McIlwraith McEacharn Limited v Lawrence Sweetman [1930] HCA 37

High Court of Australia|1930-07-01|Before: Dizon JJ, By Starke J

H.C. or A, Workers' Compensation - Accident to worker - Agreement as to payment of compensa

1912-1924 (W.A.) provides as fol- lows See. 6 (4) "If any question weekly payment varied, or any other arises in any proceedings under this matter decided under' this Act by 'Act as to the liability to pay compensa-

tion under this Act (including any ques- tion as to whether the person injured is

tion during incapacity - Release of employer from all further claims - Recurrence of incapacity from same cause - Further claim for compensation - Workers? Compensation Act 1912-1924 (W.A.) (No. 69 of 1912 - No. 40 of 1924), sec. 6 (4), 16; 1st Sched., sec. 20.

A worker suffered injury by accident arising out of and in the course of his employment resulting in a period of incapacity. At the end of this period of incapacity he received in a lump sum the balance of weekly payments up to the date of his recovery and executed an agreement acknowledging the amount paid him by way of compensation and containing a release and discharge of the employer from all further claims in respect of the accident. The agreement

*The Workers' Compensation Act the amount of compensation under this

agreement or any agreement, whether purporting to be made under this Act: or not, has been entered into whereby

a worker to whom this Act applies), or a worker agrees to compound for any as to the amount or duration of com- _ claim or right to compensation under

pensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First and Second Schedules, be heard and determined by the Local Court nearest to which the party applying resides, or to which the matter is transferred in the manner and circumstances pre- seribed by Rules of Court, and for such

this Act, a memorandum thereof shall _ be sent, in manner prescribed by Rules of Court, by any person inter- ested, to the clerk of the Local Court, who 'shall, subject to such rules, on being satisfied as to its genuinen

record such memorandum in a al register without fee, and thereupon - the memorandum shail for all purposes

purposes jurisdiction is conferred upon _be enforceable as a Local Court judg- Local Courts." By sec. 20 of the First ment."

was recorded in pursuance of sec, 20 of the First Schedule to the Workers' Compensation Act 1912-1924 (W.A.). Some time afterwards the worker suffered a second period of incapacity as the result of the same injury by accident.

Held, that the agreement was valid, and precluded the worker from recover- ing compensation in respect of the second period of incapacity :

By Gavan Duffy, Rich and Dizon JJ., on the ground that it was an agreement as to the amount or duration of compensation, and that by such an agreement the parties are at liberty to agree that all incapacity is for ever ended, with the consequence that the employer is relieved of all further liability even in the unexpected event of the same injury causing another period of incapacity ;

By Starke J., on the ground that it was an agreement for the redemption (e., commutation) of a weekly payment by a lump sum.

Decision of the Supreme Court of Western Australia (Full Court) reversed.

-Apprat from the Supreme Court of Western Australia.

The respondent, Lawrence Sweetman, was employed by the appellant, McIlwraith McEacharn Ltd., as a lumper on the s.s. Zealandia carrying meat and butter out of a freezing chamber -on 25th April 1929, and in the course of such employment he caught a 'cold and pneumonia developed with pleurisy, which totally 'incapacitated him from working from 26th April to 5th June 1929 and entitled him under the Workers' Compensation Act 1912-1924 (W.A.) to receive from his employer half wages for that period in addition to medical and hospital expenses. On 10th June 1929 an agreement, a copy of which is set out in the judgment of Starke J. (hereunder), was made by Sweetman with the appellant Company releasing it from all claims arising out of the accident on payment -of the sum of £21 4s. 10d. and £7 8s. 6d. for medical expenses. Early in September 1929 Sweetman suffered a recurrence of pleurisy, and again became totally incapacitated. On 31st October 1929 he lodged an application in the Local Court at Fremantle for compensa- tion under the Workers' Compensation Act, alleging as the cause of incapacity the injury caused to him on 25th April 1929. The 'Company pleaded the agreement of 10th June 1929, which had 'been duly registered and filed by the clerk of the Local Court in pursuance of sec. 20 of the First Schedule of the Act. The Local Magistrate held that he had no jurisdiction to entertain the applica- tion in view of the agreement made between the parties, which had 'been duly recorded in accordance with the provisions of the Act.

On appeal by Sweetman from the decision of the Local Magistra the Full Court of the Supreme Court of Western Australia allo the appeal, reversed the decision of the Local Court, and referre the case back to the Magistrate with a direction that it should be reheard.

From this decision the Company now appealed to the High

Keenan K.C. (with him Coleman), for the appellant. By Workers' Compensation Act 1912-1924, sec. 6, sub-sec. 1, a worke

employer. If any question arises in any proceedings under the as to the liability to pay compensation under the Act, the ques if not settled by agreement, shall, subject to the provisions of the First and Second Schedules, be heard by the Local Court. It admitted that if no such agreement is made and entered into, tht basis of the compensation provided for in the First Schedule, see. 1, par. (6), is a weekly payment during the incapacity not exe! 50 per cent of the average weekly earnings. Previously to enactment of the Workers' Compensation Act Amendment Act 1924, sec. 20 of the First Schedule did not contain the words in the third line, " orany agreement, whether purporting to be made under this Act or not, has been entered into whereby a worker agrees to compound for any claim or right to compensation under this Act." words were inserted by sec. 15 of that amendment Act. The of these words is to make lawful agreements for the composi

payments, once it has been recorded in accordance with the pro' of sec. 20 of the First Schedule no jurisdiction exists in the Magi to hear any claim for compensation based on injuries alleged to hat arisen out of the same accident. The Magistrate, in order to hav such jurisdiction, may remove such agreement from the This power can only be exercised within six months after recordi and then only on proof that the agreement was procured by undue influence or improper means. There was no application to

the Magistrate to remove the agreement from the Register on any ground. The Magistrate was correct in holding that he had no jurisdiction to hear the application (Ware v. Whitlock (1)). The only question raised on appeal to the Full Court was that the Magistrate

misdirected himself and was wrong in law and in fact. There was

no motion that the agreement should be declared invalid and removed from the Register. The appellant could have sworn that the sum paid was in excess of the full amount due under the Workers' Compensation Act. Neither before the Magistrate nor the Full Court was there any question of the degree of the disability suffered by the respondent. The weekly payment provided for in sec. 1 of the First Schedule, par. (6), is one not exceeding 50 per cent of the average earnings. It would be open to the appellant to show, without admitting total disability or incapacity, that it had paid a sum in a case of partial incapacity based on total incapacity, if that were the fact. The only questions before the Full Court were whether the Magistrate was right in holding that (a) the agreement could only be impeached so far as the Local Court was concerned on the ground of fraud, undue influence or improper means; (b) there was no evidence to warrant any finding of fraud, undue influence or improper means; and (c) so long as the agreement remained duly recorded jurisdiction to hear a claim for compensation was barred. The words inserted by sec. 15 of the Workers' Compensation Act Amendment Act 1924, in sec. 20 of the First Schedule, made an agreement valid based on a lump sum payment altogether apart from any payment by way of redemption of weekly payment. This must be the construction given to the words inserted, otherwise there is no meaning in the alteration. In 1925 an exactly similar measure was passed by the Imperial Parliament, 15 & 16 Geo. V. c. 84, secs. 24 and 25. There are no cases applicable in the English Courts before that date. Russell v. Rudd (2) does not apply. The substantial matter is the agreement to accept a lump sum. Unless that agreement is one that has been obtained by fraud, undue influence or improper means, and once the clerk has recorded it, it settles all the matters between the parties. The Full Court confined

H.C. or A. its view to agreements in redemption of weekly payments, and ign Res the alteration made in sec. 20 of the amending Act of 1924. Eyen Meltwearrn if the first submission is not accepted, on this ground the judgment

ee H. P. Downing K.C. and Boylson, for the respondent. The - agreement set up by the appellant can only be a bar to the respon- E dent's claim for compensation (a) if it is one binding on the parties, - é (b) if the question submitted for decision is settled by it, (c) if it is one that should have been recorded, and (d) if it has been recorded - in accordance with the Act and Rules. It is not necessary by - independent proceedings to have the agreement set aside: the - Magistrate can inquire into the validity of the agreement, and, if satisfied of its invalidity, proceed to deal with the claim (Elliott's Workmen's Compensation Acts, 9th ed., pp. 358-359). The agreement relied on is in contravention of sec. 15 of the Act, and is therefore - void (Russell v. Rudd (1)). The Magistrate found as a fact that - at the time the respondent entered into the agreement the amount - which was then paid to him by the appellant was due for disability that he had already suffered - nothing being paid for future disability. Prima facie, therefore, the question which arose on the present

proceedings, ie., the claim for disability through a recurrence of the incapacity after the agreement was entered into was not settled by it. The agreement was, therefore, spent, and should not have been recorded under sec. 20 of the First Schedule (Popple v. Frodingham Iron and Steel Co. (2) ). In so far asit purported torelease the appellant from future liability, it was an attempt to contract out of the Act and was void (see sec. 16 of the Act and Russell v. Rudd ). Further, the agreement was not recorded in accordance with rules 32 (2) and 39 of the Rules of Court, nor were the particulars - required by form 22 (a) supplied, the clerk of the Local Court had, therefore, no material on which to decide as to the adequacy of the lump sum alleged to have been paid in redemption. The respondent was deprived of the protection under sec. 20 (d) of the First Schedule. The Schedule to the Act and the Rules form the code explaining

how the approval of the Local Court is to be given (per Lord Sterndale M.R. in Ware v. Whitlock (1) ).

The following written judgments were delivered :- -

Gavan Durry, Rich anp Dixon JJ. The respondent suffered injury by accident while employed by the appellant. He experienced a period of incapacity arising from the injury by accident, and received, in two sums, compensation pursuant to the Workers' Compensation Act 1912-1924 of Western Australia. He signed an agreement acknowledging the amount paid him by way of compensation, and containing a release and discharge of the appellant from all further claims in respect of the accident. After a period of some months he suffered a further period of incapacity which he attributed to the same injury by accident. For this new period of incapacity he claimed compensation, and brought proceed- ings against the appellant in the Local Court. The appellant, by its answer, did not deny that the respondent had suffered injury by accident arising out of and in the course of his employment by it, but relied only upon the effect of the agreement. This agreement had been recorded as under sec. 20 of the First Schedule to the Workers' Compensation Act 1912-1924. In the Local Court the Magistrate held that, because it was so recorded, he was bound to give effect to it unless and until an application was made to him under sec. 20 (e) to remove the record from the Register, or possibly under sec. 20 (e) to rectify it. Such applications must be made on notice pursuant to clauses 40 and 38 respectively of the Rules of Court, and the only proceedings before the Magistrate were by way of claim for compensation. On appeal to the Supreme Court the Magistrate's judgment was reversed upon the ground that the release contained in the agreement was void and obtained no efficacy because a memorandum thereof was recorded. The question is whether these conclusions are right. Sec. 16 of the Act provides that the provisions of the Act shall apply and have effect in all cases

H.C. or A. notwithstanding any contract to the contrary. An agre iia therefore, which purports to relieve the employer from a liabi Mcluwearrn to pay compensation which otherwise he had incurred or would i ey "= is void unless it is authorized by some provision of the Act. See swenwmax, Russell vy. Rudd (1), a decision with which much that was said Great Fingall Consolidated Ltd. v. Sheehan (2) cannot be reconcil

Sub-sec. 4 of sec. 6 provides that if any question arises as to the liability to pay compensation under the Act, or as to the amount or duration of compensation, the question, if not settled by agreement, shall be heard by the Local Court. "The effect" of this provision, "so far as material, is that any question as to the * amount or durati of compensation under the Act ' - that is to say, in a case of incapacity of the amount or duration of the weekly payment - may be settled either by agreement between the employer and workman, or by arbitration" (per Viscount Cave L.C., Russell y. Rudd (3) ). " Any question as to the duration of the compensation must therefore in reality be a question whether the incapacity during which it is payable did or did not exist at the particular punctum temporis at which it is alleged that the compensation ceased to be payable " (per Lord Parker, George Gibson & Co. v. Wishart (4) ). Tn the present case the agreement states the consideration to be compensation," and certain other sums, which it describes as "medical expenses." Prima "compensation"? means, in a case of incapacity, weekly _

a lump sum, which it describes as facie ' payments, and the agreement suggests, what appears to have been the fact, that the sum represented weekly payments up to some date not later than that of the document. In fact, as appeared from the evidence, the period of incapacity had come to an end, and the parties considered that compensation was payable in respect thereof up to 5th June 1929, five days before the date of the agree- ment, and that the sum payable was £3 10s. per week. The lum) sum of compensation fixed by the agreement represented weekly payments up to that date. For the purpose of applying the document containing the agreement, it is permissible to look at the situation in which the parties stood when they made it. They

(1923) A.C. 309, (3) (1923) A.C., at pp. 316-317. (2) (1905) 3 C.L.R. 176. (4) (1915) A.C. 18, at p. 32.

were dealing with a case of incapacity and with a period of incapacity which continued until about the time of their agreement. When the document is applied to this state of circumstances the substance of the agreement which it expresses appears to be to fix the total amount of the weekly payments by reference to the duration of the incapacity, and to end all liability for further weekly payments finally and conclusively whether incapacity recurs or not. It is not material that the release purports to go further and discharge the employer from every kind of liability in connection with the accident. No liability is or was in question unless the compensation for incapacity which clearly was covered. For the rest, utile per inutile non vitiatur.

There can be little doubt that in so far as such an agreement deals with the determination of a period of incapacity which existed, it answers the description " agreement settling a question as to the amount or duration of compensation" and is warranted by the provisions of sec. 6 (4). Indeed, the settlement by agreement of the amount payable in respect of incapacity which comes to an end seems conspicuous as an example of what must have been in contemplation.

But the question remains whether, in authorizing them to deter- mine by agreement when a period of incapacity ends in respect of which compensation is payable, the provision enabled the employer and workman conclusively to agree that all incapacity is for ever ended, with the consequence that the employer is relieved of all further liability even in the unexpected event of the same injury causing another period of incapacity. The answer depends upon the effect to be given to the words " question as to the duration of compensation." It is perhaps possible, by adopting a narrow interpretation, to restrict the application of this expression, in a case of incapacity, to the question when is the termination of a given period of incapacity in respect of which compensation is payable, leaving unaffected the contingency of another such period arising. But no reason appears for excluding from its application the wider question, with which an employer must be concerned, what is the full duration of the compensation for which he is liable by reason of the personal injury. The primary meaning of such

an expression includes the complete duration of the whole compen tion, and neither the general scheme of the Act, nor any pa provision it contains, affords any ground for adopting a restrictiy interpretation. On the contrary, the primary meaning con om with the interpretation which has been given to the proy relating to the termination of weekly payments upon review. -

Sec. 15 of the First Schedule of the Workers' Compensation Ac 1912-1924 provides that any weekly payments may be reviewed | the Local Court at the request either of the employer or the wo and on such review may be ended, diminished or increased, as fro such date as the Court, having regard to the past or present condition of the worker, may see fit. This provision is based upon clause If of the First Schedule of the Workmen's Compensation Act 1906 of Great Britain, which 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, and the amount of payments shall, in default of agreement, be settled b arbitration under that Act. Upon this clause the question aro whether the arbitrator was able finally to end the weekly payments, so that all responsibility of the employer was terminated, notw standing that afterwards a new period of incapacity might or should arise, or whether it was possible only to stop the payment compensation when apparently the incapacity ended, the liability remaining, nevertheless, to resume payment on the recurrence of th incapacity. Itwas decided by the House of Lords that the provi: enabled the arbitrator "to declare that these payments should ended for all time, and that . . . the liability of the employer to pay and the correlative right of the workman to receive these pay- ments should both cease altogether " (per Lord Atkinson, Taylor v. London and North-Western Railway Co. (1); Nicholson v. Piper (2 Further, it has been decided that the payments may be so e as from a past date (George Gibson & Co. v. Wishart (3) ). be a curious result, if, although upon review the duration of wee compensation might be determined definitively, yet the provision for the settlement of questions as to the duration 0

(1) (1912) A.C. 242, at p. 250. (2) (1907) A.C. 215, (3) (1915) A.C. 18,

compensation did not allow a final determination of the period of H. ©. or A.

liability, but authorized no more than the ascertainment of the be time for which payments must be made in respect of specific Mctnwramn

incapacity. It is true that in sec. 15 of the First Schedule of the la Western Australian Act the words "in default of agreement" do t

SWeE' not appear. These words may have been omitted because they ~ Gavan Duffy J.

were considered an unnecessary repetition of the reference in sec. Rich J. on J

6 (4) to the settlement of such questions by agreement, or, on the other hand, because it was not desired that weekly payments should

be reviewed by agreement. But, whatever may be the reason of the result of the omission, it cannot affect the meaning of the general provision contained in sec. 6 (4), which is transcribed from the British Act, and an incongruity remains in ascribing to a provision relating to the determination of the duration of a weekly compensa- tion less effect than is given to a provision dealing with its termination.

It follows from this reasoning, that the parties were at liberty, by agreement to settle finally the duration of the compensation so that the employers' liability should be for ever ended, and as this is the effect of the agreement which they made, it is valid.

Srarke J. In October 1929 Sweetman, a worker, who alleged that a personal injury by accident had arisen out of and in the course of his employment with McIlwraith McEacharn Ltd., his employer, requested a hearing, pursuant to the Workers' Compensation Act 1912-1924 of Western Australia, before the Local Court at Fremantle for the determination of the following question or questions : (1) As to the liability of the employer to pay compensation under the Act in respect of the injury, or (2) as to the amount (or duration) of the compensation payable by the employer to the worker under the Act in respect of the injury. The employer, in answer to this request, relied upon an agreement made between it and the worker and recorded under the Act. The Local Court dismissed the application, the Supreme Court of Western Australia reversed that decision, and an appeal is now brought to this Court.

Mciuwrarra the s.s. Zealandia, developed pneumonia and pleurisy, whereby he

Sweetman, it appears, was in the employment of Mcllwrait] McEacharn Ltd., and whilst working in the freezing chamber of

was laid up for several weeks. He did not receive any weekly payments from the employer, but it made several paymen to him of sums of £5. On 5th June the worker's medical adi formed the opinion that he was sufficiently recovered to res work, and he did in fact return to work. On 10th June 1929 ¢ worker and the employer executed an agreement in the follo form : - * Be it remembered that at Fremantle on the twenty- day of April 1929 personal injury was caused to the above-na L. Sweetman of Subiaco (herein called the claimant) by accider arising out of and in the course of his employment and that on tl date hereof the following agreement was come to by and betwes the claimant and Mcllwraith McEacharn Limited acting for on behalf of the masters owners and agents of the s.s. Zeala In consideration of the sum of £21 4s. 10d. (twenty-one poun four shillings and tenpence sterling) being £19 14s. 7d. compensation and £1 10s. 3d. medical expenses disbursed by claimant, paid b the masters owners and agents of the s.s. Zealandia to the claimant L. Sweetman (the receipt whereof is hereby acknowledged) and o medical expenses in accordance with proviso (c) of paragraph 1 of the First Schedule of the Workers' Compensation Act 1912-1924 paid by the Company, namely, Dr. H. Burns £6 16s. 6d., H. Ilingw 8s. 6d., A. Wilkinson 4s. 6d., the claimant doth by these presents remise release and for ever discharge of and from all and all manner of action and suit sum and sums of moneys accounts trespa damages wrongs claims and damages whatsoever at law and equity which against McIlwraith McEacharn Limited and/or the maste owners and agents of the s.s. Zealandia the claimant has or m have by reason or in consequence of the injuries sustained by him whilst working at Fremantle on the s.s. Zealandia on 26th April 1929 or which may result therefrom or of anything which may hereafter arise in relation thereto or for or upon or by reason of any matter cause or thing whatsoever. And the claimant acknowledges that he has received the said sum in full and hereby abandons a legal proceedings remedies and redress present and future of or

consequent upon the matters aforesaid." A memorandum of this agreement was sent to the clerk of the Local Court for registration pursuant to the provisions of the Workers' Compensation Act 1912- 1924, and, after notice to the worker, who made no objection, the clerk on 4th July 1929 recorded the agreement in the Register pursuant to the provisions of sec. 20 of the First Schedule to the Act. Subsequently to the agreement the worker found that he had not fully recovered and could not carry on his work, and so, in October 1929, he commenced proceedings, as already mentioned, for the purpose of obtaining the compensation to which he considered himself entitled.

Under the Act, if in any employment personal injury by accident arising out of or in the course of the employment is caused to a worker his employer is liable to pay compensation, in accordance with sec. 6. When total or partial incapacity for work results from the injury the worker is entitled to a weekly payment not exceeding £3 10s. (First Schedule, sec. 1 (6) ). And the provisions of the Act apply and have effect in all cases notwithstanding any contract to the contrary (sec. 16).

The Act has provided two methods for settling this compensation

by proceeding in the Local Court or by agreement (sec. 6 (4) ). It was decided in Russell v. Rudd (1) that an agreement between a workman and an employer for the settlement of all claims to 'compensation under a similar Act in England, by payment of a lump sum, was void as being a contracting out of the Act. But the same case recognized that the Act expressly allowed agreements for the redemption of a weekly payment by a lump sum. The prohibition against contracting out did not apply to agreements authorized by the Act itself. The registration or recording of such agreements is, however, obligatory. And on the proceedings for registration or recording, the agreement is subject to review as to its genuineness or its adequacy, or by reason of the agreement having been obtained by fraud, undue influence or other improper means. The provisions of the Western Australian Act differ in 'some respects from those of the English Act under which Russell -v. Rudd was decided. Thus the First Schedule, sec. 20, provides :

" Where the amount of compensation under this Act has been a tained, or any weekly payment varied, or any other matter decid under this Act by agreement or any agreement, whether purpo to be made under this Act or not, has been entered into whereby a worker agrees to compound for any claim or right to compensation under this Act, 4 memorandum thereof shall be sent to the clerk of the Local Court, who shall . . . on being satisfied s to its genuineness, record such memorandum in a special register without fee, and thereupon the memorandum shall for all pur- poses be enforceable as a Local Court judgment: Provided that

(d) Where it appears to the clerk of the Court on any information which he considers sufficient, that an agreement as to the redemption of a weekly payment bya lumpsum . . . ought not to be registered by reason of the inadequacy of the sum or amount, or by reason of the agreement having been obtained by fraud or undue influence, or other improper means, he may refuse to record the memorandum of the agreement sent to him for registration, and in that case shall refer the matter to the Magistrate, who shall . . . make such order . . . as under the circum- stances he may think just. And sec. 22 declares: '* No agreement to which section twenty of this Schedule is applicable shall be binding on or enforceable against the parties or admitted to be good or valid unless it is registered as provided in that section." The words italicized do not appear in the English Act. Undoubtedly they strengthen the supervision of the Local Court over agreements. But sec. 20 is not, I think, definitive of the cases in which parties are authorized to come to agreements under the Act. Otherwise, the provisions of sec. 16 of the Act against agreements contracting out would be nugatory. Consequently, other provisions of the Act must be considered, such as sec. 6, sub-secs. 1 and 2, and the First Schedule - the liability of employers to pay compensation to workers for injuries ; sec. 6 (3) - the liability to pay compensation for certain injuries set out in the Second Schedule; sec. 6 (4)} - the methods of determining compensation ; First Schedule, sec. 16

redemption of weekly payments by a lump sum; First Schedule, sec. 15 - the review of weekly payments whereby they may be ended, diminished or increased. Thus, if it were admitted that a

personal injury by accident arose out of and in the course of employ- ment and resulted in the loss of both eyes, then sec. 6, sub-sec. 3 (a), provides that the compensation shall be £750. The Act, by sec. 16, prohibits contracting out of this liability, and nothing in sec. 20 of the First Schedule would authorize any agreement compounding the claim or right to such compensation. If the question of liability were in dispute, possibly some agreement settling the compensation might be justified under sec. 6 (4), but sec. 20 and sec. 22 of the First Schedule would require the agreement to be recorded, and that subjects it to review by the prescribed authority. So, as already noticed, the Act expressly allows agreements for the redemption of a weekly payment of a lump sum. In Russell v. Rudd (1) Lord Shaw of Dunfermline thus stated the effect of the English Act : - '' There may be an agreement between an employer and workman for redemption of a weekly payment, not only in the case where there had first been an agreed- on weekly payment prior to the redemption, but also in the case where there was simply the liability under the statute to make a weekly payment. . . . Redemption is simply commutation, and the commutation is comniutation, into one sum, of the sums which would otherwise, on a calculation of the liability, have been periodically due to the workman. Redemption, by its very nature, points to the future, and it is liability for the future which is the essential thing which has to be compounded or commuted." It is thus within the competence of the parties to determine by agreement the liability to pay compensation, and the amount and duration of the compensation (sec. 6 (4) ), and to commute the statutory liability for a lump sum. Therefore the question in the present case is whether the agreement above set out and recorded under the Act is an " agreement as to the redemption of a weekly payment by a lump sum " authorized and permitted by the Act. It may be that an agreement which, in consideration of an agreed sum for compensation and medical expenses, pursuant to the Workers' Compensation Act, releases and discharges the employer from all claims and damages whatsoever, in consequence of injuries sustained during his service, "is not very appropriately described as an

agreement as to the redemption of a weekly payment by a lump sum' (see Russell v. Rudd (1)). But in fact the claim in the case was { determine the question of the statutory liability to compensatio and the amount and duration of the compensation. There indeed, no real question as to the liability, and the only substanti question between the parties was the amount and duration of the compensation. The compensation to which the workman entitled was a weekly payment during incapacity. Prior to th agreement, neither the amount nor the duration of the compensati had ever been fixed. It was this claim that was commuted un the agreement, or else the agreement is void. And, as the Lor Chancellor said in Russell v. Rudd (1), "it appears 0 be right, wt ves magis valeat quam pereat, to put upon a documen

case in construing the agreement as a commutation of the statutory liability ? It is none the less a commutation because the partie

arrived at the sum on the footing that the maximum weekly paymen under the Act should be allowed, and that the incapacity had ended The parties necessarily had to consider the statutory liability to make a weekly payment and its duration, and the sum fixed in their agreement is the commutation of that liability, or the redemption of that liability, by payment of a lump sum. The English Act, which provides that a weekly payment may be reviewed | by agreement, and ended, diminished or increased, may lend some assistance to this view. It would be strange if the parties co end an agreement for a weekly payment as soon as it was made, and yet be unable to make an agreement ascertaining the amount necessary to satisfy or commute the statutory liability to make a weekly payment. But I place no reliance on this argument in the present case, for the Western Australian Act only empowers" the Local Court to review a weekly payment, and end, diminish 0 increase it (see First Schedule, sec. 15). In the result, the agreement in the present case is permitted and authorized by the Act. Consequently, the clerk of the Local Court had authority to record a memorandum of the agreement, purs!

to the provisions of sec. 20 of the First Schedule. But, in the interests of the worker, that section submits the agreement, before it is recorded, to the scrutiny of the clerk, and after him to that of the Magistrate, of the Local Court. Once, however, the agreement is recorded, as in this case, it is enforceable as a Local Court judgment, and can then only be removed from the Registry in the circumstances prescribed by sec. 20 (e) of the First Schedule (Ware v. Whillock (1) ). It follows, therefore, that the agreement was an answer to the application of the worker for a hearing and determination of the questions as to the liability of the employer to pay compensation, and the amount and duration of the compensation under the Workers' Compensation Act 1912-1924. The decision of this Court in Great Fingall Consolidated Ltd. v. Sheehan (2) supports this conclusion, but I doubt if the reasons advanced in that case can be relied upon, in view of the reasons assigned in the House of Lords for the decision in Russell v. Rudd (3).

The appeal should be allowed, the decision of the Supreme Court reversed, and the decision of the Magistrate dismissing the worker's application restored.

Appeal allowed. Judgment of the Supreme Court of Western Australia discharged. Judgment of the Local Court at Fremantle restored. Appeal therefrom to Supreme Court dismissed. Respondent to pay the costs of his appeal to the Supreme Court.

Solicitor for the appellant, Frank Unmack. Solicitors for the respondent, Richard S. Haynes & Co.

(1) (1923) 2 K B. 418. (2) (1905) 3 CLLR. 176. (3) (1923) A.C. 309.

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Judgment (70 paragraphs)