D and W Livestock Transport v John Ernest Smith [NTLR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Kearney J,Priestley J,Gray AJ
• Judgment Date: 18 March 1994
• Date: 18 March 1994
• Docket Number: No. AP14 of 1993

(1994) 4 NTLR 169

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

Kearney, Priestley JJ and Gray AJ

No. AP14 of 1993

D and W Livestock Transport

and

John Ernest Smith

Appearances not available

Worker's compensation.

ORDER

Appeal dismissed.

JUDGE1

Kearney J

1 The relevant facts and the issues which arise in this appeal are set out and discussed in the opinion of Priestley J. Approaching the issues in the way in which they have been formulated and argued before the court I respectfully concur in his Honour's conclusion that the appeal should be dismissed. The rights under s189(2) are not properly categorized as purely matters of procedure, and the presumption favouring a prospective operation of the amending Act is not displaced.

2 On reflection, I think it would have been arguable that s189(3) has retrospective effect on the basis that it is a provision declaratory, explanatory or expository of s189(2). The usual construction of declaratory provisions is set out in Attorney-General v Theobald (1890) 24 QBD 557 at pp560–1, though as in all cases it is necessary to ascertain from the language used what the legislature intended. This line of argument was not raised before this court; the case was fought on a different basis. Even if s189(3) has retrospective effect, it is arguable that the term ‘injury’ in s189(1), (2) and (3) embraces, in terms of Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29, the ‘secondary consequences (of the initial injury) adverse to the injured person:” that is, in this case, it embraces the HCV which has resulted in the respondent's present and uncompensated total incapacity. If ‘injury’ is construed in this commonsense way, the appellant would appear to be outside the scope of s189(3) on the facts, as in no real sense has he been compensated ‘in respect of (his) injury’, and the appeal would fail. As I say, these questions were not ventilated before this court; in the circumstances, it is unnecessary to have them explored by the parties.

3 The appeal should be dismissed, with costs.

JUDGE2

Priestley J This employer's appeal under the Work Health Act comes to this court after two previous hearings. The first was before a magistrate. Before him there were a number of issues, including a medical question about which complex evidence was given. He found in favour of the worker. The next hearing was before Angel J who heard an appeal from the magistrate which, because it was limited to points of law, raised fewer questions. He dismissed the appeal. The appeal from Angel J to this court raises fewer questions still because there is now no dispute, for the purposes of this appeal, about any factual matter, and the principal argument is one of statutory construction only. This makes it possible to state very briefly the facts which, it is common ground, are relevant for this court's decision.

2 On 23 February 1985 Mr J. E. Smith (the worker) was injured while working for D and W Livestock Transport (the employer). As a result of the injury he was admitted to Katherine Hospital. A splenectomy was done on 26 February 1985. During the operation the worker was given a blood transfusion of seven units of blood.

3 The worker went back to work in May 1985. He was paid workers compensation for the period he was off work, apparently by agreement and without court proceedings, under the Workers Compensation Act.

4 The worker stopped working for the employer in June 1986 and began to work for other employers.

5 In 1986 the Work Health Act (the WHA) was passed, repealing the Workers Compensation Act for most purposes. The worker's employment began to be interrupted by illness, until in December 1990 he was diagnosed as suffering from HCV (Hepatitis C) and cirrhosis of the liver. He had contracted HCV from the blood transfusion in the operation of 26 February 1985. After 10 April 1991 he did not work.

6 The WHA gave him a choice of claiming compensation for the consequences of his HCV infection under the repealed Workers Compensation Act or under the WHA. The section giving him this choice was s 189, which until 1 January 1992 was as follows:

‘(1) Where a cause of action in respect of an injury to or death of a person arising out of or in the course of his employment arose before the commencement of this section, a claim or action (including a claim or action at common law) in respect of that injury or death may be made, commenced or continued after the commencement of this section as if this Act had never commenced and for that purpose the repealed Act’ (ie the Workers Compensation Act) ‘shall be deemed to continue in force.

(2) Notwithstanding subsection (1), a person may claim compensation under this Act in respect of an injury or death referred to in that subsection and on his so doing this Act shall apply as if the injury or death occurred after the commencement of this section, and subsection (1) shall have no effect.’

7 The worker decided to exercise the option given to him by subs (2), and on 12 December 1991 he commenced proceedings under the WHA against the employer claiming weekly payments of compensation and other compensation under that Act.

8 It is material here to mention some details concerning the WHA which are relevant to the main argument in the appeal in this court.

9 The WHA was assented to on 16 December 1986. Section 2 provided that ss 1, 2, 6 to 18 and 194 should come into operation on the day it was assented to and the remaining provisions should come into operation on the date or dates fixed by the Administrator by notice in the Gazette. This date was 1 January 1987. Thus both s 188, which repealed the Workers Compensation Act, and s 189 already set out, came into operation on 1 January 1987.

10 This court was informed by counsel for the worker, without objection by counsel for the employer, that the weekly compensation payable under the Workers Compensation Act has not increased since it was repealed as from 1 January 1987, but that the corresponding payment under the WHA has been regularly increased since that date. It seems a reasonable inference that this is one of the reasons why the worker chose to bring his proceedings under the WHA.

11 It has been recognised for many years in workers compensation law that when a surgical procedure, such as the splenectomy in the present case, has been carried out to remedy or alleviate an injury compensable under the workers compensation legislation, the total condition resulting from the injury and the surgery is to be attributed to the original injury, so long as the operation was reasonably undertaken by the worker: see per Mason JA in Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29 at 44–46, expressly approved on appeal in the High Court, (1973) 47 ALJR 236; Mahony v J. Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529.

12 As matters stood, then, at the time the worker filed his claim against the employer on 12 December 1991, he was entitled to compensation for the consequences of the HCV infection under the WHA.

13 This much was conceded (on the facts as this court must take them) by the employer in this appeal. But the employer also contended that the worker was not entitled to compensation under the WHA.

14 The reason for this was that before the worker's claim was decided, the Work Health Amendment Act (No 3) 1991, Act No 61 of 1991, had come into operation. This Act amended the WHA in a number of ways. The presently relevant amendment was effected by s 31 of Act No 61 of 1991. This section amended s 189 by inserting in subs (2), after the words ‘Notwithstanding subsection (1)’, the words ‘but subject to subsection (3)’ and then adding subs (3) as follows:

‘(3) Nothing in subsection (2) shall be construed as permitting a claim for compensation to be made under this Act in respect of an injury to or the death of a person arising out of or in the course of the person's employment before the commencement of this Act where, in respect of that injury or death, compensation has been paid -

(a) under the repealed Act;

(b) under any other law in force in the Territory relating to the payment of compensation in respect of the injury or death of the person arising out of or in the course of the person's employment; or

(c) at common law.’

15 Before the magistrate the employer submitted, (and the proposition has not at any time been contested by the worker) that ‘compensation had been paid … under the repealed Act’ within the meaning of those words in the new subs (3) of s 189. It was then argued that subs (3), once inserted in the WHA, had effect from the commencement of the Act, that is, acted retrospectively, with the result, that the worker could not claim compensation under the WHA. The worker argued that subs (3) operated prospectively only.

16 The magistrate did not accept the employer's construction. He found the various other contested matters in the worker's favour and held that compensation was payable to the worker as claimed.

17 When the appeal came to Angel J, he took a different view of the effect of the amended s 189, and upheld the employer's...