Re Brasier [1950] HCA 39

81 C.L.R.] OF AUSTRALIA.

v. Scottish Co-operative Laundry Association Ltd. (1) :—* It is true that if the workman has resumed work after his accident, and is in fact earning the same wages as before his accident, the employer is freed from liability so long as that state of matters continues, even if the workman. is still partially incapacitated, but this is because the statutory method of calculating com- pensation yields nothing." Thus it is true to say, in a case of partial incapacity, that wages and compensation are mutually exclusive, not in the sense that the receipt of wages necessarily proves capacity for work and therefore negatives a right to be paid compensation, but in the sense that post-injury wages reduce the amount of compensation payable because the weekly compensation must not exceed the difference between the worker's average weekly earnings before the injury and his average weekly earnings after the injury: see s. 11 of the New South Wales Act. The doctrine of mutual exclusiveness affords no touchstone for, and indeed has no relevance to, the determination of the question, whether a worker is entitled to be paid compensation as being totally incapacitated for work.

In McDermott v. S.S. Tintoretto (2) Lord Loreburn said: "It is clear that compensation is to begin exactly where the right to maintenance ends"; and Judge Perdriaw's statement was an adaptation of these words. But Lord Loreburn was dealing with a totally different question. The maintenance to which he referred was maintenance provided for under the Merchant Shipping Acts, and his Lordship, I think, meant only to re-state what he had already said, namely, that under those Acts maintenance must continue until the injured seaman reaches a port in England and then "the Workmen's Compensation Act 1906 takes up the tale", and "the right to compensation . . . begins when the injured seaman ceases to be entitled to maintenance" (2). To alter his Lordship's words by substituting " full wages " for "" maintenance " and to erect the statement thus produced into a principle for determining whether compensatable incapacity for work exists, is unwarranted by anything in his Lordship's judgment or anything in the Act. "Incapacity" is physical, not legal, and s. 9 has nothing to do with " the right to full wages". It is concerned with the capacity to earn wages by working, and the inquiry for which it calls is an inquiry as to the effect of the injury on the physical ability of the worker to give labour in exchange for wages.