Railways, Commissioner for v London [1951] HCA 40

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. Railways, Commissioner for v London [1951] HCA 40

ORDER Appeal allowed with costs. Order of Supreme Court discharged. In lieu thereof order that it should be declared in answer to question (a) in the case stated that the learned Judge of the Workers' Compensation Commission did err in holding that the sum mentioned was not deductible, and in answer to question (b) that his Honour should have held that the sum was deductible and in answer to question (c) that his Honour should have made an award in favour of the appellant Commissioner for Railways. Order that the respondent pay the appellant's costs in the Supreme Court of the case stated.

Cur. adv. vult.

The Court delivered the following written judgment:—

July 17 Dixon, Williams, Webb, Fullagar and Kitto JJ.

The question upon which the decision of this appeal depends concerns the second paragraph of s. 16 (2) of the Workers' Compensation Act 1926-1941 N.S.W., that is to say, the second paragraph in the form it took before s. 16 (2) was amended by Act No. 13 of 1942. The question is how that paragraph operates in relation to s. 100B of the Government Railways Act 1912 as amended.

Sub-section (1) of s. 16 provides that the compensation payable by the employer for certain injuries mentioned in a table shall, if the worker so elects, when the injury results in total or partial incapacity, be the amounts indicated in the table.

The respondent, while a fettler employed by the appellant the Commissioner for Railways, received an injury to the middle finger of his left hand. This took place as long ago as 26th July 1933. He was incapacitated by the injury totally for ten days and thereafter partially. The incapacity was permanent. He remained in the employment of the appellant commissioner, though not as a fettler, until 26th February 1949 when he retired. He thereupon elected under s. 16 (1) and claimed an amount based on the table as made applicable to his case by sub-s. (3) of s. 16. That sub-section confers a right to a percentage of an amount indicated in the table where there has not been a total loss of the member or the faculty mentioned in the table but only a permanent loss of its full efficient use. The percentage is to equal the percentage of the diminution of the full efficient use of the member or faculty. The appellant was considered to have suffered a permanent loss of forty per cent of the full efficient use of his left hand, and an amount of £240 was accordingly fixed. But the date of his injury placed his case under the provisions of the second paragraph of sub-s. (2) of s. 16 in the form in which it stood before 1st July 1942, the date of the commencement of Act No. 13 of 1942. By that paragraph it was provided that where such an election (scil. as prescribed by sub-s. (1)) has been made, any payment, allowance, benefit, salary or wages which the worker has received and may receive from his employer in respect of the period of incapacity shall be deducted from the amount payable in accordance with the table.