Somodaj v Australian Iron & Steel Ltd - [1963] HCA 50 - HCA 1963 case summary — Zoe

CTHHCA

Somodaj v Australian Iron & Steel Ltd

[1963] HCA 50

High Court of Australia|1963-07-01|Before: Menzies JJ, McTiernan J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1963-07-01

Before

Menzies JJ, McTiernan J

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Menzies JJ. Somodaj v Australian Iron & Steel Ltd [1963] HCA 50

[2]

This case concerns in a new aspect, or at least a comparatively new aspect, the recurring problem of the relation between the remedies of the workman against the employer at common law and under the Act. In this instance the workman sued first for damages for injuries which, according to his allegation, he had received in the course of his work and then during what I may describe as a stet processus he made an application under the Workers' Compensation Act, 1926-1954 N.S.W.. That proving unsuccessful, he proceeded with his common law action. There he was met by, among other things, a plea alleging that he, the plaintiff, sought in the action to recover damages said to arise from an alleged injury to his back, which injury is said by the plaintiff to have been received while he was in the course of his employment by the defendant, and that he, the plaintiff, filed in the Workers' Compensation Commission an application for determination in which he claimed to recover from the defendant compensation under the provisions of the Workers' Compensation Act in respect of alleged incapacity for work alleged to have resulted from such injury; and the plea claimed in effect that the Commission had made an award stating amongst other things that the applicant has failed to establish incapacity for work in a certain defined period and that an alleged incapacity or partial incapacity for work due to a certain alleged injury to the back was not the result of any employment injury on the date alleged.

[26]

It appears, however, that the plaintiff desires to recover damages from the defendant on the basis that he can prove at the trial that in consequence of the defendant's negligence the pipe struck him in the back and caused the loss and damage alleged in the declaration. Accordingly the plaintiff pressed strongly the ground of appeal which reads: "The Full Court erred in holding that the plaintiff was estopped from adducing evidence as to his back injuries by a finding of the Workers' Compensation Commission of New South Wales that he had failed, in proceedings brought before it to which the defendant's third plea refers, to establish that he injured his back". Section 36 of the Workers' Compensation Act, 1926-1954 under which the proceedings in the Workers' Compensation Commission took place is as follows: "(1) The Commission shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act, and the action or decision of the Commission shall be final. (2) Nothing in subsection one of this section shall prevent the Commission from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision or order previously made, all of which the Commission shall have authority to do. (3) The decisions of the Commission shall be upon the real merits and justice of the case, and it shall not be bound to follow strict legal precedent. (4) Without limiting the generality of the provisions of subsection one of this section, the jurisdiction of the Commission shall extend to determining - (a) the question whether an injury received by a worker entitles him to compensation under this Act; (b) the existence and degree of incapacity for work by reason of an injury;" Mr. Sullivan for the appellant relied on s. 36 (2) to show that it is not consistent with the Act to plead an award or finding of the Commission as an estoppel to a claim for damages by a worker against an employer, parties to the award, in respect of injury alleged to have been caused by negligence on the part of the employer. Counsel cited Ex parte The Amalgamated Engineering Union (Australian Section); Re Jackson [1] . It is to be observed that the plea of estoppel being considered contains the allegation "that the said award still remains in force". I would not think that such an allegation could give validity to the plea, if by reason of the provisions of s. 36 (2) the award has not the finality and conclusiveness requisite to create an estoppel against the plaintiff's action. In the view which I take of Mr. Sullivan's argument based on s. 63 of the Workers' Compensation Act, 1926-1954, I do not feel it is necessary to consider how the plea of estoppel stands in relation to s. 36 (2). Section 63 provides: "(1) Nothing in this Act shall affect any civil liability of the employer where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. (2) In such case the worker may proceed both under this Act and independently of this Act but where he obtains judgment against his employer independently of this Act he shall not be entitled to any compensation under this Act other than compensation paid to him before such judgment". It is not necessary to refer in detail to the rest of the section. In my view the intention of sub-s. (1) is to prevent any determination made by the Commission in the exercise of its jurisdiction under sub-s. (4) of s. 36 from affecting a civil liability of an employer such as that which the plaintiff brought this action to enforce against the defendant. To hold that the present award raises the estoppel pleaded would prejudice the right of the plaintiff existing independently of the Act to recover damages from the defendant for if he had not pursued the statutory remedy which the Act gave him the defence of estoppel could not be raised by the defendant. Sub-section (2) of s. 63 renders the plaintiff's position even stronger. The intention of the sub-section is to confer real not illusory rights to proceed. To hold that estoppel arises if the worker proceeds first under the Act and having failed then proceeds in respect of the same alleged injury to recover damages from the employer would be to imply a restriction on the operation of sub-s. (2) of s. 63, which having regard to its terms, is not warranted. The only qualification on the workers' right is that expressed in sub-s. (2) and to be found in the remainder of the section. I take the same view as the Chief Justice of this Court.

[31]

The material allegations in the declaration were put in issue by the first and second pleas and by a further plea, the third, the respondent sought to raise, in answer to the appellant's cause of action, a plea of estoppel. In view of the matters which have been argued it is convenient to set this plea out in full: "3. And for a third plea the defendant says that the plaintiff seeks in this action to recover damages said to arise from an alleged injury to his back which said injury is said by the plaintiff to have been received on 28th February 1955 while the plaintiff was in the course of his employment by the defendant; and the defendant further says that on or about 29th January 1957 the plaintiff filed in the Workers' Compensation Commission of New South Wales an application for determination in which the plaintiff claimed to recover from the defendant compensation under the provisions of the Workers' Compensation Act, 1926 (as amended) in respect of certain alleged incapacity for work alleged by the plaintiff to have resulted from such alleged injury; and the defendant says that the said application for determination was in the words and figures set out in the document annexed hereto and marked "A"; and the defendant further says that on 21st February 1957 the defendant filed in the said Workers' Compensation Commission an answer which was in the words and figures set out in the document annexed hereto and marked with the letter "B"; and the defendant further says that after the last pleading in this action the issues raised by the said application for determination and the said answer were heard and determined by his Honour Judge Rainbow Q.C. a member of the said Workers' Compensation Commission; and upon the hearing of such proceedings the plaintiff alleged in evidence that the injury mentioned in the said application for determination was received by him on 28th February 1955; and the defendant further says that his Honour Judge Rainbow made an award in the said proceedings which said award still remains in force and is in the words and figures set out in the document annexed hereto and marked with the letter "C"; and the defendant says that the alleged injury mentioned in the said application for determination is the same alleged injury as that in respect of which the plaintiff claims damages in this action; and the defendant says that by reason of the said award the plaintiff should not be heard to say that he received the alleged injury to his back while in the course of his employment by the defendant on 28th February 1955 as mentioned in the said application for determination". This plea was demurred to on the grounds: (1) that it did not answer the cause of action to which it had been pleaded and (2) that the decision of his Honour Judge Rainbow alleged to have been made in the exercise of jurisdiction conferred upon him by the Workers' Compensation Act, 1926 (as amended) to hear and determine the issues as alleged created no estoppel on any issue raised in the action. Argument on the demurrer took place before the Full Court in 1960 and on 24th May of that year judgment was entered for the respondent on the demurrer [1] . An application for leave to appeal to this Court from the order of the Full Court was dismissed shortly afterwards.

[39]

However, we were invited to say that the third plea was demurrable notwithstanding the earlier decision of the Full Court and the subsequent refusal by this Court to grant leave to appeal. But, in our view, it was not demurrable by reason of any of the matters advanced by the appellant in the Full Court and we would respectfully agree with the way in which that Court dealt with the contentions then raised. We desire to add only, with reference to s. 63 (2) of the Workers' Compensation Act, that we regard that sub-section as intended to secure to a worker, in the appropriate circumstances, the right to pursue his remedies under the Act and at common law contemporaneously. Sub-section (2), in its present form, replaces a provision which formerly stipulated that "in such case" the worker might, at his option, proceed under the Act independently of the Act, but should not be entitled to compensation under the Act if he had obtained judgment against his employer independently of the Act. Following upon a series of decisions as to what constituted the exercise of the worker's option (see e.g. Harbon v. Geddes [1] ; Latter v. Muswellbrook Corporation [2] ; O'Connor v. S. P. Bray Ltd. [1] ; and Union Steamship Co. of New Zealand Ltd. v. Burnett [2] ) the present sub-section was substituted and whether or not the worker had initially elected to pursue one remedy rather than the other became of no consequence. But it was necessary in these circumstances to make some provision against double recovery and this sub-s. (2) and sub-s. (3a) proceed to do. However, both of these sub-sections contemplate not only a right in the worker to proceed both under the Act and at common law but also a right to recover in either form of proceeding and we see nothing in sub-s. (2) to affect a case where a binding judicial decision has established that the worker has not and never had a right under the Act or, equally, a right independently of the Act. In our view sub-s. (2) in no way operates to exempt a worker from the consequences of the general law in those cases where an issue common to both forms of proceedings has been finally determined in one of them.

[41]

But before us further arguments were advanced. The first of these was concerned with what we have called the somewhat inapt language of the prefatory matter alleged in the plea. But since this point was not raised upon the demurrer and might have been cured by amendment if it had been raised the appellant should not, in our view, be allowed to raise it now. The other additional argument which is now raised is concerned with the provisions of s. 36 (2) of the Workers' Compensation Act. By sub-s. (1) of this section it is provided that the Commission shall have exclusive jurisdiction to examine into, hear and determine all matters and questions arising under the Act and the action or decision of the Commission shall be final. But sub-s. (2) provides that nothing in sub-s. (1) shall prevent the Commission from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision or order previously made, all of which the Commission shall have authority to do. With this sub-section in mind it is said that an award of the Commission can never give rise to an estoppel because it does not finally adjudicate upon the rights of the parties before it. But, in our view, this submission should be rejected upon the authority of Austin v. Mills [3] and Ainslie v. Ainslie [1] . As Isaacs J. said in the latter case in relation to provisions such as those contained in sub-s. (2): "The true rule is to see whether or not the Legislature has by its enactment left the order entirely floating, so to speak, as a determination enforceable only as expressly provided and in the course of that enforcement subject to revision, or whether the order has been given the effect of finality unless subsequently altered" [1] . We are of the opinion that the legislation in question here plainly falls within the latter category and the award was an adjudication upon the rights of the parties, not of an interlocutory character, but completely effective unless and until it should be rescinded, altered or amended by the Commission. Some confirmation of this view may be found in the provisions of s. 37 of the Act which provides that no award, order, or proceeding of the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court of judicature on any account whatever.