Luya Julius Pty Ltd v Shepherd [1955] HCA 47

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Luya Julius Pty Ltd v Shepherd [1955] HCA 47

ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of Queensland (Matthews J.) be discharged, and in lieu thereof order that there be judgment for the defendants in the action with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 23 Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ.

This is an appeal from a judgment of the Supreme Court of Queensland (Matthews J.). The judgment was given in an action in which the respondent Shepherd was plaintiff and the two appellants were defendants. The plaintiff was injured in a collision which occurred in the city of Brisbane on the morning of 23rd June 1952, between a motor cycle ridden by him and a motor truck owned by the appellant company and driven by the other appellant. By their pleading the defendants denied negligence and alleged contributory negligence, but at the trial negligence was admitted, the allegation of contributory negligence was abandoned, and the sole defence on which the defendants relied was based on cl. 24 of the schedule to The Workers' Compensation Acts 1916 to 1952 Q.. It was alleged that the injuries suffered by the plaintiff were injuries for which compensation was payable under The Workers' Compensation Acts, that the plaintiff had applied for and recovered compensation under the provisions of that Act, and that he was thereby precluded from recovering damages from the defendants. To this plea the plaintiff replied that he was at all material times an infant, and that it was not for his benefit that he should receive workers' compensation instead of damages.

The plaintiff was at all material times a worker within the meaning of the Act, being employed as a shop assistant by Calile Malouf Pty. Ltd., of Stanley Street, South Brisbane. Since the accident occurred when he was travelling to his work, he was entitled to compensation under s. 9 of the Act. He claimed compensation and was paid by way of compensation between 24th June 1952 and 24th February 1953 weekly sums totalling £161 7s. 9d. The writ in the action was issued on 18th July 1953. The plaintiff was in fact at all material times an infant, and the action was commenced by his father as his next friend. He reached the age of twenty-one years on 25th August 1954, shortly before the action came on for trial.