Commissioner for Railways (NSW) v London [1951] HCA 40

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[HIGH COURT OF AUSTRALIA.]

THE COMMISSIONER FOR RAILWAYS a APPELLANT ; RESPONDENT, AND LONDON. : , 3 é 3 : . RESPONDENT. APPLICANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Workers' Compensation—Railway worker—Fettler—Injury in performance of duties

—Permanent incapacity—Employed as messenger but paid wages of fettler— Retirement from railway service—Claim for compensation—Lump sum— Deductibility of sum paid in excess of messenger's rate—Workers' Compensation 'Act 1926-1941 (N.S.W.) (No. 15 of 1926—No. 26 of 1941), ss. 13, 16 (1), (2), (3), 47—Government Railways Act 1912-1943 (N.S.W.) (No. 30 of 1912— No. 23 of 1943), ss. 1008, 100c, 100D.

'A fettler employed under the provisions of the Government Railways Act 1912-1943 (N.S.W.), in July 1938, sustained, in the performance of his duties, a permanent incapacity by the loss of the middle finger of his left hand. From June 1935, until his retirement from the railway service in February 1949, he, being unfitted by his injury for the work of a fettler, was employed as a messenger, but, pursuant to s. 1008 of the Government Railways Act, at the minimum rate of wages appropriate to a fettler, the excess of the fettler's rate over the messenger's rate for the period he was so employed aggregating the sum of £304 7s. 9d. Upon a claim, brought by the worker upon his retirement, for compensation in terms of s. 16 of the Workers' Compensation Act 1926-1941 (N.8.W.) the judge held that the said sum paid under s. 1008 of the Government Railways Act was not deductible by the Commissioner for Railways from the lump sum claimed by the worker as compensation. This decision was approved by the Supreme Court. On appeal,

H. ©. oF 4. 1951. Ww