Commissioner for Government Transport v Royall [1966] HCA 80

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Commissioner for Government Transport v Royall [1966] HCA 80

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 9 Barwick C.J. and Menzies J.

Section 124 of the Transport Act, 1930-1960 N.S.W. makes provision for the payment of salary to an officer incapacitated by injury arising out of, and in the course of, his employment so as to be unable to perform the duties of the classification to which, at the date of the injury, he had been appointed. The salary to be paid is "not less than the salary for the time being payable to officers with the same classification and with the same length of service as such officer had at the date he received the injury". The salary payable under the section ceases to be payable "when such officer is retired from or otherwise leaves the transport service". The appellant here contends that the salary also ceases to be payable when the officer, being capable of performing duties not being the duties of the classification to which he had been appointed, refuses or declines to perform such duties.

In the section there is a statement of the conditions which must be shown to exist in order that the officer may be entitled to salary thereunder. These are: (1) incapacity by injury happening as specified; (2) resulting inability to perform the duties of the officer's classification; and (3) absence of serious and wilful misconduct causing the injury. These conditions, as they appear in s. 100B (1) of the Government Railways Act N.S.W., are referred to in the judgment of this Court in The Commissioner for Railways (N.S.W.) v. London [1] , and it is there made clear that these conditions provide exhaustively for the situation to which the remainder of the section is addressed. In our opinion, it is not possible to add to them by implication a further condition that the officer does not refuse or decline to do work within his capacity outside the duties of his classification.