Laumets v Commissioner for Railways (NSW) [1953] HCA 84; (1953) 89 CLR 15 (3 December 1953)

HIGH COURT OF AUSTRALIA

LAUMETS v. COMMISSIONER FOR RAILWAYS (N.S.W.) [1953] HCA 84; (1953) 89 CLR 15

Workers' Compensation

High Court of Australia
Dixon C.J.(1), Webb(1) and Kitto(1) JJ.

CATCHWORDS

Workers' Compensation - Railway worker - Labourer - Injury in performance of duties - Permanent partial incapacity - Employed on "selective duties" - Full wages of labourer paid therefor - Retirement from railway service - Claim for compensation - Lump sum - Entitlement - Amendment of statute - Workers' Compensation Act 1926-1948 (N.S.W.) (No. 15 of 1926 - No. 40 of 1948), ss. 16, 47, 53 - Government Railways Act 1912-1945 (N.S.W.) (No. 30 of 1912 - No. 8 of 1946), ss. 100B, 100D.

HEARING

Sydney, 1953, November 27, 30; December 3. 3:12:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

December 3.
THE COURT delivered the following written judgment:-
This is an appeal from an order of the Supreme Court of New South Wales made stated at the instance of the respondent to this appeal, the Commissioner for Railways, against whom an award had been made by the Commission. (at p21)

2. The question raised for decision depends on s. 47 (1) of the Workers' Compensation Act 1926-1948 (N.S.W.) as that sub-section stood before the amendments made by Act No. 20 of 1951. The provision was as follows:- This Act shall apply to workers employed by or under the Crown or any Government department to whom this Act would apply if the employer were a private person; but any such worker shall not, save to the extent indicated in subsection two of this section, be entitled to receive compensation or benefits under this Act as well as benefits under any other Act. Sub-section (2) spoke of the worker electing to make his claim "under this Act", and, in the event of death or disablement, it conferred certain rights to a refund of contributions made to a statutory superannuation account. Sub-section (3) then saved rights under the Family Endowment Act 1927-1938 (N.S.W.) or the Widows' Pension Act 1925-1942 (N.S.W.). After the date of the injury sustained by the present appellant but before he took proceedings before the Workers' Compensation Commission in respect of the injury, Act No. 20 of 1951 was passed repealing the words in sub-s. (1) "but any such worker shall not, save to the extent indicated in subsection two of that section, be entitled to receive compensation or benefits under this Act as well as benefits under any other Act". Sub-sections (2) and (3) were also repealed. (at p22)

3. The appellant was an officer in the employ of the Commissioner for Railways. On 24th April 1949 while working as a labourer he received an injury to his head by which he was incapacitated. It was an injury arising out of and in the course of his employment. For some weeks he was unable to work and, when otherwise he had recovered, he continued to suffer from partial deafness in both ears. He then did "selective duties" as an officer of the commissioner. The deafness was the result of the injury and operated as one substantial cause in producing the condition of incapacity to which his absence from work was due, as well as a lasting partial incapacity. By reason of s. 100B (1) of the Government Railways Act 1912-1945 (N.S.W.), the appellant received the full pay of a labourer while he remained an officer of the commissioner. He was so paid for the period when owing to his incapacity he was absent from work as well as for the period when he performed selective duties. Section 100B (1) is as follows:- "Where an officer has been incapacitated by injury arising out of and in the course of his employment so as to be unable to perform the duties of the classification to which at the date of the injury he had been appointed, he shall, except where such injury was caused by his own serious and wilful misconduct, be paid, during such incapacity, not less than the salary for the time being payable to officers with the same classification and with the same length of service therein as such officer had at the date he received the injury, but such salary shall cease to be payable when such officer is retired from or otherwise leaves the railway service". (at p22)

4. The appellant was retired from or left the railway service on 30th December 1949. On 31st May 1951 he filed an application to the Workers' Compensation Commission for the determination of the liability of the respondent Commissioner of Railways to him for lump sum compensation, and for determination of the amount thereof, under s. 16 of the Workers' Compensation Act 1926 as amended and the table to that section giving the tariff of lump sum compensation for loss of member or faculty. The Commission awarded the appellant 380 pounds in respect of an almost complete loss of the hearing of one ear. Before the Commission the respondent Commissioner of Railways resisted the claim on the ground that s. 47 (1) of the Workers' Compensation Act operated to disentitle the appellant because he had received benefits under another Act, that is to say he had received the benefits conferred in such a case as his by s. 100B (1) of the Government Railways Act 1912, as amended. No point was made of any non-compliance with s. 53 of the Workers' Compensation Act and none was made upon s. 100D of the Government Railways Act. (at p23)

5. The Supreme Court decided that the contention of the commissioner that the claim was barred by s. 47 (1) of the Workers' Compensation Act was correct. In some degree the conclusion of the Supreme Court was based upon the reasons given in this Court in Commissioner for Railways (N.S.W.) v. London [1951] HCA 40; (1951) 85 CLR 95 , where the nature and operation of s. 100B were considered. It was necessary to consider in that case the application of s. 16 (2) of the Workers' Compensation Act to the benefits enjoyed under s. 100B (1) and it was for that purpose that the character of s. 100B (1) was examined. There is no need to go again over ground covered in the judgment. It is enough to repeat the conclusion that was there expressed. The passage begins by stating that the true view appears to be that s. 100B (1) has a double aspect. "In so far as it results in an excess payment being made over that which the officer would earn by the work he does and in so far as it confers upon him a right to salary for periods of disablement and the like, it should be characterized as a provision compensatory for injury, that is as a provision giving a payment, allowance, benefit, salary or wage in respect of the incapacity occasioned by the injury. In its other aspect it does not fall within s. 16 (2), par. (ii.)" (1951) 85 CLR, at p 109 . This passage fixes the characterization of s. 100B (1). What remains is to decide whether so characterized it falls within the scope of s. 47 (1), that is, before the sub-section was amended by Act No. 20 of 1951. That question must depend on the words, "as well as benefits under any other Act". Literally these words are capable of applying to any benefit under any Act. If that is what they mean, it is enough that s. 100B (1) confers a benefit and occurs in another Act. But no one has supposed that they could be read literally. Their application must be restrained to benefits that present some analogy to those conferred by the Workers' Compensation Act. (at p24)

6. In Commissioner for Railways (N.S.W.) v. London (1951) 85 CLR, at pp 102-103 this Court referred to s. 47 (1) and made some observation upon the generality of the words in question which it is better to quote: "But s. 47 is expressed in wide terms which, like those of s. 13, have by construction been restricted in their application. In Ex parte Brennan; Re Garside (1936) 36 SR (NSW) 110, at p 115; 53 WN 59, at p 60 , Jordan C.J., in delivering the judgment of the Full Court, said of s. 47: 'Obviously, it must be read subject to some limitation, or else a Crown worker who became entitled to receive any benefit of any kind under any Act, although completely unrelated to any injury or incapacity on his part, would stand outside the Workers' Compensation Act. It is impossible to suppose that the legislature meant this. I think that the object and effect of the sub-section is to prevent a Crown worker from obtaining workers' compensation in respect of an incapacitating injury if there is some other legislation which entitles him to benefits in respect of that injury. It prevents a Crown worker who becomes entitled under some Act to receive during a period benefits on account of a personal injury arising out of and in the course of his employment which incapacitates him for work, from being entitled to receive workers' compensation for the same period and the same injury'. In one of the passages cited by Fullagar J. in Thompson's Case [1950] HCA 46; (1950) 81 CLR 585, at p 619 , from the decisions of Judge Perdriau the necessity that there must be a connecting link between the injury and the benefits is ascribed to s. 47. The application of such a restriction to the benefits given by the old form of s. 100B was dealt with in Sandry's Case (1935) 52 WN (NSW) 203, at pp 204, 205 (affirmed (1936) 10 ALJ 76 ), where Jordan C.J. said: 'Obviously "benefits" means benefits analogous to the compensation or benefits which are recoverable under the Act'. This opinion was accepted in this Court, where the object of s. 47 (1) was said to be to disallow claims which would give for a second time the same kind of benefit as had already been obtained. The benefits to which it referred were those that alleviate or avert the loss which follow incapacity from injury and perhaps the analogous loss which would be suffered by dependants" (1951) 85 CLR, at pp 102-103 . (at p24)

7. It seems impossible to impose upon the words "benefits under any other Act" any greater limitation than is involved in the expression "benefits that alleviate or avert the loss which follows incapacity from injury". (at p25)

8. But s. 100B (1) conferred upon the appellant wages for the period or periods of his disablement for work. It did so as a provision compensatory for his injury. That is the character fixed upon it. It seems to follow unavoidably that, within the meaning of s. 47 (1), the appellant received a benefit to which he was entitled under another Act, namely, the Government Railways Act. (at p25)

9. There is no way of escaping the conclusion that he is excluded from recovering the compensation awarded except by adopting the view put for the appellant that the repeal by Act No. 20 of 1951 of the concluding words of s. 47 (1) operated to relieve from the bar they impose all workers who before the repeal had suffered injury in respect of which they had accepted benefits under another Act, provided their cases had not been determined by award. But to give the repeal this effect would be to alter the rights and liabilities retrospectively. It would give to Act No. 20 of 1951 an operation of which it is incapable. (at p25)

10. For the foregoing reasons, which do not differ from those given by the Supreme Court, the appeal should be dismissed. (at p25)

ORDER

Appeal dismissed with costs.