Electric Power Transmission Pty Ltd v D'Urso [1970] HCA 40; (1970) 124 CLR 338 (3 November 1970)

HIGH COURT OF AUSTRALIA

ELECTRIC POWER TRANSMISSION PTY. LTD. v. D'URSO [1970] HCA 40; (1970) 124 CLR 338

Worker's Compensation (N.S.W.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(1), Windeyer(1) and Owen(1) JJ.

CATCHWORDS

Worker's Compensation (N.S.W.) - Assessment and amount of compensation - Incapacity - Re-employment of partially incapacitated worker - Unwillingness to accept suitable employment - "Failure to provide suitable employment" - Worker's Compensation Act, 1926 (N.S.W.), as amended, s. 11 (2).*

HEARING

Sydney, 1970, November 2, 3. 3:11:1970
APPEAL from the Supreme Court of New South Wales.

DECISION

November 3.
The judgment of BARWICK C.J., MENZIES, WINDEYER AND OWEN JJ. was delivered by BARWICK C.J.
The appellant is the former employer of the respondent worker who in the employment had been partially incapacitated for work. The appeal which is by special leave is against a judgment of the Court of Appeal of the Supreme Court of New South Wales which, by a majority, allowed an appeal against the decision of the Workers' Compensation Commission: (1970) 91 WN (NSW) 756 The Commission had rejected the worker's claim against the employer for compensation as for total incapacity which the respondent had made on the footing that the employer had failed to provide suitable employment for the worker during his partial incapacity for work as required by s. 11 (2) of the Workers' Compensation Act (N.S.W.). (at p340)

2. The judgment of the Workers' Compensation Commission is as follows, and we set it out in full:

"On the probabilities I am satisfied that the applicant
sustained an injury to his back on 13th December 1966 in the
nature of a lumbo-sacral disc lesion which was already the site
of degenerative changes.
Since 21st September 1967 the applicant has been partially
incapacitated for his pre-injury work but has been fit for light
work not involving much bending or lifting.
Had he remained uninjured and continued in the same or
comparable employment he would have been earning in the
vicinity of $60, and since 21st September 1967 he has been able
to earn in suitable employment about $40 a week.
I find that the respondent has not failed to provide suitable
employment since 21st September 1967 because, in the view I
have formed of the applicant, he has not been genuinely
available for suitable work if such had been made available
to him.
On the basis of those findings, I make an award under s. 11
(1) at the rate of $20 a week from 21st September 1967 and
continuing. Medical and hospital expenses in accordance with
s. 10; costs rule 46; one qualifying fee for Dr. Rowe. I
certify for advice on evidence."
be treated as totally incapacitated. (at p341)

3. In the Supreme Court, all members of the Court were of the opinion that there was evidence before the Commission to support a finding that if suitable work had been offered by the employer to the worker he would not have accepted it, and that a request which the worker had made to the employer for work was not bona fide. (at p341)

4. The majority considered, however, that because at the time when the employer did not accede to the worker's request for suitable employment, the worker's unwillingness to work was not known to the employer, there had been a failure on the part of the employer to provide the worker with suitable employment. (at p341)

5. In our opinion the judgments of the majority are not in accordance with s. 11 (2). This subsection does require an employer to provide his partially incapacitated worker with suitable employment and states the consequence of his failure to do so. It does not require as a condition of its operation that the worker should ask for work and it does not afford the employer any excuse for failing to provide such work. It operates if, but only if, the employer fails to provide suitable employment. (at p341)

6. As, however, appears from what was said by the members of this court in R. J. Brodie (Holdings) Pty. Ltd. v. Pennell [1968] HCA 73; (1968) 117 CLR 665, an employer does not fail to provide employment to a worker who in fact is not willing to work for him. It was pointed out there that employment involved mutuality between the employer and the worker and that if a worker did not want to work, an employer could not be said to have failed to provide him with employment. What Sugerman J. said in Asciak v. Australian Glass Manufacturers Pty. Ltd. (1964) 64 SR (NSW) 344, at 351, is in line with the observations made in Pennell's Case [1968] HCA 73; (1968) 117 CLR 665, . (at p341)

7. It seems to us that the majority of the Supreme Court did not correctly understand these observations and that their view was not consistent with the reasons of this Court in Pennell's Case [1968] HCA 73; (1968) 117 CLR 665 . (at p342)

8. If a worker is in hospital or in prison or has gone away so that he cannot be employed, his former employer could not be said to have failed to employ him, whether or not the employer knew of the circumstances which made further employment impossible. (at p342)

9. Exactly the same reasoning applies in the case of a worker who is simply not willing to work for his former employer, even if the worker should pretend that he is willing to work, and the employer is not aware that a request by the worker for employment is a sham. (at p342)

10. For the worker it was argued before us, as an alternative to the mode of reasoning which commended itself to the majority of the Supreme Court, that to provide suitable employment within the meaning of the section is not to give a suitable job to a worker ready and willing to work but to be ready and willing to employ the worker to do suitable work whether or not the worker should be ready and willing to do that work. This contention, however, is, we think, contrary to what was said by this Court in Pennell's Case [1968] HCA 73; (1968) 117 CLR 665 and is not a construction of the section which we are prepared to accept. (at p342)

11. The finding of the Commission that the worker had not been genuinely available for suitable employment with the employer of itself properly led to the conclusion that the employer had not failed to provide him with suitable employment and to the refusal of compensation as for total incapacity. (at p342)

12. Accordingly, the judgment of the Supreme Court must be set aside and that of the Commission restored. (at p342)

McTIERNAN J. With some hesitation I agree with the judgment delivered by the Chief Justice, but I do so on the footing that Pennell's Case [1968] HCA 73; (1968) 117 CLR 665 has adopted a construction of the sub-section in question that I feel bound to accept. I was not one of the Judges in Pennell's Case [1968] HCA 73; (1968) 117 CLR 665 . (at p342)

ORDER

Appeal allowed with costs. The order of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.