Western Pastoral Co v Eyeington

[1971] HCA 73

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Owen, Walsh and Gibbs JJ.

WESTERN PASTORAL CO. v. EYEINGTON

(1971) 125 CLR 342

16 December 1971

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Failure to make claim for compensation within six months of injury—Failure occasioned by "ignorance"—At time of injury "ignorance" not a justification for failure to claim within time—Amendment of Act later than six months after injury making "ignorance" a justification—Effect—Workers' Compensation Act, 1926, as amended (N.S.W.), ss. 7 (1) (a), 53 (1)*.

Decisions

December 16.
The following written judgments were delivered: -
BARWICK C.J. In my opinion the conclusion reached by Mason J.A. in the Court of Appeal was correct (1971) 1 NSWLR 483, at pp 489-494 His Honour rightly called attention to the structure of the Workers' Compensation Act, 1926, as amended (N.S.W.), in that the entitlement of the worker to receive compensation as provided by the Act from the employer is given by ss. 7, 8 and 9: his ability to maintain proceedings to recover such compensation, if not paid to him, is provided for in Pt VII of the Act, of which s. 53 (1) is the principal relevant provision. That section in terms relates to proceedings for recovery of compensation. It conditions the ability of the worker to maintain such proceedings upon stated circumstances and, as a consequence, the tribunal's ability to order the recovery of compensation. But in reality the provision is addressed to the tribunal called upon to hear and determine such proceedings. The circumstances which form these conditions of necessity involve matters of judgment. They require for their existence a decision by the tribunal referred to in the proviso. Whether a notice is given "as soon as practicable" is a clear example of such a circumstance; whether an employer suffers prejudice by the want of, defect or inaccuracy of a notice which cannot be removed by adjournment of the proceedings is another. Indeed a finding that a failure to make a claim was due to "other reasonable cause", one of the matters included in the proviso to s. 53 (1), is clearly something which can only be made by the tribunal in the proceedings when brought. (at p346)

2. Counsel for the appellant has submitted that s. 53 (1) imposes a condition precedent to any liability on the part of the employer to pay compensation. In my opinion this is not the proper relationship of s. 53 (1) to those sections which entitle the worker to receive compensation from his employer. In my opinion the requirement of a notice of claim made within a stated time is not a condition of the worker's right to receive compensation. It is a condition of recovery of compensation by proceedings before the Commission. It can be said that a failure to give the requisite notice may result in the liability of the employer becoming unenforceable. But to say that the liability does not attach unless a notice is given or that having attached is extinguished by a failure to give a notice in due time, is quite another matter. (at p346)

3. Counsel for the appellant made an alternative submission that the provisions of s. 53 (1) were the equivalent of a mere time bar which on the expiry of the period of six months in inexcusable circumstances effectively extinguished the liability to pay compensation. He then used in aid decisions such as Maxwell v. Murphy (1957) 96 CLR 261 But in my opinion these cases are not in point. In Maxwell v. Murphy (1957) 96 CLR 261 the substantive right was the right to bring an action which was given on a condition which, amongst other things, required the action to be commenced within a specified time. On the expiry of that time, the right to bring the action lapsed and as a consequence there remained no substantive right. Consequently it was held that the amending statute did not apply to actions which prior to the amendment were statute barred. In constrast, the Workers' Compensation Act does not give the substantive right by means of a right of action. It provides as I have said on the one hand for a right to receive compensation and on the other for a right of recovery by a specific means, namely by proceedings before the Commission. The right to recover by means of those proceedings because conditioned by s. 53 (1) is not necessarily commensurate with the right to receive compensation. (at p347)

4. There is in my opinion in this case no occasion to discuss the distinction between the retrospective operation of a procedural statute and that of a statute creating or allowing substantive rights. The question in the case resolves itself in my opinion by direct construction of the language of s. 53 (1) in the context of the Act as a whole. Properly construed, it has no retrospective operation. It operates at the time the Commission is called upon to adjudicate in proceedings to recover compensation. It speaks as of that time, being a time subsequent to the making of the amendment. (at p347)

MCTIERNAN J. In my opinion the reasons of Mason J.A. are correct. I would therefore dismiss the appeal. (at p347)

OWEN J. In 1944 the respondent to this appeal was employed by the appellant as a station hand and while so employed, he sustained an injury to his head on a periodic journey between his place of employment and his place of abode. The injury caused a total loss of the respondent's hearing and he was totally incapacitated for work for two periods between the date of the injury and May 1949. Prior to 1969 he had given no notice of injury nor had he made any claim for compensation, but in February of that year he commenced proceedings for compensation before the Workers' Compensation Commission and an award was made in his favour. At the time when he received his injury, s. 53 (1) of the Act provided that:

"Proceedings for the recovery, under this Act, of compensation for an injury shall not be maintainable unless notice of the injury has been given to the employer as soon as practicable after the happening thereof, and before the worker has voluntarily left the employment in which he was at the time of the injury, and unless the claim for compensation with respect to such injury has been made within six months from the happening of the injury . . . Provided always that - (a) the want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not or would not if a notice or an amended notice was then given, and the hearing postponed be prejudiced in his defence by the want, defect, or inaccuracy or that such want, defect, or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and

(b) the failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings, if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause."

In July 1951 this subsection was amended by Act No. 20 of 1951 by inserting the word "ignorance" immediately before the word "mistake" in pars (a) and (b) of the proviso. It was found by the Commission that until 1969 the respondent had been ignorant that he might claim compensation for incapacity occasioned by an injury sustained on a periodic journey between his place of work and his place of abode, and that it was for this reason that he had failed to give notice of his injury or to make a claim for compensation within the prescribed period of six months. The question then arose whether the respondent was entitled to rely upon the amendment made to the subsection in 1951 as excusing his failure to give notice of injury or make a claim for compensation. (at p348)

2. The learned Commissioner ruled that the respondent was so entitled and on appeal to the Court of Appeal Division of the Supreme Court, that Court, by a majority, upheld that decision (1971) 1 NSWLR 483 (at p348)

3. For the appellant it was submitted that s. 53 (1), when read with s. 7 which creates the right to compensation for incapacitating injury, operates to make that right conditional upon the fulfilment by the worker of the requirements set out in the subsection so that unless a notice of injury be given as soon as practicable after the happening of the injury and a claim for compensation made within six months of the injury, the worker's right is barred and the employer's obligation to pay is extinguished. In such circumstances, it was said that to read the amendment made in 1951 to s. 53 (1) as applying to a case such as the present would be to affect a right to immunity from action which had accrued to the employer before the date of the amendment. I am unable to accept this submission. Section 53 (1) appears in Pt VII of the Act, which is headed "Proceedings respecting Compensation" and deals with matters to be determined by the Commission in deciding whether proceedings for compensation may or may not be maintained. It is, in my opinion, the subsection as it stands at the date of the hearing of the proceedings to recover compensation which the Commission is required to apply. And, having regard to the language in which it is framed, I think it is impossible to say that any right to immunity in the employer could arise unless and until it has been "found in the proceedings for settling the claim" - to use the words of the provision - that the worker has failed to establish one or other of the matters of excuse for which the sub-section provides. (at p349)

4. I would dismiss the appeal. (at p349)

WALSH J. Having regard to the manner in which the case in which this appeal has been brought was dealt with in the Workers' Compensation Commission and in the Supreme Court of New South Wales (Court of Appeal Division) (1971) 1 NSWLR 483, the question does not arise whether or not it would have been open to the learned chairman of the Commission to find that the failure of the respondent to give notice of his injury as soon as practicable and his failure to make a claim for compensation within six months were occasioned by "mistake" or by "other reasonable cause" and, therefore, did not constitute a bar to the maintenance of the proceedings for compensation. The learned chairman considered that those failures were occasioned by ignorance and held that s. 53 (1) of the Workers Compensation Act, 1926 (as amended) (the Act) was applicable, as amended in 1951 by the insertion in both paragraphs of the proviso to that subsection of the word "ignorance". It appears from his reasons that the respondent was not in ignorance of the existence of any right to compensation for an employment injury, but he was not aware that any such right attached to an injury received on a journey to or from work. In this respect the case is not identical in its facts with Roles v. Pascall &Sons (1911) 1 KB 982, in which it was decided that ignorance of the existence of the Workmen's Compensation Act, 1906 (Eng.) and of any right to compensation could not be held to be "mistake" or to be "other reasonable cause". Upon the view that I take of the question which was before the Supreme Court, I need not consider the correctness of that decision or its relevance to the facts in the present case. I mention it because in one part of the argument submitted to us it was said that if the respondent's claim had been heard at any time before the amending Act of 1951 commenced, then upon the application of the law as it stood then to the facts which have now been found to have existed, the claim must have failed and therefore, according to the argument, the appellant had an immunity from liability which the amending Act should not be held to have affected. Whilst it may be that a claim brought at that earlier time would have failed, I am not willing to assent unreservedly to the proposition that it has now been established that the proviso as it stood then could have had no application and that accordingly there was then an absolute bar to the proceedings. (at p350)

2. The sole question with which the Court of Appeal was concerned was whether the learned chairman of the Commission should have dealt with the application before him in accordance with the provisions of s. 53 (1) as they stood when the injury was received and for several years afterwards or in accordance with those provisions as they stood when he heard the application. In my opinion, the majority decision of the Court of Appeal was correct. The opposing views are expressed in the judgment of Jacobs J.A., who dissented, and of Mason J.A., with whom Moffitt J.A. agreed. The conclusion reached by the majority is supported by the reasons for judgment in this appeal of the Chief Justice, with which I agree. In those circumstances I do not think it necessary to deal at length with the problem or to state fully my own reasons for disagreeing with the view which Jacobs J.A. expressed concerning the character of the provisions made by that part of s. 53 (1) (including the first proviso) which relates to the giving of notice of the injury and concerning the effect of a failure to give notice (not found on subsequent investigation to have been occasioned by a cause then specified as an excusing cause) in creating in the employer an immunity which should be regarded as absolute. But there are some observations I should like to make. (at p350)

3. I recognize that in many respects the investigation of matters which may arise in a proceeding in which s. 53 (1) is raised by the respondent as a bar must be an investigation of past facts and events. This is not always true, since the question whether or not the employer is not, or would not be if proper notice were given and the hearing postponed, prejudiced in his defence may require an examination and evaluation of circumstances existing at the time of the hearing. But I do not regard that as of any great importance. Accepting the position that generally the tribunal must examine past facts and events when making a decision in relation to s. 53 (1), I think that it is of great importance in resolving the question raised by this appeal to observe that the language used in the proviso, in defining what are the conditions upon which the want of a notice or any defect or inaccuracy in a notice of injury or the failure to make a claim within the specified period is not to be a bar to the maintenance of the proceedings, refers not to the existence of some specified cause of such a failure, but to findings that the want of a notice or a defect or inaccuracy in a notice or the failure to make a claim was occasioned by one of the specified causes. In some circumstances a distinction between a reference to something as an objective fact and a reference to a finding concerning the existence of a fact may be of no significance in determining how a statutory provision should be held to operate. But having regard to the setting of s. 53 in the Act and to its terms, I cannot regard as insignificant the use in the first paragraph of the proviso of the words "if it is found in the proceedings for settling the claim" and in the second paragraph the use of the words "if it is found". These words indicate that the proviso is directing attention to what is to occur in the course of the proceedings and is in effect giving instructions to the tribunal as to the manner in which it is to act when hearing the proceedings. Therefore, in my opinion, the conclusion should be reached that the provision which should be applied is that which is in force at the time of the proceedings. I base that opinion, not upon the ground that the provision is merely a procedural one to which no presumption is applicable that it does not operate in its amended form on facts or events which have already occurred so as to affect rights or liabilities defined by reference to those facts or events, but upon the ground that the language of the provision indicates that it is to operate according to its terms at the time when the proceedings take place. (at p351)

4. There is only one other aspect of the case to which I wish to refer. By virtue of s. 7 (1) (a) of the Act, a worker who has received an injury whether at or away from his place of employment is entitled to receive compensation from his employer "in accordance with this Act". It was part of the argument for the appellant that the right conferred by the Act upon a worker was subject to and conditional upon the provisions of s. 53 (1), in the same manner as that in which the rights given by the Compensation to Relatives Act, 1897 (N.S.W.), were held in Maxwell v. Murphy (1957) 96 CLR 261, to be subject to and conditional upon the provision in s. 5 thereof concerning the time within which an action should be commenced. In my opinion that submission cannot be accepted. It is contrary, in my opinion, to the view taken as long ago as 1909 by the House of Lords in United Collieries Ltd. v. Simpson (1909) AC 383, as to the effect of provisions in a statute providing for workers' compensation, which were for relevant purposes similar to those contained in ss. 7 and 53 of the Act. The argument is contrary, also, to opinions which have been stated in this Court concerning the nature of the liability of an employer to pay compensation to an injured worker under the Act and under similar statutes and concerning the time at which that liability arises, e.g., in Kraljevich v. Lake View and Star Ltd. (1945) 70 CLR 647, at p 650, and in Fisher v Hebburn Ltd (1960) 105 CLR 188, at p 203 The judgment of the Privy Council in Ogden Industries Pty. Ltd. v. Lucas (1970) AC 113; (1968) 118 CLR 33, in which the view that had been taken in some earlier decisions concerning the accrual of liability to pay compensation in the case of the death of a worker was not accepted, did not reject but on the contrary affirmed the proposition that the right of an injured worker to compensation and the corresponding liability of the employer accrues at the time of the injury (1970) AC, at p 130; (1968) 118 CLR, at p 42 (at p352)

5. I am of opinion that the appeal should be dismissed. (at p352)

GIBBS J. I agree for the reasons given by the Chief Justice that the conclusion reached by Mason J.A. was right and that the appeal should be dismissed. (at p352)

Orders

Appeal dismissed with costs.