High Court of Australia
High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Commissioner For Railways (NSW) v Scott [1959] HCA 29
ORDER Appeal allowed. Discharge order of the Full Court of the Supreme Court of New South Wales. In lieu thereof order that the appeal from the District Court to the Supreme Court be dismissed. Restore the verdict and judgment for the plaintiff in the sum of £148 19s. 3d. In pursuance of the order granting special leave order that the appellant pays the respondent his costs of the appeal to this Court.
Cur. adv. vult.
The following written judgments were delivered:—
July 1, 1959 Dixon C.J.
In this appeal the Commissioner for Railways of New South Wales seeks to establish the liability to him in damages of a wrongdoer whose tortious act causes personal injury to a member of the railway service who in consequence is unable to perform his duties.
An engine driver named Rogers suffered a breakdown after a level crossing accident had been averted, partly by his efforts. The responsibility for the situation has been held to rest with the defendant, the rider of a motor cycle who has been found negligent in attempting to cross before the oncoming train.
Under s. 100B of the Government Railways Act 1912-1955 N.S.W. the engine driver was entitled while he was unable to perform his duties to receive not less than the salary of his classification and length of service and the cost of medical treatment. Section 100B so provides when the injury arises out of and in the course of the employment unless there has been serious and wilful misconduct. The purpose or characterization of the provision has been considered by this Court, which regarded it as possessing a double aspect, namely in one aspect a continuation of wages while the employee remained in the service of the Commissioner and in another aspect compensatory, that is to say during periods of disablement and when involving any excess payments: The Commissioner for Railways (N.S.W.) v. London [4] .
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