Coal Cliff Collieries Limited v Austin [1919] HCA 77

Coal Cliff Collieries Limited v Austin [1919] HCA 77 - HCA 1919 case summary — Zoe

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which the Supreme Court held that the award of £2 a week during incapacity or until review under the Workmen's Compensation Act 1916 (No. 71) should stand. For the respondent, moving to strike out the appeal, it was urged as the real ground that such an award limited, as it must be limited in accordance with the words of the Act and the statutory regulation prescribing the form of award, to the respon- dent's incapacity, or review, was indefinite in time, and might not be of the value of £300, and no reference to other facts could alter it. Beard's Case (1) was relied on to show that £300 at least must be at stake at the present moment. Asan alternative argument - naturally put forward with reluctance because, if successful now, it might be used hereafter against the respondent in case of an application for revision - it was contended that if the external facts are relevant - they show that less than £300 will be paid. That might mean either that the respondent's injuries are not so severe as to last three years from the time the award begins to operate, or that he is likely to die before the three years. As to the latter possibility, if his early death were to be due to his injuries the liability could not be less (Schedule 1 (1) ). So that the second possibility must mean likeli- hood of death from some other cause. The appellant contends that it is sufficiently shown that the appeal is competent. Mr. Leverrier read and relied on the affidavit of 17th June 1919, par. 6 of which says: "The judgment and order was given in respect of a sum exceeding the value of £300 and involves directly a claim and question exceeding the amount of £300." That is distinct, and the deponent has not been challenged or cross- examined. On a preliminary application made by the respondent to strike out the appeal as incompetent, the respondent had no affidavit to the contrary; and so it was ordered that the application should stand over until the hearing of the appeal, when the evidence in the case should be looked at, to determine the question. We start, therefore, with a general statement on affidavit to the effect mentioned. On the hearing the respondent filed an answering affidavit, the negative value of which is important. All it says material to this matter is that the value is not necessarily £300. On the hearing both affidavits were again referred to, and Mr.

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Leverrier, while stoutly maintaining the sufficiency of the award itself until displaced, also referred to the fact of the respondent's age and the absence of any material to counteract the primd facie effect of the facts as showing a continuance which he said the law would presume in the absence of evidence to the contrary. The evidence discloses that Austin is about fifty years of age. Until his accident he was a miner employed by the Coal Cliff Colliery as a roadman, timbering, road laying, building stopings and doing anything he was asked to do. Apparently he was a man in full health and strength, the only previous accident was one to his finger, but apparently that was negligible. It is clear that up to the moment of the accident Austin was a robust and constitutionally sound man. Whatever incapacity he now suffers is the result of the accident. Now, in the first place, the one tribunal recognized by the law to determine his incapacity has fixed it at the highest possible, namely, as entitling Austin to £2 a week. And that same tribunal is the only one entitled by law to declare any change in that condi- tion. In our opinion, we are required, while that award stands unaltered, and no allegation is made that circumstances as to incapacity have changed, to consider the incapacity as continuing and as entitling the man to the same weekly compensation. The very highest it can be put for the respondent in relation to his pre- liminary objection is that we are called upon to estimate the chances of circumstances changing and of that tribunal reviewing the award and the extent of that review. Apart from the legal onus of estab- lishing this, in face of the prima facie case of the existing award, it is clear to us that no reasonable doubt can arise on the evidence before us. The accident occurred in August 1918. He was struck in the groin by a skip and knocked backwards ; he was then struck by another skip and knocked forwards and rolled in the road clear of the rails. The doctor who attended him gave a vivid account of his severe injuries. Two medical men were examined in February 1919, they having in that month, six months after the accident, carefully examined him, One is the regular medical attendant of the employees, who had attended Austin in the hospital; the other was the Company's adviser specially for this case. A third doctor

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determines its amount. When, however, the agreement or award is recorded, the liability may be enforced as though it were a liability under a judgment or decree. Now, where the liability is to paya - weekly sum, not for any definite period, but during incapacity, it could not, even if embodied in a judgment of the County Courts in England, be enforced without some further proceeding, in which the Court could be satisfied as to the amount actually due. If in this further proceeding it were alleged by the employer that nothing was due as from a particular date, because on that date the incapacity had determined, it would be the duty of the Court to grant an adjournment so that the dispute as to the duration of the compensa- tion could be referred. If on such reference the arbitrator found that the incapacity had in fact determined on the date alleged, it would be the duty of the Court to refuse to enforce the weekly pay- ment after that date. . . . Passing to the 16th paragraph of the - First Schedule, it provides that any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum thereinbefore provided, and the amount of pay- ment is, in default of agreement, to be settled by arbitration. This paragraph contemplates (1) that the weekly sum payable has already been ascertained by agreement or arbitration; (2) that, notwith- standing such ascertainment, a dispute has arisen as to the amount payable under the Act; (3) that this dispute will be itself settled by a new agreement or arbitration ; and (4) that the settlement of the dispute may involve the weekly payment originally agreed or awarded being ended, diminished, or increased. The process by which the last-mentioned result is to be effected is called a review, but there is, I think, no magic in the word." Against this award the present appellant appealed to the Supreme Court of New South Wales. That Court, after hearing argument, dismissed the appeal, and from its order appeal is now made to us. The utmost we could do if the appellant were wholly successful would be to set aside the award, and if we did so the appellant would not necessarily be pecuniarily benefited to the extent of £300. We have no right to presume that the respondent's incapacity or the award founded on it will continue for any specified period, and

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no prohibition so far as the parts of 100 yards, 50 yards and 10 yards are concerned. The result is so startling - particularly if one takes the trouble to plot these distances and gradients on paper

so opposed to the general intention of the section and so danger- ous to human life that nothing but the most express language could induce us to adopt the latter contention. If the provision as to gradient consists, as that contention maintains, of two independent alternatives, it would enable the proprietary to make a road a mile in length with a gradient of (say) 1 in 6 everywhere except the last 20 yards, and, provided only that length of 20 yards did not exceed 1 in 9, there would be no protection for the men working there. That seems to us opposed not merely to the main object of the enactment, security for life and limb, but to the language of the Legislature. For example, the word " where," as used in several parts of the section, is indicative not of the locality of the accident but of the existing state of circumstances in relation to the road as a haulage road. You cannot detach the gradient provision from the other require- ments of par. (6). That paragraph states three conditions of exception necessary to take a road out of the " dangerous" category _ enacted by the main part of the sub-section. Those three condi- tions are (1) rate of haulage, which is of course for the whole road; (2) gradient, which as we read it means 1 in 12 everywhere, except that it may vary to the extent of 1 in 9 for 100 yards (leaving undetermined whether that means a totality or not) but not more than 1 in 9 anywhere; and (3) it must be clear of obstruction between tracks if there are more than one track, this applying to the whole road. The claimant's contention would lead to this - absurdity, that it is lawful to walk, and therefore to send a man to walk, on a 100 yards length not only where all the rest of the road is (say) 1 in 6, but also where the whole space between the tracks is blocked except as to the 100 yards. i We appreciate the reluctance of the Supreme Court to define unnecessarily the exact meaning of par. (6). It is, in any case, wN- necessary for us to say whether the 100 yards means a totality or a possible series of 100 yards, with the deeper gradient of 1 in 9, but in the circumstances we feel bound to say that, whichever it may be, the unvarying gradient of not more than 1 in 12 must be preserved

At a glance

Court

Decision date

Before

Source

Judgment (110 paragraphs)