Hawkins v Commonwealth [1966] HCA 66

High Court of Australia Taylor, Windeyer and Owen JJ. Hawkins v Commonwealth [1966] HCA 66

ORDER Appeal allowed with costs. Order of Special Magistrate set aside and in lieu thereof order:—

(1) That the appeal from the Delegate of the Commissioner for Employees' Compensation be allowed and his determination set aside.

(2) That an award for the payment of compensation at the rate of $10.53 per week as from 1st February 1966 be made in favour of the appellant.

(3) That the appellant's costs of the appeal to the Special Magistrate taxed on the Local Court scale appropriate to a claim for $700 to $1,100 be paid by the respondent.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 3 Taylor, Windeyer and Owen JJ.

The appellant took proceedings to recover compensation under the Commonwealth Employees' Compensation Act 1930-1964 Cth claiming that as from 1st February 1966 he had been partially incapacitated for work by personal injury by accident arising out of or in the course of his employment. His claim was refused by the Delegate of the Commissioner for Employees' Compensation and against this determination he appealed under s. 20 of the Act. The learned Special Magistrate who heard the appeal dismissed it and from that order of dismissal this appeal is brought.

The appellant was at all material times an employee of the Commonwealth and in November 1954 was appointed Senior Recovery Officer in the Weapons Research Establishment of the Department of Supply. In that capacity it was his duty to direct operations concerned with the search for and recovery of guided missiles fired at the Woomera Range and this involved long and frequent journeys in a Landrover over rough and rugged country. In April 1957, while recovering a missile, he hurt his back and was incapacitated for work for a few weeks. It appeared later that he had injured an intervertebral disc and it is not disputed that this was an injury by accident arising out of or in the course of his employment. He returned to work after a short period off duty but in 1962 his back and left leg began to cause him considerable pain which became progressively worse so that he was only able to carry out his duties with difficulty. By September 1963 the pain in his leg had become so great that he was unable to walk and was compelled to stop work. The trouble was diagnosed as sciatica resulting from the disc injury and on 15th October 1963 an operation was performed on his back. This showed that the disc had been ruptured and that the ruptured fragments were pressing on the root of a nerve and thus causing the pain in the leg. The ruptured fragments were removed and this relieved the pain. He returned to his work a few weeks later but apparently did not have to drive over rough country until 1964. Early in that year, however, he had to make two journeys to recover missiles and to do this he had to travel in the Landrover between the Range head and a target area some two hundred miles away, much of the distance being over "barren harsh dreadful country" which was "very rough". This led to a recurrence of the pain in his back and leg which had been relieved by the operation in October 1963. He felt that he could no longer undertake journeys of this kind and asked to be relieved of the necessity to make them. At the request of the Department of Supply he was examined by a doctor who certified that he was not physically fit to carry out the full duties of a Senior Recovery Officer. He continued, however, to make journeys to recover missiles until October 1965 when he was ordered to cease doing so and during this time he was able to do his work satisfactorily although at the cost of much pain. In that month he was informed that he would be relieved of his duties as soon as possible and appointed to a position which would not involve activities likely to strain his back and, on 1st February 1966 when a suitable person to take his place had been found, he was transferred to another position at a salary lower than that which he had been receiving as a Senior Recovery Officer in 1963 when his operation took place and lower than that paid to him between 1963 and 1st February 1966, but higher than the salary that he was receiving when he injured his back in 1957.