McNicol v Commonwealth

[1969] HCA 18

HIGH COURT OF AUSTRALIA

Kitto, Windeyer and Owen JJ.

McNICOL v. THE COMMONWEALTH

(1969) 119 CLR 126

23 May 1969

Workers' Compensation

Workers' Compensation—Commonwealth employees—Disentitlement to compensation if employee entitled to receive war repatriation pension in respect of injury—Reference to employee deemed to be to dependant of deceased employee having claim in respect of death—Death resulting from war injury—Employee not entitled to pension during life—Dependant entitled to pension on his death—Whether thereby disentitled to compensation—Commonwealth Employees' Compensation Act 1930-1964 (Cth), ss. 4 (3), 17A (2)—Repatriation Act 1920- 1966 (Cth), s. 101.

Decision

May 23.
THE COURT delivered the following written judgment: -
One Finley Thomas McNicol, who was an "employee" within the meaning of that expression as defined in s. 4 of the Commonwealth Employees' Compensation Act 1930-1967 (Cth), died of a myocardial infarction which in the circumstances was a personal injury by accident arising out of or in the course of his employment by the Commonwealth. If there had not been in force such provisions as are found in ss. 17A (2) and 4 (3) of the Act, the fact that McNicol's death resulted from the injury would have entitled the appellant, as his widow and therefore a "dependant" of his, to compensation from the Commonwealth in accordance with the First Schedule to the Act: see s. 9. (at p127)

2. The infarction, however, had resulted from an occurrence that happened during a period in which McNicol was a member of the forces employed on active service during the war of 1939-1945; and because of that fact the appellant, as his dependant, became entitled by reason of his death to receive a pension under s. 101 of the Repatriation Act 1920-1966 (Cth). Upon the ground of her entitlement to that pension her claim for compensation under the Commonwealth Employees' Compensation Act was disallowed by reference to s. 17A (2), as read with s. 4 (3), of that Act. The present appeal is against a decision of a county court affirming the disallowance. (at p128)

3. Section 17A (2), read by itself, deals only with the right of an employee to compensation under the Act in respect of personal injury by accident arising out of or in the course of his employment by the Commonwealth. It provides that if the injury is an injury in respect of which the employee is entitled to receive a pension, other than a service pension, under the Repatriation Act the employee shall not be entitled to compensation under the provisions of the Commonwealth Employees' Compensation Act. Then s. 4 (3) provides that for the purposes of s. 17A any reference to an employee shall, where the employee has died as a result of the injury, be read as a reference to any dependant of the deceased employee "who has a legal claim in respect of the death of the employee". The result of this somewhat clumsy piece of draftsmanship is that where an employee has died as a result of an injury arising out of or in the course of his employment by the Commonwealth, and a dependant of his has a legal claim "in respect of" his death entitling the dependant to receive a pension (other than a service pension) under the Repatriation Act "in respect of" that injury, the dependant shall not be entitled to compensation under the Commonwealth Employees' Compensation Act. (at p128)

4. The appellant's pension is not a service pension, for a service pension is one payable under Div. 5 of Pt III of the Repatriation Act, and s. 101 is in Div. 6 of that Part. Undoubtedly she has a legal claim to her pension: the Repatriation Act entitles her to it as of right. If, then, she is entitled to it not only "in respect of" the death of McNicol but "in respect of" the injury, the myocardial infarction from which the death resulted, s. 17A (2) denies the right to compensation which she would otherwise have. (at p128)

5. The argument in support of the appeal interprets the expression "in respect of" in s. 17A (2) and s. 4 (3) as pointing only to the event which has brought into existence the right to receive the pension. As applied to s. 17A (2) it maintains that "in respect of" should be construed as showing that the qualification which it introduces limits the application of the provision to a case where the Repatriation Act confers a right to receive a pension by reference to and by reason of the injury. As applied to the form which s. 17A (2) would take if it were written out so as to give effect to s. 4 (3), the contention is that the expression "an injury in respect of which a dependant of a deceased employee who has a legal claim in respect of the death of the employee is entitled to receive a pension . . . under the Repatriation Act" means an injury the happening of which has, by itself, given rise to the dependant's right to receive a Repatriation Act pension upon the death of the employee. The result of adopting this construction in the present case would be that ss. 17A (2) and 4 (3) would not stand in the way of the appellant's claim for compensation, because while her right to receive a Repatriation Act pension was undoubtedly a right "in respect of" McNicol's death it would not be a right "in respect of" the injury, the myocardial infarction, since the Repatriation Act did not attach any legal consequence as regards the pension to the happening of that event. (at p129)

6. The difficulty in the way of this contention, however, is that it makes nonsense of s. 17A (2). It treats the draftsman as having so completely misunderstood the operation of the Repatriation Act that his language cannot be given any operative effect. An injury, as such, never gives rise to a right to receive a pension under the Repatriation Act. The right arises by virtue of either incapacity or death of a member of the forces, connected in a specified way with the member's war service. Unless, therefore, s. 17A (2) is to be incapable of any operation at all, either alone or as expanded by s. 4 (3), the reference to "an injury in respect of which" an employee or a dependant is entitled to receive a Repatriation Act pension must necessarily be construed as meaning an injury which resulted in the right to receive such a pension by reason of its having on the one hand had the necessary connexion with war service and on the other hand resulted in incapacity or death. A construction which allows an enactment scope for sensible operation is, of course, always to be preferred over one which reduces it to waste paper. (at p129)

7. In the instant case two facts were crucial to the appellant's right to receive her Repatriation Act pension: the fact that the myocardial infarction resulted from an occurrence that happened during McNicol's war service, and the fact that that injury in turn resulted in his death. The right was indeed a right to receive a pension "in respect of" the death of McNicol; but there is no misuse of language in saying that it was also "in respect of" the injury which, because it proved fatal and had the necessary connexion with McNicol's war service, was, in a real sense, the cause of the accrual of the right. The language of s. 17A (2) must necessarily be interpreted widely enough to cover such a case. (at p129)

8. We need not express any opinion in regard to the unreported decision of the Supreme Court of Victoria in the case of Salisbury v. Trustees Executors and Agency Co. Ltd., for it was a decision upon a State enactment very different in its terms from s. 17A (2). (at p130)

9. The refusal of compensation in the present case was correct, and the appeal must be dismissed. (at p130)

Orders

Appeal dismissed with costs.