disability (not being noise induced hearing loss) that develops gradually or as a disease shall be deemed to have occurred when the worker first became totally or incapacitated for work by the disability.”
I do not think s113(1) is of any assistance in determining which Act applies. In Gilbarco v Victory (supra) White J said at 117 that s113 was an aid to an assessment and that if the disability is attributable to an old act trauma it is governed by the old Act. I agree that s113 is an aid to the assessment of compensation. It does not make a disability which did not arise from employment after the appointed day compensable under the 1986 Act.
In my opinion the 1986 Act is relevant only to take the inquiry back to the 1971 Act.
The 1971 Act continues to apply in respect of a disability that is attributable to a trauma before the repeal of the 1971 Act. The fact is that the 1971 Act in turn refers to injuries which occurred prior to its enactment. There is therefore, in my opinion, nothing out of the ordinary in allowing the 1971 Act to apply in circumstances whenever the trauma occurred prior to the repeal of the 1971 Act.

The 1971 Act

Having concluded that the 1986 Act does not apply an examination must be made of the 1971 Act to determine how it continues to apply.
For that further consideration it seems to me the 1986 Act must be ignored including the provision in the 1986 Act repealing the 1971 Act. In other words the further consideration should proceed upon the basis that the 1932 Act was repealed by the 1971 Act which continues to apply.
The 1986 Act is concerned with trauma and compensable disability. Under the 1986 Act the only trauma with which the Act is concerned is a trauma out of which a compensable disability arises. The disability is only compensable if it arises in employment (s30(1)).

The 1971 Act is concerned with injury and incapacity or disability. The right to compensation is given in s9 of the 1971 Act. That section provides:
“9.... If in any employment personal injury arising out of or in the course of employment is caused to a worker, his employer shall, except as provided in this Act, be liable to pay compensation in accordance with this Act.”
The amount of compensation is provided for in Part IV of the 1971 Act.
Whilst s9 provides for a liability to pay compensation for personal injury as described in s9 of the 1971 Act, the Act provides that compensation is payable by the employer in most cases only where there is both injury and incapacity and only in one case where there is simply injury.
Incapacity is used in the 1971 Act as it was in the 1932 Act in the sense of incapacity for work: s51 and s70 of the 1971 Act; s18 of the 1932 Act; Bratovich v Rheem (Australia) Pty Ltd (1971) 2 SASR 33 per Wells J at 49.
Weekly payments of compensation are payable during the period specified in s51 of the 1971 Act but the entitlement to weekly payment depends upon the worker having suffered injury which results in partial or total incapacity.
A worker is also entitled to reasonable expenses for medical services, hospital services, nursing services, constant attendance services, rehabilitation services, ambulance services and limited expenses for some property damage: (s59).
Section 59 expenses are apparently compensable without there being necessarily incapacity, but s59 however only applies where the worker is entitled to compensation under the other provisions of the 1971 Act. Therefore if a worker is entitled to weekly payments that worker is also entitled to s59 expenses. When the 1971 Act was first enacted it contained a saving provision (s59(6)) which was in like terms to s18a(6) of the 1932 Act. That subsection was repealed in 1982.
The liability to make weekly payments can be redeemed by payment of a lump sum on an application under s72 of the 1971 Act by either the worker or the employer, but such application has to be made by the worker during the period that the employer is liable to make weekly payments. The lump sum paid in redemption is in addition to any weekly payments already received (s72(1)). Section 59 expenses can also be redeemed under that same section.
However there can be no redemption of weekly payments without incapacity because there is no entitlement to weekly payments without incapacity.
Apart from a liability to make weekly payments and the further liability to a lump sum in redemption of future weekly payments an employer can also be liable to pay compensation for permanent injury under the schedule provided for in s69. Section 69 is the exception to the other provisions which provide for compensation, in that it does not require incapacity before compensation is payable under that section. For example the loss of a finger would be a permanent injury but may not give rise to any permanent incapacity, ie incapacity for work. Often the injury mentioned in the schedule would give rise to an incapacity for work but a resultant incapacity for work is not necessary for eligibility for compensation under s69.
Section 70 provides for compensation to be payable for any injury not mentioned in the schedule in s69 but only if the injury gives rise to either total or partial incapacity for work whether such incapacity is actual or potential.
Under the 1971 Act any disease, within the meaning of the definition of disease, and contracted in accordance with the definition of injury, which gives rise to an incapacity will attract payments of compensation. A worker incapacitated by a disease is entitled to weekly payments, s59 expenses, a redemption of weekly payments and a redemption of s59 expenses and a lump sum payment under s70 of the Act.
However, a disease without incapacity does not give rise to any right to compensation because the only injury which is compensable without incapacity is a s69 schedule injury and a disease is not one of the schedule injuries.
Therefore it is the case that a disease, as defined in the Act, is only compensable if it leads to incapacity for work.
It is for those reasons that these applicants sought compensation under s70 and s59 of the 1971 Act. Neither worker was employed at the time when their incapacity arose so neither could have been entitled to weekly payments. The only entitlement, apart from s59 expenses, to which they could have been entitled, is under s70 of the 1971 Act, if that Act applies.
Section 7 of the 1971 Act provides:
“7..... Except as expressly provided in this Act, the Act shall apply only to and in relation to a worker who has suffered an injury that occurred after the commencement of this Act.”
Injury is defined in s7(1):
“‘injury’ means any physical or mental injury and without limiting the generality of the foregoing includes:-
(a).... a disease contracted by the workman in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor;
and
(b)... the aggravation, acceleration, exacerbation, deterioration or recurrence, of any pre-existing injury or disease where the employment was a contributing factor to that aggravation, acceleration, exacerbation, deterioration or recurrence,
and for the purposes of this definition the employment of a workman shall be taken to include any journey, attendance or temporary absence referred to in subsection (2) of section 9 of this Act:”
Clearly enough injury includes a disease if the disease was contracted by the worker in the course of the worker’s employment or, if away from the worker’s employment, if the employment was a contributing factor. A disease also includes an aggravation acceleration exacerbation deterioration or recurrence of a pre-existing disease where the employment was a contributing factor. These matters are not concerned with the latter definition.
Disease is defined in s7(1):
“‘disease’ includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development and also includes aggravation, acceleration, exacerbation, deterioration or recurrence of such an ailment, disorder, defect or condition:”
The cases stated do not clearly indicate what mesothelioma is. In Australian National Railways v Beesley it is simply said that Mr Beesley developed mesothelioma. In Bridgestone Australia Ltd v Wright & Hay it is said that Mr Hay developed mesothelioma and “... became totally or partially incapacitated by reason of his disease ...”.
I will assume, because I do not think that anyone would suggest otherwise, that mesothelioma is a disease and indeed is a physical ailment or condition of sudden or gradual development and that it comes within the definition of “disease” in s7(1) of the 1971 Act.
In Australian National Railways v Beesley the case stated indicates:
“That condition arose solely out of the Worker’s exposure to asbestos during the course of his said employment with the Appellant.”
In Bridgestone Australia Ltd v Wright & Hay the case stated indicates:
“As a result of the exposure in the course of his employment by the appellant he subsequently contracted mesothelioma.”
In both cases the disease was contracted by both workers in the course of their employment, but the disease was not contracted in the course of their employment after the commencement of the 1971 Act.
Except as expressly provided for in the Act itself the 1971 Act applies to all injuries to workers after its commencement. The Act does expressly provide for compensation for pre Act injuries. Section 74 of the Act provides for compensation under the 1971 Act for noise induced hearing loss even where the injury causing the loss occurred prior to 1971, provided that the injury is not a prior injury within the meaning of s69(9). I shall not continue to refer to that exception which is not relevant.
A worker is entitled to compensation for an injury, where a disease, if it was contracted in the course of the worker’s employment after the enactment of the 1971 Act.
However subsections (4) and (5) of s8 provide:
“(4).. For the purposes of this Act, in the case of an injury that is a disease, that injury shall be deemed to have occurred on the day upon which the workman became totally or partially physically or mentally incapacitated by reason of that injury or when that day cannot be ascertained the day on which a legally qualified medical practitioner has certified that the workman was so incapacitated by reason of that injury but the day on which the injury occurred shall not be ascertained by reference to the day so certified where the Court is satisfied that the injury occurred before the commencement of this Act.
(5)Where the Court is satisfied that the injury referred to in subsection (4) of this section occurred before the commencement of this Act, the Court shall if it is material to do so, fix a day that in its opinion is the nearest day, that can be determined having regard to all the circumstances, to the day on which that injury occurred and the day so fixed shall be deemed to be the day on which that injury occurred.”
Section 8(4) deems the injury, not the incapacity, to have occurred on the day on which the worker became totally or partially incapacitated or, when that day cannot be ascertained, the day on which a legally qualified medical practitioner has certified that the worker is incapacitated by reason of the injury. Section 8(5) provides that where the Court is satisfied the injury occurred before the enactment of the 1971 Act then the Court shall, if it is material to do so, fix a day nearest the actual day on which the injury occurred. Again it is a day when the injury occurred, not the incapacity.
Section 8(4) allows the court to deem an injury to have occurred either on the day upon which the worker became incapacitated or, when that day cannot be ascertained, the day on which a medical practitioner has certified that the worker was incapacitated by reason of that injury. The certificate of a medical practitioner may only be used if the date cannot be determined, but the certificate cannot be used to ascertain the day of the injury if the court is satisfied that the injury occurred before the commencement of the Act. Subsection (4) of s8 cannot be considered in isolation from subsection (5) of s8. Subsection (5) of s8 applies where the court is satisfied that the injury referred to in subsection (4) occurred before the commencement of the Act.
Subsection (5) will arise for consideration where, because the court is satisfied that the injury occurred before the commencement of the Act and the certificate of a medical practitioner cannot be used to fix the day upon which the injury occurred. In that case whilst the incapacity might have arisen after the commencement of the 1971 Act, the court shall, if it is material to do so, fix the nearest actual day to the day upon which the injury occurred.
Neither limbs of subsection (4) can be used to deem the day on which the injury occurred if the court is satisfied that the injury occurred prior to the commencement of the 1971 Act. If so satisfied, the court must fix the nearest day to the day on which the injury occurred, which cannot be before the commencement of the 1971 Act, because by definition the court is at that point satisfied that the injury occurred before the commencement of the 1971 Act.
In my opinion, s8(4) does not operate to allow the Court to deem an injury to have occurred after the commencement of the 1971 Act, if the injury occurred before the 1971 Act. It would always be material, using the words of s8(5), to determine whether the injury occurred before or after the enactment of the 1971 Act. It would be material because the 1971 Act only applies to injuries which have occurred after the enactment of that Act.
Because of the provisions of both subsections (4) and (5), s8 is a section which allows the Court to deem a date to be the date upon which the injury occurred only if, in my opinion, the injury occurred after the commencement of the 1971 Act. That must be so, otherwise if the subsection allowed the court to deem an injury to have occurred after the commencement of the 1971 Act, when in truth the injury occurred before the commencement of the Act, the court might deem an injury to have occurred when the worker was not in employment. The result could be that the worker who was otherwise entitled to compensation under the 1932 Act, would become disentitled to those benefits because the injury was deemed to occur after the commencement of the 1971 Act. The worker might then also fail to obtain compensation because the worker was not then in employment.
Subsections (4) and (5) of s8 assume, as is the case in these matters, that a worker might suffer the injury (which is the disease) on an earlier date than the resultant incapacity. If, however, it does not matter in determining the entitlement to compensation or the assessment of it, the Court may deem the date upon which the incapacity is suffered to be the date upon which the injury (the disease) was contracted.
However, if the Court is satisfied that the injury, ie the disease, occurred before the commencement of the 1971 Act the Court cannot deem the injury to have occurred on the day on which the incapacity arose. Put shortly the Court cannot deem a pre 1971 disease to have occurred past 1971. To put it another way, once the Court has determined the injury occurred, or the disease was contracted, before the commencement of the 1971 Act, then s8(4) has no application to the claim for compensation, but s8(5) may have application.
That interpretation, in my opinion, is clear from reading the subsection itself. Section 8(5) reinforces that construction. If it is material, on a claim for compensation arising out of disease which in the opinion of the Court occurred before the enactment of the 1971 Act, to fix the day when the disease was contracted then the Court must fix the nearest day on the evidence when the disease was contracted. It would be material to fix that day when the date the injury occurred is relevant to the assessment of benefits payable under the 1932 Act. Section 8(5) assumes, in my opinion, that the 1971 Act does not apply to a disease contracted before that Act’s enactment.
Subsections (4) and (5) of s8 are not transitional provisions. They are simply aids to the assessment of compensation under whichever Act applies.
It is relevant to fix the date of the injury when satisfied that the injury occurred prior to the commencement of the 1971 Act to determine whether the transitional provisions of the 1971 Act apply and, if they do, which provisions of the 1932 Act apply.
If the injury occurred after the commencement of the 1971 Act then, of course, the 1971 Act applies and then s8(4) can be used for the purpose of deeming a particular date to be the date upon which the injury occurred. Either limb of s8(4) can be used to fix the date of injury but the first limb must be considered first.
If, on the other hand, the injury occurred before the commencement of the 1971 Act then that Act does not apply because the 1971 Act only applies to injuries that occurred after the commencement of the Act. Because an injury includes a disease contracted by the worker in the course of the worker’s employment and to which the employment was a contributing factor the 1971 Act applies to any qualifying disease which is contracted after the commencement of the 1971 Act. By definition the Act can only apply to a disease contracted in employment after the enactment of the 1971 Act.
It seems to me that the disease contracted by these workers cannot be an injury to which the 1971 Act applies. That is because the disease was not contracted in employment after the 1971 Act was enacted.
It is therefore necessary in every case to determine whether the injury (in this case a disease) occurred in employment before or after the enactment of the 1971 Act.
There are transitional provisions in the 1971 Act. Subsections (1) and (2) of s6 provide:
“(1).. All proceedings that had been commenced but had not been completed under the repealed Act immediately before the commencement of this Act shall be continued and completed in all respects (except as is expressly provided in this Act) as if this Act had not been enacted.
(2)All proceedings, including, but without limiting the generality of the expression, proceedings by way of recording a memorandum of agreement pursuant to the repealed Act, that could have been commenced under the repealed Act immediately before the commencement of this Act but had not been so commenced shall be commenced, continued and completed in all respects (except as is expressly provided by this Act) as if this Act had not been enacted.
There is nothing unusual about those subsections.
Because the 1971 Act only applies to injuries that occurred to a worker after the commencement of the 1971 Act, those who suffered compensable injuries within the meaning of the 1932 Act are entitled to have their accrued rights protected.
Section 6(1) allows those workers who had commenced their proceedings to continue and complete those proceedings.
Section 6(2) recognises another group of workers. They are those who could have commenced proceedings immediately before the commencement of the 1971 Act but who had not commenced proceedings. Those workers are entitled to commence, continue and complete those proceedings as if the 1971 Act had not been enacted.

The 1932 Act

The 1932 Act is like the 1971 Act. A disease is only compensable if it leads to incapacity. Weekly payments only arise if there is an incapacity (s18). A redemption of weekly payments can only arise if there is a liability to make weekly payments and a liability to make weekly payments only arises if there is an incapacity (s28).
Section 18a provides for compensation for medical expenses and other like expenses. It provides, like s59 of the 1971 Act, that these expenses become compensable if the workman is otherwise entitled to compensation. It has a saving provision in similar form to s59(6) of the 1971 Act, however that saving provision is not relevant in a consideration of these matters.
Section 26 provides a schedule, which does allow for compensation without incapacity but like the s69 schedule in the 1971 Act does not include a disease. There is no equivalent of s70 of the 1971 Act in the 1932 Act but, as already mentioned, s70 compensation under the 1971 Act is only payable if there is a total or partial incapacity.

The 1971 Transitional Provisions

Section 6(1) has no application in this case, of course, because no proceedings had been commenced prior to the commencement of the 1971 Act.
Prior to the commencement of the 1971 Act both workers did not know that they had, or were liable to contract, mesothelioma.
Neither worker had suffered any incapacity whatsoever as a result of their exposure to asbestos prior to the commencement of the 1971 Act.
Even if they had contracted the disease of mesothelioma prior to the commencement of the 1971 Act, they had no entitlement to any lump sum by way of workers compensation because a disease is not a Schedule injury under s26 of the 1932 Act. Nor would they have had any entitlement to weekly payments or a redemption of that liability to make weekly payments because at no time prior to the enactment of the 1971 Act had they suffered any incapacity.
In those circumstances, even if injury was caused to the workers, within the meaning of s6(2) of the 1971 Act before the commencement of the 1971 Act the workers could not have commenced proceedings under the 1932 Act at any time prior to the commencement of the 1971 Act. That is because they were not aware of any injury and had not suffered any disability at the time of commencement of the 1971 Act.
Because a disease is only compensable under the 1932 Act if it is productive of disability, s6(1) and s6(2) can only apply to a disease which has given rise to a disability at the time of the commencement of the 1971 Act. These workers could not have commenced proceedings for benefits under the repealed Act until after the commencement of the 1971 Act.

The scheme of the 1971 Act left a lacuna. Section 7 applied to all injuries after 1971. Section 6(1) and 6(2) applied to all injuries before 1971 which, at least in the case of a disease, had also been productive of a disability.
But what of the worker who had contracted a disease in the course of the worker’s employment before the commencement of the 1971 Act, but that disease had not at the time of the commencement of that Act produced any disability?
The worker could not come within subsections (1) or (2) of s6 because the worker had no entitlement to compensation prior to the commencement of the 1971 Act because the worker had not suffered any disability. The worker also had no right to compensation under the 1971 Act because the worker had not suffered an injury after the commencement of the Act. The injury, ie the disease had been contracted before the enactment of the 1971 Act.
Parliament recognised that lacuna and in 1973 enacted s6a:
“6a.... Where any injury was caused to a worker before the commencement of this Act and up to the time of that commencement proceedings under the repealed Act in relation to that injury could not have been commenced but on or after the commencement of this Act such proceedings could have been commenced, had this Act not been enacted, then this Act shall apply and have effect and be deemed always to have applied and had effect in all respects to and in relation to those proceedings as if they were proceedings that could have been commenced under the repealed Act immediately before the commencement of this Act.”
For s6a to apply there must have been an injury caused to the worker before the enactment of the 1971 Act. Moreover, as at 1971 no proceedings could have been maintained in relation to that injury but proceedings must have only become maintainable after the commencement of the 1971. In those circumstances, notwithstanding the provisions of s7, the 1971 Act will apply but only to the extent of applying the provisions of s6(2) of the 1971 Act, by deeming the proceedings as being proceedings that could have been commenced under the 1932 Act, immediately before the commencement of the 1971 Act.
Section 6a applies in the case of a disease, (or indeed an injury) which has been contracted in the course of employment during the currency of the 1932 Act but which was not productive of a disability before the commencement of the 1971 Act, but has given rise to a disability after the commencement of the 1971 Act. In those circumstances, s6a treats the proceedings which could be commenced as having been able to be commenced prior to the commencement of the 1971 Act.

Summary of the 1971 Act as it impacts on the 1932 Act

The 1971 Act applies only to injuries in employment after its commencement. If the injury is a disease it is necessary to determine when it was that the worker contracted the disease. If the worker contracted the disease after the commencement of the 1971 Act then the Court is entitled to deem the date upon which the worker contracted the disease, ie the injury, to be the date upon which the worker first suffered incapacity or a date certified by a legally qualified medical practitioner: s8(4).
If the worker contracted a disease which was productive of disability prior to the commencement of the 1971 Act, the 1971 Act does not apply because the worker would come within the provisions of either s6(1) or s6(2) of the 1971 Act. That is because the worker had or could have commenced proceedings before the commencement of the 1971 Act; ie the workers entitlement to compensation under the 1932 Act had crystallised before the repeal of that Act.
If, on the other hand, the worker contracted the disease prior to the commencement of the 1971 Act, but had not suffered a disability before that time, the worker can still bring himself or herself within the 1932 Act by establishing that the worker could not have commenced proceeding under the 1932 Act before 1971, but could have commenced proceedings under the 1932 Act after 1971, because the disability produced by the pre-1971 injury arose after the commencement of the 1971 Act.

The date upon which the workers contracted the disease

The first question to be determined in these cases is when it was that the workers contracted the disease of mesothelioma.
The difficulty that confronts this Court in a consideration of the questions asked in the cases stated is that the cases stated do not inform this Court when it was that the disease was contracted.
All this Court has been informed is that both workers were exposed to asbestos in the course of their employment and that the asbestos caused the onset of mesothelioma.
This Court has not been told whether the disease is of sudden or gradual development. If the disease is of sudden development then, as a matter of fact, it might be argued that the workers did not suffer injury until after the commencement of the 1971 Act. If, on the other hand, the disease is of gradual development and the gradual development commenced prior to the commencement of the 1971 Act, the workers will have suffered an injury before the commencement of the 1971 Act. If, on the other hand, the gradual development occurred after the commencement of the 1971 Act then clearly enough the workers did not suffer an injury until after its commencement.
Even if this Court was entitled to go beyond the cases stated and examine the evidence which was presented to the Court at least in one of the two cases stated the Court would receive no further assistance from the evidence.
In the matter of Bridgestone Australia Ltd v Wright & Hay the only evidence before the learned Trial Judge was a statement of agreed facts which addressed none of these matters.
In the matter of Australian National Railways v Beesley there was further evidence but, as I have already said, that evidence cannot be used, in my opinion, for the purpose of drawing inferences not stated in the case stated.
It would not be appropriate for the Court to infer facts for itself. Indeed in respect of the matter of Bridgestone Australia Ltd v Wright & Hay such an inference would be impossible. It would also not be appropriate for this Court to give hypothetical answers to cases stated in circumstances where the facts have not been found nor stated: Bass v Permanent Trustee (1999) 73 ALJR 522 at 531.
There is not sufficient information in the agreed facts to determine whether or not the workers contracted the disease of mesothilioma before or after the 1971 Act.
It may be, however, that the absence of such a finding does not matter.
In Australian National Railways Commission v Beesley, the learned trial judge found that the cause of Mr Beesley’s disease was the inhalation of asbestos fibres which lodged in the lung tissue and in due course moved through the lung tissue into the pleura. After a considerable period of time the worker developed mesothelioma.
It would have been better if that finding had been recognised in the case stated but I suppose that the trial judge’s reasons are, by reason of paragraph 5, part of that case stated. In any event, I think it is a fact entirely beyond argument that mesothelioma can be contracted by exposure to asbestos, but more particularly by the inhalation of asbestos fibres.
If the disease was contracted prior to the commencement of the 1971 Act and even if the disability did not arise until after the repeal of the 1932 Act then the workers’ claim for compensation will be governed by the 1932 Act. That is so because, whilst the workers could not have brought proceedings under the 1932 Act prior to 1971, they could have brought proceedings under that Act after 1971: [s6a of the 1971 Act]. The 1971 Act applies to the limited extent of its transitional provisions.
If, on the other hand, the worker contracted the disease after 1971, ie the injury was suffered after that time then, in my opinion, the workers have no entitlement to any compensation under any Act. Clearly in that case the workers could not come within the 1932 Act. Nor would they be entitled to compensation under the 1971 Act because they did not suffer an injury after the commencement of the 1971 Act, in that they did not contract a disease in the course of employment after the commencement of the 1971 Act. The 1971 Act is like the 1986 Act. It only applies to injuries in employment after its enactment. Nor also for the same reason would they be entitled to compensation under the 1986 Act.
In my opinion these workers are either entitled to compensation under the 1932 Act or not at all. These workers are only entitled to compensation under the 1932 Act and then only if they came within s6a of the 1971 Act.
The question is whether, absent the findings to which I have referred, this Court can determine that the workers are entitled to benefits under that Act.

The workers’ entitlement under the 1932 Act

Part IX of the 1932 Act applies to Industrial Diseases.
In its original form s82 of the Act provided:
“82. Where -
I.any certifying medical practitioner certifies that a workman is suffering from a disease mentioned in the second schedule and is thereby disabled from earning full wages at the work at which he was employed; or
II.the death of a workman is caused by any such disease,
......... and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the date of the disablement, whether under one or more employers, the workman or his dependants shall be entitled to compensation under this Act as if the disease were a personal injury by accident arising out of and in the course of that employment, subject to the following modifications:-
(a)the disablement shall be treated as the happening of the accident:
(b)if it is proved that the workman at the time of entering the employment wilfully and falsely represented himself in writing as not having previously suffered from the disease, compensation shall not be payable:
(c)the compensation shall be recoverable from the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due.”
Section 82 only applied to diseases in the second schedule and then only to workers who were disabled from earning full wages at work. It also only applied in circumstances where the disease in the second schedule was due to the nature of any employment in which the worker was employed at any time within the twelve months prior to the date of disablement.
If those matters were satisfied then the section deemed the disease to be a personal injury by accident arising out of and in the course of employment. The section also treated the disability as the happening of the event.
However, whilst s82 provides for compensation for persons suffering a disease, other factors apart from the disease itself must be established. It must be a second schedule disease. The worker must also be suffering a disability before s82 operates and indeed a disability from earning full wages. Moreover, the disease must be due to the nature of the employment in the twelve months prior to the date of disablement. All of these matters must be present before the worker is entitled to compensation as if the disease were a personal injury by accident arising out of and in the course of employment.
Whilst in these cases the workers might have contracted their disease during the period of employment they could not bring themselves within s82 because the disease was not a disease mentioned in the schedule. Nor had it given rise to a disability before the commencement of the 1971 Act. Therefore s6(2) could not apply. These workers could also not come within s6a because they could never bring their disease within the second schedule. Further more, because the disability did not arise until the 1990’s, the disease was not due to the nature of the employment in which the worker was employed at any time within the twelve months prior to the date of disablement.
Because of the long time between exposure to asbestos and the development of the disability consequent on the development of mesothelioma these workers could never be entitled to compensation under s82 of the 1932 Act.
Section 82 was amended in 1956 by the Workmens Compensation Act Amendment Act 1956. Section 6 of the amending Act provided:
“6. Section 82 of the principal Act is amended -
(a)by striking out the words “mentioned in the second schedule” in the third and fourth lines thereof; and
(b)by adding at the end thereof the following passage:
......... For the purpose of this Part a disease shall not be regarded as being due to the nature of the employment in which a workman was employed, unless it was caused by the nature of the work which he was employed to do.”
That amendment opened up the provisions of s82 to all diseases subject to the qualifications in the original section and the amendment itself.
However the 1956 amendment did not apply to injury or death caused by an accident unless it occurred after the commencement of the 1956 amending Act. (s7 Workers Compensation Act Amendment Act 1956).
The amendment therefore would not assist these workers in bringing themselves within the provisions of s82 of the 1932 Act.
Even if it did apply to these workers they would still not come within the terms of s82 because they could not establish that the disease was due to the nature of employment in which they were employed at any time within the twelve months prior to the date of their disablement.
There was a later amendment to s82 to delete the expression ‘by accident’ after the word injury but that amendment does not affect this aspect of these reasons. (Workmens Compensation Act Amendment Act, 1965)
It therefore does not matter that no finding was made that the disease was contracted before the commencement of the 1971 Act. If it was it will not give rise to an entitlement to compensation under the 1932 Act. It does not matter therefore whether the disease was contracted before or after the commencement of the 1971 Act or was of sudden or gradual development because the disease is not compensable under any Act.
However, there is another relevant section in that Part of the 1932 Act.
Section 94 provides:
“This Part shall not be construed as limiting or affecting the right of a workman to recover compensation under the Act otherwise than in accordance with this Part.”
That section allows a worker who is suffering a disease which is not compensable under Part IX of the Act to claim that disease is in itself a personal injury.
That requires an examination of whether a disease could ever itself be an injury.
In my opinion the workers in these cases can bring themselves within s4 of the 1932 Act. That section provides:
“4..... If in any employment personal injury arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with this Act.”
A similar but not identical provision was considered by the High Court in Favelle Mort Ltd v Murray (1976) 133 CLR 580.
In that case “injury” was defined in the New South Wales Act thus:
“‘Injury’ means personal injury arising out of or in the course of employment, and includes -
a)a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor.”
In that case the worker contracted meningo-encephalitis at his place of employment but was not able to establish before the Workers Compensation Commission that the employment was a contributing factor.
He appealed from that decision to the Supreme Court of New South Wales which allowed the appeal finding that the employment was a contributing factor to the contraction of the disease. It sent the matter back to the Commission to make an award in accordance with its judgment.
The employer appealed from that decision to the High Court seeking the restoration of the award of the Chairman of the Workers Compensation Commission.
In the High Court the respondent worker argued, for the first time, that it was not necessary to determine whether the employment contributed to the contraction of the disease because the respondent had suffered an injury in the ordinary sense of the word.
Meningo-encephalitis is neither idiopathic nor autogenous. Like mesothelioma it is the result of an introduction of foreign matter into a person’s body.
The High Court held that a disease may be an externally caused injury within the ordinary meaning of the word if in fact it is neither idiopathic nor autogenous if the disease is caused by “an external excitement initiating a morbid condition of the body”.
Barwick CJ said at 587:
“The word ‘disease’ is itself a word of some difficulty in this context, particularly in the expression ‘contraction of a disease’. Properly used, disease denotes a morbid condition of the body. It may be initiated by some external cause or be idiopathic or autogenous. Quite clearly, when such a condition is idiopathic or autogenous, it will not qualify as an injury in the normal use of the language. The actual decision in Slazengers (Australia) Pty Ltd v Burnett was an affirmation of precisely that proposition, though the reasons given for it were not those I may venture to suggest. Such a disease is not ‘received’ to use the language of the Act, it may be contracted in the sense of becoming manifest or being commenced as a morbid condition of the body.”
He went on to say at 589:
“But if the contraction of a disease by external cause or excitement is within the connotation of the word ‘injury’ in legislation of this kind, an extensive paragraph such as par (a) is not required by any rule of construction to be read as exclusive or some part of the ordinary connotation of the word whose connotation is being extended by inclusive words. The first question in construction, therefore, in relation to the matter presently in hand, is whether the word ‘injury’ in its ordinary sense would include the reception of a force or influence external to the body which, being received, initiates a morbid condition of the body and thus starts a disease. If it does, I am unable to perceive any reason, either in rules of construction or in point of policy evidenced in workers compensation legislation, why the addition of paragraph (a) of the definition should be held to operate to exclude such ‘injuries’. It would not, in my opinion, sort well with the known policy of workers’ compensation legislation to read words of extension as affecting a restriction of the area of benefit.”
McTiernan J and Jacobs J were of the same opinion.
Mason J (with whom Stephens J agreed) held that the worker had not suffered an injury. He held that the extended definition of injury in the New South Wales Act which included a disease precluded such a finding. He, however, would have held that the worker had suffered an injury if there had been no extended definition to include disease. In my opinion, if the New South Wales Act had been in the same form as the 1932 South Australian Act then both Mason J and Stephens J would have reached the same result as the majority.
In my opinion, in these case, these workers can say that the disease which they contracted, mesothelioma, was neither idiopathic nor autogenous. It was a disease which was excited by the inhalation of asbestos fibres.
In these cases, these workers suffered a personal injury.
However, it was not an injury which had given rise to a disability at the time of the enactment of the 1971 Act. It was, therefore, not an injury for which proceedings could have been commenced under s6(2) of the 1971 Act.
However, the injury gave rise to a disability after the commencement of the 1971 Act. It seems to me, therefore, that these workers come within the provisions of s6a of the 1971 Act. Having brought themselves within the provisions of s6a they are entitled to have their compensation assessed under the 1932 Act which by reason of s6(2) must apply.

In my opinion, it would not be appropriate to uphold this decision in circumstances where this Court believed the decision to be wrong for those reasons. The decision is one of an inferior court in this State. It is, in my opinion, plainly wrong. The Court has misconstrued a statute which, in my opinion, is unambiguous. In doing so it has ignored the intention of the legislature to have the 1971 Act apply only to injuries occurring in the course of employment after its enactment.
In Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 22 Wilson and Dawson JJ said:
“This Court is reluctant to depart from long-standing decisions of State courts and upon the construction of State statutes if the meaning is doubtful, particularly where those decisions have been acted on in such a way as to affect rights and obligations: Platz v Osborne (1943) 68 CLR 133 at 137 per Latham CJ; see also, in relation to the interpretation of a will, Blair v Curran (1939) 62 CLR 464 at pages 495, 531. However even according judicial status to the decision of the Board in Little and assuming that it has stood for a sufficient length of time, it is a single decision of one tribunal which the Full Court of the relevant State has declined to follow. It cannot, in any event, justify a departure from the plain meaning of the provisions in question. In Hanau v Ehrlich [1912] AC 39 at 41, which was a case in which there was a chain of authorities since 1829, Earl Loreburn LC said:
......... ‘If you look at the words of the statute without any previous guidance at all, to my mind either construction contended for is possible as a matter of language and pure interpretation of the meaning of language. But I agree with Vaughan Williams LJ that it is not right for even this house to reopen points of construction upon ambiguous language which had been settled for a long period of years; and I advise your Lordships to decide this case upon that ground. To my mind, when doubtful words in a statute have for a long period been decided in a particular sense we ought not to open the matter if we can help it. The doctrine “Interest reipublicae ut sit finis litium” ought in such a case to apply.’
Other maxims - stare decisis and communis error facit jus - have been called in aid of this approach; Craies on Statute Law, 7th ed (1971), p 154. But one thing about it is clear. It has no application where the meaning of a statute is plain and free from ambiguity; see West Ham Union vEdmonton Union [1908] AC 1 at 4, Morgan v Crawshay (1871) LR 5 HL.304; Hamilton v Baker (1889) 14 App Cas 209 and Emmerson v Maddison [1906] AC 569. If it were otherwise, it would be an invitation to perpetuate an obvious misconstruction of a statute and to disregard the evident intention of the legislature. No line of authority, however longstanding, could justify such a course.”
There is no reason, in this case to perpetuate the error by upholding a decision which, in my opinion, is plainly wrong. In my opinion, the construction given by the Full Industrial Court to s8(4) and s8(5) of the 1971 Act is contrary to the scheme of the 1971 enactment. It is also inferentially contrary to the scheme of the 1986 Act which like the 1971 Act is designed only to apply to injuries which occur after the appointed day.
It would be misleading to allow a decision such as this to stand and perhaps to be used by way of analogy as an aid to construction of the 1986 Act.
In my opinion, this Court has a duty to pronounce the decision wrong and overrule it.

The Questions

In the first of these cases stated; Australian National Railways v Beesley the Full Industrial Court sought answers to three questions:
1...... Did the respondent suffer an injury for which the appellant is liable pursuant to the 1971 Act.
2...... Is the worker’s date of injury to be fixed by application of s8(4) of the 1971 Act.
3...... If yes to paragraph 1 and 2 hereof, is there appealable error in deeming the injury occurred on 23 April 1996.
In the second of these cases stated, Bridgestone Australia Ltd v Wright & Hay the Full Industrial Court asked the questions:
1.Did the worker suffer an injury for which the appellant is liable pursuant to the 1971 Act.

2.Is the worker’s date of injury to be fixed by application of s8(4) of the 1971 Act.

Before addressing those questions directly I should say something about the third question in the case stated in Australian National Railways v Beesley.
I do not believe that the third question should be answered. The jurisdiction to hear appeals only on questions of law is given to the Full Bench of the Workers Compensation Tribunal. This Court has no jurisdiction to hear appeals either from single presidential members of the Workers Compensation Tribunal or from the Full Bench.
This Court only has jurisdiction to hear a case stated by the Full Bench of the Tribunal. As I have already explained this Court cannot go outside the facts stated in the case for the purpose of determining the question of law in the case stated.
To ask the Court whether the decision of the single presidential member discloses appealable error is tantamount to asking this Court to exercise the jurisdiction of the Full Bench to hear the appeal to that Full Bench.
That, it seems to me, is not the purpose of a case stated. A case stated must seek opinions on questions of law not whether the decision which has been appealed from discloses appealable error.
I would refuse to answer question 3. In the end that does not matter much because the answers to questions 1 and 2 will decide the fate of the appeal to the Full Bench.
I shall, of course, answer these questions directly. In answering the questions it must be understood that I am of the opinion that the 1986 Act applies but only for the purpose of directing the inquiry to the 1971 Act. The workers suffered their injuries within the meaning of s4 of the 1932 Act during the time that Act applied because the disease which they subsequently contracted was not idiopathic or autogenous. The workers, subsequent to the commencement of the 1971 Act became incapacitated and when that occurred they came within the provisions of s6a of the 1971 Act. That meant that s6(2) of the 1971 Act applied and these claims for compensation are governed by the 1932 Act.
In the light of that reasoning I would therefore answer the questions in the matter of Australian National Railways Commission v Beesley:
1.      No.
2.      No.
3.      Refuse to answer.

In the matter of Bridgestone Australia Ltd v Wright & Hay I would answer the questions:
1. No.
2. No.

WICKS J

Australian National Railways Commission v Beesley

In this matter, the Full Court of the Industrial Relations Court of South Australia stated a case for the consideration of this Court pursuant to s48 of the Workers Compensation Act 1971 and s48 of the Supreme Court Act 1935 in which three questions were asked:
Did the respondent (Beesley) suffer an injury for which the appellant (Australian National Railways Commission) is liable pursuant to the Workers Compensation Act 1971?

Is the worker’s date of injury to be fixed by application of s8(4) of that Act?

If yes to paragraphs (1) and (2) hereof, is there appealable error in deeming the injury occurring on 23 April 1996?

Thomas Herbert Beesley (“the worker”) was employed by the appellant between 1944 and 1950. He was exposed to asbestos during the whole of that employment. After the employment with the appellant ceased, the worker was not otherwise exposed to asbestos in employment. He developed mesothelioma. The condition arose solely out of his exposure to asbestos during the course of his employment with the appellant.
The worker lodged an application for compensation dated 2 September 1997. The application was heard by a judge of the Industrial Relations Court. At the hearing, the appellant did not dispute responsibility for the injury but disputed liability under the Workers Compensation Act 1971 (“the 1971 Act”) and argued that such liability as may occur was subject to the Workmen’s Compensation Act 1932 (“the 1932 Act”). No Mention was made of the Workers Rehabilitation and Compensation Act 1986 (“the l986 Act”).
The judge at first instance found that the worker had suffered a total incapacity since 1996. He also found that the worker was symptom free until early 1995. However, after that time his symptoms worsened and he consulted various medical practitioners in connection with his condition. The judge at first instance found that a formal diagnosis of mesothelioma had been made on 23 April 1996. He found that at the time of giving evidence in November 1997, the worker “was grossly debilitated and in my view totally incapacitated for work”.
The worker died on 4 March 1998. He appointed Valma Maureen Beesley as his legal personal representative.
The first question for consideration is whether the general provisions of the 1986 Act have any application to this case. If they do, then consideration would need to be given to the application of the transitional provisions. Under s30 of the 1986 Act, a disability is compensable if it arises out of employment. For the purposes of the Act, a disability is intended to include a disease. Section 30 of the Act is augmented by subs113(1) which provides as follows:
"A disability (not being noise induced hearing loss) that develops gradually or is a disease shall be deemed to have occurred when the worker first becomes totally or a partially incapacitated for work by the disability."

The worker in this case suffered an injury sometime between 1944 and 1950 by the ingestion of asbestos fibre particles. That injury in itself was minimal and the worker was unaware of its existence. If the worker had a claim for compensation in respect of that injury in its primary or natural meaning, the time to make such a claim in respect of that injury has long since passed.
The evidence of Dr K M Latimer in respect of the disease of mesothelioma which the worker subsequently contracted as a result of the ingestion of asbestos particles is of importance. The Court’s attention was drawn to it in the course of argument by Mr Quick QC without objection by any other party. In the circumstances I propose to take it that the evidence of Dr Latimer is accepted as part of the Case Stated. The evidence in question was as follows:
"Q...... Now, the fibres having become lodged in the lung, are you then able to explain what occurs over a period of time to the court.
A...... No. I would not choose to propose that I have an explanation biologically for what is the initiating process that changes the exposure into an illness that is pathologically expressed in mesothelioma. I don’t know if that evidence actually exists.
Q...... It doesn’t happen in all cases of people who are exposed, does it.
A...... No. No, it probably doesn’t.
Q...... But are you able to say that something is going on inside the body between say 1950 and 1995 when the symptoms first manifest themselves.
A...... No, I don’t - I still don’t recognise that there is knowledge that says what’s the initiating trigger that will take the circumstance and activates the disease process. Lots of things have been looked at in terms of the immunological changes, but I don’t think it can again explain what happens to an individual that is different in 1995 to what was the setting in 1994, for Mr Beesley, yes."

On the evidence of Dr Latimer, it would appear that the disability arising from the disease of mesothelioma is a separate and distinct disability from that which arose from the ingestion of asbestos fibres. The disease does not begin immediately on the ingestion of the fibres. It is not known how the disease is activated but the fact remains that sometime between 1944 and 1995, the disease had begun. As a matter of evidence, it would appear to be impossible to pinpoint the onslaught of the disease any earlier than 1995. Applying s30 and s113, the disease was a disability within the meaning of s30 of the 1986 Act and therefore compensable under that Act. This proposition is, however, subject to the operation of the transitional provisions contained in Schedule 1.
I now turn now to consider the operation of subcl2(1) of Schedule 1, the only transitional provision which is relevant to the present case. Section 30 of that Act is prefaced with the words “Subject to this Act” and is therefore subject to the operation of subcl2(1) of the transitional provisions. That subclause provides as follows:
"Subject to this clause, the repealed Act continues to apply in respect of a disability that is attributable to a trauma that occurred before the appointed day."

“Trauma” is specifically defined in the 1986 Act as an event or series of events out of which a compensable disability arises. For this purpose, “trauma” would include the ingestion of asbestos fibres, the root cause of the disease, mesothelioma. Subclause 2(1) of the transitional provisions provides that the 1971 Act continues to apply in the circumstances mentioned. Having regard to the words in italics, if not constrained otherwise by authority of this Court, I would have held that the subclause had application only to a case where the trauma occurred during the continuance of the 1971 Act. If it did not occur during the continuance of that Act, it could not continue to apply after its repeal. An existing state of affairs is continuing despite the repeal. If left to my own devices I would hold that subcl2(1) is inapplicable in the present case. The trauma occurred between 1944 and 1950 but not after that time. In other words, it occurred before the commencement of the 1971 Act and not during the operation of the 1971 Act as the subclause requires. To follow my argument, particular emphasis must be given to the passage “continues to apply” in subcl2(1).

The 1971 Act and its predecessor, the Workmen’s Compensation Act 1932 are repealed and have no life at this stage for any purpose except to the extent that their operation is maintained in force by the 1986 Act - or in the case of the 1932 Act - the joint operation of the 1986 and 1971 Acts. If left to my own devices I would hold that the 1986 Act is applicable, that the transitional provisions contained in the 1986 Act have no application to this case and that the 1971 Act and the 1932 Act have no application either.
However, I am bound by the decision of this Court in Catholic Church Endowment Society v Huntley (1996) 185 LSJS 105, a case having facts similar to those in the case presently before the Court. In turn, that case followed Gilbarco Australia Limited v Victory (1989) 51 SASR 113. The Gilbarco case, involved noise-induced hearing loss and is distinguishable on that account from the case at bar. However, the reasoning in that case was taken up and adopted by the Court in Catholic Church Endowment Society v Huntley (supra). In referring to the transitional provisions contained in subcl2(1) of the Schedule to the 1986 Act, White J in Gilbarco observed at p117:
"In the case of a transitional disability that straddles both sides of the appointed day [the date of repeal of the 1971 Act and commencement of the 1986 Act], the extent of subrogation depends upon the extent to which such transitional disability is attributable to trauma that occurred before the appointed day. It is the trauma that occurs before the appointed day which is the relevant criterion, the appointed day being the changeover date of operation from the 1971 Act to the 1986 Act. If the disability is attributable to pre-appointed day trauma then it is governed by the 1971 Act. "

This leads to the conclusion that if the trauma in question occurred before 30 September 1987, irrespective of whether the trauma occurred during the currency of the 1971 Act or before its commencement, the transitional provision in subcl2(1) of the Schedule to the 1986 Act applies to the case. The operative provisions of the 1971 Act, and particularly s7 and s8, would be applicable.
The next question is whether the transitional provisions in the 1971 Act also have any application to the present case. Subsection 6(1) of the 1971 Act has application only to proceedings which have been commenced under the 1932 Act but have not been concluded on the commencement of the 1971 Act. Proceedings of that kind are not involved here. Subsection 6(1) has no application to the present case.
Subsection 6(2) of the 1971 Act is applicable to proceedings that could have been commenced under the 1932 Act immediately before the commencement of the 1971 Act but were not so commenced. Proceedings of that kind are not involved here.
Section 6a of the 1971 Act is applicable where an injury is caused to a worker before the commencement of the 1971 Act and up to the time of commencement of that Act, proceedings under the 1932 Act in relation to the injury could not have been commenced, but after the commencement of the 1971 Act such proceedings could have been commenced if the 1971 Act had not been enacted, then the matter is to be dealt with under the 1932 Act. Section 6a has no application in the present case because the injury in question did not occur before the commencement of the 1971 Act.
It follows that the substantive provisions of the 1971 Act are applicable. In particular, s7 and subs8(4) are applicable. So far as material, s7 provides that the 1971 Act applies to a worker who has suffered an injury that occurred after the commencement of that Act. The section is, however, prefaced by the words “except as expressly provided in this Act”. In the present case, its operation would be expressly subject to the transitional provisions to which I have already referred in s6 and s6a. As I have already indicated, these provisions are inapplicable in the present case.
So far as material, subs8(4) provides that in case of an injury that is a disease, the injury is deemed to have occurred on the day on which the worker became totally or partially incapacitated by reason of the injury. In the present case, the worker became incapacitated not before early 1995 and probably in 1996. Judge Cawthorne, the judge at first instance, found that the worker was grossly debilitated and totally incapable for work in November 1997.
I would answer the first two questions contained in the case stated as follows:
Question (1): Yes

Question (2): Yes

I would refuse to answer question No 3 for the reasons given by Lander J which I respectfully adopt.

Bridgestone Australia Limited v Wright and Hay

John Henry Hay (“the worker”) was employed by the appellant between 1948 and 1953. During that time he was exposed to asbestos. After the employment with the appellant ceased, the worker was not otherwise exposed to asbestos in employment. As a result of the exposure in the course of his employment by the appellant he subsequently contracted mesothelioma. He became totally or partially incapacitated by reason of his disease on 7 May 1994. He died as a result of the disease on 13 June 1996.
Rhonda Ann Wright and Phyllis Rene Hay (the respondents), as legal personal representatives of the worker, lodged an application for compensation dated 27 May 1997.
The application was heard by a judge of the court on 16 March 1998. At the hearing, the appellant did not dispute responsibility for the injury but disputed liability under the 1971 Act and further under any other legislation. In a judgment dated 24 April 1998, the trial judge held that the appellant was liable pursuant to the 1971 Act.
The appellant filed a notice of appeal dated 11 March 1998.
The Full Court of the Industrial Relations Court stated a case for the consideration of this Court pursuant to s48 of the 1971 Act and s48 of the Supreme Court Act 1935. The questions asked in the case stated were as follows:
Did the worker suffer an injury for which the appellant is liable pursuant to the Workers Compensation Act 1971?

Is the worker’s date of injury to be fixed by application of s8(4) of that Act?

This matter involves identical issues to those canvassed in the matter of Australian National Railways Commission v Beesley. In this case, the worker is to be regarded as totally or partially incapacitated by reason of his disease on 7 May 1994.
In this matter, I would answer the questions put in the case stated as follows:
Question (1): Yes.

Question (2): Yes

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1976) 43 SAIR 1120

(1976) 133 CLR 580
(1984) 37 SASR 331
(1984) 32 SASR 331 at 336
(1976) 133 CLR 580
(1976) 43 SAIR 1120
See Babaniris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 13, 22-23, 27-32
(1988) 165 CLR 1 at 9
[1907] AC 209 at 211
(1960) 104 CLR 328 at 335
11 2nd ed (1981) pp137-138
12 [1911] AC 35
13 [1911] AC at 46

[1999] SASC 170

17 June 1999