Suck v State Government Insurance Commission No. Scciv-02-1827

SUCK v STATE GOVERNMENT INSURANCE COMMISSION
[2003] SASC 93
Full Court: Perry, Nyland and Bleby JJ

PERRY J. This is a Case Stated on questions of law formulated by the Full Bench of the Workers Compensation Tribunal (“the Tribunal”) pursuant to s 86A of the Workers Rehabilitation and Compensation Act 1986 (“the 1986 Act”). The case raises a question as to whether an entitlement to compensation under the Workers Compensation Act 1971 (“the Act”) has survived the death of the worker.
The background circumstances as set out in the Case Stated may be summarised as follows.
The deceased worker, Claude Roger Suck (“the deceased”), was born on 2 November 1926. Between approximately 1951 and 14 September 1973 he was employed by Brimco Engineering Pty Ltd (“Brimco”) and its associated companies (“the employer”).
During the course of his employment the deceased was exposed to asbestos. This caused or contributed to carcinoma of the lungs. The condition was not diagnosed until January 2001. The deceased died from the disease on 3 March 2001.
Having regard to the transitional provisions to be found in Schedule 1 of the 1986 Act, it is common ground that it is the 1971 Act which governs the entitlements to compensation in this case.
Having regard to s 8(4) of the Act, and given that the condition from which the deceased worker suffered is a disease within the meaning of the Act, the Case Stated is predicated on the basis that pursuant to s 8(4) of the 1971 Act, the date upon which the injury is deemed to have occurred is January 2001.
Prior to the date of injury, the deceased had retired from work, following which he had not exercised any residual capacity which he might have had to sell his labour on the labour market. Furthermore, as at the date of the injury, the deceased had no person dependent upon him. His widow (“Mrs Suck”), who is the appellant in the proceedings before the Tribunal, is his legal personal representative for the purposes of the Act and is entitled to make any claim for compensation under the Act which survives or is consequent upon the death of the deceased.
Associated General Contractors Insurance Company Limited and Palmdale Insurance Limited, who were the insurers of Brimco during the period of the deceased’s employment by Brimco, are both insolvent and unable to satisfy any liability which arises under any policy of workers compensation issued by them.
State Government Insurance Commission (“SGIC”) is the administrator of the Statutory Reserve Fund (“the fund”) established pursuant to Division III of the Act. As such it is the appropriate respondent to any claim against Brimco, given the insolvency of the insurers.
Mrs Suck made a claim against SGIC in its capacity as the administrator of the fund for:
(a)Compensation for medical and the like expenses pursuant to s 59 and s 50(1)(a) of the Act.
(b)Compensation for funeral expenses amounting to $1,000 pursuant to s 50(1)(b) of the Act.
(c)An assessment of compensation pursuant to s 70 of the Act.
By a determination made on 25 June 2002, SGIC allowed the claims for medical and the like expenses and for funeral expenses, but rejected the claim for compensation pursuant to s 70. In its determination, SGIC stated the following:
“11..... the legal personal representative has no entitlement to recover any compensation pursuant to Section 70.
PARTICULARS
11.1 No right to compensation pursuant to Section 70 had vested in the deceased as at the date of his death.
11.2 No assessment of any entitlement of the deceased to compensation pursuant to Section 70 had been made prior to his death.
11.3 No assessment of the entitlement of the deceased to compensation pursuant to Section 70 can be made after his death.
11.4 If, contrary to the above, the deceased did have any entitlement to compensation pursuant to Section 70 immediately prior to his death, any such entitlement does not survive his death.”
Mrs Suck appealed to the Workers Compensation Tribunal against that part of the determination pursuant to which her claim for an assessment under s 70 of the Act was rejected.
Without determining the appeal, the Tribunal stated a case for the consideration of this Court. Its explanation for doing so appears in the following paragraph in the Case Stated:
“22.The appeal raises points of law of general importance. There are a number of similar claims awaiting the outcome of this matter. We also note that the appeal may bring into question a previous decision of the Full Court of the Supreme Court, namely Executor Trustee & Agency Co v GMH (1981) 29 SASR 166, which is binding upon the Tribunal and a previous decision of the Industrial Court namely, Dwyer v State of South Australia (1979) 46 SASR [sic] (Pt 2) 170. The Tribunal has, therefore, formed the opinion that it is desirable, on the application of the parties, to reserve the following points of law for the consideration of the Full Court of the Supreme Court pursuant to the provisions of s 86A of the Workers Rehabilitation and Compensation Act 1986.”
The questions posed in the Case Stated are as follows:
“1.Did the deceased, in the circumstances pertaining, immediately prior to his death:-
(a) have an entitlement to a payment of compensation pursuant to s 70 of the Workers Compensation Act 1971; or
(b) have an entitlement to have compensation assessed pursuant to s 70 of the Workers Compensation Act 1971
in respect of the injury.
2.Can an assessment of compensation pursuant to s 70 of the Workers Compensation Act 1971 be made by [sic] after the death of a deceased worker?
3.Does any entitlement of the deceased to a payment of compensation pursuant to s 70 of the Workers Compensation Act 1971 survive his death for the benefit of his estate so as to be enforceable by his legal personal representatives?”
In order to address the Case Stated, it is necessary to have regard to the relevant provisions of the Act.
Relevant provisions of the Act
The basic entitlement to compensation arises pursuant to s 9 of the Act which provides as follows:
“9.(1) If in any employment personal injury arising out of or in the course of the 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.
(2)..........”
Part IV of the Act, comprising s 49 to s 74 inclusive, deals with the amount of compensation payable in various circumstances.
The provisions of s 49(1) indicate the basis of assessment of the compensation where a worker dies as the result of the injury, and leaves dependants wholly or partly dependent on his or her earnings.
Where there are no such dependants, s 50 is of application. This provides:
“50.Where a worker dies as the result of his injury and leaves no dependants the compensation shall be-
(a) the expenses specified in s 59 of this Act; and
(b) the reasonable expenses of his funeral not exceeding one thousand dollars.”
Section 51 entitles a worker to weekly payments of compensation where total or partial incapacity for work results from the injury, and sets out the process by which the weekly payments are to be calculated.
Pursuant to s 59, where a worker is otherwise entitled to compensation under the Act, the employer is liable to pay reasonable expenses incurred as a result of the injury for medical, hospital and the like services, within stated limits.
Section 69 provides for what are commonly described as “table payments”, being payments of lump sum compensation calculated on a sliding scale of percentages applied to a given maximum with respect to various stated permanent injuries.
Section 69(1) provides:
“69.(1) The compensation payable for the injuries mentioned in the first column of the table hereinafter set forth shall be assessed in the manner indicated in the second column of that table unless the worker by notice in writing given to the employer or his insurer before the amount of the compensation is settled states that he does not desire to have the compensation assessed under this section, and if the worker duly gives such notice, the compensation shall be assessed as if this section had not been enacted.” [sic]
The table which is subsequently set out in s 69 fixes the compensation payable with respect to injuries such as loss of an arm, or loss of hands, or loss of a leg.
Section 69(2) provides:
“69.(2) Nothing in this section or section 70 of this Act shall limit the amount of compensation payable for any injury referred to in either of those sections during any period of incapacity resulting from that injury occurring before an assessment of compensation is made in accordance with either of those sections.”
Section 70 relevantly provides as follows:
“70.(1) If the worker suffers a permanent injury not mentioned in the table set forth in section 69 of this Act and that injury results in either total or partial incapacity for work whether such incapacity is actual or potential or that injury is an injury referred to in subsection (3) of this section, compensation for that injury shall subject to subsection (2) of this section be assessed by the court as if-
(a)the injury were set out in that table;
and
(b)a percentage fixed by the court having regard to-
(i)the nature of the injury;
and
(ii)the employment or occupation for which the worker was suited before the occurrence of the injury and the employment or occupation for which the worker is suited after the occurrence of the injury,
was set out in that table opposite the description of the injury, and section 69 of this Act shall apply and have effect in all respects as if the injury were set out in the table and the percentage fixed by the Court were set out in the table opposite the description of the injury.
(2)Where the worker by notice in writing given to the employer or his insurer before the amount of compensation is settled states that he does not desire to have the compensation assessed in the manner provided for by this section, compensation shall be assessed as if this section had not been enacted.
(3).........”
Section 8(2) of the Act provides:
“2.For the purposes of this Act-
(a) a reference to a worker shall where the worker is dead, unless the context otherwise requires, include a reference to the legal personal representative of the worker and to the dependants of the worker or other persons to whom or for whose benefit compensation is payable;
(b) ......”
The issues
The three questions posed in the Case Stated turn on the resolution of the same central issues. They are, in the first place, whether the deceased had any accrued rights to compensation pursuant to s 70 of the Act as at the date of his death, and secondly, if so, whether those rights passed to his legal personal representative on his death.
In considering those issues, a convenient starting point is the decision of the House of Lords in United Collieries Ltd v Simpson.[1]
[1] [1909] AC 383.
In that case, a miner suffered injuries during the course of his employment, from which he died soon afterwards. His mother, who was dependent upon him, died three months later without having made any claim for compensation under the UK legislation. The House of Lords held that the right of the mother of the deceased workman to make a claim under the Act vested in her executrix who was entitled to pursue a claim for the compensation.
The case is authority for two propositions.
They are that the maxim actio personalis moritur cum persona has no application to cases arising under the Workmen’s Compensation Act 1906 (UK).
The second proposition is that the liability of the employer in such a case is not contingent on a claim being made before the death of the worker or, as in that case, the death of the person entitled to claim compensation.
As to the second proposition, Lord Macnaghten said:[2]
“It is enacted in s 1 that, if in any employment personal injury by accident such as therein described is caused to a workman, his employer is liable to pay compensation in accordance with the First Schedule of the Act. The measure of liability is to be found in the First Schedule. But the liability falls upon the employer on the happening of the accident. It is the accident and nothing else which creates the liability. Is the liability contingent on a claim being made as Lord M’Laren considers? I do not think it is. The Act itself treats the liability as a subsisting liability from the very moment of the accident and as a present right.”
[2] Ibid 393.
As for the first proposition, Lord Shaw said:[3]
“The truth is that this maxim ‘Actio personalis moritur cum persona’ is of doubtful origin, has produced confusion rather than guidance in specific cases, and is used rather to dress up a conclusion already formed than as a safe guide towards a conclusion. I agree with Lord Kinnear in thinking, so far as this case is concerned, that ‘it has no bearing on the question of the Workmen’s Compensation Act.”
[3] Ibid at 396.
In my view, consistently with the decision in the United Collieries case, whether a claim under the worker’s compensation legislation survives the death of the worker or other person entitled to make the claim, depends upon the construction of the relevant statutory provisions, and not upon any maxim such as actio personalis moritur cum persona.
The South Australian Act, and indeed, the workers compensation legislation in most jurisdictions in Australia, is based upon the UK Act. Both of the propositions which I draw from that case have been held to be applicable to claims under the South Australian legislation and the corresponding legislation in other Australian jurisdictions.
For example, in New South Wales the courts have applied the principles identified in the United Collieries case in relation to s 16 of the Workers Compensation Act 1926 (NSW), which section is the equivalent of s 69 of the Act: see Stevens v The Railway Commissioners for NSW[4] and Schlenert v H.G. Watson Contracting Co Pty Ltd.[5]
[4] (1930) 31 SR (NSW) 138.
[5] (1979) 1 NSWLR 140.
Ms Layton QC of counsel for Mrs Suck referred to two South Australian cases in which the same principles have been applied; one in the context of a claim under s 70 of the Act, and the other in the context of a claim under s 69.
Dwyer v State of South Australia[6] concerned s 70 of the Act, and is directly in point for present purposes.
[6] (1979) 45 SAIR 170.
In that case, it was held that the worker died as a result of a work related injury. Haese J sitting in the Industrial Court of South Australia held, inter alia, that the worker’s widow, who was his legal personal representative, could claim both weekly payments of compensation down to the date of the worker’s death, and furthermore, lump sum compensation pursuant to s 70 of the Act.
After referring with approval to the United Collieries case as supporting the proposition that the maxim actio personalis moritur cum persona was not of application to a claim under the Act, Haese J referred to s 8(2) of the Act, which I have quoted above:
By reference to s 8(2)(a), Haese J reasoned that the rights to weekly payments of compensation vested in the legal personal representative of the deceased worker.
As for the claim under s 70, Haese J referred to the New South Wales case of Daniels v Commissioner for Railways.[7]
[7] (1973) WCR (NSW) 18.
In Daniel’s case, the executor of the deceased worker made a claim with respect to noise-induced hearing loss pursuant to s 16(1) of the New South Wales legislation, which Haese J held was in terms which were comparable to s 70 of the Act. He went on to cite with approval the following dictum of Williams J in Daniel’s case:
“‘Thus the deceased worker had in his lifetime a right to compensation under section 16 of the Act, and this right, it is agreed, was not discharged by payment at the time of his death.’
and
‘At the time of the deceased’s death the right to compensation that arose on the day of the deceased worker’s claim continued, in my opinion, to subsist at the time of his death. As to the transmission of this right to compensation to the Executor of the deceased worker, section 6(2) of the Act provides that “any reference to a worker who has been injured shall where the worker is dead, include a reference to his legal personal representative, or to his dependants, or any person to whom or for whose benefit compensation is payable”. Under the comparable English Workmen’s Compensation Act of 1906, the House of Lords held in United Collieries Limited v Simpson, 1909 Appeal Cases, H.L., 383, that the actio personalis moritur cum persona rule had no application under that legislation, which contained a section indistinguishable in its terms from the present section, and held that the rights to compensation vested in a sole dependant of a deceased worker at the time of her death passed to her Executor.
It has been previously held in this Commission that rights to compensation under the present provisions of section 16(1) of the Act, introduced by section 3(1)(h)(i) of the Workers’ Compensation Amendment Act of 1964, vested in a deceased worker at his death passed to his personal representative.’”
Haese J went on to note a decision to similar effect in Flynn v Commissioner for Railways.[8]
[8] (1970) WCR (NSW) 222. See also TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497 and Crisp v Gardner Perrott (1989) 16 NSWCCR 581. It is unnecessary to deal with earlier New South Wales decisions such as Sharkey v Canterbury Municipal Council (1935) NWCR (NSW) 220 which turned on provisions in s 16 of the New South Wales legislation, later removed by amendment, which required an election to be made by the worker, with the result that the right to lump sum compensation under the section was held to be contingent upon the exercise of an election being made by the worker before his death.
While what has been described as an “election”[9] may be made by a worker under the Act, pursuant to which the worker may notify the employer that he does not desire to have the compensation assessed either under s 69 or s 70,[10] Haese J held in Dwyer that as the worker had not made any election so as to opt out of s 70, there was at the time of his death a subsisting right to an assessment of compensation pursuant to the section which he held enured for the benefit of the deceased worker’s legal personal representative.
[9] While the word “election” has commonly been used in this context, I would rather describe the process as one in which the worker may opt out of having the compensation assessed under the section.
[10] See s 69(1) and s 70(2).
The Full Court of this Court considered a similar question in relation to s 69 of the Act in Executor Trustee & Agency Co of SA v General Motors Holden Ltd.[11]
[11] (1981) 29 SASR 166.
In that case, the worker died from causes unrelated to the work injury, and no claim for compensation was made by a dependant of the worker. Rather, his legal personal representative applied for an assessment with respect to the injury, which was a noise-induced hearing loss, pursuant to s 69.
Mohr J, with whose judgment King CJ agreed, after referring with approval to the United Collieries case, made the following observations:[12]
[12] Ibid 168-169.
“In my opinion it is necessary to consider the nature and quality of a claim pursuant to s 69 of the Act. This section is the so-called ‘Maims Section’. It provides, independently and irrespective of the injured worker’s trade, occupation or earnings, for a fixed sum, determined as a percentage of a fixed sum, for certain specified injuries. Thus the loss of a leg results in an easily ascertainable sum being payable to the injured worker and so on.
Such a sum does not equate in any way with damages which may or may not be assessed for the same injury at common law where all sorts of considerations come into play. The sum by way of compensation payable pursuant to s 69 is a fixed sum payable for a partial, and in some cases, complete loss, of one or more of a worker’s physical or sensory functions, irrespective of the accompanying pain, suffering, loss of amenities and economic effects of the injury. The young worker during the first week at work receives the same compensation as the worker during the last week of his employment if the physical injury is the same.
Viewed thus it becomes, in my opinion, something akin to property to which the worker becomes entitled once the injury is suffered. There may of course be argument and dispute as to the extent of the injury but the determination of the dispute decides the nature and extent of the injury and its place on the predetermined table set out in s 69. In other words it is not a dispute as to quantum in the generally accepted sense but a dispute as to the nature and extent of a physical injury or as I would put it, ‘How much of his persona has the worker lost?’ Once this question is answered then in my opinion the vested right of the worker to compensation is quantified. Lord Macnaghten in United Collieries Limited v Simpson[13] said:
‘The Act itself treats the liability as a subsisting liability from the very moment of the accident and as a present right.’
Lord Shaw of Dunfermline in the same case said:
‘My Lords, in view of these provisions of the statute it seems to me impossible to contend successfully that the liability of the employer was not of the nature of a debt.’
If the right to compensation under the provisions of s 69 is in ‘the nature of a debt’, and in my opinion it is, then the right to sue for the debt passes to the personal representative of the deceased worker although the quantum of the debt may have to be ascertained by arbitration.” (emphasis added)
[13] [1909] AC 383 at 393.

Mr White QC for SGIC submitted that Executor Trustee & Agency Co v GMH should be distinguished for present purposes, as it involves s 69 and not s 70. Furthermore, he pointed out that in that case the worker died from a cause unrelated to the work injury.
It is true that in his judgment in Executor Trustee & Agency Co v GMH Matheson J said:[14]
“It was pointed out that it was anomalous in the light of the limited benefits passing to the personal representative of a worker dying as the result of his injury, that in the instant case the applicant should be permitted to recover compensation under s 69 of the said Act. This consideration has concerned me, but I do not regard it as sufficiently weighty to affect my decision. It may be a matter for the legislature. Like Mohr J, I agree its [s 50] presence in the Act supports the applicant to this extent, namely it assumes that a claim for compensation survives at least in the circumstances postulated.” (emphasis added)
[14] (1981) 29 SASR 179.
I assume that what Matheson J is referring to in that passage is his understanding that the benefits under s 50, where the worker dies as the result of the work injury, are limited to the expenses referred to in s 50, whereas where the worker dies for reasons unconnected with the work injury, his or her legal personal representative could recover compensation under s 69.
It must be accepted that if s 50 was to be considered in isolation, it could possibly be construed to mean that the only compensation payable in the circumstances referred to in the section are the s 50 expenses and the reasonable expenses of the funeral.
However, it does not appear that Dwyer was cited in Executor Trustee & Agency Co v GMH. Furthermore, I am satisfied that when s 50 is considered in the context of the Act as a whole, it should not be construed in that way.
In my view, s 49 and s 50 take effect to identify particular benefits payable where a worker dies as a result of the work injury. But there is no reason to suppose that the benefits provided for in those two sections were intended to displace the entitlement on the part of the legal personal representative of a deceased worker to pursue any other accrued rights to compensation which remain unpaid as at the date of death.
Mr White QC conceded that his contention to the contrary could only be upheld if Dwyer was to be overruled. I would reject that contention. In my view, Dwyer was correctly decided.
Insofar as Mr White QC attempts to distinguish Executor Trustee & Agency Co v GMH on the ground that the case involves s 69 rather than s 70, in my view, there is no reason to differentiate between the two sections for present purposes.
Both s 69 and s 70 deal with the same subject matter, that is, the assessment of compensation in the form of a lump sum in the case of certain permanent injuries. Section 70 is complementary to s 69 in the sense that it provides a means by which injuries other than those specified in the table forming part of s 69 may nonetheless be assigned a percentage which may be applied to determine a lump sum payable as though the injury was within the table.
It would be a strange, indeed anomalous, result, if the entitlement to a table payment under s 69 enured for the benefit of the legal personal representative of the deceased worker, but an entitlement to a payment under s 70 did not. There is nothing in the two sections to suggest any such distinction.
Mr White QC also contended that the assessment contemplated by s 70 is “precluded by the death of the worker”. In his written submissions, he went on to put the following:
“13..... “The loss of life itself subsumes the lost capacity for work which is an integral part of the s 70 assessment. Furthermore,
(i) The incapacity must be ‘actual or potential’.
(ii) The Court is to fix the percentage pursuant to s 70(1)(b) having regard, inter alia, to the employment ‘for which the worker is suited after the occurrence of the injury’.”
It is true that under s 70 the incapacity must be either “actual or potential”, and one of the elements in the assessment turns on a comparison between the employment or occupation for which the worker is suited before, as opposed to the employment or occupation for which the worker is suited after the occurrence of the injury.
But there is no reason to suppose that if the assessment is made after the death of the worker, those elements may be addressed as of the date of the injury and immediately afterwards, and if present, an appropriate assessment made.
To suggest that the loss of life “subsumes the lost capacity for work” tends to obscure the question whether or not there is an accrued right existing before the death of the worker which may be pursued by his or her legal personal representative after death.
In my view, the contentions advanced by Mrs Suck should prevail. I would hold that Dwyer was correctly decided.
The Act was extensively amended by the Workers Compensation Amendment Act 1982, but the legislature did not see fit to include any amendments which negated the effect of that decision, which has now stood for many years.
Before indicating the answers which I would give to the questions posed in the Case Stated, I should say that, in my view, s 2 poses a hypothetical question in that it is not related to the particular case in hand. As such it would be inappropriate to answer it. During the course of argument, the Court did contemplate the possibility that the question might be amended so that it was expressed to apply in respect of the deceased’s injuries in this case. However, on reflection, I do not think that it would be appropriate for this Court to amend a question in a Case Stated by another court or tribunal, as opposed to a Case Stated from within the Supreme Court.
In any event, these reasons, together with the answers to the first two questions, will serve to settle the issues involved.
I would answer the questions in the Case Stated as follows:

1.    Did the deceased, in the circumstances pertaining, immediately prior to his death:-

(a)   have an entitlement to a payment of compensation pursuant to s 70 of the Workers Compensation Act 1971; or

(b) have an entitlement to have compensation assessed pursuant to s 70 of the Workers Compensation Act 1971

in respect of the injury.

Yes, he had an entitlement to payment of compensation to be assessed under s 70.

2.    Can an assessment of compensation pursuant to s 70 of the Workers Compensation Act 1971 be made by [sic] after the death of a deceased worker?

It is not appropriate to answer this question.

3.    Does any entitlement of the deceased to a payment of compensation pursuant to s 70 of the Workers Compensation Act 1971 survive his death for the benefit of his estate so as to be enforceable by his legal personal representatives?”

Yes

NYLAND J. I agree with the reasons of Perry J and I agree with the answers proposed by him to the questions.
BLEBY J. I agree with the answers to the questions proposed by Perry J. I agree with his reasons.
The deceased was deemed by s 8(4) of the Act to have suffered his injury at the time that his carcinoma was diagnosed. At that time his right to compensation in accordance with the provisions of s 9(1) of the Act arose. At any time thereafter during his life he had an unfettered right to apply for an assessment of compensation under s 70 based on that injury. That was so notwithstanding that the prognosis may have been that that injury was likely to cause his death.
However, death as a consequence of the injury was not certain. Had he later died from some other intervening cause without making an application under s 70, his personal representative could have succeeded in bringing a claim under that section: Executor Trustee and Agency Co of SA Ltd v General Motors–Holdens Ltd (1981) 29 SASR 166. No one has suggested that that case was wrongly decided, and like Perry J, I can see no material difference between a claim made under s 69 and one made under s 70 in those circumstances.
If the deceased, having successfully brought his claim under s 70 during his lifetime and having been paid the compensation, then subsequently died as a result of the injury, his widow would still have been entitled to compensation under s 50 as a result of his death. There is nothing in the Act which would require his estate to repay the compensation paid during his lifetime under s 70, nor is there any requirement to deduct the amount of such compensation from any entitlement to compensation under s 50.
One cannot infer such a requirement from the presence of s 49(3) which provides, for the assessment of compensation payable where a worker dies leaving dependants:
“(3)Amounts paid or payable before the death of the worker as weekly payments of compensation for total or partial incapacity for work resulting from the injury shall not be deducted from, but shall be payable in addition to, the compensation payable under subsection (1) or (2).”
That subsection is there perhaps out of more abundant caution and is also more obviously relevant by way of clarification in a section where the compensation provided may be seen to represent and be a substitute for weekly payments of compensation which would have continued but for the worker’s death.
Given that the worker had an entitlement to be paid compensation under s 70 before his death, one must ask whether there is anything in the Act which would remove that right so that it did not vest in his legal personal representative, such vesting being well established by the line of authority beginning with United Collieries Ltd v Simpson [1909] AC 383.
The only possible implication to that effect could be drawn from the opening words of s 50(1) itself: “Where a worker dies as a result of his injury and leaves no dependants, the compensation shall be …..” (emphasis added). The argument is that the compensation is to be that provided in s 50 and nothing else. In my opinion, that merely provides for the compensation to be paid for and in respect of the death. It does not exclude other forms of compensation or an entitlement to them which may have arisen during the worker’s life. The opening words of s 50 are insufficient to overcome the rule of statutory construction stated by O’Connor J in Sargood Bros v The Commonwealth (1910) 11 CLR 258 at 279:
“It is a well recognized rule in the interpretation of Statutes that an Act will never be construed as taking away an existing right unless its language is reasonably capable of no other construction.”
See also Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ.
This does not mean that in any case where there is an interval of time between injury and death, no matter how short, the worker’s personal representative could succeed on a claim under s 70. It will still have to be established that there was a permanent injury, that there was a period of total or partial incapacity from work, that the incapacity was actual or potential, that the incapacity resulted from the injury and that the injury was of such a nature that, before death, one could make some assessment of the employment or occupation (if any) for which the worker was suited both before and after the occurrence of the injury. It follows that there must be a period during which the medium to long term effects of the injury on the worker’s life and working capacity can be assessed.
It would seem that the necessary conditions could be met in this case, although whether they are and what their effect may be on the assessment of compensation under s 70 is a matter for the Tribunal.
I therefore agree that, on this issue, Dwyer v State of South Australia (1979) 46 SAIR (Pt 2) 170 was correctly decided.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. [1909] AC 383.
2.   Ibid 393.
3.    Ibid at 396.
4. (1930) 31 SR (NSW) 138.
5. (1979) 1 NSWLR 140.
6.    (1979) 45 SAIR 170.
7. (1973) WCR (NSW) 18.
8. (1970) WCR (NSW) 222. See also TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497 and Crisp v Gardner Perrott (1989) 16 NSWCCR 581. It is unnecessary to deal with earlier New South Wales decisions such as Sharkey v Canterbury Municipal Council (1935) NWCR (NSW) 220 which turned on provisions in s 16 of the New South Wales legislation, later removed by amendment, which required an election to be made by the worker, with the result that the right to lump sum compensation under the section was held to be contingent upon the exercise of an election being made by the worker before his death.
9.    While the word “election” has commonly been used in this context, I would rather describe the process as one in which the worker may opt out of having the compensation assessed under the section.
10.    See s 69(1) and s 70(2).
11. (1981) 29 SASR 166.
12.    Ibid 168-169.
13. [1909] AC 383 at 393.
14. (1981) 29 SASR 179.

[2003] SASC 93

31 March 2003