MOLLOY TRADING AS TOPLINE PIPELAYING v HOBDAY and ORS [1994] NSWCA 208

MOLLOY TRADING AS TOPLINE PIPELAYING v HOBDAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and POWELL JJA 17 June 1994, 1 December 1994

[1994] NSWCA 208

CONTRACT — infants of tender years purported retainer void. INFANTS — procedure — guardian tutor or next friend necessary. WORKERS COMPENSATION — dependents — fault of worker — amount of award — weekly payments.

CONTRACT — infants of tender years — retainer of solicitor — no guardian appointed — purported retainer void.

INFANTS — representation — by guardian, tutor or next friend — no such person appointed to represent two infants (aged 6 and 4) in Compensation Court — whether infants properly before Court of Appeal — held: they were not — (1) there was no statutory provision or rule of Court ousting the common law rule that an infant may only institute and carry on legal proceedings by a guardian: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied; (2) s23 of the Workers' Compensation Act 1987 applies to infant workers and not to infant dependents; (3) Pt6 R17(2) of the Compensation Court Rules requiring joinder of the first wife and two sons was inadequate to enable the proceedings to be treated as having been "brought" by the first wife on behalf of the two sons; (4) Because of the age of the infants the defect could not be waived by the other parties.

WORKERS' COMPENSATION — liability of employer for payment of death benefits — worker killed at night in course of periodic journey when motor bike collided with horse — whether accident partly or wholly caused by fault of worker within s10(1A) of the Workers' Compensation Act 1987 — held: it was not — worker could not have foreseen straying horse. Per curiam: momentary inadvertence does not constitute "fault'' within the definition thereof in s10(6) of the Act.