Commissioner for Railways v Farley [1958] HCA 52; (1958) 101 CLR 339 (21 November 1958)

HIGH COURT OF AUSTRALIA

COMMISSIONER FOR RAILWAYS v. FARLEY [1958] HCA 52; (1958) 101 CLR 339

Government Railways (N.S.W.)

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Taylor(1) and Menzies(1) JJ.

CATCHWORDS

Government Railways (N.S.W.) - Officer - Incapacity by injury - Entitlement to salary during incapacity - Entitlement to continue to the exclusion of any right whilst in railway service to compensation or damages unless election made to make claim for compensation or damages - Election made claiming compensation only - Whether officer thereby deprived of right to bring claim for damages - Government Railways Act 1912-1955 (N.S.W.), ss. 100B (1), 100D (1) (b), (2).

HEARING

Sydney, 1958, November 21. 21:11:1958
APPEAL from the Supreme Court of New South Wales.

DECISION

The oral judgment of the COURT was delivered by:-
DIXON C.J. This is an appeal from a judgment of the Full Court of New South substantial agreement with that judgment. The matter may be dealt with, therefore, very shortly. (at p341)

2. The appellant was entitled to payment of his salary under s. 100B of the Government Railways Act 1912-1955 and at the rate thereby ascertained. He determined to make an election pursuant to s. 100D. Apparently at the time he made his election he had in mind to seek workers' compensation. He therefore expressed his election in terms which were apt to refer to compensation. He made the election by notice in writing (s. 100D (2)) and within the period appropriate to his claim (s. 100D (3) (b)). The election open to him is conferred by s. 100D (1) (b) and in the words of that paragraph he elected to make a claim against the commissioner for compensation or damages. His writing spoke of a claim against the commissioner for compensation. Later, he changed his mind and thought he would sue for damages and, as has been remarked by McTiernan J. in the course of the proceedings, the amount he claimed shows that the change of intention was at all events important from the commissioner's point of view, even if it were optimistic from his own. (at p341)

3. Section 100D is constructed in a manner which is to be accounted for by the law which existed at the time it was enacted. By that I mean the law relating to workers' compensation, and the election which an injured workman had between remedies under the Workers' Compensation Act 1926-1929 and remedies outside that Act. Section 100D (1) assumes that a railways officer who is still enjoying his pay under s. 100B may have remedies of one or other kind. It begins by providing that where an officer has, pursuant to s. 100B, become entitled to payment of salary at a rate ascertained in accordance with that section, he shall, to the exclusion of any right while he remains in the railway service to compensation or damages against the Commissioner for Railways, continue to be so entitled during incapacity attributable to the injury and while he remains in the railway service. One may pause to say that s. 100E deals with the possibility of his leaving the railway service but except for the use which has been made of it as an analogy or by way of reasoning by inference s. 100E is not important. There then follows a proviso in the form of a long "unless" clause. It sets out three conditions, which are alternative. If any one of the three is satisfied or fulfilled the "unless" clause operates to deprive the worker of his rights to pay conferred by s. 100B and referred to in the opening part of s. 100D (1) as set out above. At the same time, of course, it puts an end to the operation of the words "to exclusion of any right while he remains in the railway service to compensation or damages against the Commissioner". The second paragraph in the "unless" clause contains the condition upon which the respondent relies, namely: "unless . . . he elects to make a claim against such Commissioner for compensation or damages". The notice of election having referred only to compensation and not to damages the real point of the case, as it has struck me, is whether the election suffices to satisfy the condition and so negative the operation of the words already quoted excluding the right of the employee to recover damages. That is how the point presents itself to me, although I am not sure that that is how it presents itself to Mr. Jenkyn who argued the case very ably for the commissioner. (at p342)

4. At the time when s. 100D was enacted in those terms, the workers' compensation law existed in the form expressed in s. 63 of the Workers' Compensation Act 1926-1929, a provision with which this Court at one time became familiar. Under that provision as it then stood the worker - and I am now speaking of a worker engaged by any employer and not solely a railway worker - might at his option proceed under the Act or independently of the Act but he was not entitled to compensation under the Act if he had obtained judgment against his employer independently of the Act. More than one decision of this Court was concerned with working out what amounted to a definitive exercise of the option according to that provision. (at p343)

5. In framing s. 100D the draftsman was clearly conscious of the existence of the provisions of s. 63 of the Workers' Compensation Act 1926-1929 and so drew s. 100D, as it appears to me, that it dovetailed in with them. As there was an option at that time under s. 63 of the Workers' Compensation Act he set out s. 100D in this complementary form. The election which he gave was between remaining under s. 100B of the Government Railways Act 1912-1934, in which case s. 100D (1) excluded other remedies, or going outside that Act and electing to make a claim against the commissioner for either compensation or damages. As the law stood when this was framed, if a worker decided against going on under s. 100B he necessarily in his next step had to decide which of three courses he would take: either he could make no claim at all, which is of course unlikely, or he could claim damages or he could claim workers' compensation. That was the option which s. 63 of the Workers' Compensation Act as the law then governing his case gave him once he decided against going on under s. 100B. Because that was then the law the option given by s. 100D of the Government Railways Act had to be so expressed. (at p343)

6. But the workers' compensation law did not remain in that condition. It was altered so that a worker was entitled to pursue both remedies until he recovered finally or was defeated. The present state of the law hardly fits in with the phraseology of s. 100D and if it had been in existence at the time s. 100D was enacted, one may be reasonably certain that s. 100D would have been somewhat differently expressed. (at p343)

7. The argument advanced by Mr. Jenkyn is, in effect, although not in form, that the same state of affairs still obtains in the case of a railway worker who has to exercise his option, or decides to exercise his option, under s. 100D. By that I mean that in exercising his option not to continue enjoying his rights under s. 100B he must necessarily commit himself to one or other of the remedies, that is to say, the remedy outside the Workers' Compensation Act of damages, or the remedy under the Workers' Compensation Act of compensation. (at p343)

8. The answer to the argument appears to me to be that no part of s. 100D was ever intended to stereotype the law as it existed at the date s. 100D was enacted. What it did was to assume its existence as it stood in 1936 when the provisions were enacted, and it is in that sense that it dovetailed in with it. What has occurred. however, is that the substantive law of election under the Workers' Compensation Act has been wholly altered. Literally reading s. 100B it is quite clear that the "unless" clause operates as soon as an election is expressed in the terms required by par. (b), as it is in this case, of s. 100D (1), s. 100D (2) and, of course, s. 100D (3). Such an election has been made. There is no part of the workers' compensation law that continues to subject the railway employee to the restriction for which the commissioner has contended and there is nothing in s. 100D to do it. Once he brings himself within the "unless" clause in s. 100D (1) he negatives any operation upon him of the crucial words in the main part of s. 100D (1), viz. ". . . he shall, to the exclusion of any right while he remains in the railway service to compensation or damages against the Commissioner for Railways, continue to be so entitled during incapacity attributable to the injury and while he remains in the railway service." He has made an election and those words can no longer operate upon him. They alone contain any express exclusion of a right to damages. Without that it appears to me that there is nothing which commits him to the remedy of compensation mentioned in his notice of election rather than to the remedy of damages. The Workers' Compensation Act no longer does so, and there is nothing in s. 100D which appears to me to warrant the assumption that it means to continue the law formerly expressed in s. 63 of the Workers' Compensation Act and to ignore the reforms made in the workers' compensation law. (at p344)

9. For these reasons I am of opinion that the judgment below was right and the appeal should be dismissed. (at p344)

McTIERNAN J. I agree. (at p344)

FULLAGAR J. I am of the same opinion. (at p344)

TAYLOR J. I agree. (at p344)

MENZIES J. I agree. (at p344)

ORDER

Appeal dismissed with costs.