Under the WA Workers' Compensation Act as amended in 1970, dependent children falling within items (II) or (III) of cl. 1(a)(i) of the First Schedule have no direct claim against the employer for the lump sum in item (I); their remedy is against the Workers' Compensation Board Fund for weekly payments.
Decisions cited by Bosnyak v Wroblewski
BOSNYAK v. WROBLEWSKI [1974] HCA 45; (1974) 132 CLR 122
Workers' Compensation (W.A.)
High Court of Australia
Barwick C.J.(1), Menzies(2), Gibbs(3), Stephen(4) and Mason(5) JJ.
CATCHWORDS
Workers' Compensation (W.A.) - Death - Amount of compensation - Claim by one of two dependent children - Damages recovered by widow on behalf of herself and the other dependent child in action under Lord Campbell's Act - Whether claimant child entitled to award of lump sum in addition to weekly payments - Workers' Compensation Act, 1912-1970 (W.A.) 1st sch., cl. 1(a) (i)*.
* The 1st sch. of the Workers' Compensation Act, 1912-1970 (W.A.) provides
as follows: "1. The amount of compensation under this
Act shall be - (a)
where death results from the injury - (i) if the worker leaves any
dependants solely dependent upon his earnings
- (I) in respect of all those
dependants, if any, who are not of the kind referred to in item (II) or (III)
of this subparagraph
the sum of $10,881, less the amount of any weekly
payments for the injury under this Act and less the amount of any lump sum
paid
in redemption thereof; (II) in respect of each of those dependants, if
any, who is a child or step-child, under the age of 16 years,
the sum of $3.50
weekly, payable from the Fund but recoverable for the Fund by the Board from
the employer or his insurer in such
manner as may be prescribed until the
child attains that age; (III) in respect of each of those dependants, if
any, who is a full
time student child, or step-child, and has attained the age
of 16 years but is under the age of 21 years, the sum of $3.50 weekly,
payable
from the Fund but recoverable for the Fund by the Board from the employer or
his insurer in such manner as may be prescribed,
until the child attains the
age of 21 years or ceases to be a full time student, whichever is the sooner,
but if a worker dies leaving
a widow or mother wholly dependent upon his
earnings or a dependant of the kind referred to in item (II) or (III) of this
subparagraph
wholly dependent on his earnings the minimum amount payable under
this sub-paragraph shall be $2,537;..."
HEARING
Perth, 1974, September 4; Sydney, 1974, November 4. 4:11:1974DECISION
November 4.
2. The background to the respondent's claim is that his father died as a
result of a compensable injury, leaving as his dependants
his widow and two
children of whom the respondent was one. The widow brought proceedings under
the Fatal Accidents Act, 1959 (W.A.). She brought that action only on behalf
of herself and her daughter and recovered a verdict for an amount of $18,980
for herself
and $2,750 for her daughter. The action was not brought on behalf
of the respondent. In London Brick Co. Ltd. v. Robinson (1943)
AC 341 , the
House of Lords decided, upon a form of workers' compensation legislation
which, as will appear from what I have to say,
was in my opinion radically
different to that under which the respondent's claim has to be considered,
that an applicant for compensation
in the situation of the respondent was
entitled to an award of both the lump sum payable upon the death of his parent
and the weekly
sum during his continuing dependency. It is around the question
of whether the provisions of the Act are so significantly different
from the
earlier form of the workers' compensation legislation that the dispute in
these proceedings arises. The majority of the
Full Court thought that there
has been no significant change in the basic concepts of the workers'
compensation legislation of Western
Australia by amendments which were
effected by the Workers' Compensation Amending Act No.18 of 1970, to which
assent was given on
8th May of that year. It will therefore be important to
contrast the pre-amendment and the post-amendment situation in the relevant
parts of the workers' compensation legislation. (at p125)
3. Before doing so, however, it should be observed that under the Act a fund
called the Workers' Compensation Board Fund is established
(s. 27). Into this
fund any amount payable by an employer or his insurer under certain paragraphs
of the 1st sch. to the Act are,
in my opinion, to be paid. Clause 1A of the
1st sch. provides for such moneys to be paid into the custody of the board.
But this
means, in my opinion, into the fund which is under the control of the
board. (at p125)
4. Section 7 of the Act provides that where a worker suffers a compensable
injury the employer shall be liable to pay compensation
in accordance with the
1st sch. of the Act. By s. 5, the legal personal representative, his
dependants and any other person to whom
or for whose benefit compensation is
payable are included in the case of a deceased worker in the word "worker".
(at p125)
5. The relevant amendment made by Act No. 18 of 1970 was to the 1st sch. I
shall need later to reproduce the 1st sch. as it was
before that amendment and
that schedule as it stood after that amendment. (at p126)
6. The scheme of the Act, so far as presently relevant, is not expressly to
create rights of action in the worker or his dependants
but to place a
liability upon the employer to pay compensation in the event of the receipt of
compensable injury. The employer's
obligation extended to the worker and where
appropriate to each of his dependants. Thus, in the case of death by reason of
a compensable
injury, the widow and any dependent child could claim on the
employer for the entire compensation for which he was liable in the
circumstances. But the lump sum payable on death could only be awarded once.
(at p126)
7. The Act does not preclude a worker or his dependants from taking
proceedings independently of the Act for the recovery of damages,
including
such recovery from the employer (s. 7(8)): nor expressly provide that an
employer shall not be liable both for compensation
and damages. But after
judgment for damages in any proceedings therefor, the worker or that one or
those of his dependants who receives
the full amount of a judgment for damages
may not commence or continue proceedings for compensation under the Act in
respect of the
same injury (s. 7(13)). Any amount received by a worker or a
dependant under a judgment for damages is to be deducted from the sum
recoverable by the worker or that dependant under the Act. (at p126)
8. The Fatal Accidents Act permits only one claim to be made thereunder, and
that claim is to be made on behalf of those dependants
who are nominated as
persons
on whose behalf the action is brought (s. 7 and s. 9). As I have
indicated, the respondent was not the
child for whose benefit the action for
financial compensation under the Fatal Accidents Act was brought. The widow
and the other
dependent child, having received the amount of the judgment
awarded in the action, were precluded
by s. 7(13)(a) from commencing
or
continuing proceedings under the Act for compensation in respect of the death
of the worker. But the respondent
was not. Accordingly,
he commenced the
proceedings out of which this appeal arises and joined the widow and the other
dependent child
as respondents. (at
p126)
9. There seems to be no doubt, having regard to the decision to which I have
referred, that, by reason of the combination of s.
7 of the Act and its 1st
sch. as it stood prior to the amendment of 1970, an award by the Board, on the
respondent's application,
of
the lump sum then specified by cl. 1(a)(i) of
that schedule plus the additional amount specified in respect of each of the
dependent
children, would be supportable. But the amendment of 1970
substituted a new 1st sch. to the Act. It will be convenient at this point
to
reproduce both versions of the 1st sch. so far as relevant:
"THE FIRST SCHEDULE OF THE WORKERS'
COMPENSATION ACT BEFORE THE AMENDING
ACT 18 OF 1970.
SCALE AND CONDITIONS
OF COMPENSATION
1. The amount of compensation under this Act shall be:
(a) where death results from the injury:
(i) if the worker leaves any dependants wholly dependent upon
his earnings, the sum of ten thousand dollars and an additional
sum of two hundred and twenty dollars in respect of each
dependent child and dependent step-child of the worker under the age
of sixteen years, but not in respect of any ex-nuptial child, less
the amount of any weekly payments made under this Act and
less the amount of any lump sum paid in redemption thereof.
Provided that if the worker dies leaving a widow or mother
wholly dependent upon his earnings or a dependent child or
dependent step-child under the age of sixteen years wholly
dependent upon his earnings, the amount payable under this
subparagraph shall be not less than two thousand two hundred
and forty dollars, plus two hundred and twenty dollars for each
dependent child;
(ii) if the worker does not leave any such dependants, but leaves
any dependants in part dependent upon his earnings, such sum,
not exceeding in any case the amount payable under the
foregoing provisions, as may be agreed upon, or in default of
agreement may be determined, by proceedings under this Act,
to be reasonable and proportionate to the injury to the said
dependants; and
(iii) if he leaves no dependants, the reasonable expenses of his
medical attendance and burial, the cost of which may be
awarded to and upon the application of any person by whom the
expenses were properly incurred, or to whom the whole or any
part of the expenses is owed."
"THE FIRST SCHEDULE OF THE WORKERS'
COMPENSATION ACT AFTER THE
AMENDING ACT 18 OF 1970.
SCALE AND CONDITIONS
OF COMPENSATION
1. The amount of compensation under this Act shall be:
(a) where death results from the injury -
(i) if the worker leaves any dependants wholly dependent upon
his earnings -
(I) in respect of all those dependents, if any, who are not of the
kind referred to in item (II) or (III) of this subparagraph the
sum of ten thousand eight hundred and eighty-one dollars less
the amount of any weekly payments for the injury under this
Act and less the amount of any lump sum paid in redemption
thereof
(II) in respect of each of those dependants, if any, who is a
child, or step-child, under the age of sixteen years, the sum of
three dollars fifty cents weekly, payable from the Fund but
recoverable for the Fund by the Board from the employer or his
insurer in such manner as may be prescribed until the child
attains that age;
(III) in respect of each of those dependants, if any, who is a full
time student child, or step-child, and has attained the age of
sixteen years but is under the age of twenty-one years, the sum
of three dollars fifty cents weekly, payable from the Fund but
recoverable for the Fund by the Board from the employer or his
insurer in such manner as may be prescribed, until the child
attains the age of twenty-one years or ceases to be a full time
student, whichever is the sooner,
but if a worker dies leaving a widow or mother wholly
dependent upon his earnings or a dependant of the kind referred to in
item (II) or (III) of this subparagraph wholly dependent on his
earnings the minimum amount payable under this
sub-paragraph shall be two thousand five hundred and thirty-seven
dollars.
(ii) and (iii) as before" (at p128)
10. The substitution of the schedule was an express amendment of the Act and
not merely a rearrangement of the former schedule.
A change in the law was
evidently intended. (at p128)
11. The most notable feature of the substituted schedule and one which to my
mind distinguishes it from the earlier version is the
division of the
dependants of a deceased worker into three categories, each covered by an item
in cl. 1(a)(i). The first category
contains the widow because she is not of a
kind referred to in items (II) and (III): that item excludes a dependent child
because
dependants of the kind are within either items (II) or (III). The
schedule prescribes as to each item what compensation is payable
and in
relation to items (II) and (III) it provides within its terms by whom it is
payable. Thus, there being no prescription as
to the person or body by whom
the amount payable in respect of the widow is payable, s. 7(1) imposes a
direct obligation on the employer
to pay the specified amount in respect of
the widow. It is to be observed that the schedule expressly provides for the
deduction
from the prescribed amount of any lump sum paid in redemption of
weekly payments under the Act in respect of the injury which resulted
in the
death of the worker, a matter more usually concerning the widow than dependent
children; but it stipulates for a minimum sum
to be payable in any event. (at
p128)
12. In the case of items (II) and (III) a weekly sum is prescribed "payable
from the Fund but recoverable for the Fund by the Board
from the employer".
This, it seems to me, is a radically different treatment of the compensation
for a dependent child than that
for which the earlier version of the first
schedule provided. The dependent child, being at the date of the worker's
death wholly
dependent on the worker's earnings, is to have the security of
the fund for the weekly payments payable as compensation upon the
death of the
parent worker, with the possibility of an additional sum where the minimum
total amount as prescribed by the final provision
of cl. 1(a)(i) of the
schedule is not otherwise payable. (at p129)
13. In my opinion, the effect of these changes in the 1st sch. is to alter
the obligation the employer might earlier have had to
pay under the former
schedule on the application of the widow or other dependant. The obligation
under the substituted schedule is
only to pay the specified lump sum less the
stipulated deductions but so that a minimum sum was so payable. The
substituted schedule
also, in my opinion, removed any liability of the
employer which formerly existed to pay any sum on the application of a
dependant
falling within either item (II) or item (III). According to the
amended schedule, in my opinion, dependants falling within either
of these
items have themselves remedies only against the fund, i.e. the board as
administering the fund. But the fund having met
the weekly payment of
compensation will recoup its expenditure by the recovery from the employer by
the board on behalf of the fund
of that expenditure. The liability of the
employer to pay compensation imposed on him by s. 7(1) now consists of a
liability directly
to dependants falling within item (I) and a liability to
the board in recoupment of the compensation paid by the fund in conformity
with items (II) and (III). Thus, s. 7(1) still prescribes in totality what the
employer is liable for in compensation. (at p129)
14. By this change the legislature has both removed the injustice of
subjecting the employer to the possibility of paying both damages
and
compensation and the unfettered and unexaminable discretion of the Board to
dispense, or for that matter to retain in the fund,
the lump sum amount to
which the widow or any sum to which the other dependent child, had ceased to
be entitled. (at p129)
15. Reliance was placed by counsel for the respondent upon cl. 1A of the 1st
sch. in contesting these conclusions. But, in my opinion,
the provisions of
that clause do not bear at all on the construction of cl. 1(a)(i) of that
schedule though they do assist to emphasize
the concern of the legislature to
secure the payment of the dependent children's compensation by the fund.
Clause 1A merely provides
that whatever is payable by the employer in respect
of the deceased worker's dependants should be paid to the board for disposal
by the board. (at p129)
16. Some argument was founded on the final words of the sub-paragraph. They
mean that the minimum total sum payable under the subparagraph
as a whole is
$2,537. Although the items provide separately the amounts payable in respect
of the kind of persons each describes,
it is possible to regard the employer
as obliged to pay the total of the payments for which the items call, even
though some of the
amounts are not payable directly by the employer to all
dependants of the employee, but only indirectly through the fund to some
of
them. This means that the facts in relation to all dependants must be known
before it can be determined that the minimum total
has not been reached and
the further question whether any further payment is to be made to any
dependant. (at p130)
17. The application of these final words of the subparagraph undoubtedly
raises problems: but equally those problems would have
arisen under the final
words of the former schedule. For example, if no dependant survived other than
a child of, say, thirteen years
of age; or, if there is a dependent widow,
where there had been a redemption payment which left only $1,500 to be paid,
apart from
the last provision of the subparagraph, and a dependent child of
fifteen years of age. It is not clear what the effect of those last
words has
in such circumstances, whether under the old or the substituted schedule. But
the solution, whatever it should be, will
be the same in each case. But
neither the existence of these problems, nor the difficulty of their solution
will, in my opinion,
have any bearing on the construction of the substituted
schedule. In particular, the existence of such problems or the difficulty
of
their solution will not require a change in the language used in items (II)
and (III), or a disregard of the changed structure
of the substituted schedule
itself, or an unnatural construction of the words of items (II) or (III). (at
p130)
18. For these reasons I am unable to agree with the majority of the Supreme
Court in holding that the substitution of the 1st sch.
by the amendment of
1970 did not radically change the "structure" of the Act. In the respects to
which I have adverted, it did, in
my opinion, effect a change in the ability
of a dependant falling within items (II) and (III) to claim against the
employer. (at
p130)
19. In my opinion, the appeal should be allowed. The respondent's application
against the employer ought to have been dismissed.
His remedy, in my opinion,
is against the fund in conformity with what I consider to be the meaning of
item (II) of cl. 1(a)(i) of
the 1st sch. as introduced by the Amendment Act of
1970. Consequently, both questions asked in the case stated should be answered
in the affirmative. (at p130)
MENZIES J. In my opinion this appeal should be allowed. I agree with the
order proposed by the Chief Justice and generally with
his reasons for making
that order. There are, however, one or two observations I wish to make for
myself. (at p130)
2. The Workers' Compensation Act, 1912-1970 (W.A.) is like much other such
legislation, a patchwork in which some of the patches
hardly fit with others.
Accordingly it is usually not difficult to find a substantial objection to a
conclusion reached upon the
making and application of the Act. The judges who
formed a majority in the Supreme Court of Western Australia recognized that
there
is a certain oddness about their decision but did not feel impelled to
adopt a construction that might be "thought to be more sensible
or less odd".
I would agree that lack of harmony between the various provisions of the Act
is no safe ground for adopting a construction
departing from the strict words
of the Act. In my opinion, however, the amendments made to the 1st sch. in
1970 do make a change
of a radical character in the liability of an employer
in respect of compensable injuries to dependants of a worker whose death has
resulted from his injury. (at p131)
3. In the first place payments in respect of all dependants are to be made to
and by the board (see cll. 1(a) (i) (II) and (III)
and 1A). Where the payment
is one provided for by cl. 1(a) (i) (I) i.e., a lump sum, the payment is not
one in respect of dependants
of the sort referred to in items (II) and (III)
of the subparagraph and it seems to me that any apportionment of any balance
of such
a sum by the board should be confined to dependants in respect of whom
it was paid. Where, however, a payment is in respect of dependants
referred to
in cl. 1(a) (i) (II) and (III) there is exact guidance given. It is that
weekly sums are to be paid by the board from
the fund which may be recovered
from the employer or his insurer by the board. There is also a minimum fixed
in the case of total
dependency. This too is to be paid as provided by 1A. If
the weekly payments do not reach the minimum the last weekly payment should,
it seems, bring the payments up to the minimum. Dependants in items (II) and
(III), therefore, have no direct claim against the employer
or the insurer but
the board may recover weekly payments actually made from the fund to
dependants. (at p131)
4. Adopting this construction it follows that the respondent, being a
dependant within item (II) of the subclause, was not entitled
to the award
made in his favour against the appellant. (at p131)
GIBBS J. This case raises a question of statutory construction of a kind
that has often caused difficulty. A workman died as a result
of personal
injury by accident arising out of and in the course of his employment and his
employer became liable to pay compensation
under the Workers' Compensation
Act, 1912-1970 (W.A.) ("the Act"). The circumstances in which the accident
occurred rendered the
employer also liable to an action for damages under the
Fatal Accidents Act, 1959 (W.A.). The workman left three dependants wholly
dependent upon his earnings - his widow and two children both under the age of
sixteen.
To obtain as much compensation as possible the dependants split their
claims. The widow on behalf of herself and one of the children,
Wanda,
commenced proceedings against the employer for damages under the Fatal
Accidents Act. Those proceedings were compromised by
payment to the widow of
$18,980 and by payment to Wanda of $2,750. The other child, Peter,
applied for
compensation under the Act.
It is not disputed that he is entitled to some
compensation. The provisions of the Act that
deal with the question whether
compensation
under the Act may be recovered in addition to damages are those
of s. 7(13), which, in the case of a death, must be read in the light
of the
extended definition of "worker" contained in s. 5(1). In Johansen v. McKinley
(1968) WAR 17 , Virtue J. held that under these
provisions the fact that one
dependant has received the fruits
of a judgment for damages does not debar
another dependant from proceeding
for compensation under the Act. That
conclusion is not
challenged and I need not further consider s. 7(13) whose
provisions do not
appear to me to throw any light on the question that now
falls for decision, namely, what compensation should
be awarded. (at p132)
2. It was agreed that under the Act as it stood before its amendment by the
Workers' Compensation Act Amendment Act, 1970 (W.A.)
an applicant in Peter's
position would have been entitled to an award of compensation just as large as
that which would have been
made if the widow and Wanda had decided not to sue
under the Fatal Accidents Act and had joined in Peter's application. Section 7
(1) provided then, as it does now, that "if in any employment personal injury
by accident arising out of or in the course of the
employment . . . is caused
to a worker, his employer shall, subject as hereinafter mentioned, be liable
to pay compensation in accordance
with the First Schedule". The 1st sch. by
cl. 1 provided, inter alia, as follows:
"The amount of compensation under this Act shall be -It was common ground that the schedule in this form ("the repealed schedule") had an effect similar to that of the provisions considered in London Brick Co. Ltd. v. Robinson (an infant) (1943) AC 341 ; the opening words of sub-par. (i) stated the event on which the employer became liable to pay the compensation specified in the following words of the subparagraph, so that if a worker left any dependants wholly dependent upon his earnings the full compensation ascertained in accordance with the subparagraph became payable irrespective of the number of dependants who claimed compensation; to be more specific, in those circumstances an employer became liable to pay a total amount made up of the sum of $10,000 and an additional sum of $220 in respect of each dependent child under the age of sixteen, less payments already made, whether all the dependants claimed compensation or only one of them claimed. The provisions of the repealed schedule were in some material respects different from those considered in London Brick Co. Ltd. v. Robinson (an infant), but there is no reason to doubt the correctness of the assumption on which both parties proceeded. Other statutory provisions closely resembling (although not identical with) those of the repealed schedule have been held to entitle a dependant, notwithstanding that he was the only claimant, to an award for the full amount of compensation ascertained by reference to all the dependants: Barwood v. W. H. Blackham Pty. Ltd. [1965] VicRp 67; (1965) VR 499 ; A.C.T. Engineering Pty. Ltd. v. Cuckow (1973) 1 ACTR 93 . Those cases, which appear to have been decided in accordance with established principles, support the conclusion that the view shared by the parties as to the effect of the repealed schedule was correct. (at p133)
(a) where death results from the injury -
(i) if the worker leaves any dependants wholly dependent upon
his earnings, the sum of ten thousand dollars and an additional
sum of two hundred and twenty dollars in respect of each
dependent child and dependent step-child of the worker under the age
of sixteen years, but not in respect of any ex-nuptial child, less
the amount of any weekly payments made under this Act and
less the amount of any lump sum paid in redemption thereof.
Provided that if the worker dies leaving a widow or mother
wholly dependent upon his earnings or a dependent child or
dependent step-child under the age of sixteen years wholly
dependent upon his earnings, the amount payable under this
subparagraph shall be not less than two thousand two hundred
and forty dollars, plus two hundred and twenty dollars for each
dependent child."
3. By the Workers' Compensation Act Amendment Act, 1970 the 1st sch. to the
Act was amended by substituting for sub-par. (i) of
par. (a) of cl. 1 the
following subparagraph:
"(i) if the worker leaves any dependants wholly dependentIn addition, a new cl. 1A was inserted in the schedule. It read as follows:
upon his earnings -
(I) in respect of all those dependants, if any, who are not of the
kind referred to in item (II) or (III) of this sub-paragraph the
sum of ten thousand eight hundred and eighty-one dollars less
the amount of any weekly payments for the injury under this
Act and less the amount of any lump sum paid in redemption
thereof;
(II) in respect of each of those dependants, if any, who is a
child, or step child, under the age of sixteen years, the sum of
three dollars fifty cents weekly, payable from the Fund but
recoverable for the Fund by the Board from the employer or his
insurer in such manner as may be prescribed until the child
attains that age;
(III) in respect of each of those dependants, if any, who is a full
time student child, or step child, and has attained the age of
sixteen years but is under the age of twenty-one years, the sum
of three dollars fifty cents weekly, payable from the Fund but
recoverable for the Fund by the Board from the employer or his
insurer in such manner as may be prescribed, until the child
attains the age of twenty-one years or ceases to be a full time
student, whichever is the sooner,
but if a worker dies leaving a widow or mother wholly
dependent upon his earnings or a dependant of the kind referred to in
item (II) or (III) of this subparagraph wholly dependent on his
earnings the minimum amount payable under this
subparagraph shall be two thousand five hundred and thirty-seven
dollars."
"Any amount payable by an employer or his insurer underThe fund referred to in these provisions is the Workers' Compensation Board Fund established under s. 27 of the Act. It is a fund to which insurers contribute. Subsections (1) and (1a) of s. 27 provide that compensation may in certain circumstances be paid from the fund, and for the recovery by the board of compensation so paid, but, although those subsections were amended in 1970, they do not extend to payments to dependants of a deceased worker made under cl. 1(a) (i) of the schedule. The power to make weekly payments out of the fund to the children of a deceased worker, and to recover any amounts so paid from the employers, is conferred only by cll. 1 and 1A of the schedule. (at p134)
paragraph (a) or (b) of clause 1 of this Schedule in respect of the
dependants of a deceased worker shall be paid into the custody
of the Board and, after provision for payment of any amounts
required for the purposes of Item (II) or (III) of subparagraph
(i) of that paragraph (a), shall be apportioned in such manner as
the Board thinks fit."
4. Further amendments to cl. 1 (a) (i) of the schedule were made by the
Workers' Compensation Act Amendment Act, 1973. The sum specified
in item (I)
is no longer $10,881, but "a sum equal to eighty-five per cent of the
prescribed amount" (a term defined in s. 5 (1));
the weekly sum provided by
items (II) and (III) is now $7.50; a new item (IV), referring to children of
any age, has been added;
and by the concluding proviso the minimum amount
payable is now "a sum equal to twenty-five per cent of the prescribed amount".
(at
p134)
5. The Full Court of the Supreme Court of Western Australia held, by a
majority, that notwithstanding the amendment made in 1970,
the amount of
compensation payable on the death of a worker leaving any dependants wholly
dependent upon his earnings is still to
be quantified by reference to the
number of such dependants without taking any account of the fact that some of
those dependants
are not claiming compensation. They held that in the present
case Peter was entitled to an award that a lump sum of $11,906 (the
amount
payable under cl. 1(a) (i) (I), as amended since 1970) be paid into custody of
the board by the employers and that a weekly
payment be paid into the custody
of the board by the employers based on the deceased leaving two children under
sixteen years at
the time of his death wholly dependent upon his earnings.
Although the relevant provisions of the Act present considerable difficulties
of construction, I have reached the conclusion that the decision of the Full
Court is correct. (at p135)
6. I have already referred to the provisions of the Act before its amendment
in 1970. Under those provisions the dependants of a
deceased worker, regarded
as a class, could, merely by proceeding in one way rather than in another,
obtain a double benefit - an
award of full compensation under the Act and an
award of damages under the Fatal Accidents Act - that would not otherwise have
been
available. Put more precisely, the Act then enabled one dependant to
obtain compensation at
the full amount provided for all dependants,
although
the other dependants were disentitled to claim under the Act. The surprising
consequences of these provisions should have
become well known as a result of
the authorities decided in relation to comparable statutes,
and if the
Legislature had wished to
put an end to this situation it could easily have
done so by express words. The fact that the
matter was not dealt with
expressly,
and that any change of legislative intention has to be divined from
the form of the amending
provisions, suggests that no change
was intended. (at
p135)
7. As a result of its amendment in 1970, sub-par. (i) of cl. 1 (a) has
undergone obvious alterations of form as well as some of
substance. The total
compensation is now made up of four items (as they are called), each of which
is payable "in respect of" the
dependants referred to in that item. However,
the words "in respect of" had been used in the repealed schedule, under which
an additional
sum was payable "in respect of each dependent child . . . under
the age of sixteen years". In the repealed schedule the words "in
respect of"
simply meant "by reference to"; the total amount payable as compensation was
calculated by reference to the number of
dependants under sixteen but that did
not mean that any such dependant had a right to any specific part of the total
compensation;
the calculation was only a means of ascertaining the amount of
the employer's liability - see per Dixon J. in Dey v. Victorian Railways
Commissioners [1949] HCA 1; (1949) 78 CLR 62, at p 87 . The fact that the words "in respect
of" are now used in all four items is
not such a radical
change
in the section
as might at first sight have appeared. As before, the subparagraph states the
conditions
on which the compensation
for which it provides is payable - the
death, resulting from the injury, of a worker who leaves any dependants
wholly
dependent upon
his earnings - and then goes on to lay down the amount of
compensation which in that event the employer is
liable to pay. The amount
of
the compensation is determined by reference to the number of dependants left
by the worker but the Act
still contains nothing
that says that the
compensation assessed in respect of a dependant is payable only to that
dependant or that
the amount which the
employer is liable to pay is affected
by the number of dependants who actually claim under the Act. (at p136)
8. I should have had more doubt as to the effect of sub-par. (i) in its
amended form were it not for the concluding words which
provide for payment of
a minimum amount if the worker dies leaving a widow or mother wholly dependent
upon his earnings or a dependant
of the kind referred to in item (II) or (III)
wholly dependent on his earnings. The minimum amount was fixed in 1970 as a
lump sum,
and since 1973, when the clause was amended by the Workers'
Compensation Act Amendment Act, 1973, it has been fixed as a percentage
of a
"prescribed amount". It is unnecessary to go into the particulars of the
arithmetic involved, but it is quite clear that both
under the provisions as
they stood in 1970 and since their amendment in 1973 there can be cases in
which the total of the weekly
payments made in accordance with items (II) and
(III), until the child or children cease to be entitled under those items, can
never
reach the prescribed minimum. This would be so, for example, if the
worker left one dependent child aged twelve, or two children,
both fulltime
students, aged sixteen and eighteen. It follows that where a worker leaves a
dependent child, or dependent children,
the employer may be liable to pay, as
a minimum, an amount of compensation which exceeds the total amount of the
weekly payments
fixed by sub-par. (i) in respect of that dependent child or
children. In other words, the liability of the employer to pay compensation
when a deceased worker leaves a dependent child is not necessarily satisfied
by paying the weekly sum fixed by sub-par. (i) in respect
of a dependant of
that kind. This means that items (II) and (III) respectively do not state the
upper limit of the compensation payable
to the dependants referred to in those
items, and this supports the view that sub-par. (i) does not provide
separately for the compensation
payable to various dependants, but fixes the
total amount of compensation for which the employer is liable by aggregating
various
items which are quantified by reference to the dependants who are left
by the deceased worker. The amount thus quantified is the
amount for which the
employer is liable whether all or only one of the dependants in relation to
whom it is ascertained makes a claim
for compensation. (at p137)
9. A difficulty of construction is caused by the provisions in items (II) and
(III) that the weekly sum is "payable from the Fund
but recoverable for the
Fund by the Board from the employer or his insurer in such manner as may be
prescribed". We were told that
no method of recovery has been prescribed. The
scheme of the Act is that the employer is liable to pay compensation in
accordance
with the 1st sch. (see especially ss. 7 and 12) although the
employer is obliged to insure against his liability (s. 13) and in some
cases
the insurer is made directly liable to the worker (ss. 17, 17A). Although the
Act does not say so in terms, it is apparent
from many of its provisions that
proceedings for compensation may be brought by a worker, including in that
expression, in accordance
with the definition in s. 5 (1), the dependants of a
deceased worker - see ss. 7 (5), (13) , 12, 17, 17A, 18. It is by no means
clear
that the words which I have quoted from items (II) and (III) deprive the
dependants of a deceased worker of the right to maintain
proceedings for
compensation. If they do have that effect the proceedings in the present case
were invalid from their inception.
However, those words, uncertain in meaning
as they are, ought not to be construed as taking away the right of a dependant
to commence
proceedings if an alternative construction is possible, and may
well be understood as intended to do no more than enable the fund
to commence
making weekly payments although the employer had not made any payment, and in
that event to recover from the employer.
What is clear, however, is that
nothing in items (II) or (III) cuts down the right of a dependant to recover
the amount by which
the minimum payment fixed by the proviso exceeds the total
of the weekly payments provided by those items. Moreover, it is not only
the
weekly payments provided by items (II) and (III) that are to be paid out of
the fund; by cl. 1A any amount payable by an employer
under, inter alia, cl. 1
(a) in respect of the dependants of a deceased worker must be paid into the
custody of the board, and this
includes the lump sum provided by item (I) as
well as the weekly payments. Clause 1A also gives the board a power to
apportion the
amounts received after provision of the amounts required for the
purposes of items (II) and (III). The scope and limits of this power
may be
doubtful but it is a power that could only be exercised where more than one
dependant had made a claim, for if there were
only one claimant an
apportionment would be impossible; the power therefore has no application in
the present case. It is regrettable
that these matters, important from a
practical point of view, have been left in a state of obscurity and I agree
with the observations
made by Jones J. in the Supreme Court that the
provisions cry aloud for revision. However, in my opinion, these provisions do
not
have the effect that "in respect of" in sub-par. (i) means "payable to",
or that the compensation mentioned in the respective items
is quantified
individually in respect of each dependant and payable to that dependant only,
so that for example a dependent child
within item (II), if the only claimant,
would receive the amount ascertained in respect of one dependent child, and no
more. Notwithstanding
the amendments made to the schedule, it is still true,
in my opinion, that the natural meaning of the words of cl. 1 (a) (i) is that
the employer is, upon the death of a worker leaving dependants wholly
dependent upon his earnings, liable to pay compensation quantified
in the
manner laid down by sub-par. (i), whether or not the dependants in respect of
whom the assessment is quantified will share
in it. The authorities on similar
statutory provisions make it clear that there is no justification for
departing from this meaning,
if it is the natural meaning of the words, simply
to avoid the consequence that in some circumstances the dependants of a worker
would receive a larger benefit than might have seemed reasonable. (at p138)
10. Not without hesitation, I have, for the reasons I have given, reached the
conclusion that the majority of the Full Court were
right in their conclusion.
I would dismiss the appeal. (at p138)
STEPHEN J. In this difficult matter, rendered difficult by amendments
obscurely phrased and made to legislation already wanting
in clarity, I have
concluded that the views of the majority of the Full Court of Western
Australia should be upheld. I do so for
the reasons stated by my brother
Gibbs. I would therefore dismiss this appeal. (at p138)
MASON J. Subject to the qualifications expressed by Menzies J. I agree that
this appeal should be allowed for the reasons stated
by the Chief Justice and
that each of the questions asked in the case stated should be answered in the
affirmative. (at p138)
ORDER
Appeal allowed.
Order of the Full Court of the Supreme Court of Western Australia, whereby it answered in the negative two questions in a case stated by the Chairman of the Workers' Compensation Board of Western Australia, set aside and in lieu thereof order that the questions in the case stated be answered in the affirmative.
Order that the respondents pay the appellants' costs of the case before the Full Court of the Supreme Court and the appellants' costs of this appeal.