McNamee v Partridge [1959] HCA 43

High Court of Australia Dixon C.J. McTiernan, Kitto, Menzies and Windeyer JJ. McNamee v Partridge [1959] HCA 43

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that the question in the case stated be answered No and that the respondent in this Court (the appellant in the Supreme Court) pay the costs of the case stated.

Cur. adv. vult.

The following written judgments were delivered:—

Dixon C.J.

In my opinion the appeal should be allowed and the question in the case stated answered No. I agree in the reasons prepared by Kitto J.

McTiernan J.

This appeal raises a question as to the extent of the implications, so far as a worker is concerned, of a short but obscure provision of s. 6 (5) (a) of the Workers' Compensation Act 1926-1954. The provision is: "the contractor and any worker so employed by him shall for the purposes of the Act be deemed to be employed by the principal". It is clear enough that these words imply that the worker and the contractor respectively have a right under the Act to claim compensation from the principal although he is not, in fact, party to a contract of service with either of them. So far as the contractor is concerned this anomalous right to compensation under the Act is his only right of that kind. But is this also the case with the worker? He has a contract of service with the contractor, who is his employer, and the continuance of that contract is fundamental to the provision, for it speaks of any worker employed by the contractor. In my opinion, it would strain the words of the provision too far to construe them as meaning that, not only is the worker deemed to be employed by the principal, but also that the contract of service which he has with his employer should be deemed not to exist for the purposes of the Act. I take the view that it is not intended that when a worker is within the protection of s. 6 (5) (a) that should be his only cover. Section 7 under which he has a right to claim compensation from his employer, is not expressly qualified by reference to s. 6 (5) (a). The Act does not deal with the consequences of a worker being within the protection of both s. 6 (5) (a) and s. 7. It does not seem to me that it is in accordance with the language of the provision of s. 6 (5) (a) that this twofold protection could not have been intended. But I think that it may fairly be presumed that the Act does not intend by anything in either s. 6 (5) (a) or s. 7 that the worker should recover compensation twice for the same injury, that is from both his employer and his employer's principal. Upon the facts found by the case stated the appellant is brought within s. 7 and the award, in my opinion, should therefore be confirmed. For these reasons I would allow the appeal.