Steele v Defence Forces Retirement Benefits Board [No 2] [1956] HCA 4

High Court of Australia Taylor J. Steele v Defence Forces Retirement Benefits Board [No 2] [1956] HCA 4

ORDER Order that the appeal be dismissed. Further order that the appellant pay to the respondent its costs of the proceedings but not including the costs of and incidental to the case stated for the opinion of the Full Court.

Cur. adv. vult.

The following written judgment was delivered:—

Feb. 23, 1956 Taylor J.

On 7th December 1951 the appellant, while a male member of the Permanent Air Force, sustained an injury to his right arm and wrist which resulted in permanent disability consisting of a marked limitation of the range of movement in his right elbow joint and a substantial loss of pronation in the right wrist. The fact that the appellant's disability was permanent became apparent some little time after his injury and on 2nd June 1952 he was retired. In the circumstances of his retirement it became the duty of the Defence Forces Retirement Benefits Board, pursuant to s. 51 of the Defence Forces Retirement Benefits Act 1948-1952, to "determine the percentage of total incapacity of the" appellant "in relation to civil employment" and to classify him in accordance with the provisions of that section. The section is in the following terms:—

51. Where a member who is a contributor has been, or is about to be, retired, prior to attaining the retiring age for the rank held by him, on the ground of invalidity or of physical or mental incapacity to perform his duties, not, in the opinion of the Board, due to wilful action on his part for the purpose of obtaining pension or benefit, the Board shall determine the percentage of total incapacity of the member in relation to civil employment and shall classify the member according to the percentage of incapacity as follows:—