Smith v Commonwealth Oil Refineries Ltd [1938] HCA 33

60 C.L.R.]

OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.)

SMITH PLarntiFF,

AND

APPELLANT ;

THE COMMONWEALTH OIL REFINERIES LTD. Resronpenv.

DEFENDANT,

ON APPEAL FROM THE

SUPREME COURT OF

QUEENSLAND.

Workers' Compensation—Action by worker for damages for negligence in respect of H.C, or A. injury—Receipt of three weekly payments of compensation—Refusal to accept further compensation—Return of moneys received as compensation—Workers?

Compensation Acts 1916 to 1936 (Q.) (6 sec. 9 (1)*, Schedule, clause 24.

Geo, V. No. 35—1 Edw. VIII. No. 21),

Clause 24 of the Schedule to the Workers' Compensation Acts 1916 to 1936 (Q) provides : "When the injury for which compensation is payable by the and Dixon JJ.

Insurance Commissioner under this

Act was caused under circumstances

creating also a legal liability in some other person to pay damages in respect thereof—(i) The worker may both take proceedings against that person to recover damages and may apply for compensation under this Act, but is not entitled to recover both damages and compensation."

Held :—

(1) That receipt of weekly sums as compensation amounts to recovery of compensation even if the full amount which the worker is to receive under

the Acts has not been paid.

* Sec. 9 (1) of the Workers' Compensa- tion Acts 1916 (0 1936 provides : "Bach worker who is injured by accident, whether at the place of em-

_ ployment or on his journey to or from such place or (being in the course of his employment or while under his em- ployer's instructions) away from the place of employment, or his dependents

in case of death of the worker, shall receive out of the State Accident Insur- ance Fund compensation in accordance with this Act, and except as in this Act is otherwise provided such payment shall be in lieu of any and alll rights of action whatsoever against any person whomsoever."