McDowell v Baker [1979] HCA 44

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Aickin JJ. McDowell v Baker [1979] HCA 44

ORDER Appeal allowed with costs. Order that the judgment of the Full Court of the Supreme Court of Queensland be set aside and in lieu thereof it be ordered:

(1) that the appeal to that Court be allowed with costs;

(2) that the judgment of Douglas J. be varied by reducing the amount of damages awarded by the total amount of compensation paid to the deceased and that the amount of damages apportioned by Douglas J. to each dependant be reduced proportionately.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 28 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in this case by my brother Gibbs. I agree with his conclusion that the terms of s. 9A (1) of the Workers' Compensation Act, 1916-1966 Q., are applicable to this case and require that the amount of damages awarded to the respondent in this action be reduced by the amount of compensation paid to the deceased worker. I also agree with the reasons which my brother gives for that conclusion.

I would allow the appeal.

Gibbs J.

On 18th June 1971 the husband of the respondent sustained an injury in the course of his employment by the appellant. He was paid $12,680 as compensation under the Workers' Compensation Act, 1916-1966 Q. ("the Act"); that was his full entitlement under the Act. On 22nd July 1974 he died as a result of the injury. Thereafter the respondent, as administratrix of his estate, brought an action in the Supreme Court of Queensland against two defendants, one of whom was the appellant, claiming (inter alia) damages under s. 12 of theCommon Law Practice Act of 1867 Q. (the Queensland equivalent of Lord Campbell's Act) on behalf of four children of the deceased as well as on her own behalf. At the trial, liability was admitted and judgment was given for the respondent against both defendants for $55,500, which sum was apportioned between the respondent and the four children. The learned trial judge rejected an application by the defendants to deduct from the damages the amount of $12,680 which had been paid as workers' compensation. The present appellant appealed to the Full Court of the Supreme Court, claiming that the judgment against him should be reduced by $12,680, but the appeal was dismissed. The appellant now appeals to this Court.