Tooth & Co Ltd v Tillyer [1956] HCA 49

High Court of Australia Dixon C.J. McTiernan, Williams, Webb and Fullagar JJ. Tooth & Co Ltd v Tillyer [1956] HCA 49

ORDER Application for special leave refused.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 22 Dixon C.J., Williams, Webb and Fullagar JJ.

This application for special leave was made for the purpose of obtaining from this Court a decision upon a question concerning s. 64 of the Workers' Compensation Act 1926-1954 N.S.W.. Section 64 deals with the situation that arises when a worker is entitled to claim both against an employer under the Act and against a stranger independently of the Act. The question was raised by a demurrer to a declaration in an action brought by Tooth & Co. Ltd. as plaintiff against one Tillyer as defendant. It appears from the declaration that the defendant's wife Doreen Winifred Tillyer was an employee of the plaintiff. The plaintiff incurred a liability to pay her compensation under the Workers' Compensation Act for injuries which she sustained in consequence of a want of reasonable care on the part of her husband. Had he not been her husband he would have been legally liable to pay damages to her in respect of the injury she so sustained. The plaintiff, having paid workers' compensation to Mrs. Tillyer, brought the action against her husband claiming that under s. 64 he was bound to indemnify them in respect of the compensation so paid. The Supreme Court decided that he was not so bound and from that decision special leave to appeal is now sought.

Section 64, as it stands amended, is as follows:—"Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof—(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to retain both damages and compensation. If the worker recovers firstly compensation and secondly such damages he shall be liable to repay to his employer out of such damages the amount of compensation which the employer has paid in respect of the worker's injury under this Act, and the worker shall not be entitled to any further compensation. If the worker firstly recovers such damages he shall not be entitled to recover compensation under this Act; (b) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid; (c) if the worker subsequently obtains judgment for damages against the person who has paid under such indemnity, such payment under the indemnity shall be, to the extent of the amount of such payment, a satisfaction of the judgment for damages; (d) all questions relating to matters arising under this section shall, in default of agreement, be settled by action, or, with the consent of the parties, by the Commission."