Wyper v Hetton Bellbird Collieries Ltd [1960] HCA 81

High Court of Australia McTiernan Fullagar, Kitto, Menzies and Windeyer JJ. Wyper v Hetton Bellbird Collieries Ltd [1960] HCA 81

ORDER Appeal allowed with costs. Discharge the order of the Supreme Court. Order that in lieu thereof question (1) in the stated case be answered: No, and question (2) be answered: No, and that the appeal to the Supreme Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 McTiernan J.

In this case I also agree in the conclusion reached by Kitto and Menzies JJ. I would allow the appeal.

Fullagar J.

The facts of this case are similar to those in Fisher v. Hebburn Ltd. [1] , except that the appellant is not a worker but the widow of a deceased worker. The only question actually raised, however, is as to the amount of compensation payable.

1. (1960) 105 C.L.R. 188.

The deceased during his working life had been employed in coal mines. The respondent company was his last employer, and he worked in a coal mine of the respondent up to 25th October 1947. Having then reached the statutory retiring age of sixty years, he was compulsorily retired and a pension was paid to him. On 19th October 1954 he was examined by a Medical Board. The only finding of the Board that need be mentioned is that he was suffering from pneumoconiosis and was totally incapacitated by that disease. It is agreed that the date of his incapacity was the date of the Board's certificate. On 22nd September 1956 he died, pneumoconiosis being certified as one of the causes of his death.

It has not been disputed that his widow is entitled to compensation to be calculated under s. 8 (1) (a) of the Act. But, between the date when he ceased to be employed by the respondent and the date of his certified incapacity from pneumoconiosis, s. 8 (1) (a) was amended three times. It was amended in 1948, in 1951 and in 1953, and each successive amendment had the effect of substantially increasing the amount of compensation payable. The appellant contends that the amount of compensation payable is to be ascertained by reference to s. 8 (1) (a) as it stood in 1954. The respondent contends that it is to be ascertained by reference to s. 8 (1) (a) as it stood in 1947. The Supreme Court was of opinion that the contention of the respondent was correct.