Whitley, O.W. v Scobie, R
[1985] FCA 564
•11 NOVEMBER 1985
Re: ORO WESLEY WHITLEY
And: RICHARD SCOBIE
No. NTG 24 of 1985
Worker's Compensation
8 FCR 181
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox(1), Northrop(2) and Lockhart(3) JJ.
CATCHWORDS
Worker's Compensation - amount of entitlement - whether disabled worker "required to undergo treatment away from his usual place of residence" within para.11(1)(e) of Workmen's Compensation Act (N.T.) - worker receiving allowance for required "help or attendance of another person" within sub-s. 12(1) of that Act - amendment thereafter of Act from provision for fixed sum to rate fixed by Workmen's Compensation Tribunal - whether amendment applies when injury arose before it came into operation.
Workmen's Compensation Act (N.T.) s.7; para. 11(1)(e); sub-s.12(1).
Staska v. General Motors-Holden's Pty.Limited (1972) 123 C.L.R. 673 cons.
Fisher v. Hebburn Limited (1960) 105 C.L.R. 188 cons.
Geraldton Building Co.Pty.Ltd. v. May (1977) 136 C.L.R. 379 cons.
Workers' Compensation - Matters affecting calculations of entitlement - "usual place of residence" - Whether limited to residence at time of injury - Amending Act giving right to additional compensation - Injury prior to amending Act - Whether retrospective operation - Workmen's Compensation Act (NT), ss 7, 11(1)(e), 12(1).
HEADNOTE
Held: (1) The location of a workman's "usual place of residence", referred to in s 11(1)(e) of the Workmen's Compensation Act (NT) is not limited to the place of residence at the time of injury. It may vary from time to time, and is to be treated as the place where the incapacitated workman's usual place of residence is at the time he is required to have the treatment mentioned in the section.
(2) Section 12(1), of the Act, as amended by Act No 77 of 1978, may apply to injuries occurring before, as well as after, the commencement date of the section as amended.
(3)(a) Per Fox J: Section 12(1), as amended by Act No 77 of 1978, has only prospective operation. It deals with a situation which may occur at any time during incapacity and from time to time during incapacity. The advice of a medical practitioner is a condition of the operation of the section, as well as the circumstance which may initiate the entitlement.
(b) Per Northrop J: (i) The amended s 12(1) applies if a registered medical practitioner has given the advice referred to therein after the commencement date of the amended section. In this regard the word "where" in s 12(1) is to be read as meaning "if". On this basis the amended section has only a prospective operation. (ii) The entitlement to compensation under s 12(1) continues only so long as the medical practitioner continues that advice, but entitlement may re-arise on further advice being given.
(c) Per Lockhart J: The amended s 12(1) operates prospectively. It confers a right to additional compensation provided two statutory conditions precedent are satisfied: first, the sustaining of the injury caused by an accident arising out of or in the course of the workman's employment and, secondly, that the workman requires the constant help or attendance of another person.
Geraldton Building Co Pty Ltd v. May (1977) 136 CLR 379; Fisher v. Hebburn Ltd (1960) 105 CLR 188, applied. Staska v. General Motors-Holden's Pty Ltd (1972) 123 CLR 673, distinguished.
HEARING
Melbourne, 1985, August 20, 22-23; November 11. #DATE 11:11:1985
APPEAL
Appeal from judgment and orders of the Supreme Court of the Northern Territory.
T I Pauling QC, for the appellant.
P B Bracher, for the respondent.
Cur adv vult
Solicitors for the appellant: Mildren Sylvester & Partners.
Solicitors for the respondent: Ward Keller.
FPC
ORDER
1. The appeal from the Supreme Court of the Northern Territory be allowed in part.
2. Order no. 5. of the Supreme Court, namely:-
"5. That the appellant pay such amounts by way of compensation to the respondent as were provided pursuant to s.12(1) of the Act from time to time until the 28th day of April 1977, and thereafter at the rate of $20 per week and that the claims of the appellant and the respondent in respect thereof be otherwise dismissed"
be set aside and in lieu thereof it be ordered that the respondent, Richard Scobie, pay such amounts by way of compensation to the appellant, Oro Wesley Whitley, as were provided pursuant to s.12 of the Workmen's Compensation Ordinance from time to time until the 26th day of October 1978 and thereafter until the 14th day of October 1982 at the rate of $20 per week and from the 15th day of October 1982 at the rate of $215 per week until further order of the Tribunal.
3. Order no. 8. of the Supreme Court, namely:-
"8. That the respondent pay the appellant's costs of appeal to be taxed"
be set aside and that in lieu thereof it be ordered that each party bear its own costs of the appeal from the Workmen's Compensation Tribunal to the Supreme Court.
4. Order no. 9. of the Supreme Court, namely:-
"9. That liberty be given to either party to apply as to the cost of the application before the Workmen's Compensation Tribunal"
be set aside and in lieu thereof it be ordered that the order for costs made by the Workmen's Compensation Tribunal in respect of the proceedings before it, namely, that the employer pay to the workman his costs of the proceedings before the Workmen's Compensation Tribunal, be restored.
5. The respondent pay to the appellant his costs of the appeal from the Supreme Court to this Court.
6. Otherwise the orders of the Supreme Court be confirmed.
(Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.)
Appeal allowed in part.
Orders accordingly
JUDGE1
The facts and relevant legislation are set out in the reasons for judgment of Northrop J. and Lockhart J. and it is unnecessary for me to repeat them. I agree with the results which they have reached and the orders proposed.
The present sub-secn.12(1) of the Workmen's Compensation Act (N.T.) introduced, when it was passed, a new method of arriving at "additional compensation", in lieu of periodically fixed amounts. The amount to be paid is plainly intended to cover expenses, related to help or attendance. (No questions arise in this case as to whether the sub-section permits of allowances for help given without charge by a wife or relative.) The fixed amounts might have been an overpayment in some cases and an underpayment in others, and the present intention is to have a more equitable and appropriate method of determination.
The section deals with a situation which may occur at any time during incapacity and from time to time during incapacity. The advice of a medical practitioner is a condition of the operation of the sub-section, as well as the circumstance which may initiate the entitlement. It seems to me in the circumstances relatively plain that it is not a case for attempting to apply principles about retro-activity, except in so far as they indicate that the ultimate question is one of construction.
JUDGE2
On 27 August 1973, Oro Wesley Whitley ("the workman") suffered serious personal injuries under circumstances in which his employer, Richard Scobie ("the employer") became liable to pay him compensation under the Workmen's Compensation Ordinance, now the Workmen's Compensation Act, of the Northern Territory of Australia ("the Act"). The employer paid compensation in accordance with the Act, but differences of opinion arose between the workman and the employer and those differences were referred to Arbitration under the provisions of the Act. On 15 October 1982, the Workmen's Compensation Tribunal made a determination in that Arbitration. Under the provisions of the Act, the employer appealed to the Supreme Court of the Northern Territory of Australia against some of the orders made in that determination. The workman cross-appealed against some other of the orders so made. On 4 November 1984, the Supreme Court made a number of orders determining the appeal and the cross-appeal and published its reasons for making those orders. The workman, pursuant to the provisions of the Federal Court of Australia Act 1976, appeals to this Court from three of the orders made by the Supreme Court. The orders appealed from are identified:-
1. The order dismissing the workman's claim for compensation pursuant to sub-section 11(2A) of the Act.
2. The order dismissing the workman's claim for compensation pursuant to paragraph 11(1)(e) of the Act.
3. The order in substance dismissing the workman's claim for compensation under sub-section 12(1) of the Act as inserted into the Act by s.11 of the Workmen's Compensation Ordinance 1978 (No. 77 of 1978) which came into operation on 27 October 1978 and which had been determined by the Tribunal at the rate of $215 per week from 15 October 1982, being the date of the determination of the Tribunal. This order by the Supreme Court directed the payment pursuant to the provisions of sub-section 12(1) as in operation before being repealed by the Ordinance of 1978.
Each of these orders will be considered separately.
Order 1.
Counsel for the workman did not make any submissions against this order. Accordingly, the appeal against this order is dismissed.
Order 2.Section 11 of the Act imposes a liability on an employer to pay the costs of medical and other expenses incurred by an employee who suffers a compensable injury. For present purposes, the relevant provisions of sub-section 11(1) and sub-section 11(1A) are set out:-
"11(1) Where -
(a) an employer is liable to pay compensation under this Act in respect of the ... incapacity of a workman resulting from an injury ... ;
the employer shall, subject to sub-section (2), be liable to pay -
(d) the costs of the medical and surgical treatment, hospital treatment, nursing service and ambulance service incurred by reason of the injury or disease; and
(e) an allowance up to a maximum of $20 a day if the person being treated for an injury or disease for which compensation is payable under this Act -
(i) is required or advised by a medical referee to undergo treatment away from his usual place of residence and does so;
(ii) is not hospitalised where the treatment is or was being given; and
(iii) produces evidence of his living expenses incurred at the place at which he is required or advised to undergo treatment.
(1A) An employer who is liable to pay an allowance in accordance with sub-section (1)(e) shall pay to the workman either the maximum amount per day referred to in that sub-section or the actual cost of the workman's living expenses, whichever is the lesser."
Sub-section (2) has no application to the present appeal.
At the time the workman suffered the injuries resulting in his incapacity, his usual place of residence was at a cattle station called Hidden Valley Station in the Northern Territory. As a result of his injuries he had to go to Adelaide for medical and hospital treatment. He spent some eighteen months in hospital. Since then, he has required constant attention. His wife has purchased a flat in Adelaide and the appellant lives there. As a result of his injuries, the workman is unable to live at Hidden Valley Station. It is fair to say that since he was discharged from hospital and up until the present time, the workman's usual place of residence is Adelaide.
Counsel for the workman contended that the words "his usual place of residence" appearing in sub-paragraph 11(1)(e)(i) refer to the usual place of residence at the time a workman suffers compensable injury and remains as his usual place of residence for all time thereafter. Implicit in this contention is the fact that an incapacitated worker is unable to obtain a different usual place of residence. This is so even though, as in this case, the workman, for medical reasons, cannot live at his "usual place of residence".
This contention is rejected. Under paragraph 11(1)(d) the employer is to pay the medical, hospital and like expenses incurred by the incapacitated workman. Paragraph (e) provides for a different type of compensation. That paragraph presumes that the incapacitated workman maintains a usual place of residence. The three sub-paragraphs 11(1)(e)(i), (ii) and (iii) are cumulative, each must be satisfied before the allowance is payable. Thus the incapacitated workman is required to undergo treatment away from his usual place of residence and does so. If he is hospitalised for that treatment, the cost of the hospitalisation is paid for by the employer under paragraph 11(1)(d). During any period of hospitalisation, the workman is required to meet any expenses required with respect to his usual place of residence. In order to become entitled to the allowance, the incapacitated workman must produce evidence of his living expenses incurred at the place at which he is required to undergo treatment. In other words, he must vouch for expenses incurred and the maximum amount that can be reimbursed to him is $20 per day, see sub-section 11(1A).
The purpose of the paragraph is to reimburse an incapacitated workman while living away from his usual place of residence for the purpose of being treated for the injury for which compensation is payable. The allowance proceeds on the basis that the incapacitated workman has a usual place of residence. Where that place is depends upon the evidence in any particular case. It is not limited to the place of residence at the time of injury. It may vary from time to time and is to be treated as the place where the incapacitated workman's usual place of residence is at the time he is required to have the further treatment.
In the present case, at all relevant times, the usual place of residence of the workman was Adelaide. He has not been required to undergo treatment away from that place. The workman's appeal against order 2. is dismissed.
Order 3.In 1973, the Act was amended to provide for additional compensation to be paid to an injured workman where the workman required constant help or attendance of another person. The amendment was effected by s.6 of the Workmen's Compensation Ordinance 1973 (No. 25 of 1973) which came into operation on 17 May 1973, some three months before the injury to the workman. That section inserted s.12 into the Act. The whole of that section is set out:-
"12(1.) Where as a result of an injury to a workman the workman on the advice of a registered medical practitioner requires the constant help or attendance of another person, compensation is payable to the workman during any period when he requires that help or attendance at the rate of nine dollars per week.
(2.) Compensation is not payable under sub-section (1.) in respect of any period when the workman is being maintained as a patient in a hospital, nursing home or similar place, or is receiving constant nursing attention, and the cost of his maintenance in that hospital, nursing home or other place or the cost of that nursing attention, as the case may be, is being borne wholly by the employer."
Three things should be noted. First, the opening words of sub-section 12(1), on their face, appear to apply to all injuries to a workman and not be limited to compensable injuries under s.11 of the Act. In the present case, nothing turns on this. Second, the compensation only becomes payable on the advice of a registered medical practitioner. Third, sub-section 12(2) has not been amended. It is an exclusion provision and is designed to prevent the payment of double compensation by the employer.
In addition, the Ordinance of 1973 increased weekly amounts of compensation payable to incapacitated workmen. Section 9 of the Ordinance of 1973 made specific provisions to the effect that the increased weekly amounts were to be paid to the workmen already receiving weekly payments of compensation. The same section made similar provisions with respect to payments relating to diseases and to death. Sub-section 10(1) provided that existing policies of insurance were to have effect as if they applied to liability under the Act as amended by the Ordinance of 1973. Sub-sections 10(2) and (3) contain special provisions relating to premiums to be paid in cases relating to additional payments under s.9. The Ordinance of 1973 contained no provisions relating to the additional payments that became payable under s.12 of the Act. Presumably sub-section 10(1) would have applied, but nothing was said about the case where an incapacitated workman was injured before 17 May 1973 but after that date, a registered medical practitioner advised that the injured workman required constant help or attendance of another person. We were not referred to any authority where this matter had been considered. In a nutshell, that is the issue raised by the appeal against order 3.
In 1975, sub-section 12(1) of the Act was amended by s.5 of the Workmen's Compensation Ordinance 1975 (No. 4 of 1975) which came into operation on 12 March 1975. By that amendment, the amount of compensation payable was increased from "the rate of nine dollars per week" to "the rate of fourteen dollars per week". Under s.12 of the Ordinance of 1975, special provision was made to the effect that the increased rate of payments under sub-section 12(1) was to be paid irrespective of the date of injury while s.7 contained special provisions relating to premiums payable under existing policies of insurance. It should be noted that under s.12 of the Act in operation in 1973 and the Act in operation in 1975, compensation was payable at a fixed rate per week.
In 1977, sub-section 12(1) of the Act was amended further by s.5 of the Workmen's Compensation Ordinance 1977 (No. 12 of 1977) which came into operation on 29 April 1977. By that amendment, the amount of compensation payable was increased from "the rate of fourteen dollars per week" to "the rate of twenty dollars per week". Similar provisions were contained in ss.7 and 8 of the Ordinance of 1977 as those contained in ss.6 and 7 of the Ordinance of 1975. It is noted that compensation continued to be paid at a fixed rate per week.
In 1978, a new sub-section 12(1) was inserted into the Act by s.11 of the Workmen's Compensation Ordinance 1978 (No. 77 of 1978) which came into operation on 27 October 1978. Section 11 of the Ordinance of 1978 is set out in full:-
"11. Section 12 of the Principal Ordinance is amended by omitting sub-section (1) and substituting the following sub-section:
'(1) Where, as a result of an injury caused by an accident arising out of or in the course of his employment, a workman, on the advice of a registered medical practitioner, requires the constant help or attendance of another person, compensation is payable to the workman during a period when he requires that help or attendance at a weekly rate considered reasonable by the Tribunal.' "
A number of things should be noted. The opening words of s.11 of the Ordinance of 1978 have the effect of repealing the pre-existing sub-section 12(1). The opening words of sub-section 12(1) are more in conformity with the traditional language of Workmen's Compensation legislation, but is to be contrasted with sub-section 7(1) of the Act which imposes a liability upon the employer. The relevant part of that sub-section is:-
"7(1) If personal injury by accident arising out of or in the course of his employment by his employer is caused to a workman, his employer shall, subject to this Ordinance (Act), be liable to pay compensation in accordance with the Second Schedule to this Ordinance (Act)."
Likewise, s.11 of the Act, the relevant parts of which are set out earlier in these reasons, imposes a liability on the employer to pay amounts of money to or on behalf of the injured workman. Sub-section 12(1) does not, by express provisions, impose a liability on the employer but provides that where a workman satisfies the requirements of the section, "compensation is payable to the workman". It should be noted that the compensation to be paid is at "a weekly rate considered reasonable by the Tribunal".
The Ordinance of 1978 contained no provisions similar to those contained in ss.6 and 7 of the Ordinance of 1975 and in ss.7 and 8 of the Ordinance of 1977.
In the present case, it is not disputed that at all relevant times, the workman, on the advice of a registered medical practitioner, required the constant help or attendance of another person. It is not disputed that at all relevant times he received that constant help or attendance of another person. There is no dispute that until 27 October 1978 the appellant was entitled to be paid compensation at the rate of nine dollars, fourteen dollars and twenty dollars respectively, as provided by the Ordinances of 1973, 1975 and 1977 respectively. After 27 October 1978, being the date the Ordinance of 1978 came into operation, the employer considered himself liable to pay to the appellant compensation at the rate of $20 per week, being the rate prescribed by sub-section 12(1) of the Act which had been repealed by the Ordinance of 1978.
On 15 October 1982, the Tribunal, pursuant to sub-section 12(1) of the Act determined that compensation at the rate of $215 per week should be payable to the workman from 15 October 1982. On appeal, the Supreme Court set aside that determination and ordered that pursuant to sub-section 12(1) of the Act, the workman should be paid at the rate of $20 per week, being the amount prescribed by sub-section 12(1) which had been repealed by the Ordinance of 1978. For the purpose of the appeal to this Court, the issue is whether the workman is entitled to be paid compensation under sub-section 12(1) at the weekly rate of $215 or at the rate of $20 per week.
This issue is to be determined according to the proper statutory construction of sub-section 12(1) of the Act as presently in operation. Counsel for the employer contended that the sub-section applied only where the accident causing the injury to the workman occurred after 27 October 1978. He submitted that the sub-section should not be given retrospective operation so as to apply to a case where the accident causing the injury occurred before 27 October 1978. He relied upon a large number of cases including Staska v. General Motors-Holden's Pty. Limited (1972) 123 CLR 673, a decision of the Privy Council affirming the decision of the High Court, reported (1969) 119 C.L.R. 301, and cases referred to in those authorities.
Counsel for the workman contended that this was not a case of giving retrospective operation to the sub-section, that the sub-section should be construed as having prospective effect and that in this case the crucial requirement was the time when a registered medical practitioner gave advice that the injured workman "requires the constant help or attendance of another person". He relied upon what was said by Fullagar J. in Fisher v. Hebburn Limited (1960) 105 CLR 188, at p 194.
The principle to be applied in determining issues of this kind is not really in dispute. The difficulties arise in applying that principle. In this regard, reference may be made to Geraldton Building Co. Pty. Ltd. v. May (1977) 136 CLR 379. In commencing his reasons for decision in that case, Mason J., who dissented from the orders made, said at pp.401-2:-
"This is yet another case involving the question whether a statute increasing the scale of benefits under workers' compensation legislation payable to an injured worker has an application when the injury resulting in incapacity took place before the statute comes into operation. The principle to be applied is not in doubt; it was expressed by Fullagar J. in Fisher v. Hebburn Ltd. in this way:
'There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of "accidents" or "injuries" occurring after their coming into force: the cases of Moakes v. Blackwell Colliery Co. Ltd.
(1925) 2 KB 64 and Kraljevich v. Lake View and Star Ltd. (1945) 70 CLR 647 are familiar examples. But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring "accidents" or "injuries". It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury.' "
In Staska, the Privy Council held that amendments providing for increased rates of compensation did not apply to cases where the liability to make compensation arose before the amendments came into operation. That conclusion was based upon the particular legislation then before the Privy Council. In coming to that view, the Privy Council relied strongly on the fact that at the time the liability arose, a maximum amount of compensation for which an employer became liable was fixed at an ascertainable amount. In Fisher, Fullagar J. came to the conclusion that the additional liability began with incapacity and not with injury, and so the benefits conferred by the amendments to the legislation then being considered accrued to the benefit of the worker. In Fisher, the majority of the Court held that the amount of compensation should be determined according to the provisions of the Act at the time of the election to redeem future payments and not at the time of the injury, but did not rely upon the principle enunciated by Fullagar J.
In the present case, there is much to be said to support the view that the amendments made to sub-section 12(1) of the Act in 1978 apply with respect to the workman. There is no doubt that before the sub-section applies, a workman must have suffered an injury by accident arising out of or in the course of his employment, but the time at which the injury occurred is immaterial. No compensation becomes payable to that workman under that sub-section until a registered medical practitioner advises that the workman requires the constant help or attendance of another person. The amount of the compensation payable is indeterminate and depends upon what is considered reasonable by the Tribunal. If the workman is being maintained in a hospital or similar place or is receiving constant nursing service, the employer is liable to pay the costs involved; see paragraph 11(1)(d). The amount of those costs is indeterminate. Where those costs are paid, no compensation is payable under sub-section 12(1); see sub-section 12(2). Thus, it is apparent that compensation under sub-section 12(1) may be intermittent. Not only may there be periods when the worker requires extended treatment in hospital, but also the requirement of constant help or attendance of another person need not be continuous or permanent. The initiating factor for the payment of compensation under sub-section 12(1) is the advice of the registered medical practitioner. In this context, the word "where" in the sub-section is to be construed as meaning "if". The entitlement continues only so long as the medical practitioner continues that advice. After a period of non-entitlement to compensation either because of treatment in hospital or the absence of advice, the entitlement may re-arise on further advice being given. By way of analogy, it is noted that in sub-section 11(1) the word "where" has the same meaning. Thus, in that sub-section, the liability to pay compensation under paragraphs 11(1)(d) and (c) are dependent upon a liability to pay compensation under paragraphs 11(1)(a), (b) or (c). Where that liability arises, the additional liability commences from time to time as the additional costs are incurred or the allowance becomes payable. On this construction, sub-section 12(1) has prospective application only and applies with respect to the appellant since the advice of the registered medical practitioner under that sub-section was given after 27 October 1978.
There are many similarities between the facts and legislation considered in May's case and the facts and legislation relevant to the present case. In May's case, as a result of an accident arising out of or in the course of his employment in 1971, the workman had suffered an injury to his left eye. Under the legislation then in operation, he had the option to elect to accept a lump sum payment at a particular amount specified in a Schedule to the Act. In 1973, the legislation was amended so that a workman could elect to become entitled to a percentage of a prescribed amount. In 1974, the workman elected to be paid a lump sum calculated in accordance with the 1973 amendments. The issue was whether he was entitled to that amount or to a lesser amount calculated in accordance with the unamended legislation. The High Court, by a majority, Gibbs, Stephen and Murphy JJ.; Barwick CJ. and Mason J. dissenting, held that the workman was entitled to the compensation calculated in accordance with the 1973 amendment. At pp.394-5 Gibbs J. said:-
"However, the ordinary and natural meaning of the words of s.7(3)(a) appears to me to be that the worker only becomes entitled to the compensation payable under the Second Schedule if and when he makes his election. The sub-section does not use the word 'when', but 'where', meaning 'in a case in which', or in other words 'if'. If the worker never elects he never becomes entitled. No doubt when the injury occurs the worker acquires a contingent right to payment under the Second Schedule, and might then obtain a declaratory judgment accordingly, but the right only becomes vested when he makes his election, and until he does so the employer is not liable to make any payment under the Second Schedule. It is possible that, for reasons of his own, a worker might never make an election (e.g. if the payments under the First Schedule were likely to exceed the prescribed amount and the worker wished to continue to receive further payments under cl.(c) of the proviso) and in that case the condition precedent to the accrual of the liability of the employer to make a payment under the Second Schedule would never be fulfilled. The words of s.7(3)(a), if given their natural meaning, have the result that the election determines not merely the time when compensation under the Second Schedule is to be paid, but whether compensation of that description is to be paid at all."
The reasons for judgment of Stephen J. are short and should be read in full. They encapsulate the problems that arise in this type of case and how the problems are to be resolved by the proper application of principle. At pp.399-401 his Honour said:-
"The point for decision is a short one, whether or not the 1973 amendments enured for May's benefit upon the making of his election; in other words, whether or not the new Second Schedule payments were applicable to all who elected after the amendments came into effect of only to those who, unlike May, had also suffered injury by accident after that date. Looked at in isolation the provisions of s.7(3) of the Act, as amended in 1973, would appear readily enough to be applicable to an injured worker who makes his election in
1974. But it is said that if such a worker suffered the relevant injury by accident before the amendment was made it is the state of the law at that earlier time which will always thereafter provide the measure of his rights and of his employer's liability.
The amending legislation provides no express answer to this question; such indications of legislative intent as may be discerned or deduced are, I think, equivocal, some pointing in one direction, some in another. The accumulated scar tissue of sixty-five years of frequent amendment, aggravated rather than aided by the cosmetic device of successive reprints, makes unrewarding the search for any underlying pattern likely to reveal legislative intent; nor have I found profitable my examination of the history of successive amendments.
The point must, then, be resolved in the light of the principle that, in the absence of clear indications to the contrary, amending enactments are to be taken to have a propsective operation only (Fisher v. Hebburn Ltd., per Fullagar J.
(1960) 105 CLR 188, at p 194 so as not @to upset vested rights and liabilities which are complete in themselves', Clement v. D. Davis & Sons Ltd., per Viscount Dunedin (1927) AC 126, at p 131. ... )
The matter may, I think, be tested by asking whether or not May's right to a Second Schedule payment relevantly accrued to him, and the correlative liability was relevantly incurred by his employer, only upon election or, rather, much earlier at or shortly after he suffered injury by accident.
There was, no doubt, a contingent accrual and the incurring of a contingent liability once May, having suffered injury by accident, also suffered some loss of vision. But until he made an election in accordance with s.7(3)(a) all was contingent; he might make no such election, he might die before making it. This is not to deny the close connexion between s.7(3)(a) and the provisions of s.7(1); the former relies upon, and cannot operate effectively in the absence of, the provisions of the latter. But this fact is not, in my view, of itself decisive of the point and if accrual, in the relevant sense, of the right and liability in question only occurs upon election, the dependence of s.7(3)(a) upon s.7(1) should not operate to deprive May of the benefit of the 1973 amendment."
In the present case, the statutory history of s.12 of the Act and the transition provisions contained in the earlier amendments do not assist in the construction of sub-section 12(1). The sub-section is to be given a prospective operation. The sub-section does not upset vested rights and liabilities which are complete in themselves. No question arises as to the so-called retrospective operation of the amendment made in 1978. The entitlement to payment of compensation under sub-section 12(1) arises only on the giving of advice by a registered medical practitioner and the amount of compensation is then determined by the Tribunal.
In the result, the appeal against order 3. should be allowed.
The question of costs has become confused. The Tribunal ordered that the employer pay the workman's costs of the proceedings before the Tribunal. The Supreme Court ordered that the workman pay the employer's costs of the appeal and granted leave to either party to apply as to the costs of the application before the Tribunal. Apparently no such application has been made to the Supreme Court. On the appeal to this Court, the workman has succeeded substantially. It is important that this matter be determined without the need for further proceedings before this Court or the Supreme Court. On the substantial issues, the workman succeeded in the proceedings before the Tribunal so the order of the Tribunal as to costs should be restored. Each party succeeded in part in the proceedings before the Supreme Court. In those circumstances, each party should pay his own costs of the proceedings in the Supreme Court. The employer should pay the workman's costs of the appeal to this Court.
The following orders should be made:-
1. That the appeal from the Supreme Court of the Northern Territory be allowed in part.
2. That order no. 5. of the Supreme Court, namely:-
"5. That the appellant pay such amounts by way of compensation to the respondent as were provided pursuant to s.12(1) of the Act from time to time until the 28th day of April 1977, and thereafter at the rate of $20 per week and that the claims of the appellant and the respondent in respect thereof be otherwise dismissed"
be set aside and in lieu thereof it be ordered that the respondent, Richard Scobie, pay such amounts by way of compensation to the appellant, Oro Wesley Whitley, as were provided pursuant to s.12 of the Workmen's Compensation Ordinance from time to time until the 26th day of October 1978 and thereafter until the 14th day of October 1982 at the rate of $20 per week and from the 15th day of October 1982 at the rate of $215 per week until further order of the Tribunal.
3. That order no. 8. of the Supreme Court, namely:- "8. That the respondent pay the appellant's costs of appeal to be taxed"
be set aside and that in lieu thereof it be ordered that each party bear its own costs of the appeal from the Workmen's Compensation Tribunal to the Supreme Court.
That order no. 9. of the Supreme Court, namely:-
"9. That liberty be given to either party to apply as to the cost of the application before the Workmen's Compensation Tribunal"
be set aside and in lieu thereof it be ordered that the order for costs made by the Workmen's Compensation Tribunal in respect of the proceedings before it, namely, that the employer pay to the workman his costs of the proceedings before the Workmen's Compensation Tribunal, be restored.
That the respondent pay to the appellant his costs of the appeal from the Supreme Court to this Court.
That otherwise the orders of the Supreme Court be confirmed.
JUDGE3
This appeal concerns the interpretation of para. 11 (1)(e) and sub-s. 12(1) of the Workmen's Compensation Act 1949 ("the Act") of the Northern Territory.
Oro Wesley Whitley was employed by Richard Scobie as station manager of Hidden Valley Station in the Northern Territory. As the parties have assumed different roles at various stages of this matter I shall for convenience refer to them simply as "the workman" and "the employer". On 27 August 1973, whilst loading cattle, the workman was attacked and gored by a bull and as a result suffered severe injuries including damage to the spinal cord and left leg. His leg was amputated above the knee and he is a quadraplegic. He has been left virtually helpless with only limited arm and shoulder movement and has been totally incapacitated from work. He receives medical and hospital treatment in South Australia where he is confined to bed and a wheelchair. He is looked after by his wife. Following the injury he was evacuated by air to South Australia where he has since remained.
There is no dispute that the workman is entitled to compensation under the Act. What is in dispute is the measure of that entitlement.
The Workmen's Compensation Tribunal made an award in favour of the workman on 15 October 1982 which determined his entitlement to various payments of compensation under the Act only some of which are relevant to the matters before this Court. On appeal to the Supreme Court of the Northern Territory the Supreme Court (Muirhead J.) upheld the findings of the Tribunal on some matters, but upheld the appeal of the employer on others. The workman appealed to this Court from the judgment of the Supreme Court. There are three grounds of appeal stated in the notice of appeal, one of which was abandoned before us at the commencement of argument. There were many issues before the Tribunal and the Supreme Court which are carefully and fully set out and discussed in the reasons for judgment of the Supreme Court. Two only of those issues remain before us.
The first question argued before us concerns para. 11(1)(e) of the Act. Sub-section 11(1) in its present form, so far as relevant, reads:
"11.(1) Where -
(a) an employer is liable to pay compensation under this Ordinance in respect of the death or incapacity of a workman resulting from an injury or disease;
...
the employer shall, subject to sub-section (2), be liable to pay -
(d) the costs of the medical and surgical treatment, hospital treatment, nursing service and ambulance service incurred by reason of the injury or disease; and
(e) an allowance up to a maximum of $20 a day if the person being treated for an injury or disease for which compensation is payable under this Ordinance -
(i) is required or advised by a medical referee to undergo treatment away from his usual place of residence and does so;
(ii) is not hospitalised where the treatment is or was being given; and
(iii) produces evidence of his living expenses incurred at the place at which he is required or advised to undergo treatment."
Nothing turns on sub-s. 11(2) for present purposes. The Tribunal dismissed the workman's claim for compensation pursuant to para. 11(1)(e) on the ground that the allowance for which that paragraph makes provision is only payable where at the time the workman undergoes medical treatment he has a usual place of residence elsewhere. On appeal to the Supreme Court this interpretation of the paragraph was upheld and the workman's appeal was dismissed on this point. The Supreme Court said:
"It is clear that the purpose of this section is to provide treatment for workmen who, during incapacity, are required to live away from home - a section of perhaps peculiar significance to workmen in the Territory who must frequently seek treatment elsewhere by reason of limited resources in the Territory. It was common ground that in the course of his employment the workman's usual place of residence was Hidden Valley Station. The calamitous nature of his injury required his evacuation to South Australia, and the abandonment of the homestead there as his residence. His wife joined him in Adelaide where he was subsequently hospitalised for a prolonged period. The 'treatment' referred to in the section became necessary after the cessation of his hospitalisation and at that stage it could not be said that his usual place of residence was in the homestead at Hidden Valley - possibly occupied at that time by others. His wife acquired leased premises in Adelaide where she cares for the workman and that became and is his usual place of residence. It was suggested as an alternative that the Morris Hospital had become his usual place of residence but I cannot accept that argument. It was a hospital - the expenses of which were payable by the employer and due admittedly to the dedication of his wife, it did not become his home. The test of entitlement under this section is not the usual place of residence at the date of the injury, but at the date of the treatment. On this aspect I agree with the conclusions of the Tribunal."
I agree with these observations of Muirhead J.. In my opinion para. 11(1)(e) provides for the payment by the employer to the workman of a living away from home allowance where his medical treatment necessitates his absence from his usual place of residence, that is, his usual place of residence at the date on which the treatment is to be given to him. I see no support for the construction, for which the workman contended, that the expression "usual place of residence" in para. 11(1)(e) means the usual place of residence of the workman at the date on which he sustains the relevant injury. I would therefore dismiss the workman's appeal on this question.
The second question argued before us, and the question upon which counsel for the workman principally relied, arises out of the finding of the Supreme Court that the workman's entitlement to compensation under sub-s. 12(1) of the Act is limited to the sum of $20 per week. It is necessary to examine the history of s. 12 of the Act to understand and determine this question. Section 12 was inserted into the Act in 1973 by Act No. 25 of 1973. Section 12 had previously been in the Act but was repealed so that immediately before Act No. 25 of 1973 commenced to operate there was no s. 12. After Act No. 25 commenced s. 12 read as follows:
"12(1) Where as a result of an injury to a workman the workman on the advice of a registered medical practitioner requires the constant help or attendance of another person, compensation is payable to the workman during any period when he requires that help or attendance at the rate of 9 dollars per week.
(2) Compensation is not payable under sub-section (1) in respect of any period when the workman is being maintained as a patient in a hospital, nursing home or similar place, or is receiving constant nursing attention, and the cost of his maintenance in that hospital, nursing home or other place or the cost of that nursing attention, as the case may be, is being borne wholly by the employer."
Section 12 was amended in 1975 (Act No. 4 of 1975 - s. 5) by omitting from sub-s. 12(1) "9 dollars" and substituting "14 dollars". Section 6 of Act No. 4 of 1975 expressly stated that where immediately before the date of commencement of the amendment a person was receiving or was entitled to receive, weekly payments in accordance with sub-s. 12(1) of the Act, he was from and including that date entitled to receive weekly payments in accordance with the Act as amended by the Amending Act.
Section 12 was further amended by Act No. 12 of 1977 by substituting "20 dollars" for "14 dollars" (s. 5 of Act No. 12 of 1977). Section 7 of Act No. 12 of 1977 was a provision in the same terms as s. 6 of Act No. 4 of 1975.
Section 12 was further amended in 1978 by Act No. 77 of 1978, s. 11 of which provided that s. 12 of the Act was amended by omitting sub-section (1) and substituting the following sub-section:
"(1) Where, as a result of an injury caused by an accident arising out of or in the course of his employment, a workman, on the advice of a registered medical practitioner, requires the constant help or attendance of another person, compensation is payable to the workman during a period when he requires that help or attendance at a weekly rate considered reasonable by the Tribunal."
It was not disputed before the Supreme Court or before us that the effect of the amendments to the Act made by Act No. 4 of 1975 (increasing the weekly rate from $9 to $14) and by Act 12 of 1977 (increasing the weekly rate from $14 to $20) operated to increase the entitlement of the workman in the present case. The dispute concerned the question whether the entitlement of the workman to the weekly rate of compensation under s. 12 was limited to $20 as fixed by Act No. 12 of 1977 or fell to be determined pursuant to the amendments made to s. 12 by s. 11 of Act No. 77 of 1978 where compensation falls to be determined "at a weekly rate considered reasonable by the Tribunal". The Tribunal found in favour of the workman on this point, but the Supreme Court reversed that finding.
Section 7 of the Act creates the primary liability of the employer to pay compensation to a workman who has suffered injury by accident arising out of or in the course of his employment. The liability of the employer to pay compensation is expressed by the section to be in addition to any other compensation payable under the Act (sub-s. 7(1)).
Counsel for the employer argued that the right of the workman to additional compensation under s. 12 fell to be determined by the section in the form which it took before the 1978 amendment. He argued that the entitlement was at the rate of $9 per week from the date of the injury (27 August 1973) to 11 March 1975, then $14 per week to 28 April 1977 and thereafter at the weekly rate of $20 but never at "a weekly rate considered reasonable by the Tribunal", the measure of entitlement which became operative upon the 1978 amendment taking effect on 27 October 1978. Counsel submitted that the amendments made in 1975 and 1977 increasing the weekly rate from $9 to $14 and then to $20 applied to the workman because they were made specifically "retrospective" by the amending legislation. As no specific provision was made for "retrospectivity" in the 1978 amendment it should not be construed as affecting the right of the workman to compensation which arose in 1973 when the injury was sustained. Reliance was placed by counsel upon the prima facie presumption or general rule of construction that a statute changing the law ought not, unless a contrary intention appears, to be understood as applying to events that have already occurred so as to affect rights or impose liabilities already arisen or incurred.
This rule is sometimes referred to as a presumption against the retrospective operation of statutes, but the accuracy of that description has been often criticised, especially where the statute in question "interferes only with the future existence or operation of a previously acquired right or a previously incurred liability ..." Staska v. General Motors-Holden's Pty. Limited (1972) 46 ALJR 273.
The following passage from the judgment of Fullagar J. in Fisher v. Hebburn Limited (1960) 105 CLR 188 at p 194 (which was approved by the Privy Council in Staska's Case) is apt in relation to the amendments made to sub-s. 12(1) of the Act by the 1978 amendment. Fullagar J. said:
"There can be no doubt that the general rule is that an amending enactment - or, for that matter, any amendment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement. The rule has been frequently applied to amending statutes relating to workers' compensation, and it has often been held that such amendments apply only in respect of 'accidents' or 'injuries' occurring after their coming into force: the cases of Moakes v. Blackwell Colliery Co. Limited (1925) 2 KB 64 and Kraljevich v. Lake View and Star Limited (1945) 70 CLR 647 are familiar examples. But there is no rule of law that such statutes must be so construed, and it would not be true to say that a retrospective effect can only be avoided by confining the operation of such a statute to subsequently occurring 'accidents' or 'injuries'. It may truly be said to operate prospectively only, although its prospect begins, so to speak, with some other event than accident or injury."
In my opinion the amendments made in 1978 to s. 12 are to be construed as having a prospective operation only. It is true to say that s. 12 confers a right to additional compensation where the workman requires the constant help or attendance of another person; but the effect of the amendment is not to attach new legal consequences to events that occurred before its commencement. All it does is to alter the weekly rate of compensation payable in the future provided two statutory conditions precedent are satisfied; first, the sustaining of the injury caused by an accident arising out of or in the course of the workman's employment and, second, that the workman requires the constant help or attendance of another person. The amendment operates prospectively only. The difficulties which attend the so called rule against retrospectivity do not arise and therefore the application of the rule does not require consideration.
If the argument of counsel for the employer were correct it would necessarily follow that a workman who was entitled to compensation the day before the 1978 amendment came into effect would continue to be entitled to receive, as additional compensation pursuant to s. 12, a maximum of $20 per week notwithstanding spiralling inflation. Inflation has created difficult problems in the sphere of Workmen's Compensation legislation but these problems should not needlessly be imported into such legislation the object of which is to benefit workmen unless such an anomalous and harsh result is plainly required by the rules of construction. This is not such a case. The appeal should therefore be allowed in respect of this question.
The question of costs requires consideration. The Workmen's Compensation Tribunal ordered the employer to pay the workman's costs of the proceedings before it. The Supreme Court set aside this order and gave leave to each party to apply, presumably to the Supreme Court, on the question of costs of the proceedings before the Tribunal. The Supreme Court ordered the workman to pay the employer's costs of the appeal to that Court.
There were four live issues before the Supreme Court: first, questions relating to sub-s. 12(1) of the Act; second, questions involving para. 11(1)(e); third, questions arising under sub-s. 11(2A); and fourth, the Tribunal's orders as to costs. In my opinion the Tribunal's order as to costs ought to be restored, especially as the workman has succeeded on sub-s. 12(1). As the effect of my findings is to confirm the Supreme Court's findings on para. 11(1)(e) but to reverse those findings as to sub-s. 12(1) I think the proper order for costs of the appeal to the Supreme Court is that each party should bear its own costs. Before us only two questions were argued and the primary question related to sub-s. 12(1) on which the workman succeeded. I think the proper order for costs of the appeal to this Court is that the employer pay the workman's costs of the appeal.
As I said earlier the Supreme Court dealt with a number of questions in addition to the two questions that were argued before us. The result of the findings of the Supreme Court is therefore reflected in the various orders which it made. Those orders will now require variation to conform with the findings of this Court. Counsel for the parties, at our request, agreed on the proper form of order to be made. The orders which I propose are as follows:
1. That the appeal from the Supreme Court of the Northern Territory be allowed in part.
2. That order number 5 of the Supreme Court, namely:
"5. That the Appellant (the employer) pay such amounts by way of compensation to the Respondent (the workman) as were provided pursuant to Section 12(1) of the Act from time to time until the 28th day of April 1977, and thereafter at the rate of $20 per week and that the claims of the Appellant and the Respondent in respect thereof be otherwise dismissed"
be set aside and in lieu thereof it be ordered that the respondent pay such amounts by way of compensation to the appellant as were provided pursuant to s. 12 of the Workmen's Compensation Ordinance from time to time until the 26th day of October 1978 and thereafter until the 14th day of October 1982 at the rate of $20 per week and from the 15th day of October 1982 at the rate of $215 per week until further order of the Tribunal.
That order 8 of the Supreme Court, namely:
"8. That the Respondent pay the Appellant's costs of appeal to be taxed"
be set aside and that in lieu thereof it be ordered that each party bear its own costs of the appeal from the Workmen's Compensation Tribunal to the Supreme Court.
That order number 9 of the Supreme Court, namely:
"9. That liberty be given to either party to apply as to the costs of the application before the Workmen's Compensation Tribunal"
be set aside and in lieu thereof it be ordered that the order for costs made by the Workmen's Compensation Tribunal in respect of the proceedings before it, namely, that the employer pay to the workman his costs of the proceedings before the Workmen's Compensation Tribunal, be restored.
That the employer pay to the workman his costs of the appeal from the Supreme Court to this Court.
That otherwise the orders of the Supreme Court be confirmed.
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