Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More

Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More - [1975] HCA 28 - HCA 1975 case summary — Zoe

[18]

Section 64 is part of a scheme of compensation: it is not part of any scheme to adjust rights between tortfeasors. Indeed, when legislation to the effect of s. 64 first appeared in workers' compensation legislation there was no contribution between tortfeasors, nor any ability for tortfeasors liable for the same damage to be sued in the one action. The part of the Act, Pt VIII, which contains s. 64 begins at s. 63. Its heading is "Remedies at Common Law". This part of the Act sets out, first to indicate that the Act does not intend to take away common law rights, secondly, to provide against the possibility of the workman obtaining both compensation and damages, and, thirdly, to provide an indemnity for the employer who has paid compensation by the person who is responsible in law for the occurrence which has caused him, the employer, to be liable to pay compensation. Section 63 provides for the case where the employee sues the employer at common law. It provides in s. 64, in my opinion, for the case where the employee sues a person or persons other than the employer. In my opinion, it intends to cover the case where the only liability of the employer to the worker is the statutory liability to pay compensation. It seems to me that it sufficiently expresses this by the expression "a legal liability in some person other than the employer", appearing as it does after the provisions of s. 63. These words, in the evident scheme of Pt VIII, are adequate to indicate that the employer for whom s. 64 is making provision is not one of the persons who has produced the circumstances out of which the liability to pay compensation has arisen. The language contemplates, and on its proper construction provides for, the case where a stranger, or strangers, so far as employer and workman are concerned has or have caused the compensable injury. The person who is to indemnify the employer under s. 64 (1) (b) is that person, that is to say, a person other than the employer, who in the circumstances caused the injury in respect of which the compensation has been paid.

[73]

Now, accepting the findings of the learned commissioner as against both Mitchell and those in charge of the ship, there remains a difficult question with regard to the law. Upon the whole, I think that the defendants are right on the question of law. It seems to me, in dealing with a section which, as regards this case, is one giving a right to indemnity, that, if I can adopt any reasonable construction which will prevent the result of a man getting an indemnity in respect of damage to the production of which he has himself materially contributed, I ought to adopt that construction. The plaintiffs have been found by the learned commissioner to have been one effective cause, as Mitchell was another, of this accident. They claim to be indemnified for what they have paid by way of compensation under the Workmen's Compensation Act, 1906, in respect of the accident. It seems to me that nobody who helped to pass this Act of Parliament, which makes an employer liable apart from all questions of negligence to make compensation in respect of an accident to a workman arising out of and in the course of his employment, could have intended by this section that, though the employer could have been sued, if not at common law, at any rate under the Employers' Liability Act, 1880, as being through his servants to blame for the accident, he should be able to go to another person whose servant has been guilty of negligence which in common with that of his own servants caused the accident, and demand an indemnity. There is nothing in the Act, as it appears to me, to prevent my taking this view. If necessary for this purpose, I think I should say that it is not unreasonable, having regard to the consequences of any other interpretation, to read the words "creating a legal liability in some person other than the employer" as meaning a legal liability which, as between the employer and the third person, is the sole legal liability. It has, I think, been pointed out by both the other members of the Court that a fair inference from the provisions of sub-s. 2 with regard to the determination of any question as to the right to and amount of the indemnity is that it includes the consideration of the question whether a party claiming indemnity is not disentitled to claim indemnity by reason of his being equally liable for the accident, just as in the case put by the learned commissioner of a contract by which the right to indemnity is excluded. I think on the whole that the section should be treated as applying only to cases in which the employer is liable only for compensation under the Act, and not as applying to cases where the employer himself is, through his own or his servants' negligence, responsible outside the Act jointly with the person from whom he claims indemnity, as having to some extent contributed to the injury to the workman who has been compensated. Part of this passage is quoted in the judgment of Hardie J.A. [16] . 1. [1911] 1 K.B., at pp. 135-136. 2. [1974] 1 N.S.W.L.R., at p. 417.

[79]

The answer to that question depends on the proper construction of s. 64 (1) (b) of the Act. When s. 64 was originally enacted, its words were in all material respects the same as those of s. 6 of the Workmen's Compensation Act, 1906 U.K. whose effect was considered by the Court of Appeal in Cory & Son Ltd. v. France, Fenwick & Co. Ltd. [20] . It was held in that case that the right of indemnity given to an employer by s. 6 (2) (which corresponded to s. 64 (b) of the Act as it stood in 1926) was not available to an employer who had himself been guilty of negligence. That decision stood unchallenged in England until the Workmen's Compensation Acts were eventually repealed, and it has been followed in Australia, although in obiter dicta in one case Stacey v. Yallaroi Shire Council [21] , its correctness was doubted. The Act has since 1926 undergone some amendment. The original s. 64 (a) and s. 64 (b) are now numbered s. 64 (1) (a) and s. 64 (1) (b) respectively, and the provisions of s. 64 (1) (a) are now different from those of s. 6 (1) of the English Act of 1906; however, the opening words of s. 64, and the words of par. (b) of s. 64 (1), remain unaltered except that some of the provisions of that paragraph have been placed in par. (d). In my opinion the amendments made since 1926 have not affected the meaning of s. 64 (1) (b). However, in the present case the Court of Appeal of the Supreme Court of New South Wales, affirming, by a majority, the judgment of the learned trial judge, reached the conclusion that the decision in Cory & Son Ltd. v. France, Fenwick & Co. Ltd. [20] was erroneous and declined to follow it [22] . They held that the employer was, despite his own negligence, entitled to recover from the stranger the full amount of the compensation paid to the worker. In my judgment, the learned judges in the Supreme Court should have treated Cory & Son Ltd. v. France, Fenwick & Co. Ltd. as an authority binding upon them. This Court, however, is not bound by decisions of the Court of Appeal and I accordingly turn, unfettered by authority, to consider the meaning of s. 64 (1) (b).

[81]

The provisions of s. 64 apply, as the opening words of the section state, "Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof". Those words, considered alone, are in my opinion ambiguous; they may be intended to be an exhaustive statement and to refer to circumstances which create a legal liability in a stranger but not in the employer, or they may be intended to refer to circumstances which create a legal liability in a stranger whether or not the employer is also legally liable. However, the case where the injury was caused by the negligence of the employer is dealt with by the immediately preceding section, s. 63. This suggests that it was intended that s. 64 should apply to cases where the injury was not caused by the negligence of the employer. This conclusion is strongly supported by a consideration of the provisions of s. 64 (1) (b) themselves. If s. 64 applied where the employer had been guilty of negligence causing the injury, the result would be to give to the negligent employer a right to a complete indemnity from the stranger. This would be so even if in fact the employer's share in the responsibility for the injury was much greater than that of the stranger. That is, of course, the result which was reached in the Supreme Court and for which the respondent contends, but it is one most unlikely to have been intended by the legislature: the employer is the person primarily liable to pay the compensation and it would have seemed irrational and unjust to give him a right of complete indemnity against a stranger whose degree of fault and responsibility for the worker's injury was no greater than his own. Such a result would have seemed particularly surprising in 1906, for at that time (and still in 1926) the law did not permit one tortfeasor to recover contribution from another who had been responsible for the same damage. These considerations might not have been of importance if the words of the statute were plain and unambiguous, but where two meanings are open, as is the case with the opening words of s. 64 (1), it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust. The view that I have expressed is in substance that which was taken in Cory & Son Ltd. v. France, Fenwick & Co. Ltd. by Buckley L.J. [23] , and by Kennedy L.J. [24] . I respectfully agree with their observations on this point, although the other reasons given in support of their conclusion are rather less persuasive.

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Judgment (96 paragraphs)

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