Bosnyak v Wroblewski

[1974] HCA 45

HIGH COURT OF AUSTRALIA

Barwick C.J., Menzies, Gibbs, Stephen and Mason JJ.

BOSNYAK v. WROBLEWSKI

(1974) 132 CLR 122

4 November 1974

Workers' Compensation (W.A.)

Workers' Compensation (W.A.)—Death—Amount of compensation—Claim by one of two dependent children—Damages recovered by widow on behalf of herself and the other dependent child in action under Lord Campbell's Act—Whether claimant child entitled to award of lump sum in addition to weekly payments—Workers' Compensation Act, 1912-1970 (W.A.) 1st sch., cl. 1(a) (i)*. * The 1st sch. of the Workers' Compensation Act, 1912-1970 (W.A.) provides as follows: "1. The amount of compensation under this Act shall be—(a) where death results from the injury—(i) if the worker leaves any dependants solely dependent upon his earnings—(I) in respect of all those dependants, if any, who are not of the kind referred to in item (II) or (III) of this subparagraph the sum of $10,881, less the amount of any weekly payments for the injury under this Act and less the amount of any lump sum paid in redemption thereof; (II) in respect of each of those dependants, if any, who is a child or step-child, under the age of 16 years, the sum of $3.50 weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed until the child attains that age; (III) in respect of each of those dependants, if any, who is a full time student child, or step-child, and has attained the age of 16 years but is under the age of 21 years, the sum of $3.50 weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed, until the child attains the age of 21 years or ceases to be a full time student, whichever is the sooner, but if a worker dies leaving a widow or mother wholly dependent upon his earnings or a dependant of the kind referred to in item (II) or (III) of this subparagraph wholly dependent on his earnings the minimum amount payable under this sub-paragraph shall be $2,537;..."

Decisions

November 4.
The following written judgments were delivered:-
BARWICK C.J. The respondent in this appeal brought an application under the Workers' Compensation Act, 1912-1970 (W.A.) (the Act) against the appellants, his deceased father's employer, for an award of compensation. The respondent's claim is that he is entitled to an award against the employer for a sum of $11,906 as well as for a weekly sum of $3.50 payable until he is of the age of sixteen years. (at p125)

2. The background to the respondent's claim is that his father died as a result of a compensable injury, leaving as his dependants his widow and two children of whom the respondent was one. The widow brought proceedings under the Fatal Accidents Act, 1959 (W.A.). She brought that action only on behalf of herself and her daughter and recovered a verdict for an amount of $18,980 for herself and $2,750 for her daughter. The action was not brought on behalf of the respondent. In London Brick Co. Ltd. v. Robinson (1943) AC 341 , the House of Lords decided, upon a form of workers' compensation legislation which, as will appear from what I have to say, was in my opinion radically different to that under which the respondent's claim has to be considered, that an applicant for compensation in the situation of the respondent was entitled to an award of both the lump sum payable upon the death of his parent and the weekly sum during his continuing dependency. It is around the question of whether the provisions of the Act are so significantly different from the earlier form of the workers' compensation legislation that the dispute in these proceedings arises. The majority of the Full Court thought that there has been no significant change in the basic concepts of the workers' compensation legislation of Western Australia by amendments which were effected by the Workers' Compensation Amending Act No.18 of 1970, to which assent was given on 8th May of that year. It will therefore be important to contrast the pre-amendment and the post-amendment situation in the relevant parts of the workers' compensation legislation. (at p125)

3. Before doing so, however, it should be observed that under the Act a fund called the Workers' Compensation Board Fund is established (s. 27). Into this fund any amount payable by an employer or his insurer under certain paragraphs of the 1st sch. to the Act are, in my opinion, to be paid. Clause 1A of the 1st sch. provides for such moneys to be paid into the custody of the board. But this means, in my opinion, into the fund which is under the control of the board. (at p125)

4. Section 7 of the Act provides that where a worker suffers a compensable injury the employer shall be liable to pay compensation in accordance with the 1st sch. of the Act. By s. 5, the legal personal representative, his dependants and any other person to whom or for whose benefit compensation is payable are included in the case of a deceased worker in the word "worker". (at p125)

5. The relevant amendment made by Act No. 18 of 1970 was to the 1st sch. I shall need later to reproduce the 1st sch. as it was before that amendment and that schedule as it stood after that amendment. (at p126)

6. The scheme of the Act, so far as presently relevant, is not expressly to create rights of action in the worker or his dependants but to place a liability upon the employer to pay compensation in the event of the receipt of compensable injury. The employer's obligation extended to the worker and where appropriate to each of his dependants. Thus, in the case of death by reason of a compensable injury, the widow and any dependent child could claim on the employer for the entire compensation for which he was liable in the circumstances. But the lump sum payable on death could only be awarded once. (at p126)

7. The Act does not preclude a worker or his dependants from taking proceedings independently of the Act for the recovery of damages, including such recovery from the employer (s. 7(8)): nor expressly provide that an employer shall not be liable both for compensation and damages. But after judgment for damages in any proceedings therefor, the worker or that one or those of his dependants who receives the full amount of a judgment for damages may not commence or continue proceedings for compensation under the Act in respect of the same injury (s. 7(13)). Any amount received by a worker or a dependant under a judgment for damages is to be deducted from the sum recoverable by the worker or that dependant under the Act. (at p126)

8. The Fatal Accidents Act permits only one claim to be made thereunder, and that claim is to be made on behalf of those dependants who are nominated as persons on whose behalf the action is brought (s. 7 and s. 9). As I have indicated, the respondent was not the child for whose benefit the action for financial compensation under the Fatal Accidents Act was brought. The widow and the other dependent child, having received the amount of the judgment awarded in the action, were precluded by s. 7(13)(a) from commencing or continuing proceedings under the Act for compensation in respect of the death of the worker. But the respondent was not. Accordingly, he commenced the proceedings out of which this appeal arises and joined the widow and the other dependent child as respondents. (at p126)

9. There seems to be no doubt, having regard to the decision to which I have referred, that, by reason of the combination of s. 7 of the Act and its 1st sch. as it stood prior to the amendment of 1970, an award by the Board, on the respondent's application, of the lump sum then specified by cl. 1(a)(i) of that schedule plus the additional amount specified in respect of each of the dependent children, would be supportable. But the amendment of 1970 substituted a new 1st sch. to the Act. It will be convenient at this point to reproduce both versions of the 1st sch. so far as relevant:

"THE FIRST SCHEDULE OF THE WORKERS'

COMPENSATION ACT BEFORE THE AMENDING ACT 18 OF 1970.

SCALE AND CONDITIONS OF COMPENSATION

1. The amount of compensation under this Act shall be: (a) where death results from the injury: (i) if the worker leaves any dependants wholly dependent upon
his earnings, the sum of ten thousand dollars and an additional sum of two hundred and twenty dollars in respect of each dependent child and dependent step-child of the worker under the age of sixteen years, but not in respect of any ex-nuptial child, less the amount of any weekly payments made under this Act and less the amount of any lump sum paid in redemption thereof. Provided that if the worker dies leaving a widow or mother wholly dependent upon his earnings or a dependent child or dependent step-child under the age of sixteen years wholly dependent upon his earnings, the amount payable under this subparagraph shall be not less than two thousand two hundred and forty dollars, plus two hundred and twenty dollars for each dependent child; (ii) if the worker does not leave any such dependants, but leaves any dependants in part dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or in default of agreement may be determined, by proceedings under this Act, to be reasonable and proportionate to the injury to the said dependants; and (iii) if he leaves no dependants, the reasonable expenses of his medical attendance and burial, the cost of which may be awarded to and upon the application of any person by whom the expenses were properly incurred, or to whom the whole or any part of the expenses is owed."

"THE FIRST SCHEDULE OF THE WORKERS' COMPENSATION ACT AFTER THE AMENDING ACT 18 OF 1970.

SCALE AND CONDITIONS OF COMPENSATION

1. The amount of compensation under this Act shall be: (a) where death results from the injury -
(i) if the worker leaves any dependants wholly dependent upon his earnings - (I) in respect of all those dependents, if any, who are not of the kind referred to in item (II) or (III) of this subparagraph the sum of ten thousand eight hundred and eighty-one dollars less
the amount of any weekly payments for the injury under this Act and less the amount of any lump sum paid in redemption thereof (II) in respect of each of those dependants, if any, who is a child, or step-child, under the age of sixteen years, the sum of three dollars fifty cents weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed until the child attains that age; (III) in respect of each of those dependants, if any, who is a full time student child, or step-child, and has attained the age of sixteen years but is under the age of twenty-one years, the sum of three dollars fifty cents weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed, until the child attains the age of twenty-one years or ceases to be a full time student, whichever is the sooner, but if a worker dies leaving a widow or mother wholly dependent upon his earnings or a dependant of the kind referred to in item (II) or (III) of this subparagraph wholly dependent on his earnings the minimum amount payable under this sub-paragraph shall be two thousand five hundred and thirty-seven dollars. (ii) and (iii) as before" (at p128)

10. The substitution of the schedule was an express amendment of the Act and not merely a rearrangement of the former schedule. A change in the law was evidently intended. (at p128)

11. The most notable feature of the substituted schedule and one which to my mind distinguishes it from the earlier version is the division of the dependants of a deceased worker into three categories, each covered by an item in cl. 1(a)(i). The first category contains the widow because she is not of a kind referred to in items (II) and (III): that item excludes a dependent child because dependants of the kind are within either items (II) or (III). The schedule prescribes as to each item what compensation is payable and in relation to items (II) and (III) it provides within its terms by whom it is payable. Thus, there being no prescription as to the person or body by whom the amount payable in respect of the widow is payable, s. 7(1) imposes a direct obligation on the employer to pay the specified amount in respect of the widow. It is to be observed that the schedule expressly provides for the deduction from the prescribed amount of any lump sum paid in redemption of weekly payments under the Act in respect of the injury which resulted in the death of the worker, a matter more usually concerning the widow than dependent children; but it stipulates for a minimum sum to be payable in any event. (at p128)

12. In the case of items (II) and (III) a weekly sum is prescribed "payable from the Fund but recoverable for the Fund by the Board from the employer". This, it seems to me, is a radically different treatment of the compensation for a dependent child than that for which the earlier version of the first schedule provided. The dependent child, being at the date of the worker's death wholly dependent on the worker's earnings, is to have the security of the fund for the weekly payments payable as compensation upon the death of the parent worker, with the possibility of an additional sum where the minimum total amount as prescribed by the final provision of cl. 1(a)(i) of the schedule is not otherwise payable. (at p129)

13. In my opinion, the effect of these changes in the 1st sch. is to alter the obligation the employer might earlier have had to pay under the former schedule on the application of the widow or other dependant. The obligation under the substituted schedule is only to pay the specified lump sum less the stipulated deductions but so that a minimum sum was so payable. The substituted schedule also, in my opinion, removed any liability of the employer which formerly existed to pay any sum on the application of a dependant falling within either item (II) or item (III). According to the amended schedule, in my opinion, dependants falling within either of these items have themselves remedies only against the fund, i.e. the board as administering the fund. But the fund having met the weekly payment of compensation will recoup its expenditure by the recovery from the employer by the board on behalf of the fund of that expenditure. The liability of the employer to pay compensation imposed on him by s. 7(1) now consists of a liability directly to dependants falling within item (I) and a liability to the board in recoupment of the compensation paid by the fund in conformity with items (II) and (III). Thus, s. 7(1) still prescribes in totality what the employer is liable for in compensation. (at p129)

14. By this change the legislature has both removed the injustice of subjecting the employer to the possibility of paying both damages and compensation and the unfettered and unexaminable discretion of the Board to dispense, or for that matter to retain in the fund, the lump sum amount to which the widow or any sum to which the other dependent child, had ceased to be entitled. (at p129)

15. Reliance was placed by counsel for the respondent upon cl. 1A of the 1st sch. in contesting these conclusions. But, in my opinion, the provisions of that clause do not bear at all on the construction of cl. 1(a)(i) of that schedule though they do assist to emphasize the concern of the legislature to secure the payment of the dependent children's compensation by the fund. Clause 1A merely provides that whatever is payable by the employer in respect of the deceased worker's dependants should be paid to the board for disposal by the board. (at p129)

16. Some argument was founded on the final words of the sub-paragraph. They mean that the minimum total sum payable under the subparagraph as a whole is $2,537. Although the items provide separately the amounts payable in respect of the kind of persons each describes, it is possible to regard the employer as obliged to pay the total of the payments for which the items call, even though some of the amounts are not payable directly by the employer to all dependants of the employee, but only indirectly through the fund to some of them. This means that the facts in relation to all dependants must be known before it can be determined that the minimum total has not been reached and the further question whether any further payment is to be made to any dependant. (at p130)

17. The application of these final words of the subparagraph undoubtedly raises problems: but equally those problems would have arisen under the final words of the former schedule. For example, if no dependant survived other than a child of, say, thirteen years of age; or, if there is a dependent widow, where there had been a redemption payment which left only $1,500 to be paid, apart from the last provision of the subparagraph, and a dependent child of fifteen years of age. It is not clear what the effect of those last words has in such circumstances, whether under the old or the substituted schedule. But the solution, whatever it should be, will be the same in each case. But neither the existence of these problems, nor the difficulty of their solution will, in my opinion, have any bearing on the construction of the substituted schedule. In particular, the existence of such problems or the difficulty of their solution will not require a change in the language used in items (II) and (III), or a disregard of the changed structure of the substituted schedule itself, or an unnatural construction of the words of items (II) or (III). (at p130)

18. For these reasons I am unable to agree with the majority of the Supreme Court in holding that the substitution of the 1st sch. by the amendment of 1970 did not radically change the "structure" of the Act. In the respects to which I have adverted, it did, in my opinion, effect a change in the ability of a dependant falling within items (II) and (III) to claim against the employer. (at p130)

19. In my opinion, the appeal should be allowed. The respondent's application against the employer ought to have been dismissed. His remedy, in my opinion, is against the fund in conformity with what I consider to be the meaning of item (II) of cl. 1(a)(i) of the 1st sch. as introduced by the Amendment Act of 1970. Consequently, both questions asked in the case stated should be answered in the affirmative. (at p130)

MENZIES J. In my opinion this appeal should be allowed. I agree with the order proposed by the Chief Justice and generally with his reasons for making that order. There are, however, one or two observations I wish to make for myself. (at p130)

2. The Workers' Compensation Act, 1912-1970 (W.A.) is like much other such legislation, a patchwork in which some of the patches hardly fit with others. Accordingly it is usually not difficult to find a substantial objection to a conclusion reached upon the making and application of the Act. The judges who formed a majority in the Supreme Court of Western Australia recognized that there is a certain oddness about their decision but did not feel impelled to adopt a construction that might be "thought to be more sensible or less odd". I would agree that lack of harmony between the various provisions of the Act is no safe ground for adopting a construction departing from the strict words of the Act. In my opinion, however, the amendments made to the 1st sch. in 1970 do make a change of a radical character in the liability of an employer in respect of compensable injuries to dependants of a worker whose death has resulted from his injury. (at p131)

3. In the first place payments in respect of all dependants are to be made to and by the board (see cll. 1(a) (i) (II) and (III) and 1A). Where the payment is one provided for by cl. 1(a) (i) (I) i.e., a lump sum, the payment is not one in respect of dependants of the sort referred to in items (II) and (III) of the subparagraph and it seems to me that any apportionment of any balance of such a sum by the board should be confined to dependants in respect of whom it was paid. Where, however, a payment is in respect of dependants referred to in cl. 1(a) (i) (II) and (III) there is exact guidance given. It is that weekly sums are to be paid by the board from the fund which may be recovered from the employer or his insurer by the board. There is also a minimum fixed in the case of total dependency. This too is to be paid as provided by 1A. If the weekly payments do not reach the minimum the last weekly payment should, it seems, bring the payments up to the minimum. Dependants in items (II) and (III), therefore, have no direct claim against the employer or the insurer but the board may recover weekly payments actually made from the fund to dependants. (at p131)

4. Adopting this construction it follows that the respondent, being a dependant within item (II) of the subclause, was not entitled to the award made in his favour against the appellant. (at p131)

GIBBS J. This case raises a question of statutory construction of a kind that has often caused difficulty. A workman died as a result of personal injury by accident arising out of and in the course of his employment and his employer became liable to pay compensation under the Workers' Compensation Act, 1912-1970 (W.A.) ("the Act"). The circumstances in which the accident occurred rendered the employer also liable to an action for damages under the Fatal Accidents Act, 1959 (W.A.). The workman left three dependants wholly dependent upon his earnings - his widow and two children both under the age of sixteen. To obtain as much compensation as possible the dependants split their claims. The widow on behalf of herself and one of the children, Wanda, commenced proceedings against the employer for damages under the Fatal Accidents Act. Those proceedings were compromised by payment to the widow of $18,980 and by payment to Wanda of $2,750. The other child, Peter, applied for compensation under the Act. It is not disputed that he is entitled to some compensation. The provisions of the Act that deal with the question whether compensation under the Act may be recovered in addition to damages are those of s. 7(13), which, in the case of a death, must be read in the light of the extended definition of "worker" contained in s. 5(1). In Johansen v. McKinley (1968) WAR 17 , Virtue J. held that under these provisions the fact that one dependant has received the fruits of a judgment for damages does not debar another dependant from proceeding for compensation under the Act. That conclusion is not challenged and I need not further consider s. 7(13) whose provisions do not appear to me to throw any light on the question that now falls for decision, namely, what compensation should be awarded. (at p132)

2. It was agreed that under the Act as it stood before its amendment by the Workers' Compensation Act Amendment Act, 1970 (W.A.) an applicant in Peter's position would have been entitled to an award of compensation just as large as that which would have been made if the widow and Wanda had decided not to sue under the Fatal Accidents Act and had joined in Peter's application. Section 7 (1) provided then, as it does now, that "if in any employment personal injury by accident arising out of or in the course of the employment . . . is caused to a worker, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule". The 1st sch. by cl. 1 provided, inter alia, as follows:

"The amount of compensation under this Act shall be - (a) where death results from the injury - (i) if the worker leaves any dependants wholly dependent upon his earnings, the sum of ten thousand dollars and an additional sum of two hundred and twenty dollars in respect of each dependent child and dependent step-child of the worker under the age of sixteen years, but not in respect of any ex-nuptial child, less the amount of any weekly payments made under this Act and less the amount of any lump sum paid in redemption thereof. Provided that if the worker dies leaving a widow or mother wholly dependent upon his earnings or a dependent child or dependent step-child under the age of sixteen years wholly dependent upon his earnings, the amount payable under this subparagraph shall be not less than two thousand two hundred and forty dollars, plus two hundred and twenty dollars for each dependent child."

It was common ground that the schedule in this form ("the repealed schedule") had an effect similar to that of the provisions considered in London Brick Co. Ltd. v. Robinson (an infant) (1943) AC 341 ; the opening words of sub-par. (i) stated the event on which the employer became liable to pay the compensation specified in the following words of the subparagraph, so that if a worker left any dependants wholly dependent upon his earnings the full compensation ascertained in accordance with the subparagraph became payable irrespective of the number of dependants who claimed compensation; to be more specific, in those circumstances an employer became liable to pay a total amount made up of the sum of $10,000 and an additional sum of $220 in respect of each dependent child under the age of sixteen, less payments already made, whether all the dependants claimed compensation or only one of them claimed. The provisions of the repealed schedule were in some material respects different from those considered in London Brick Co. Ltd. v. Robinson (an infant), but there is no reason to doubt the correctness of the assumption on which both parties proceeded. Other statutory provisions closely resembling (although not identical with) those of the repealed schedule have been held to entitle a dependant, notwithstanding that he was the only claimant, to an award for the full amount of compensation ascertained by reference to all the dependants: Barwood v. W. H. Blackham Pty. Ltd. (1965) VR 499 ; A.C.T. Engineering Pty. Ltd. v. Cuckow (1973) 1 ACTR 93 . Those cases, which appear to have been decided in accordance with established principles, support the conclusion that the view shared by the parties as to the effect of the repealed schedule was correct. (at p133)

3. By the Workers' Compensation Act Amendment Act, 1970 the 1st sch. to the Act was amended by substituting for sub-par. (i) of par. (a) of cl. 1 the following subparagraph:

"(i) if the worker leaves any dependants wholly dependent upon his earnings - (I) in respect of all those dependants, if any, who are not of the kind referred to in item (II) or (III) of this sub-paragraph the sum of ten thousand eight hundred and eighty-one dollars less the amount of any weekly payments for the injury under this Act and less the amount of any lump sum paid in redemption thereof; (II) in respect of each of those dependants, if any, who is a child, or step child, under the age of sixteen years, the sum of three dollars fifty cents weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed until the child attains that age; (III) in respect of each of those dependants, if any, who is a full time student child, or step child, and has attained the age of sixteen years but is under the age of twenty-one years, the sum of three dollars fifty cents weekly, payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed, until the child attains the age of twenty-one years or ceases to be a full time student, whichever is the sooner, but if a worker dies leaving a widow or mother wholly dependent upon his earnings or a dependant of the kind referred to in item (II) or (III) of this subparagraph wholly dependent on his earnings the minimum amount payable under this subparagraph shall be two thousand five hundred and thirty-seven dollars."

In addition, a new cl. 1A was inserted in the schedule. It read as follows:

"Any amount payable by an employer or his insurer under paragraph (a) or (b) of clause 1 of this Schedule in respect of the dependants of a deceased worker shall be paid into the custody of the Board and, after provision for payment of any amounts required for the purposes of Item (II) or (III) of subparagraph (i) of that paragraph (a), shall be apportioned in such manner as the Board thinks fit."

The fund referred to in these provisions is the Workers' Compensation Board Fund established under s. 27 of the Act. It is a fund to which insurers contribute. Subsections (1) and (1a) of s. 27 provide that compensation may in certain circumstances be paid from the fund, and for the recovery by the board of compensation so paid, but, although those subsections were amended in 1970, they do not extend to payments to dependants of a deceased worker made under cl. 1(a) (i) of the schedule. The power to make weekly payments out of the fund to the children of a deceased worker, and to recover any amounts so paid from the employers, is conferred only by cll. 1 and 1A of the schedule. (at p134)

4. Further amendments to cl. 1 (a) (i) of the schedule were made by the Workers' Compensation Act Amendment Act, 1973. The sum specified in item (I) is no longer $10,881, but "a sum equal to eighty-five per cent of the prescribed amount" (a term defined in s. 5 (1)); the weekly sum provided by items (II) and (III) is now $7.50; a new item (IV), referring to children of any age, has been added; and by the concluding proviso the minimum amount payable is now "a sum equal to twenty-five per cent of the prescribed amount". (at p134)

5. The Full Court of the Supreme Court of Western Australia held, by a majority, that notwithstanding the amendment made in 1970, the amount of compensation payable on the death of a worker leaving any dependants wholly dependent upon his earnings is still to be quantified by reference to the number of such dependants without taking any account of the fact that some of those dependants are not claiming compensation. They held that in the present case Peter was entitled to an award that a lump sum of $11,906 (the amount payable under cl. 1(a) (i) (I), as amended since 1970) be paid into custody of the board by the employers and that a weekly payment be paid into the custody of the board by the employers based on the deceased leaving two children under sixteen years at the time of his death wholly dependent upon his earnings. Although the relevant provisions of the Act present considerable difficulties of construction, I have reached the conclusion that the decision of the Full Court is correct. (at p135)

6. I have already referred to the provisions of the Act before its amendment in 1970. Under those provisions the dependants of a deceased worker, regarded as a class, could, merely by proceeding in one way rather than in another, obtain a double benefit - an award of full compensation under the Act and an award of damages under the Fatal Accidents Act - that would not otherwise have been available. Put more precisely, the Act then enabled one dependant to obtain compensation at the full amount provided for all dependants, although the other dependants were disentitled to claim under the Act. The surprising consequences of these provisions should have become well known as a result of the authorities decided in relation to comparable statutes, and if the Legislature had wished to put an end to this situation it could easily have done so by express words. The fact that the matter was not dealt with expressly, and that any change of legislative intention has to be divined from the form of the amending provisions, suggests that no change was intended. (at p135)

7. As a result of its amendment in 1970, sub-par. (i) of cl. 1 (a) has undergone obvious alterations of form as well as some of substance. The total compensation is now made up of four items (as they are called), each of which is payable "in respect of" the dependants referred to in that item. However, the words "in respect of" had been used in the repealed schedule, under which an additional sum was payable "in respect of each dependent child . . . under the age of sixteen years". In the repealed schedule the words "in respect of" simply meant "by reference to"; the total amount payable as compensation was calculated by reference to the number of dependants under sixteen but that did not mean that any such dependant had a right to any specific part of the total compensation; the calculation was only a means of ascertaining the amount of the employer's liability - see per Dixon J. in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62, at p 87 . The fact that the words "in respect of" are now used in all four items is not such a radical change in the section as might at first sight have appeared. As before, the subparagraph states the conditions on which the compensation for which it provides is payable - the death, resulting from the injury, of a worker who leaves any dependants wholly dependent upon his earnings - and then goes on to lay down the amount of compensation which in that event the employer is liable to pay. The amount of the compensation is determined by reference to the number of dependants left by the worker but the Act still contains nothing that says that the compensation assessed in respect of a dependant is payable only to that dependant or that the amount which the employer is liable to pay is affected by the number of dependants who actually claim under the Act. (at p136)

8. I should have had more doubt as to the effect of sub-par. (i) in its amended form were it not for the concluding words which provide for payment of a minimum amount if the worker dies leaving a widow or mother wholly dependent upon his earnings or a dependant of the kind referred to in item (II) or (III) wholly dependent on his earnings. The minimum amount was fixed in 1970 as a lump sum, and since 1973, when the clause was amended by the Workers' Compensation Act Amendment Act, 1973, it has been fixed as a percentage of a "prescribed amount". It is unnecessary to go into the particulars of the arithmetic involved, but it is quite clear that both under the provisions as they stood in 1970 and since their amendment in 1973 there can be cases in which the total of the weekly payments made in accordance with items (II) and (III), until the child or children cease to be entitled under those items, can never reach the prescribed minimum. This would be so, for example, if the worker left one dependent child aged twelve, or two children, both fulltime students, aged sixteen and eighteen. It follows that where a worker leaves a dependent child, or dependent children, the employer may be liable to pay, as a minimum, an amount of compensation which exceeds the total amount of the weekly payments fixed by sub-par. (i) in respect of that dependent child or children. In other words, the liability of the employer to pay compensation when a deceased worker leaves a dependent child is not necessarily satisfied by paying the weekly sum fixed by sub-par. (i) in respect of a dependant of that kind. This means that items (II) and (III) respectively do not state the upper limit of the compensation payable to the dependants referred to in those items, and this supports the view that sub-par. (i) does not provide separately for the compensation payable to various dependants, but fixes the total amount of compensation for which the employer is liable by aggregating various items which are quantified by reference to the dependants who are left by the deceased worker. The amount thus quantified is the amount for which the employer is liable whether all or only one of the dependants in relation to whom it is ascertained makes a claim for compensation. (at p137)

9. A difficulty of construction is caused by the provisions in items (II) and (III) that the weekly sum is "payable from the Fund but recoverable for the Fund by the Board from the employer or his insurer in such manner as may be prescribed". We were told that no method of recovery has been prescribed. The scheme of the Act is that the employer is liable to pay compensation in accordance with the 1st sch. (see especially ss. 7 and 12) although the employer is obliged to insure against his liability (s. 13) and in some cases the insurer is made directly liable to the worker (ss. 17, 17A). Although the Act does not say so in terms, it is apparent from many of its provisions that proceedings for compensation may be brought by a worker, including in that expression, in accordance with the definition in s. 5 (1), the dependants of a deceased worker - see ss. 7 (5), (13) , 12, 17, 17A, 18. It is by no means clear that the words which I have quoted from items (II) and (III) deprive the dependants of a deceased worker of the right to maintain proceedings for compensation. If they do have that effect the proceedings in the present case were invalid from their inception. However, those words, uncertain in meaning as they are, ought not to be construed as taking away the right of a dependant to commence proceedings if an alternative construction is possible, and may well be understood as intended to do no more than enable the fund to commence making weekly payments although the employer had not made any payment, and in that event to recover from the employer. What is clear, however, is that nothing in items (II) or (III) cuts down the right of a dependant to recover the amount by which the minimum payment fixed by the proviso exceeds the total of the weekly payments provided by those items. Moreover, it is not only the weekly payments provided by items (II) and (III) that are to be paid out of the fund; by cl. 1A any amount payable by an employer under, inter alia, cl. 1 (a) in respect of the dependants of a deceased worker must be paid into the custody of the board, and this includes the lump sum provided by item (I) as well as the weekly payments. Clause 1A also gives the board a power to apportion the amounts received after provision of the amounts required for the purposes of items (II) and (III). The scope and limits of this power may be doubtful but it is a power that could only be exercised where more than one dependant had made a claim, for if there were only one claimant an apportionment would be impossible; the power therefore has no application in the present case. It is regrettable that these matters, important from a practical point of view, have been left in a state of obscurity and I agree with the observations made by Jones J. in the Supreme Court that the provisions cry aloud for revision. However, in my opinion, these provisions do not have the effect that "in respect of" in sub-par. (i) means "payable to", or that the compensation mentioned in the respective items is quantified individually in respect of each dependant and payable to that dependant only, so that for example a dependent child within item (II), if the only claimant, would receive the amount ascertained in respect of one dependent child, and no more. Notwithstanding the amendments made to the schedule, it is still true, in my opinion, that the natural meaning of the words of cl. 1 (a) (i) is that the employer is, upon the death of a worker leaving dependants wholly dependent upon his earnings, liable to pay compensation quantified in the manner laid down by sub-par. (i), whether or not the dependants in respect of whom the assessment is quantified will share in it. The authorities on similar statutory provisions make it clear that there is no justification for departing from this meaning, if it is the natural meaning of the words, simply to avoid the consequence that in some circumstances the dependants of a worker would receive a larger benefit than might have seemed reasonable. (at p138)

10. Not without hesitation, I have, for the reasons I have given, reached the conclusion that the majority of the Full Court were right in their conclusion. I would dismiss the appeal. (at p138)

STEPHEN J. In this difficult matter, rendered difficult by amendments obscurely phrased and made to legislation already wanting in clarity, I have concluded that the views of the majority of the Full Court of Western Australia should be upheld. I do so for the reasons stated by my brother Gibbs. I would therefore dismiss this appeal. (at p138)

MASON J. Subject to the qualifications expressed by Menzies J. I agree that this appeal should be allowed for the reasons stated by the Chief Justice and that each of the questions asked in the case stated should be answered in the affirmative. (at p138)

Orders

Appeal allowed.

Order of the Full Court of the Supreme Court of Western Australia, whereby it answered in the negative two questions in a case stated by the Chairman of the Workers' Compensation Board of Western Australia, set aside and in lieu thereof order that the questions in the case stated be answered in the affirmative.

Order that the respondents pay the appellants' costs of the case before the Full Court of the Supreme Court and the appellants' costs of this appeal.