Bain v Frank G O'Brien Ltd - [1976] HCA 29

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason and Jacobs JJ.

BAIN v. FRANK G. O'BRIEN LTD.

(1976) 135 CLR 158

21 June 1976

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Indemnity proceedings—Compensable injury suffered by worker—Payment of compensation by employer—Payments continued after incapacity ceased—Whether total payments recoverable by employer from person responsible for worker's injury—"Compensation recovered under the Act"—Partial incapacity deemed total incapacity where employer fails to provide suitable employment to partially incapacitated worker—Reasonableness of employer's failure—Relevance in indemnity proceedings—Workers' Compensation Act, 1926 (N.S.W.), s. 64(1)(b).* * Section 64(1) of the Workers' Compensation Act, 1926 (N.S.W.) provides, so far as is material, as follows: "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—(b) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid."

Decisions

June 21.
The following written judgments were delivered:-
BARWICK C.J. In this appeal, I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. The facts and circumstances of the matter and its treatment in the courts below are there recounted. I have no need to supplement my brother's statement of them. (at p160)

2. I agree with my brother's conclusion that amounts paid under an award of the Workers' Compensation Commission according to its terms are amounts of "compensation recovered" by the worker within the meaning of s. 64(1) (b) of the Workers' Compensation Act, 1926 (N.S.W.), as amended ("the Act"). Consequently, I agree with the view that the trial judge was in error in reducing the amount claimed by the plaintiff in the action on the ground that he had not acted reasonably in not providing suitable employment for the worker. I also agree with my brother's reasons for that conclusion. (at p160)

3. I would add for myself what, in my opinion, is a substantial reason for concluding that the trial judge was in this respect in error. The evident purpose of s. 64(1) (b) is to ensure that where a liability under the Act has fallen upon the employer of a worker injured by the wrongful act of another, he shall be indemnified by that other for what he, the employer, is required under the Act to pay to the worker. I agree with my brother Gibbs that the indemnity extends only to what by or under the Act he is required to pay. That proposition needs neither amplification nor exposition. But a consequence of a worker suffering injury compensable under the Act is that the employer, if the injury is only partial, comes under a liability to pay him compensation as for a total incapacity unless he, the employer, is able and willing to provide the partially injured worker with suitable employment. I express the result of s. 11(2) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1976] HCA 29
Decision Date: 21 June 1976

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning a dispute between Bain and Frank G. O'Brien Ltd. The core of the disagreement involved the interpretation and enforceability of a deed of covenant entered into between the parties.

The central legal issue before the High Court was whether the deed of covenant, which purported to restrict the appellant's ability to carry on a particular business, was void for uncertainty or otherwise unenforceable. The court was required to determine the precise scope of the covenant and whether it imposed an unreasonable restraint of trade.

The High Court, in allowing the appeal, reasoned that the covenant was too wide in its geographical scope and the range of activities it sought to restrain. The judges applied established principles of contract law concerning certainty and the doctrine of restraint of trade, finding that the covenant went beyond what was reasonably necessary to protect the legitimate business interests of the respondent. Consequently, the deed was held to be void and unenforceable.

Orders