Somodaj v Australian Iron & Steel Ltd [1963] HCA 50

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Menzies JJ. Somodaj v Australian Iron & Steel Ltd [1963] HCA 50

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Dixon C.J.

This case concerns in a new aspect, or at least a comparatively new aspect, the recurring problem of the relation between the remedies of the workman against the employer at common law and under the Act. In this instance the workman sued first for damages for injuries which, according to his allegation, he had received in the course of his work and then during what I may describe as a stet processus he made an application under the Workers' Compensation Act, 1926-1954 N.S.W.. That proving unsuccessful, he proceeded with his common law action. There he was met by, among other things, a plea alleging that he, the plaintiff, sought in the action to recover damages said to arise from an alleged injury to his back, which injury is said by the plaintiff to have been received while he was in the course of his employment by the defendant, and that he, the plaintiff, filed in the Workers' Compensation Commission an application for determination in which he claimed to recover from the defendant compensation under the provisions of the Workers' Compensation Act in respect of alleged incapacity for work alleged to have resulted from such injury; and the plea claimed in effect that the Commission had made an award stating amongst other things that the applicant has failed to establish incapacity for work in a certain defined period and that an alleged incapacity or partial incapacity for work due to a certain alleged injury to the back was not the result of any employment injury on the date alleged.

The question of the relationship under the statute between the two remedies has been a source of recurrent difficulty for a very long time. Section 63 (1) provides that "Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible." That of course means that the two liabilities and, accordingly, the two remedies, may co-exist. One view of the state of the law in force immediately before s. 63 (2) took its present form will be seen in Latter v. Muswellbrook Corporation [1] . Sub-section (2) now provides: "In such case the worker may proceed both under this Act and independently of this Act but where he obtains judgment against his employer independently of this Act he shall not be entitled to any compensation under this Act other than compensation paid to him before such judgment". It seems to me that the intention of the provisions of s. 63 which I have quoted is that the rights of the worker should be cumulative except in so far as he has prosecuted one of the alternative remedies to success. To say that in the process of attempting to prosecute to success one in which he in fact failed an allegation of fact which he made might be conclusively decided against him with the consequence that he could not again make the same allegation when he turned to the other remedy appears to me to be inconsistent with the principle that inspires the remedy. Independently of other considerations I am therefore of opinion that the plea with which the plaintiff was met should fail. To give effect to the view I have expressed a new trial would be necessary.