McNicol v The Commonwealth [1969] HCA 18

High Court of Australia Kitto, Windeyer, and Owen JJ. McNicol v The Commonwealth [1969] HCA 18

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

May 23 Kitto, Windeyer, and Owen JJ.

One Finley Thomas McNicol, who was an "employee" within the meaning of that expression as defined in s. 4 of the Commonwealth Employees' Compensation Act 1930-1967 Cth, died of a myocardial infarction which in the circumstances was a personal injury by accident arising out of or in the course of his employment by the Commonwealth. If there had not been in force such provisions as are found in ss. 17A (2) and 4 (3) of the Act, the fact that McNicol's death resulted from the injury would have entitled the appellant, as his widow and therefore a "dependant" of his, to compensation from the Commonwealth in accordance with the First Schedule to the Act: see s. 9.

The infarction, however, had resulted from an occurrence that happened during a period in which McNicol was a member of the forces employed on active service during the war of 1939-1945; and because of that fact the appellant, as his dependant, became entitled by reason of his death to receive a pension under s. 101 of the Repatriation Act 1920-1966 Cth. Upon the ground of her entitlement to that pension her claim for compensation under the Commonwealth Employees' Compensation Act was disallowed by reference to s. 17A (2), as read with s. 4 (3), of that Act. The present appeal is against a decision of a county court affirming the disallowance.

Section 17A (2), read by itself, deals only with the right of an employee to compensation under the Act in respect of personal injury by accident arising out of or in the course of his employment by the Commonwealth. It provides that if the injury is an injury in respect of which the employee is entitled to receive a pension, other than a service pension, under the Repatriation Act the employee shall not be entitled to compensation under the provisions of the Commonwealth Employees' Compensation Act. Then s. 4 (3) provides that for the purposes of s. 17A any reference to an employee shall, where the employee has died as a result of the injury, be read as a reference to any dependant of the deceased employee "who has a legal claim in respect of the death of the employee". The result of this somewhat clumsy piece of draftsmanship is that where an employee has died as a result of an injury arising out of or in the course of his employment by the Commonwealth, and a dependant of his has a legal claim "in respect of" his death entitling the dependant to receive a pension (other than a service pension) under the Repatriation Act "in respect of" that injury, the dependant shall not be entitled to compensation under the Commonwealth Employees' Compensation Act.