J & H Timbers Pty Ltd v Nelson [1972] HCA 12

High Court of Australia Barwick C.J. Menzies, Windeyer, Owen and Gibbs JJ. J & H Timbers Pty Ltd v Nelson [1972] HCA 12

ORDER Appeal allowed. Appellant, pursuant to an undertaking given by it on the grant of leave, to pay the respondent's costs of the appeal. Order of the Supreme Court set aside and in lieu thereof order that the appeal to the Supreme Court be allowed, the award of the Workers' Compensation Commission set aside and the matter remitted to that Commission for further consideration, costs of the further consideration by the Commission to abide the order of the Commission.

Cur. adv. vult.

The following written judgments were delivered:—

1972, Feb. 25 Barwick C.J.

The respondent was engaged by the appellant, which conducted a timber mill, to haul logs from the forest to the mill. He was not in the employment of the appellant under a contract of employment but by virtue by s. 6 (5) (a) of the Workers' Compensation Act, 1926 N.S.W., as amended, (the Act) and the facts found by the Workers' Compensation Commission (the Commission) he was deemed for the purposes of the Act to be a worker employed by the appellant. The Commission found that the respondent received an injury in the course of his deemed employment by the appellant. It also found that he suffered incapacity as the result of that injury. For a time the incapacity was total but after a time it became partial and continuing. The Commission made an award of compensation covering both the period of total incapacity and the period of partial incapacity. By an appeal brought to the Supreme Court of New South Wales (Court of Appeal Division) the appellant challenged the Commission's award insofar as it related to partial incapacity. The amount awarded for total incapacity had been paid by the appellant and the appellant sought to set aside the continuing award on account of partial incapacity and an order dismissing the respondent's application for compensation in respect of that partial incapacity. The Supreme Court by an unanimous judgment dismissed the appeal [6] .