Somodaj v Australian Iron & Steel Ltd

The question of the relationship under the statute between the two remedies has been a source of recurrent difficulty for a very long time. Section 63 (1) provides that "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." That of course means that the two liabilities and, accordingly, the two remedies, may co-exist. One view of the state of the law in force immediately before s. 63 (2) took its present form will be seen in Latter v. Muswellbrook Corporation [1] . Sub-section (2) now provides: "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 seems to me that the intention of the provisions of s. 63 which I have quoted is that the rights of the worker should be cumulative except in so far as he has prosecuted one of the alternative remedies to success. To say that in the process of attempting to prosecute to success one in which he in fact failed an allegation of fact which he made might be conclusively decided against him with the consequence that he could not again make the same allegation when he turned to the other remedy appears to me to be inconsistent with the principle that inspires the remedy. Independently of other considerations I am therefore of opinion that the plea with which the plaintiff was met should fail. To give effect to the view I have expressed a new trial would be necessary.

1. (1936) 56 C.L.R., at pp. 438-440. McTiernan J.

An allegation of negligence contained in the plaintiff's declaration in the action is that the defendant failed to warn the plaintiff that "a certain pipe would be moved by a crane" and that as the result of such negligence "the plaintiff was struck by the pipe". The consequence of the defendant's alleged negligence was averred in these words: "Whereby the plaintiff was thrown down and hurt and wounded and injured and incurred expenses for ambulance hospital and X-rays doctor's chemists' and physiotherapists' fees and charges and was unable to work and his earning capacity was and is diminished and his ability to enjoy life is impaired and he has suffered a permanent disability and was otherwise greatly damnified". Going to the plea of estoppel, I extract from the copy of the application to the Workers' Compensation Commission these particulars:

4. Date and place of injury, nature of work on which worker was then engaged, and cause of injury. On or about 28.2.1955 Applicant whilst helping to lay pipes in a drainage system at the tin plate mill, was pinned by a pipe which was being moved by a crane. 5. Nature of injury: Injury to the back.

A copy of the award of the Workers' Compensation Commission is also included in the plea of estoppel. I quote part of the award.

Having duly considered the matters submitted, the Commission -

(b) the applicant (the plaintiff) has failed to establish that he injured his back in the course of his employment with the respondent on the twenty-eighth day of February 1955;

(d) that the applicant has been partially incapacitated for work by some back condition since the tenth day of November 1956;

(e) that the applicant's said partial incapacity is not the result of any employment injury of the twenty-eighth day of February 1955;

2. Hereby orders that the award of the Commission herein be and the same is made in favour of the respondent (the defendant).

The concluding part of the plea of estoppel consists of these two allegations: the "said award still remains in force" and "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".

The defendant added to the plea of estoppel the evidence in the application under the Workers' Compensation Act and the reasons of the Commission (Judge Rainbow) for not making an award for the applicant (the plaintiff). Mr. Sullivan directed attention to the following evidence given by the applicant:

Q. On 28th February you were helping to lay pipes for a drainage system at the tin plate section? A. Yes.

Q. What size were the plates? A. 2ft. across and 12ft. long.

Q. How were they being laid? A. They have been laid in the drain. They had been laid by the crane.

Q. Where were you when the accident happened? A. In the concrete sump.

Q. What happened? A. I was supposed to put the pipe in position into the hole which is made into the concrete sump. The pipe was not quite in position. They signalled to the crane-driver to pull it a bit towards me.

Q. Was it hanging from the crane at that time? A. Yes. As they started pulling the pipe it lifted up. I don't know whether the pipe jammed or not. He pulled the pipe that fast towards me that I could not get away from it. The pipe pushed me back into another hole at the edge of the concrete.

Q. Did the pipe hit you? A. Yes, on the front here (indicates).

His Honour: Q. Did you go backwards or down? A. Back against the concrete side of the sump. The concrete sump was about 3 ft. square inside.

Mr. Sullivan: Q. What did you feel? A. I feel terrible pain. I start to scream. I was holding the pipe for a few minutes and screaming until they pulled the pipe away. Then I pulled myself out from the concrete sump and then went straight to the ambulance station.

The learned judge said in the course of his reasons: "If it is accepted that he suffered a pain in his back at the time of the accident on 28th February 1955, and was never without it afterwards, one would have to find, even if unable to follow the mechanics of it, that his incapacity was consistent with an injury sustained when his back was pressed against a concrete sump by the fairly heavy weight of a swinging pipe. Against that, one must weigh the outward and visible signs, which appear to have been not nearly as extensive as he claimed". The learned judge further said: "When the applicant was thrown or pushed or knocked against the sump, the movement was not extensive; the force is hard to imagine. There is no record that supports his complaints of generalized bruising and swelling of the stomach, thigh and back. There is no real evidence that the applicant's back is subject to disability as a result of the accident on 28th February 1955. If a disc lesion or other back trouble has incapacitated him from November 1956, it is not the result of employment injury. I arrive at this conclusion with some regret. It would be highly desirable to help him financially and enable him to get better, but I have to do my best on the evidence. I make an award for the respondent".

It would not be correct to say that the Commission found positively that the plaintiff was not struck by the pipe as he alleged in his declaration. On the contrary the Commission seems not to have excluded the possibility that he was thrown or pushed or knocked against the sump by the pipe. The Commission's finding was that this accident did not result in partial incapacity. But it did not find that it caused no ill effects of any kind to the plaintiff. Why does the finding of the Commission preclude the plaintiff from proving that he was struck by the pipe as he alleges in the declaration and that it caused him some injury, if he has evidence to prove that fact?

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.

The question as to estoppel argued in the present case was not argued in O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) [1] . The application made by the plaintiff to the Workers' Compensation Commission was not, of course, a claim for negligence. The issues raised by that application and by the first and second pleas to the declaration in the present case are different. I do not find it necessary to consider whether the principle stated by Bowen L.J. in Brunsden v. Humphrey [2] and approved by Lord Wright in The Oropesa [3] has any relation to the present case.

1. (1938) 59 C.L.R. 744. 2. (1885) 14 Q.B.D. 141. 3. (1943) P. 32.

I agree in the order proposed by the Chief Justice.

This is an appeal from an order of the Full Court by which an application for an order for the new trial of an action, in which the present appellant was the plaintiff and the respondent was the defendant, was dismissed. The action had been brought by the appellant to recover damages for personal injury said to have been caused by negligence on the part of his employer, the respondent. The declaration was framed in the widest terms, there being no specification of the negligent acts relied upon nor of the injuries which the appellant was alleged to have sustained.

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.

Upon the argument before the Full Court three matters of substance were raised and debated. The first of these was that the Workers' Compensation Commission is an administrative body only and that no estoppel can arise from findings made by it in proceedings for compensation. Secondly, it was said, a finding by the Workers' Compensation Commission that the appellant had not sustained an injury of the character alleged was merely a decision concerning a matter incidental to its final determination and could not give rise to an estoppel. As we understand this argument it is that the only substantive determination made by the Workers' Compensation Commission was that the appellant was not entitled to compensation in accordance with the provisions of the Act and that it is not open to the respondent to rely upon any finding of fact made by the Commission in the course of reaching that decision. Finally, it was argued that the effect of the provisions of ss. 63 (1) and (2) and 64A of the Act was such as to prevent any estoppel inter partes arising from the litigation and determination in the Workers' Compensation Commission of any relevant issue of fact. Presumably this argument, as developed by the appellant with particular reference to s. 63 (2), would mean also that a finding on an issue of fact in proceedings in any of the Courts of the State would not in any way preclude the re-litigation of the same issue in the Workers' Compensation Commission (cf. O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) [2] and Cockatoo Docks & Engineering Co. Pty. Ltd. v. Dalgety & Co. Ltd. [3] ).

1. (1938) 59 C.L.R. 744. 2. (1939) 39 S.R. (N.S.W.) 295; 56 W.N. 146.

As appears no argument was addressed to the Full Court based upon the form of the plea. But the appellant now seeks to derive some advantage from the fact that the prefatory matter alleged in the pleas is expressed in somewhat inapt language. In terms, it is said, the substance of the plea is thereby limited to part only of the damage alleged in the declaration and that it is, therefore, demurrable. But when the plea is read as a whole and reference is made to the allegations subsequently appearing it is sufficiently clear that the substance of the plea was intended to answer in its entirety the cause of action sued upon. In effect, the prefatory words were, for the purposes of the demurrer, read by common consent as if they had asserted that the cause of action sued upon consisted solely of a claim for damages for the alleged negligence of the respondent in causing an injury to the appellant's back. So understood the plea, if not otherwise demurrable and if established, was a complete answer to the appellant's cause of action.

After the appellant had failed on demurrer he took the course of joining issue upon the defendant's pleas and the effect of this in relation to the third plea was to deny the substance of that plea (Common Law Procedure Act, s. 88). The denial put in issue the existence of the record as alleged in the plea and, strictly, this raised issues of fact for determination by a jury. But the prefatory matter in the plea which purported to define the cause of action which the substance of the plea was designed to answer did not, as the appellant contends, tender any issue of fact to the plaintiff (Rogers v. Custance [1] ; Bracegirdle v. Peacock [2] ; Kavanagh v. Gudge [3] ; Heydon v. Thompson [1] ; Wheeler v. Senior [2] ; Aldred v. Constable [3] ; and Glover v. Dixon [4] ). This is clearly established by the cases referred to and, indeed, if it were otherwise the result would be that the trial could have proceeded and the rights of the parties determined upon an entirely false issue.

1. (1841) 1 Q.B. 77 [113 E.R. 1058]. 2. (1845) 8 Q.B. 174 [115 E.R. 841]. 3. (1844) 7 Man. & G. 316 [135 E.R. 132]. 4. (1834) 1 Ad. & E. 210 [110 E.R. 1186]. 5. (1841) 7 M. & W. 562 [151 E.R. 890]. 6. (1844) 6 Q.B. 370 [115 E.R. 142]. 7. (1853) 9 Exch. 158 [156 E.R. 68].

There is no doubt that the existence and effect of the record in the Workers' Compensation Commission might have been challenged by the appellant in proceedings before the trial (See Chitty's Archbold's Practice, 12th ed. (1866) p. 937). The rules of the Supreme Court, as they stood prior to 1952, provided a summary method by means of which this could be done. Rule 88 of the Regulae Generales, which followed r. 38 of the Hilary Term Rules, provided that on a replication or other pleading denying the existence of a record pleaded by the defendant, a rule for the defendant to produce the record should not be necessary or used, and instead thereof a four days' notice should be substituted, requiring the defendant to produce the record, otherwise judgment. In the 1952 rules the provision seems to have been omitted though those rules recognize that the existence and effect of a judgment in the case of a plea of judgment recovered may be determined by the Court alone upon an application to strike out the plea. The absence of any counterpart of r. 88 does not mean that the appellant was not free to follow the old practice and, having obtained a rule of court requiring the respondent to produce the record relied upon, have the question of the existence and the effect of the record determined upon an inspection thereof. But no such course was followed. As already appears the action proceeded to trial and at the commencement of the trial the issue as to the existence of the record as pleaded was tried by the judge alone.

This circumstance gives rise to a twofold complaint on the part of the appellant. In the first place, it is said, the issues raised by the plea should have been left to the jury. Strictly speaking, this is so. But the issues of fact which the plea raised were limited to the existence of the record as alleged in the plea and did not, as already pointed out, include any issue as to whether the plaintiff's cause of action was as the prefatory matter in the plea purported to define it. But apparently, it was the appellant's intention in joining issue to raise this very question and he complains that this issue has not been determined either by the learned trial judge or, as he contends should have been done, by the verdict of the jury. It is, however, only too clear that the pleadings did not leave this issue open and his only complaint can be that the formal issues which the replication raised as to the existence of the record were not left to the jury. We do not think, however, that a new trial should be ordered on this ground because the production of the record established its existence beyond question and a verdict of the jury to the contrary could not have been allowed to stand.

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.

1. (1935) 53 C.L.R. 33. 2. (1936) 56 C.L.R. 422. 3. (1937) 56 C.L.R. 464. 4. (1937) 56 C.L.R. 450.

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.

1. (1853) 9 Exch. 288 [156 E.R. 123]. 2. (1927) 39 C.L.R. 381. 3. (1927) 39 C.L.R., at p. 390.

There remains for consideration the question whether the particular matters alleged in the third plea concluded the right of the appellant to recover damages in the action and this requires some examination of the record the existence of which the third plea asserted and which, following a somewhat unusual course, was annexed to and, therefore, formed part of the plea. The application alleged that on or about 28th February 1955 the appellant "whilst helping to lay pipes in a drainage system at the tin plate mill, was pinned by a pipe which was being moved by a crane". The next two particulars asserted, in effect, that this incident resulted in injury to the appellant's back which totally incapacitated him for certain specified periods the last of which was said to be still continuing. The answer denied that the appellant received any injury arising out of or in the course of his employment with the respondent on or about 28th February 1955 or at all. There was a further allegation that the injury mentioned in the appellant's particulars did not arise out of or in the course of the appellant's employment with the respondent. By its award the Commission purported to find that "the appellant has failed to establish that he injured his back in the course of his employment with the respondent on the twenty-eighth day of February 1955", that he "has failed to establish that he was incapacitated for work" during the specified periods, that he "has been partially incapacitated for work by some back condition since 10th November 1956" and that his "partial incapacity is not the result of any employment injury of the twenty-eighth day of February 1955".

It will be seen that the finding which the respondent says gives rise to an estoppel which precluded the appellant in his action is couched in what may be said to be equivocal language. It may mean that the appellant did not sustain any injury to his back on 28th February 1955, or, it may mean that he did not sustain any such injury in the course of his employment by the respondent. In these circumstances, it is permissible to look at the reasons of the learned member of the Commission - which were tendered in evidence by the respondent upon the trial of the question - for the purpose of seeing what was actually decided (Flitters v. Allfrey [1] ; Houstoun v. Marquis of Sligo [2] ; and O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) [3] ). When this is done it is about as clear as it could be that the issue to which the learned member of the Commission was directing his mind was whether the appellant had suffered any injury to his back as the result of the "occurrence" on 28th February 1955. On this issue there was a finding for the respondent and this concluded the question whether the appellant had, up to the date of the award, namely, 20th May 1957, suffered any injury as a result of the alleged occurrence on 28th February 1955. And since the writ in this action was issued nearly six months before the award was made the matters alleged in the third plea must be taken to provide a complete answer to the cause of action to which it was pleaded. Accordingly we are of the opinion that the appeal should be dismissed.

1. (1874) L.R. 10 C.P. 29. 2. (1885) 29 Ch. D. 448. 3. (1938) 59 C.L.R., at p. 761.