DJ BATCHEN PTY LIMITED v SAUNDERS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and HANDLEY JJA 27 March 1991, 27 March 1991 [1991] NSWCA 72 STATUTORY CONSTRUCTION — COMPENSATION ACT 1987 — SCHEDULE 6, Pt6 CL4 — OCCUPATIONAL DISEASE — BOILERMARKERS' DEAFNESS Clarke JA The question at issue in this appeal concerns the meaning of the words "not being an occupational disease within the meaning of s71 of this Act" where they appear in CL4 of Pt6 of Schedule 6 of the Workers Compensation Act 1987. The circumstances in which the difference between the parties arose can be shortly stated. The respondent claimed that he was suffering from boilermaker's deafness and he gave notice of his claim on 28 August 1986. It is accepted by the appellant in these proceedings that by virtue of the provisions of the Workers Compensation Act 1987, which I shall continue to refer to as "the Act", that date should be regarded as the notional date of injury. Approximately 9 months after the date of injury and before the hearing of the claim in respect of which the respondent had given notice, the Act was passed, coming into force on 30 June 1987. The Act repealed the 1926 Workers Compensation Act and provided a code under which compensation claims by workers fell to be determined. (See John Lysaght Australia v Cox, Court of Appeal, 14 September 1990, unreported.) When the respondent's case duly came on for hearing an issue was raised as to whether his claim for compensation should be determined under s16 of the 1926 Act or Division 4 of Pt3 of the Act. The resolution of this issue depended, according to the arguments advanced in the court today, on the meaning of CL4 of Pt6 of Schedule 6 of the Act. That clause reads: "The amount of compensation payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Pt3 of this Act (not being an occupational disease within the meaning of s71 of this Act) shall be determined in accordance with s16 of the former Act instead of Division 4 of Pt3 of this Act if the loss resulted from an injury received before the commencement of that Division." It was the appellant's submission that this clause applied with the consequence that the respondent's claim fell to be determined in accordance with s16 of the 1926 Act. The respondent took the opposing view, asserting that his injury and loss fell within the meaning of an occupational disease as that phrase is used in CL4. Accordingly, it was the contention of the respondent that it could not be said that his loss was not an occupational disease within the meaning of s71 of this Act. 2 UNREPORTED JUDGMENTS The learned Commissioner accepted the respondent's construction of the Act and on appeal Judge O'Meally did likewise. The appellant, completely undaunted, has come to this Court saying that both those learned gentlemen were wrong and that the respondent's boilermaker's deafness was not an occupational disease as that phrase is used in CL4. My first impression was that one should proceed from CL4 to look at s71 of the Act in order to ascertain in what sense the words "occupational disease" were used in that section. Upon the basis of that impression I went to s71 and found that in that section the phrase "occupational disease" was defined. S71(3) reads: "In this section 'occupational disease' means - (a) Loss of hearing due to boilermaker's deafness or any deafness of a similar origin; or (b) Total or partial loss of sight which is of gradual onset; or (c) Any disease which is of such a nature as to be contracted by a gradual process." There is no doubt that the respondent's claim was in respect of loss of hearing due to boilermaker's deafness and that it fell within para (a) of s71(3). Accordingly, it seems to me at first blush that what the respondent was complaining of in this case was an occupational disease within the meaning of s71 of the Act. Mr Poulos of Queen's Counsel, who argued the case for the appellant and did so in an earnest and dogged fashion, submitted that this was a superficial view. What the words in parenthesis in CL4 were directing attention to, in his submission, was a further loss of hearing as contemplated by s71. In order to understand the argument it is necessary to set out s71(1) in full. That subsection reads: "Tf - (a) Compensation has been paid under this Division (or s16 of the former Act) for a loss, being - (i) the loss of a proportion (but not all) of a thing; and (ii) an occupational disease; and (b) The worker suffers a further loss of that thing, compensation is payable under this Division for the further loss, but only the proportion of that further loss of the thing shall be taken into account in calculating the compensation payable." It is readily apparent that that subsection provides a system pursuant to which claims for compensation in respect of further losses of hearing and similar type losses should be compensated. What is also clear is, as Mr Poulos submitted, that it does not apply in respect of a first claim for loss of hearing. The conditions bringing s71(1) into play are that compensation has been paid, either under the Act or under the 1926 Act, for a loss which was the loss of a proportion of a thing and which was an occupational disease as defined in s71(3) and that the worker suffered a further loss of that thing. Upon satisfaction of all those conditions, the section provides means whereby the amount of compensation can be determined. According to the argument therefore, occupational disease in CL4 was used to indicate a further loss occurring after a claim had previously been made and compensation paid. It was simply not correct, according to this submission, to separate s71(3) from the rest of the section and to treat occupational disease in CL4 as though the same definition which appeared in s71(3) had been expressly set out in CL4. URJ DJ BATCHEN PTY LIMITED v SAUNDERS (Clarke JA) 3 At times I found some difficulty in following the argument but, as I finally understood it, it was essentially based on the proposition that the legislature was excluding from CL4 claims for further loss which could be brought within s71. For my part, I am unable to accept the argument. I have listened carefully to the variations upon the same theme and the illustrations used to support the fairly complex propositions which were put. Notwithstanding I was left at the end of the argument with a confirmed view that my first impression was correct and that there was no reason not to accord to the words in parenthesis in CL4 their literal meaning. Upon this view, one simply determines whether what is in question was an occupational disease within the meaning of s71 of the Act. Bearing in mind that there is a definition in s71 of the Act of that phrase, it is a matter of no difficulty at all to ascertain what was an occupational disease within the meaning of that section. Mr Poulos also sought to submit that as subs(3) commences with the words "In this section" the definition was limited to s71 itself. It had no greater impact upon the Act than to define the meaning of the phrase "occupational disease" where it occurred in s71. The argument is correct so far as it goes but it seems to me that it overlooks the fact that in CL4 the legislature adopted, for the purposes of that clause, the meaning which is given to the phrase in s71. Upon this view, the appellant's arguments must fail. Accordingly, it is strictly unnecessary to say any more about the contentions that were advanced. However, with due respect to Mr Poulos I think I should go somewhat further and express a number of considerations which tend, in my view, to support the conclusion to which I have come. The Act, I repeat, is designed to provide a complete code for the provision for compensation for workers and in order to achieve this result the legislature caused the Act to repeal the 1926 Act. Once that Act was repealed there was a necessity for fairly detailed transitional provisions. Those which relate to what are called "maims" in the Act appear in Pt6, the first Clause of which is of great importance. It reads: Subject to this Schedule, Division 4 of Pt4 of Pt3 of this Act applies whether the injury was received before or after the commencement of that Division." The legislative scheme thus expressed is that, subject to any exceptions that are to be found in Schedule 6 and any others that might be found in other Acts of Parliament, claims for compensation in respect of non-economic loss fall to be determined in accordance with Division 4, Pt3 of the Act. In the remainder of Pt6 there are set out some exceptions and some qualifications. CL2 is not relevant but CL3 is. That reads: "Compensation is not payable to a worker who has suffered a loss of a thing mentioned in the Table to Division 4 of Pt3 of this Act (being an occupational disease within the meaning of s71 of this Act) if compensation for the loss was awarded to the worker, or the worker received or agreed to receive compensation for the loss, in accordance with s16 of the former Act." It will be seen that it uses almost identical words in parenthesis as does CL4, the difference being that the relevant words in CL4 commence with the word "not". The two clauses, that is CL3 and CL4, when read with CL1, provide a means for determining in what manner claims for compensation for losses which occurred prior to the commencement of the Act are to be determined. 4 UNREPORTED JUDGMENTS CL3, which was dealt with in some detail in Cox's case, provides that compensation is not to be payable to a worker who has suffered a specified loss if it is an occupational disease within the meaning of s71 of the Act and if compensation for the loss has been awarded to the worker or the worker received or has agreed to receive compensation for the loss in accordance with s16 of the 1926 Act. Thus it is that all occupational diseases claims are to be dealt with under the relevant provision of the Act unless one of the disentitling events has occurred. On the other hand, losses which are not an occupational disease within the meaning of s71 of the Act and which occurred prior to the commencement of the Act fall to be determined in accordance with s16 of the 1926 Act. There was clear dichotomy drawn between losses which were an occupational disease within the meaning of the relevant section and those which were not. In the latter case if the injury occurred prior to the commencement of the Act then the compensation is determined under s16. In the former case the combined effect of CL3 and CLI is that compensation falls to be determined in accordance with Division 4 of Pt3 of the Act unless one of the events mentioned in CL3 had occurred. If this is correct, then provided there is a clear understanding of what is an occupational disease, the provisions are relatively simple of application. In order to provide what was, I apprehend, thought to be a clear meaning of the phrase the legislature had recourse to, or in a sense borrowed, the definition of "occupational disease" appearing in s71. The whole purpose of the reference to occupational disease in the two clauses was to separate claims for injury which were not on the one hand, and which were on the other, an occupational disease. Although it is strictly unnecessary to decide why this division was thought to be necessary, it appears to me to flow from the possibility of anomalies resulting from the fact that in the case of occupational diseases, particularly those referred to in s15 and s17, the date of injury is an artificial one which is determined by reference to the provisions of those sections. For instance, s17 provides that an injury shall be deemed to have happened at the time when the worker gave notice in those cases where the worker was at the time when he or she gave notice employed in an employment which was of a noisy nature. If the worker was not employed in a noisy work environment at the time of giving notice, then the injury was deemed to have occurred on the last day on which the worker had been so employed. If the amount of compensation were to be determined in cases where these deeming provisions applied pursuant to CL4 of Pt6 of Schedule 6, that is by recourse to s16 of the 1926 Act, anomalies were likely to occur. The amount of compensation would not, for instance, depend on when the diminution of hearing occurred but when notice was given. If one worker gave notice on 29 June 1987 and another worker gave notice on | July 1987 their respective claims would fall to be determined under different regimes even though the actual losses might have occurred at the same time. There is, it seems to me, much to be said for the view that the separation between claims in respect of occupational diseases and those which were not for occupational diseases was introduced to avoid those anomalies by placing all the former claims in the 1987 regime. On the other hand, I can detect no purpose behind the differentiation which would result if the interpretation for which the appellant contends was adopted. There seems no reason for determining that claims for initial loss of hearing URJ DJ BATCHEN PTY LIMITED v SAUNDERS (Handley JA) 5 occurring prior to 1 July 1987 should be decided in a different manner from claims for a further loss of hearing which might have occurred prior to that date, except insofar as some differences of approach are necessary, those differences being dictated by s71 itself. In my opinion, the construction for which the respondent contended and which was found to be the true construction by the Commissioner and Judge O' Meally fits far more happily into the scheme of the Act, is arrived at on the application of the literal meaning of the words used in the relevant clauses, and seems to me also to be far more consistent with the general purpose of the transitional provisions than the rather complex construction proposed by the appellant. For these reasons, in my opinion, the appeal should be dismissed with costs. Priestley JA The statutory provisions relevant to this appeal have all been referred to by Clarke JA. The appeal depends on the meaning to be given by this Court to the words in brackets in CL4 of Schedule 6 Pt6 of the Workers Compensation Act 1987. Schedule 6 contains the Acts, savings and transitional provisions. These are commonly thought to be very complex. By reference to various parts of schedule 6 of the Act it was submitted for the appellant that a particular meaning should be given to the words in brackets. I doubt whether the meaning proposed would be immediately detectable even to an attentive reader. However, after hearing counsel's explanations of why this meaning should be adopted I can see that it has some plausibility. On the other hand, the meaning which was found by the court below, and indeed in more than once case in the Compensation Court, is clear and obvious; that is the meaning defined in subs(3) of the section to which the words in brackets direct the reader. In legislation of any kind, and particularly in Acts such as this, simple meanings should be preferred to complex ones, the clear preferred to the obscure, unless there are some indications in the statutory language that a different approach must be taken. In the present case I have not seen anything in any of the statutory provisions nor in such of their purposes as I have been able to pick out which persuades me to adopt the meaning of the words in brackets urged on behalf of the appellant. T also would dismiss the appeal with costs. Handley JA I agree with the reasons for judgment that have been given by Clarke JA and Priestley JA and with the orders they propose. The order of the court is, appeal dismissed with costs. Counsel for the Appellant: J Poulos QC and JW Dodd Counsel for the Respondent: MJ Joseph Solicitors for the Appellant: Walsh James Solicitors for the Respondent: Turner Freeman