King v Hayward [1943] HCA 17; (1943) 67 CLR 488 (3 August 1943)

HIGH COURT OF AUSTRALIA

King Respondent, Appellant; and Hayward Applicant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

3 August 1943

Latham C.J., Rich, Starke and McTiernan JJ.

Sir Henry Manning K.C. (with him Ashburner), for the appellant.

Barwick K.C. (with him Isaacs for M. D. Healy on active service), for the respondent.

Sir Henry Manning K.C., in reply.

The following judgments were delivered:—

Latham C.J.

This is an appeal from a decision of the Full Court of the Supreme Court of New South Wales upon a case stated under the Workers' Compensation Act 1926-1941. The worker, Harry Hayward, admittedly suffered an injury arising out of and in the course of his employment by the appellant. As a result of that injury he lost one eye and obviously lost completely the sight of that eye, but he had admittedly suffered an earlier injury to the same eye on 2nd June 1939 when in other employment. The medical board at that time assessed the permanent loss of the efficient use of his left eye at ninety-five per cent of the total sight thereof. In respect of this prior injury he received £356 5s. lump sum compensation, being a proportion, namely ninety-five per cent, of £375 provided in the table which is part of s. 16 of the Workers' Compensation Act, the relevant provision in the table being "loss of sight of one eye £375."

It was found as a fact that the worker still had five per cent vision in his left eye after the first accident and that such vision was industrially useful to him. Upon these proceedings the worker claimed for the loss of the sight of one eye, namely, the loss of all the sight he had in that eye, claiming the full amount of £375. On the one hand, on behalf of the employer, it was contended that the worker had already received £356 5s. in respect of loss of sight of that eye and that the further injury which was in question in these proceedings only added five per cent loss to the loss already suffered, and that compensation should be assessed upon the basis that £375 in respect of all the injuries concerned was the limit of the amount recoverable.

The Full Court, following two previous decisions—one a case of Rodios v. Trefle[1] and the other the case of Bennett v. General Motors Holdens Ltd.[2]—answered the question asked in the special case by declaring that the Commission had not erred in law in awarding the respondent £375 lump sum compensation in these circumstances. This Court upon this appeal is now asked in effect to review the decisions to which I have referred.

Section 16 of the Act provides in sub-s. 1: "Notwithstanding the provisions of sections eight, nine, eleven, twelve, thirteen and fifteen of this Act the compensation payable by the employer for the injuries mentioned in the first column of the table hereunder set forth shall, if the worker so elects, when the injury results in total or partial incapacity, be the amounts indicated in the second column of that table." The table then contains provisions such as these: "Loss of a leg—£600, loss of a foot—£525, loss of sight of one eye, with serious diminution of the sight of the other—£675," and the provision which is immediately relevant in the present case, "loss of sight of one eye—£375." Other provisions of s. 16 are these:—"(4) For the purpose of the said table the expression loss of includes permanent loss of the use of." "(5) For the purpose of the said table the expression loss of also includes the permanent loss of the efficient use of but in such case a percentage of the prescribed amount payable, equal to the percentage of the diminution of the full efficient use, may be awarded in lieu of the full amount." There is a footnote attached to the words "loss of sight of one eye" which is in the following terms:—"For the partial loss of the sight of one eye there shall be payable such percentage of the amount that would be payable for the total loss of the sight thereof as is equal to the percentage of the diminution of sight."

For the appellant it is argued that the object of these provisions is to fix a maximum amount of compensation in the case of incapacity, total or partial, resulting from the injuries mentioned and that the Act is not properly applied if, in any case where the total result of a number of injuries is the final effect described in the table, the amount or amounts allowed to be recovered exceed the amount prescribed in the table in respect of that total result—e.g., loss of the sight of an eye.

On the other hand it is argued for the respondent to the appeal that the decisions of the Supreme Court in this and prior cases mentioned are correct, and that in this case the essential point is that the worker has in fact suffered, as a result of the later injury, the loss of the sight of one eye, although it was admittedly a deficient eye. It is argued that the table draws no distinction between fully efficient and less efficient eyes.

Section 16 (1) is positive in terms, providing that notwithstanding certain provisions which impose a limit upon recoveries by way of weekly payments the compensation payable by the employer for the injuries mentioned shall, if the worker so elects, be certain amounts. This section relates to claims made upon specific occasions by a particular employee against a particular employer; it is directed to determining the compensation payable upon each of these occasions.

In my opinion each injury must be considered in each case of a claim for compensation in relation to the effect which that injury has produced. The injury in respect of which compensation is claimed must arise out of and in the course of the employment by the particular employer sought to be made liable. If it arose out of and in the course of such employment, what is the injury? The injury in the present case is an injury which has resulted in the removal of an eye and therefore the loss of the sight of one eye by a worker. That eye may have been a good eye or a bad eye. In this case there was some useful vision in the eye. The loss is a total loss of sight in the eye and prima facie the worker is entitled to recover £375.

In my opinion, such a loss of sight should not be described as a partial loss of sight within the meaning of the words used in the footnote to the table. It is a total loss of all the sight which the worker had before the injury, and the injury should therefore be regarded as bringing about a loss of sight of one eye in terms of the table. If however the footnote were applied and this final result of complete removal of the eye were to be regarded as further partial loss, then the extent of the diminution of the worker's sight in that case would be one hundred per cent and not five per cent and would still bring about the result that £375 is recoverable.

It has been pointed out that the provisions in the table and footnote relate to diminution of sight and not to deduction of amounts previously received by the worker. There are provisions in sub-s. 2 of the section for the deduction of certain amounts. Those amounts are, as this section has been amended by Act No. 13 of 1942, the amounts of weekly payments made. That amendment was made in 1942, after the cases in the Supreme Court had been decided, and no other provision for deductions from the amounts set forth in the table was then made. There is no provision which would justify the deduction of an amount recovered at common law in respect of a prior injury from a lump sum recoverable under s. 16 and I can find nothing in the words of the section which would justify the deduction of the amount of compensation paid by some other employer—or even by the same employer—in the case of a prior injury. I agree with what was said by Mr. Justice Davidson in Rodios v. Trefle[3] when he said that "the table does not make any distinction between eyes of full normal vision and eyes of impaired efficiency". I would add even where that impaired efficiency is due to a prior injury. I think also his Honour the Chief Justice expressed the principle rightly, if I may say so, in relation to another illustration, namely loss of a finger, in the case of Bennett v. General Motors Holdens Ltd.[4]: "In my opinion, it makes no difference if the finger was lost as the result of a compensatable injury in respect of which full compensation was received under s. 16. If the defective hand is subsequently lost, the worker is clearly entitled to the full table amount for the loss of a hand."

In my opinion the decision of the Full Court was right and the appeal should be dismissed.

Rich J.

I agree.

Starke J.

I agree with the decision of the Supreme Court of New South Wales in Bennett's Case[5]. I can find no answer to the construction which the learned Chief Justice put upon the provisions of the Workers' Compensation Act. They require the attention of the legislature.

McTiernan J.

I agree. The judgment of the Supreme Court is right. The correct criterion to apply is whether the respondent worker suffered the loss of such sight as he had in the eye in consequence of the injury in respect of which he made the claim in these proceedings. In a practical sense he had sight in that eye at the time he suffered that injury. To the question whether, in consequence of the injury, he lost that sight, the only possible answer is that he did lose it.

Appeal dismissed with costs.

Solicitors for the appellant, A. O. Ellison & Co.

Solicitor for the respondent, W. I. Short.

[1] (1937) 54 W.N. (N.S.W.) 197.

[2] (1940) 40 S.R. (N.S.W.) 117; 57 W.N. 88.

[3] (1937) 54 W.N. (N.S.W.), at p. 198.

[4] (1940) 40 S.R. (N.S.W.), at p. 124; 57 W.N., at p. 90.

[5] (1940) 40 S.R. (N.S.W.) 117; 57 W.N. 88.