Helmers v Coppins [1961] HCA 88; (1961) 106 CLR 156 (14 December 1961)

HIGH COURT OF AUSTRALIA

HELMERS v. COPPINS [1961] HCA 88; (1961) 106 CLR 156

Workers' Compensation (N.S.W.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4) and Owen(5) JJ.

CATCHWORDS

Workers' Compensation (N.S.W.) - Injury sustained in Queensland - Contract of employment entered into in N.S.W. - Contract to do work in Queensland - Employer having no place of employment in N.S.W. - Work under contract performed by employee in N.S.W. before proceeding to Queensland - Compensation awarded - "and there employs a worker" - Workers' Compensation Act, 1926-1957 (N.S.W.) s. 7 (1A).*

HEARING

Sydney, 1961, November 14, 15; December 14. 14:12:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

December 14.
The following written judgments were delivered:-
DIXON C.J. In my opinion this appeal should be dismissed. I have had the them. (at p158)

McTIERNAN J. In my opinion the appeal should be dismissed. The substantial question is what is the proper meaning of the phrase "there employs a worker" in s. 7(1A) of the Workers' Compensation Act, 1926-1957 of New South Wales. The phrase in question is joined by the conjunction "and" to each of the two previous phrases in the section. The first is "where an employer has a place of employment in New South Wales"; the second phrase describes another class of employer, that is, an employer who "is for the time being present in New South Wales". Thus there are two classes of employers made liable by the section in the circumstances stated in it: first an employer who has a place of employment in New South Wales and "there" employs a worker; secondly an employer who is for the time being present in New South Wales and "there" employs a worker. As the condition "there employs a worker" applies to the employer who has a place of employment in New South Wales and also to the employer who is for the time being present in New South Wales, the word "there" refers to New South Wales. It does not refer to the "place of employment" which the employer in the first class has in New South Wales. In the case of an employer who satisfies that condition, he is within the scope of the section if he "employs" a worker anywhere in New South Wales. The employer who is for the time being present in New South Wales, that is, an employer who has not a place of employment in New South Wales, is also within the scope of the section if he employs a worker anywhere in New South Wales. (at p159)

2. The question is what does the word "employs" mean in the context being considered. The view put for the appellant is that the word means that a worker for whose benefit the section is enacted is one who is in the employer's service in New South Wales, whether the employer has a place of employment in this State or is for the time being present in the State. This view is not of course at variance with one of the ordinary meanings of the word "employs". It is contended on the other hand for the respondent that the word "employs" in the context means a worker who enters into the contract of service in New South Wales if the employer either has a place of employment in the State or is "for the time being" present in the State. This contention is not at variance with another ordinary meaning of the word "employs". In my view the words "for the time being present in New South Wales" are strong to indicate the sense in which the Legislature used the word "employs". These words would be inappropriate to the case of an employer if the Legislature contemplated the employment in New South Wales of a worker by an employer who has no connexion with the State other than that denoted by the words "is for the time being present there". The word "employs" is used to denote a particular act, that is, the engagement of a worker by an employer visiting the State, not the carrying out by the worker of a contract of employment in the State. I think that the construction of s. 7(1A) by the Full Court of the Supreme Court of New South Wales is right. The question in the stated case should be answered in favour of the respondent because the appellant was at the relevant time an employer for the time being present in New South Wales who engaged the respondent in that State. (at p160)

KITTO J. The portion of s. 7(1A) of the Workers' Compensation Act, 1926-1957 (N.S.W.), which describes the conditions of the right of a worker or his dependants to compensation in accordance with the Act in respect of an injury received outside New South Wales, is couched in the present tense. Three things, as I read the language, must concur in point of time: (i) the employer must either have a place of employment in the State or be for the time being present in the State; (ii) he must be employing a worker in the State; and (iii) the worker must receive an injury outside the State under circumstances which would have entitled him to compensation if the injury had been received in the State. (at p160)

2. This construction of the section treats the first and second of the conditions as concerned with a particular setting, a particular state of employment circumstances, in which the injury occurs. Accordingly it treats the words which express the second condition "and there employs a worker", as referring not to the engagement of the worker by the employer, but to a present state of employment as at the time of the injury, so that they are equivalent to "and is there employing a worker". A case to which the provision applies, on this construction of it, is that in which a stationhand employed on a grazing property in New South Wales crosses the border for a purpose of his employment, and while in the neighbouring State receives an injury under circumstances which would have entitled him to compensation if he had received it on the property. Another is the case in which an employee in a travelling circus, which is on the road moving between two towns in New South Wales, is sent by his employer on an errand across the border, and there receives an injury in similar circumstances. In both examples the fulfilment of the first two conditions sets the stage on which an injury attracting compensation under the Act may be received. The first example is a case of an employee having a "place of employment" in the State, and it allows for the definition of "place of employment" (s. 6) as meaning "the premises, works, plant or place for the time being occupied by or under the control or management of the employer by whom the worker concerned is employed, and on or at or in connexion with which the worker was employed at the time of the injury". It will be noticed that the definition itself uses a form of the verb "to employ" for the purpose of describing a state of affairs current at the time of the injury. The second example is a case of an employer who is for the time being present in New South Wales though having no "place of employment" in the State. (at p161)

3. It seems to me that the form of the second condition of s. 7(1A) follows the example, as regards the use of the word "employs", which was set by the definition of "place of employment", in the light of which the section must have been framed. There is no difficulty in reconciling the notion of an employment existing at the time of the injury, and properly to be described as an employment in New South Wales, with the notion of a personal injury arising out of or in the course of the employment (see definition of "injury" in s. 6) but received by the worker as the Act, in s. 7(1A), contemplates that it may be, in another State and therefore "away from his place of employment". (at p161)

4. I would allow the appeal. (at p161)

TAYLOR J. I have had the opportunity of considering the reasons prepared by Owen J. in this matter. They express the views and conclusion which I also have formed and I have nothing to add. (at p161)

OWEN J. This appeal raises questions as to the interpretation of s. 7(1A) of the New South Wales Workers' Compensation Act which is in these terms: "(1A) Where an employer has a place of employment in New South Wales or is for the time being present in New South Wales and there employs a worker, and such worker whilst outside New South Wales receives an injury under circumstances which had the injury been received in New South Wales would entitle him to compensation in accordance with this Act, such worker (and in the case of the death of the worker, his dependants) shall receive compensation in accordance with this Act, and the provisions of this Act shall apply, mutatis mutandis, to and in respect of such injury . . . ". There follows a proviso which is not material for present purposes. (at p161)

2. The facts are that in March 1958 the appellant employer, then being present in New South Wales but having no place of employment in that State, engaged the respondent to work for him at Tully in Queensland where he was erecting a bulk sugar loading plant. The appellant had in New South Wales a crane which he proposed to use in the work at Tully but which had a damaged chassis. The respondent, at the request of the appellant, repaired the chassis at Cessnock in New South Wales before setting off for Tully and was paid by the appellant for his services. He then went on to Tully and whilst working there on the erection of the sugar loading plant received injuries in circumstances which, if the injuries had been sustained in New South Wales, would have entitled him to compensation under the New South Wales Act. He thereupon made a successful application to the Workers' Compensation Commissioner for an award of compensation. In those proceedings the learned Commissioner found - and no attack is now made on this finding - that the work which the respondent had carried out repairing the crane was done by him under the contract of employment under which he had agreed to go and work for the appellant at Tully. The significance of this finding was that his Honour considered that the word "employs" in the phrase "and there employs a worker" in the sub-section did not mean "engages" but referred to the provision of work for the worker pursuant to a contract of employment. In those circumstances his Honour considered that to bring the sub-section into operation it was necessary for the respondent to show that under the contract of employment he had performed services in New South Wales for the appellant and that, this having been proved and the other requirements of the sub-section having been satisfied, the respondent was entitled to an award. On a case stated to the Full Supreme Court their Honours construed the word "employs" in the sub-section to mean "engages" and, since the contract of employment had been made in New South Wales, the appellant then being present for the time being in New South Wales, they upheld the award. They went on to hold that even if the word "employs" had the meaning which the learned Commissioner had given it, the finding of fact that the respondent's work on the damaged chassis had been performed in New South Wales in part performance of the contract of service under which he had later gone to Tully justified an award in his favour. (at p162)

3. Before us two submissions were made by counsel for the appellant. In the first place he contended that the word "employs" does not mean "engages" but should be given the meaning which the learned Commissioner attached to it. That submission, if soundly based, would not carry him the whole way. Accordingly he submitted further that if the word had the meaning for which he contended it would be necessary for the respondent to show that the major or at least a substantial part of the services rendered by him under the contract of service had been rendered in New South Wales or, as he put it elsewhere in his argument, that "the employment was located in New South Wales". In such case, so he submitted, the evidence showed that the work done by the respondent on the crane chassis in New South Wales was but a minor incident of the work in fact performed under the contract. Counsel seemed to me to have considerable difficulty in explaining what he meant by a "major or substantial part" of the services rendered or by an "employment located in New South Wales" and the difficulties which his suggested test would create suggest that the interpretation which he sought to put upon the word "employs" is wrong, but there are other reasons for so deciding. (at p163)

4. The sub-section deals with two classes of employer. Into the first class there falls the person who has a place of employment in New South Wales and who, in New South Wales, "employs" a worker. Into the other class falls the person who has no place of employment in New South Wales but who is present in New South Wales for the time being and while so present "employs" a worker. In either case if such worker receives injury outside New South Wales in circumstances which would have entitled him to compensation if he had been injured in New South Wales compensation is payable. Looking first at the second class of employer, it seems to me to be clear that the word "employs" refers to the making of the contract of employment rather than to the provision of work pursuant to such a contract. The words "for the time being present in New South Wales" strongly indicate that this is so, since they refer to the time when the employer "employs" the worker, and it seems most unlikely that the legislative intention was that this branch of the sub-section should operate only where the employer is present in New South Wales during the whole time when work is being provided by him for the worker; yet this would be the result if "employs" refers to the provision of work and not to the making of the contract of employment. It seems to me that it is much more probable that this branch of the sub-section was designed to deal with the case of an employer who is temporarily present in New South Wales and whilst so present recruits labour under a contract, the performance of which involves the worker in doing some or all of his work outside New South Wales. (at p163)

5. In Mynott v. Barnard [1939] HCA 13; (1939) 62 CLR 68 this Court had to consider whether, on the true construction of the Workers' Compensation Act (Vict.), it applied to a case in which a worker who had entered into a contract of employment in Victoria with a Victorian resident to do work for him in New South Wales was injured while working in New South Wales. That, of course, is not a question which arises in the present case since s. 7(1A) of the New South Wales Act contains the clearest evidence that it is to apply, in certain circumstances, in the case of an injury sustained outside New South Wales. I refer to the decision only because I think some of the passages in the judgments throw light on the intention of the draftsman of s. 7(1A). Latham C.J. said: "Parliament might have used language clearly introducing a particular territorial limitation. For example, it might have provided that any person who by a contract made in Victoria employs another person shall be liable to pay compensation in specified cases of accident, wherever the accident may take place. Such legislation would have been valid because it is within the power of the Victorian Parliament to attach legal consequences to the doing of an act (such as the making of a contract) in Victoria" (1939) 62 CLR, at p 75 . And Starke J. said: "Unless the Act otherwise provides the implication is that the accident contemplated is an accident occurring within the territorial limits of the State of Victoria and not one occurring outside those limits. This is so because of the general principle that a State can legislate effectively only for its own territory. On the other hand, an Act might provide that every worker under a contract made within the State or of which the proper law of the contract was that of the State or in connexion with a business localized in the State should be entitled to receive compensation wheresoever the injury by accident occurred. The constitutional validity of such an Act would not, I think, be open to doubt . . . (1939) 62 CLR, at p 89 ". Unfortunately s. 7(1A) uses the word "employs" and not some such words as "contracts to employ" but I think that in using the word "employs" the draftsman's purpose was to provide that the making in New South Wales of the contract of employment should provide the link with New South Wales necessary to enable its Parliament to make a valid law requiring compensation to be paid for injury sustained outside the State boundaries. (at p164)

6. During argument it was suggested that if the definition in s. 6 of "place of employment" is read into s. 7(1A), it would be seen that "employs" refers to the provision of work and not to the making of the contract of employment but I do not think that this is so. If the definition is read in, I see no difficulty in reading "employs" as meaning "engages". But, even if the inclusion of the definition would tend to suggest a different meaning, the word "engages" seems to me to be clearly the right meaning to give to the word "employs" in the case of the transient employer. And, since it cannot mean one thing when used in this connexion and another when used in connexion with the employer with a place of business in New South Wales, I think the context of the sub-section indicates that the definition of "place of employment" is not to be read into the provision. (at p165)

7. For these reasons I am of opinion that the decision of the Full Supreme Court was right and that the appeal should be dismissed with costs. (at p165)

ORDER

Appeal dismissed with costs.