Dowell Australia Ltd v Archdeacon [1975] HCA 29

High Court of Australia McTiernan, Gibbs, Mason, Jacobs and Murphy JJ. Dowell Australia Ltd v Archdeacon [1975] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 14 McTiernan J.

This is an appeal by Dowell Australia Limited (Dowells), which carries on business in Sydney, from an order of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal which the company brought in accordance with s. 37 (4) of the Workers' Compensation Act, 1926, as amended, against an award of compensation made in favour of Kenneth Archdeacon, the respondent worker.

Mr. Archdeacon received injury while at work. Dowells were his employers at the time the accident happened. The date of the accident was 22nd February 1971. The injury totally incapacitated the worker for work. Dowells paid him compensation under s. 9 (1) of the Act until 30th June 1972.

The learned judge of the Workers' Compensation Commission, who made the award, found that at about that time the worker had recovered from the injury to the extent that he could then be classed as a case of partial incapacity for work.

But Dowells dismissed him from their service on 30th June 1972. The dismissal was found to be for the purpose of retrenchment.

This action, on the part of the employer, led to the institution of the proceedings in the Workers' Compensation Commission in which the award was made. The proceedings were instituted on 15th December 1972. Since his dismissal, the worker had attempted to find employment in Sydney suitable to his diminished capacity for work, but did not succeed in finding employment.

Section 9 (1) of the Workers' Compensation Act provides: "Subject to the provisions of this section and of ss. 10 and 11, where total or partial incapacity for work results from the injury the compensation payable by the employer under this Act shall include " weekly payments described in the sub-section.