Johnston v Commissioner for Railways

[1973] HCA 46

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Walsh, Stephen and Mason JJ.

JOHNSTON v. COMMISSIONER FOR RAILWAYS.

(1973) 128 CLR 632

17 October 1973

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Partial incapacity—Amount of compensation—Difference between amount "which worker would probably have been earning had he continued to be employed in the same or some comparable employment and the average weekly amount he is earning"—Whether comparison between present earnings and hypothetical future earnings from same type of work or earnings based on continued engagement in occupation—Workers' Compensation Act, 1926 (N.S.W.), s. 11 (1) (a).

Decisions

October 17.
The following written judgments were delivered:-
BARWICK C.J. My brother Stephen has set out in the reasons for judgment which he has prepared, and with which I am in agreement, all the salient facts and has referred to all the relevant provisions of the Workers' Compensation Act, 1926, as amended ("the Act"). The construction of s. 11 (1) (a) of the Act which those reasons adopt is, in my opinion, in accord with the general concept of workers' compensation which the Act, through its various spasmodic amendments continues to embody. In any case, the meaning attributed to the provision by my brother's reasons is so clearly right that no apparent anomaly thrown up by piecemeal amendment should warrant departure from that meaning. (at p634)

2. I agree that the appeal should be allowed. (at p634)

McTIERNAN J. I agree that the appeal should be allowed. (at p634)

WALSH J. The facts and the terms of the provision contained in s. 11 (1) (a) of the Workers' Compensation Act (N.S.W.), as amended, which require to be considered in this appeal, are set out in the judgment of Stephen J. The words in that provision which call for particular attention are the words "the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment". In the Workers' Compensation Commission, Judge Gibson found that the appellant intended to make his permanent career in the locomotive branch of the respondent's undertaking and that, subject to his passing examinations and to his good conduct, he would normally have progressed through the ranks of fireman and acting driver to that of engine-driver, and that he would have passed the medical examinations and other tests necessary for his progression to the position of engine-driver. There was evidence to support those findings. His Honour gave effect to them by taking into account the earnings of an engine-driver in computing for the purposes of s. 11 (1) (a) what the appellant would probably have been earning but for the injury. The question for decision is whether the learned judge erred in law in so doing. (at p634)

2. In some of the arguments addressed to this Court it has been assumed that in order to answer that question it is necessary that a definite choice be made from a number of suggested paraphrases of the words used in the provision and that the one so chosen should be adopted as an exclusive test by which the application of the provision to any given set of facts is to be determined. For example, it was argued that the words "in the same ... employment" could be satisfied only if a worker was supposed to have continued to be employed by the same employer and under the same contract of service. As I understood the argument, if the facts were such that that hypothesis could not be accepted, recourse would then be had to the words "some comparable employment", in order to ascertain the rate of earnings that should be taken into account in working out the figures to be used in applying s. 11 (1) (a). But in my opinion this argument is not warranted by the language used in the provision. I do not mean that if a worker was engaged under a contract of employment of such a kind that probably, if he had not been injured, he would have continued thereafter to work under that same contract, doing only the work which it required him to do, this would be irrelevant. On the contrary, it would provide a ready answer to the question posed by the provision. But I reject the notion that as a matter of law it is only in such a case that the worker could be described as one who would, if not injured, have continued to be employed in the same employment. So to hold would be to substitute a rigid formula for the more flexible words used in the provision and would make its application depend in some cases upon distinctions which appear to have no real relevance to any purpose which it could have been intended to serve. The question was raised in argument whether or not a railway worker who passed through the progression in employment to which reference has been made above must be regarded, on each occasion when he entered upon a new grade or classification, as making a new contract of service with the respondent. It was said that the worker could be required to perform different duties in his new classification only if he had agreed by a new contract to carry out those duties. On the other hand, it was suggested that a railway worker, being a permanent officer of the respondent, and having available to him prospects of promotion, may take advantage of those opportunities and, if he satisfies the conditions upon which they depend, may progress from one classification to another, all this being contemplated by the terms of his engagement as an officer of the respondent and involving no replacement of one contract by another. In my opinion a decision in this case does not require an analysis of the precise legal relationship between the respondent and his officers arising from relevant statutory provisions or from contractual engagements express or implied. It appears from the judgment of Moffitt J.A. in the Court of Appeal (1972) 2 NSWLR 563, at p 565 that in that Court the present appellant was relying on an argument that a railway worker remains always subject to the same contract of service and that the words "in the same ... employment" should be construed as "in the same contract of service". But in my opinion it is not necessary for the appellant to obtain the acceptance of an argument in that form. The Workers' Compensation Commission was entitled, in my opinion, to have regard to the fact that the appellant would probably have followed along a progression from one grade or classification to another within the service of the respondent. In my opinion that fact was relevant and important whether or not those services would have been rendered in accordance with one contract or several successive contracts. (at p636)

3. In my opinion the only basis upon which it could be said that the learned primary judge erred in law would be to hold that the words "in the same ... employment" have a meaning which restricts their applicability to a deemed continuity of engagement upon the same task or tasks as that or those upon which the worker was engaged at the time of the injury. There can be no doubt that the provision could be applied in appropriate circumstances, by reference to a supposed continuity of engagement on the same task or tasks, for it may appear that the worker, if not injured, would have continued so to be engaged. But I am not prepared to hold that the relevant words of the provision should be construed as making the identity or the substantial similarity of the tasks to be performed the exclusive criterion for determining how the provision is to be applied. As I have said earlier, I do not think that the Court is warranted in confining the operation of the provision by means of a formula which is thought to express more clearly its meaning. In my respectful opinion the construction adopted by the majority of the Court of Appeal would limit the operation of the provision, in a manner which is not warranted by its language or its context. I am not satisfied, despite the indications, to which the Court of Appeal referred, based on other provisions of the Act and on the use of the word "employment" elsewhere in the same provision, that it should be held that it was intended by the legislature that the provision should be applied in accordance with that limitation. (at p636)

4. On the facts before him it was open to the learned judge to apply the provision in the way he did apply it. It was essentially a decision on a question of fact. No doubt it involved a question of law, in the sense that it would be an error of law to come to a conclusion which was based on a misconstruction of the nature or the limits of the inquiry postulated by the statutory provision and which went outside those limits. In considering the effect of the provision no doubt it was proper to look beyond the particular case and to recognize that it is a provision of general application, requiring that the interpretation adopted should be one that could be applied sensibly in different circumstances. The provision requires the Commission to act upon an assessment of what a worker's earnings would probably have been if he had not been injured, but imposes a limitation restricting the amount to be taken into account to what he would probably have been earning had he continued to be employed in the same (or some comparable) employment. The fact that there will be a great variety in the circumstances in which the provision will have to be applied affords no ground, in my opinion, for seeking to define with particularity some exclusive criterion for determining what may fall within the description of the same employment. On the contrary, it provides a reason against doing so. On the facts of the present case, I am of the opinion that no error of law was made in deciding that in the position to which the appellant would probably have progressed, he would have been engaged in the same "employment" as that in which he was engaged at the time of the injury. (at p637)

5. In my opinion the appeal should be allowed. (at p637)

STEPHEN J. This appeal comes from the Court of Appeal of the Supreme Court of New South Wales which, by a majority, allowed an appeal from the order and award of the Workers' Compensation Commission of New South Wales (1972) 2 NSWLR 563 . (at p637)

2. The appellant, Johnston, a railway worker employed by the respondent, the Commissioner for Railways, suffered injuries in 1942 very soon after he commenced employment with the Commissioner and these resulted in his partial incapacity. He has continued in the service of the Commissioner ever since and in 1971 his claim for compensation came before his Honour Judge Gibson. Apart from the award of weekly payments of compensation for two short periods of total incapacity, not here in issue, his Honour also awarded weekly payments in respect of eight periods of partial incapacity occurring from 1964 onwards at varying rates of compensation rising from $20 to $39 per week. (at p637)

3. Johnston was injured while acting as a cleaner, acting fuelman. His Honour found as a fact that Johnston, who intended to make his permanent career with the Commissioner, would, but for the injuries which he sustained, have progressed, as a matter of normal progression and promotion, from his initial position as a casual cleaner through various ranks within the locomotive branch to a position as engine-driver, which position he would have attained at the date of the hearing. There has been no challenge directed to these findings of fact; it was in the light of them that his Honour then proceeded to apply s. 11 (1) (a) of the Act as the necessary first step in determining the amounts of the weekly payments to be awarded to Johnston in respect of his partial incapacity. (at p637)

4. Section 11 (1) (a) of the Workers' Compensation Act, 1926 reads:

"11. (1) (a). In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn, in some suitable employment or business, after the injury, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper."

This sub-section contemplates the ascertainment of a maximum weekly payment which no award of weekly payments is to exceed, that maximum to be the difference between the two weekly amounts to which the sub-section refers. (at p638)

5. In the present case it is the mode of ascertainment of the larger of these two weekly amounts that is in question. Judge Gibson ascertained it by reference to what Johnston would have been earning but for the injury and on the assumption that he would, over the years, have progressed through the various ranks of the service within the locomotive branch, ultimately attaining the position of engine-driver. His Honour accordingly ascertained what Johnston would probably have been earning from time to time had he so progressed and compared the weekly amounts so ascertained with his actual weekly earnings from time to time in his condition of partial incapacity. (at p638)

6. The majority of the Court of Appeal rejected this construction of s. 11 (1) (a), regarding its terms as requiring his Honour to ascertain the larger weekly amount by reference to what Johnston would have been earning had he continued at all times to be employed as a cleaner, acting fuelman, as he was when injured. (at p638)

7. These, then, are the two competing constructions of s. 11 (1) (a) so far as concerns the ascertainment of the larger of the two amounts to which it refers. It emerged in the course of argument that there may well be other obscurities in the proper construction of the sub-section, related to the ascertainment of the smaller of the two amounts, but with these we are not presently concerned; they do not affect the ascertainment of the maximum weekly payments which might be awarded in the present case. (at p638)

8. On a first reading of the sub-section its function may clearly be seen to be to provide a maximum above which the amount of weekly payments awarded is not to rise and to do so by reference to a comparison between two levels of weekly earnings, the worker's actual post-injury earnings and some other level of earnings, not actual but to be computed having regard to what would "probably" have been the position "but for the injury". (at p638)

9. What has given rise to this appeal is controversy concerning the meaning of the verb "employ" and the noun "employment" in the phrase "had he continued to be employed in the same or some comparable employment". Both verb and noun are capable of bearing a wide range of meaning; the phrase, standing on its own, may refer to any one of a number of situations - to a deemed continuity of engagement in the one task, or to a deemed continuity of employment with the one employer pursuant to the one contract of employment, to a deemed continuity of employment with the one employer or to a deemed continuity of engagement in the one occupation. (at p639)

10. Generally speaking the order in which I have stated these alternative meanings, and there may be other possible variants, represents, in the facts of this case, a graduation from a narrow to a broad construction of the phrase; the Commissioner's counsel argued for the adoption of either of the first two meanings while counsel for Johnston contended for the fourth meaning although the third would, as it happens, serve him equally well. (at p639)

11. The phrase "had he continued to be employed in the same or some comparable employment" and the sub-section as a whole is elliptical in two respects; it fails to identify the original employment which the deemed continued employment is to be the same as, or comparable to, and it somewhat compresses the description of the deemed continuation of that employment. If expressed in suitably expanded form the phrase should, I think, run somewhat as follows: "had he continued to be employed in the same employment as that in which he was employed when he received the injury or in some employment comparable to it". (at p639)

12. The wording of the sub-section appears to me of itself to provide a sufficient indication of the particular meaning to be given to the words "employ" and "employment"; this arises from the conjunction of the verb and the noun, used together to express one concept. To refer to a worker as being employed in some employment is not, I think, natural or appropriate language in which to describe the condition of being employed by a particular employer or under a particular contract of employment. If that were intended it would more naturally be done by the use, with the verb or the noun, of some phrase referring to the employer, as in "employed by that employer" or "in the employment of that employer"; s. 14 (1) (b) of the Act provides an instance of this when it speaks of being "in the employment of the employer for whom he was working at the time of the injury". (at p639)

13. Nor does the sub-section use language appropriate to describe engagement in a particular task or function; for such a meaning to be conveyed it is more appropriate to use the verb or noun in conjunction with some words which either refer to some particular activity or function. In the definition of "seaman" in s. 6 of the Act the latter is accomplished by the use of the expression "other person employed or engaged in any capacity on board ship"; in ss. 12 and 12A of the Act the noun "employment" is coupled with the words "of a certain kind" to convey this meaning. When greater precision of meaning is desired it is attained by referring not only to the kind of work but also to the grade or rank of the position filled by the worker, as in s. 14 (1) (a) of the Act, which refers to a person "in the same grade, employed at the same work" and, later, to a person "in the same grade employed in the same class of employment". This last example provides an instance of the conjunction of verb and noun but with the addition of the words "class of", an addition which is, of course, absent from s. 11 (1) (a). (at p640)

14. Where the simple conjunction of verb and noun occurs without qualifying words of this character the noun conveys, in my view, the sense of "occupation" rather than any reference to a particular task or to the relationship between master and servant or to any particular contract of employment. An example is furnished by s. 4 (14B) of the Act, which is concerned with identifying with a particular employer a worker whose occupation customarily involves him in obtaining employment by attending a place of pick-up, there to be selected by an employer for employment; such a worker is by that sub-section deemed to be a worker employed by the employer "who last employed him in his customary employment". (at p640)

15. The adoption of this meaning of "employment" accords with one of its well recognized dictionary meanings - "that on which one is employed; business; occupation; a commission" - Shorter Oxford English Dictionary. (at p640)

16. If, in the relevant phrase of s. 11 (1) (a), "employment" bears the meaning "occupation" the reference to the worker continuing "to be employed in the same or some comparable employment" means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the sub-section, required to form its own view of what would "probably" have been the worker's weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured. (at p640)

17. The word "employment" recurs in sub-s. (2) of s. 11 and seems there to refer not to the injured worker's occupation but rather to the particular task which will be "suitable" for him in his condition of partial incapacity. This has, I think, no bearing upon the meaning of "employment" in sub-s. (1); not only is the context quite different but in sub-s. (2) there is lacking the significant conjunction of verb and noun which is present in sub-s. (1). (at p641)

18. In the latter portion of sub-s. (1) itself the phrase "in some suitable employment or business" is used in referring to the ascertainment of the post-injury earnings of the worker; again there is no conjunction of verb and noun and its presence throws no light upon the meaning of the earlier phrase "employed in the same or some comparable employment". Its linking with the word "business", which no doubt creates its own difficulties, also serves to emphasize that it may bear a quite different meaning from "employment" in the phrase with which this appeal is concerned. (at p641)

19. The reference in the sub-section to "some comparable employment" appears to me to place no obstacle in the way of the view I take of the meaning of "employment"; it does not refer to a comparable employer or to a comparable contract of employment but to a comparable occupation. It is unnecessary in this appeal to determine in what circumstances it might be appropriate to look to some other occupation comparable to but distinct from that engaged in by the worker when he was injured; it suffices to say that, as I interpret the sub-section, occasions may arise in which, perhaps because some occupation has ceased altogether to exist because of technological change, it becomes necessary to hypothesize an occupation comparable to that in fact engaged in by the worker at the time of his injury in order to ascertain what weekly amount he would probably have earned but for the injury. (at p641)

20. In considering the meaning of s. 11 (1) (a) I have gained no assistance from the history of s. 60 of the Act and its effect upon s. 9 and, apparently, s. 11. It is true that, as I construe s. 11 (1) (a), there was an anomaly in the legislation from 1964, when s. 11 (1) (a) was amended to its present form, until s. 60 was amended in 1971. During those years the maximum amounts of the weekly payments of a partially incapacitated worker might reflect any promotion he would probably have gained in his occupation and any consequent increase in wages, whereas this would not be so in the case of total incapacity. Since 1971, s. 60 overcomes this anomaly to the extent of providing for this factor to be taken into account on any review of weekly payments. Section 60 appears to be equally applicable to partial incapacity as to total incapacity and it may be said that a construction which reveals an anomaly in the past and which now renders s. 60 otiose to the extent to which it applies to partial incapacity should not be adopted. The force of such criticism is, I think, tempered by the very nature of this legislation; in its present form it represents the result of a process of almost continuous piecemeal amendment over many years and the existence of instances of anomalies or of duplication will not be surprising; moreover it may be that the legislature in 1971 recognized the anomaly for what it was, taking the same view of s. 11 (1) (a) as I have, and sought to correct it by amending s. 60 to its present form but without confining it to cases of total incapacity. (at p642)

21. It follows from the view which I have formed concerning the phrase "employed in the same or some comparable employment" that when his Honour, having heard Johnston's application for an award of compensation, made the findings of fact which he did, he was then required, in ascertaining the weekly amounts which Johnston would probably have been earning but for his injury, to postulate Johnston's continued engagement in the occupation in which he was engaged when injured. On the facts as found Johnston's occupation was that of an officer of the Commissioner employed in the locomotive branch of the Commissioner for Railways and in those circumstances his Honour was, in my view, required to act as he did and to pay regard to the promotion within his chosen occupation which Johnston would probably have received had he not been injured. (at p642)

22. I would accordingly allow this appeal, set aside the judgment and order appealed from and restore the order and award of the Workers' Compensation Commission. (at p642)

MASON J. I have not found the question which arises for decision easy of resolution. It is evident that the draftsman did not foresee the complications which might arise from the use of the word "employment" in the expression "in the same or some comparable employment" where it appears in s. 11 (1) (a) of the Workers' Compensation Act, 1926-1970 (N.S.W.). (at p642)

2. The question is a narrow one: what is the meaning of the word in the context in which it is to be found? I agree with Stephen J. that it refers neither to a notional continuity of employment with one employer, nor to a notional continuity of employment with one employer pursuant to the one contract of employment. The provision must refer, so it seems to me, either to a notional continuity of employment in the occupation in which the employee was engaged at the time of the injury or to a notional continuity of employment in the particular work or duties in which he was engaged at that time. (at p643)

3. In deciding which of the two meanings the sub-section should bear I have been unable to gain any persuasive assistance from a consideration of the provisions of the Act as a whole or from individual provisions other than s. 11 itself. As the Act is notable for its lack of precision and uniformity of expression, I am disinclined to place any reliance upon other provisions or to draw conclusions from the manner in which similar or related concepts have been expressed in those provisions. In particular, I do not think that the various modes of expression involving the use of the word "employment" throw any clear light on the meaning which should be ascribed to it in the critical expression which appears in s. 11 (1) (a). (at p643)

4. Likewise, in my view little assistance is to be gleaned from the provisions of s. 60 (1) and (2) which the majority in the Court of Appeal considered to be of significance. Section 11 (1) (a) is confined to cases of partial incapacity and there is no like provision applying to cases of total incapacity. Section 60, which provides for a review of weekly payments, applies alike to cases of total incapacity and partial incapacity. The respondent's argument, as I understand it, is that until s. 60 (2) was amended by Act No. 77 of 1971, an employee who had sustained total incapacity could not initially or on review obtain a benefit comparable with that available to an employee suffering from partial incapacity under s. 11 (1) (a). By the 1971 amendment increased benefits, similar to those provided by s. 11 (1) (a), could be awarded on review to an employee suffering from total incapacity. It is not suggested that the construction favoured by the Court of Appeal would have eliminated the anomaly which arose from the absence of a counterpart to s. 11 (1) (a) having an application to cases of total incapacity: it is merely said that the adoption of that construction would reduce the consequences of the anomaly and bring a greater harmony to the operation of the Act. In my view, neither that consideration, nor the circumstance that the respondent's construction produces a simpler result, has any significance in relation to the question under consideration. (at p643)

5. It falls to be determined by reference to the natural and ordinary meaning of the words, having regard to the purpose of the particular provision and the context in which it is found. The strength of the respondent's argument lies in the use of the word "employment" in the expression "suitable employment" in s. 11 (2). It is beyond question that on the two occasions where that expression appears in the sub-section it refers to employment in the sense of "work" or "particular duties". Moreover, the same words are again used in s. 11 (1) (a) where they appear in the larger expression "in some suitable employment or business". (at p644)

6. There is a presumption that the same words when used in the same section of a statute bear the same meaning. That presumption is, however, slight, and such force as it ordinarily has, disappears when, as here, the contexts in which the word appears are different and the word is elsewhere used in the statute in a variety of senses. (at p644)

7. According to the dictionaries, both "the work upon which one is or may be engaged" and "occupation" are naturla meanings of "employment": Funk &Wagnall; Shorter Oxford English Dictionary; Webster's International Dictionary; but neither is regarded as a primary or preferred meaning. (at p644)

8. To my mind it is the purpose of s. 11 (1) (a) and the character of the payments to which it relates that are the decisive consideration in determining the choice which has to be made between the two meanings. The sub-section provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury. (at p644)

9. The appellant's occupation was that of railway servant; on the findings of fact it is probable that he would have advanced at the relevant date from cleaner, acting fuelman, to engine-driver in that occupation. Account must therefore be taken of the likely earnings of a railway servant who had advanced to that grade or classification. (at p644)

10. For these reasons I consider that the appeal should be allowed. (at p644)

Orders

Appeal allowed with costs. Order of the Supreme Court of New South Wales Court of Appeal Division set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.