Latter v Council of the Shire of Muswellbrook [1936] HCA 70

Latter v Council of the Shire of Muswellbrook [1936] HCA 70 - HCA 1936 case summary — Zoe

[15]

In an action under the Compensation to Relatives Act 1897-1928 (N.S.W.), H.C. oF A. brought by a widow on behalf of herself and her infant children against her '1936. deceased husband's employer, it was pleaded that the plaintiff, after the death = of her husband, made a claim against the defendant under the Workers' Com- LATTER pensation Act 1926-1929 (N.S.W.), on behalf of herself and her children, and in Muswet- pursuance of those proceedings and with the consent of the plaintiff thedefendant BROOK paid the full amount of the claim into the office of the Workers' Compensation poration. Commission and subsequently thereto the plaintiff with a full knowledge that = - - she had analternative right to proceed at common law applied for and obtained the payment out of certain sums of money by the commission for the benefit of herself and her children, and an order was made by the commission at the request of the plaintiff vesting in the plaintiff and her children the money paid in. Payment in by the defendant with an admission of liability was proved. The plaintiff signed a notice in the prescribed form of her intention to apply to the commission for the investment and application of the money so paid in, and small sums were paid out from time to time by the commission to the plaintiff. Later the plaintiff directed that no further payments be made, returned a cheque for the current payment, made a demand for damages and issued the writ in the present action. After the issue of the writ the plaintiff applied to the commission for and accepted further payments. No question was put to the jury with respect to any of the issues raised by the plea, the only questions submitted being negligence and damages. The jury returned a veraict for the plaintiff, and deducted from the amount of the damages awarded the amount paid to the commission by the defendant. 'The Supreme Court of New South Wales held that the rights of the plaintiff and her children under the Workers' Compensation Act had been satisfied, and, therefore, that by see. 63 of that Act, the action was not maintainable. The verdict was set aside and judgment entered for the defendant. 'The plaintiff appealed to the High Court.

[63]

In my opinion the words " at his option" mean that the worker must exercise a choice between the two alternatives which the law allows to him. The mere adoption of one alternative without knowledge that the law permits another alternative is not an act of choice between the two alternatives. Therefore, in my opinion, the worker cannot be held to have exercised an option unless he knew that there were two alternatives. This does not mean that he must fully understand the meaning of the provisions of this section, which have already given rise to so much difference of judicial opinion. It means simply that he must know that there are two courses open and that, with such knowledge, he adopts one of them. The contrary view, namely, that knowledge of his right is irrelevant, appears to me to ignore the words "at his option." There is, in my opinion, a very real difference between the following provisions: (1) The worker may proceed under this Act or independently of this Act ; and (2) The worker may at his option proceed under this Act or independently of this Act. Under a provision such as (1) it is provided that the worker may do one of two things. Apart from legislation, he would be entitled to proceed upon either or both of his possible causes of action, which are separate and distinct. For example, negligence is irrelevant in proceedings under the Act, and the question whether the injury arose out of and in the course of the employment does not determine liability in an action for negligence. The significance of a provision such as (1) would be that if the worker did one thing he was precluded from doing the other. On any other construction the provision would mean nothing. Knowledge of the existence of the alternative courses would be irrelevant. But, under a provision expressed as in (2), the position is, I think, quite different. The words "at his option" add to the meaning of the provision. They introduce an additional element. This additional element must be that there should be knowledge that the alternatives exist and a choice between. them. This view is supported by the consideration of another provision in the Act. Sec. 39 is, or ought to be, very important in the administration of the Act. It provides that the commission shall furnish workers and employers with information as to their tights and liabilities in respect of all injuries sustained by workers

[100]

satisfaction. But the peculiar nature of the workers' compensation makes it sometimes difficult to say that the right has been satisfied, exhausted or enjoyed to the full. When there has been an injury of the kind falling within the table under sec. 16 there is no difficulty in treating payment of the lump sum as satisfying the liability. Nor is there any difficulty when a sum is paid in satisfaction of a death claim or by way of redemption of weekly payments pursuant to sec. 15 or when weekly payments have been made up to the limit imposed by sec. 9 (3). But, where weekly payments have been made without award and, before that limit is reached, they are stopped on the ground that the worker has recovered and is no longer under any incapacity, a difficulty does arise. For not only may the fact of the worker's recovery be disputed, but even if his incapacity has ceased, it may reappear. While this difficulty must _ be acknowledged, I do not think its existence is enough to outweigh the considerations appearing on the face of the section itself and evidencing its meaning. The failure to foresee and provide for the many contingencies which must arise in the practical application of such a section is the cause of the uncertainty that surrounds the present question, not only under the New South Wales, but also under the English, provision. The fact that the interpretation, which otherwise appears to represent the intention of the provision, is difficult of practical application in a particular contingency hardly justifies its rejection. The general intention expressed by the sub- section includes, in my opinion, the extinguishment of the cause of action under the general law when the right to compensa- tion conferred by the Act has been enforced or fully enjoyed. The application of this general intention may in some events be difficult. But I think the difficulty must be resolved by deciding whether the particular situation arising does, or does not, fall within the true scope of that general intention. If it be necessary to

[114]

What I have already said contains most of the considerations which affect the question arising in the present appeal. But it is necessary to apply the general views I have expressed to the facts of the case which raise one further legal question. Owing to the manner in which the case was dealt with at the trial, there is some difficulty in determining what exact state of facts we should take as established. A discussion of this difficulty would serve no purpose and it is enough to say what are the facts which I accept or assume as the basis of my decision. They are as follows. The plaintiff, who is a widow, with three children, who are infants, lost her husband by an accident in circumstances which gave rise to a cause of action under the Compensation to Relatives Act 1897-1928 against the defendant his employer as well as to a right to compensa- tion under the Workers' Compensation Act 1926-1929. Before she had taken any proceedings in respect of the cause of action or of the claim to compensation, the defendant paid into the office of the Workers' Compensation Commission the sum of money which it considered to be payable under sec. 8 of the Workers' Compensation Act. The payment was made under sec. 57 of that Act and rule 38 of the Workers' Compensation Rules 1926. The registrar did not, so far as appears, report that the sum paid in was inadequate (See tule 38 (3) and (5) ). But the plaintiff did furnish to the commission information on a form corresponding in description with Form J of the regulations made under the Act, a form which is prescribed by clause ii. of those regulations for use when any person applies to the commission for the investment and application of any compensa- tion money paid into the commission. She also signed a notice of intention to apply for an order for the investment and application of a sum of money paid into the commission. The notice followed Form 34 of the rules, which is prescribed by rule 37 (8). No order of the commission dealing with the sum paid in was proved, but some

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Before

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Judgment (137 paragraphs)

Cited By (2)