Wicks v Union Steamship Company of New Zealand Ltd [1933] HCA 58; (1933) 50 CLR 328 (24 November 1933)

HIGH COURT OF AUSTRALIA

Wicks Applicant, Appellant; and Union Steamship Company of New Zealand Limited Respondent, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

24 November 1933

Gavan Duffy C.J., Rich, Starke, Dixon, Evatt and McTiernan JJ.

Miller, for the appellant.

E. M. Mitchell K.C. (with him Jaques), for the respondent.

Miller, in reply.

The Court delivered the following written judgment:—

Nov. 24

Gavan Duffy C.J.,

Rich, Starke, Dixon, Evatt and McTiernan JJ.

In substance the questions submitted to the Supreme Court by the Workers' Compensation Commission inquire whether it was bound to find that the injury to the worker resulted in total and permanent disablement within the meaning of the exception in sub-sec. (3) of sec. 9 of the Workers' Compensation Act 1926-1927, or whether it was entitled to find that the injury had not so resulted.

The case stated contains no special findings by the Commission, and consists of nothing but a brief account of the nature of the proceedings, a copy of some medical certificates, and of the notes of evidence, and a statement of the Commission's ultimate finding against the worker. It is difficult, if not impossible, to collect from the case stated what the Commission intend to state as the subsidiary or detailed facts upon which it founded its conclusion. But it appears certain that the following facts were accepted by that tribunal. The worker, who was employed by the respondent as a wharf labourer, on 13th September 1927 suffered a serious injury to his right leg, arising out of and in the course of his employment. He was then sixty-one years of age and had done no work but that of a labourer for over forty years. During the greater part of that time he had resided and earned his living at Grafton. The worker was incapacitated for work, and, from the date of the accident, until 11th May 1932, received weekly payments of compensation calculated as for total incapacity. On that date, the aggregate amount of the payments reached £1,000 and no further payments were made, because the respondent did not admit that his total incapacity was permanent. The injury to his limb has reached a permanent condition of physical impairment, which disables him from walking or standing for anything but a very short time and then only with a stick, and he will always remain unable to do any but sedentary work in which his right leg would be at rest. Upon the evidence it might reasonably be inferred that he could never be employed in any work unless of some unusual or special kind. The worker applied for a determination of the question whether, under sec. 9 (3) of the Act as it then stood, he was entitled to be paid compensation by the respondent beyond the aggregate sum of £1,000 already received by him. The sub-section then excepted from the limitation cases of permanent and total disablement. The Commission was, therefore, called upon to decide whether the worker had been permanently and totally disabled, an expression which, in our opinion, means physically incapacitated from ever earning by work any part of his livelihood. This condition is satisfied when capacity for earning has gone except for the chance of obtaining special employment of an unusual kind.

He was then sixty-six years of age, he was completely disabled from doing any of the work by which hitherto he had earned his living, he could not do any work except such as could regularly be done seated, and no evidence was given that any work was or would ever be available at Grafton or elsewhere of this character, which he was qualified or could qualify himself to perform. The Commission upon a proper application of the exception in sec. 9 (3) might, in these circumstances, have found that the worker was permanently and totally disabled because his lasting situation had become that described in Wemyss Coal Co. v. Walker[1]. What in fact the tribunal did is expressed as follows in the case stated:—"After hearing counsel for the respective parties, the Commission ruled that it was not bound to find that the applicant was totally and permanently disabled—as submitted by applicant's counsel—but that it should take the whole of the evidence and find on that whether the applicant was, or was not, totally and permanently disabled. Having done this, the Commission found that the applicant's injury did not result in his total and permanent disablement for work, his disability being not as great as that of a man who had lost one leg, and therefore declined to make an award in his favour for the payment to him of weekly compensation under the Act beyond the aggregate sum of One thousand pounds (£1,000) already paid him."

This statement leaves it quite uncertain whether the Commission applied the right test, or whether, on the contrary, it thought that it was confined to considering if the worker's injury removed for ever his physical ability to do anything which could be denominated work: or whether it reasoned that because, under sec. 16, £600 is assigned as compensation for loss of a leg, the Legislature could not mean to treat complete lameness in one leg as a possible cause of total and permanent incapacity; or that because many, if not most, one-legged men, can earn the whole or some part of a living, therefore this worker could not be wholly incapacitated from doing so. In the complete absence of any statement of the Commission's exact findings, a deficiency in the case stated which is not mitigated by any information as to how its conclusion was reached, unless the reason be contained in the reference to the man who loses a leg, we are of opinion that a decision of the matter in favour of the respondent should not be given or be allowed to stand. In the circumstances the question debated before us, viz., whether upon the evidence the worker is entitled to an award as for permanent and total disablement, is one which we should not decide. We think that the matter should be remitted to the Commission for further consideration, including the hearing of further evidence if the parties have any to offer, and, if the Commission adheres to its decision, for the full statement of the material facts as it finds them, so that the Supreme Court will have before it a proper case stated upon which the correctness in point of law of the Commission's conclusion may be examined.

The appeal to this Court should be allowed, and, as the appellant prosecuted the appeal as a pauper, there will be no costs of the appeal.

The order of the Supreme Court should be discharged and in lieu thereof it should be ordered that the application by the appellant to the Commission be remitted to it for its reconsideration.

The costs of the case stated in the Supreme Court should be made costs in the application.

Appeal allowed. Order of the Supreme Court discharged. In lieu thereof order that the application by the appellant to the Workers' Compensation Commission be remitted for its reconsideration. Costs of case stated in the Supreme Court to be costs in the application to the Workers' Compensation Commission.

Solicitors for the appellant, F. McGuren & Son, Grafton, by F. R. Cowper, Stayner & Wilson.

Solicitors for the respondent, Sparke & Helmore, Newcastle, by A. P. Sparke & Broad.

[1] (1929) 22 B.W.C.C. 366.