Workers' Compensation (N.S.W.)—Boilermaker's deafness—No resultant incapacity—Amendment to legislation to give entitlement notwithstanding absence of incapacity—"Disease"—"contracted by gradual process"—"Deemed"—Compensation not limited to extent of progress of disease since amendment—Amendment not rendered ineffectual by inapplicability of requirement of election—"if the worker so elects"—Award for percentage loss of hearing of both ears—Legislative provision only for percentage loss of hearing of one ear—Whether award justified—Workers' Compensation Act 1926-1960 (N.S.W.), ss. 7, 16 (1)**, (1A)***, (5)*.
Decisions
February 3, 1965. The following written judgments were delivered: - BARWICK C.J. The Commissioner for Railways pursuant to special leave appeals to this Court from the decision of the Full Court of New South Wales by which that Court answered unfavourably to the appellant a number of questions in a case stated for the opinion of the Supreme Court by the Chairman of the Workers' Compensation Commission of New South Wales. (at p251)
2. The respondent is a boilermaker who has been in the employ of the appellant since 1915 with the exception of a period of six weeks during the recent war when he worked as a boilermaker for the Government of the Commonwealth. On 27th February 1961, he applied for a determination under the Workers' Compensation Act, 1926-1960 (N.S.W.) (the Act), claiming that he was suffering from boilermaker's deafness resulting in a substantial loss of binaural hearing and that this "injury" "caused by employment" was received on or before 16th February 1961. He sought the payment of a lump sum by way of compensation under s. 16 of the Act and its table. At the date of the application he was still employed by the appellant against whom he sought the award of compensation and was not incapacitated for work in any degree by reason of his deafness. He has been suffering from boilermaker's deafness to an increasing extent since some time in the 1920's. By February 1961 he was suffering from a loss of 26.3 per cent of binaural hearing. (at p251)
3. The learned Chairman of the Workers' Compensation Commission made an award in favour of the respondent and against the appellant for 460 Pounds 5s. 0d., being 26.3 per cent of 1,750 pounds, the amount set out in the second column of the table in s. 16 as the lump sum compensation for the injury "loss of hearing of both ears". (at p251)
4. It seems that boilermaker's deafness results from successive impacts of sound on the terminal nerve system connected with hearing and that the effect of these successive traumas is to cause cumulative deterioration in the capacity to hear. Apparently it does not, as a rule, incapacitate a boilermaker from following that occupation. (at p251)
5. The respondent's application was based on a combination of ss. 7 (4), 7 (4B), s. 16 (1) and (1A) and the table in s. 16; that is…
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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AGLC
Commissioner for Railways v Bain [1965] HCA 5
Case
[1965] HCA 5
Decision Date
CaseChat Overview and Summary
The Commissioner for Railways (NSW) appealed to the High Court of Australia against a judgment of the Supreme Court of New South Wales in favour of the respondent, Bain. The dispute concerned the respondent's claim for damages for personal injuries sustained while employed by the Commissioner. The respondent alleged that his injuries were caused by the negligence of the Commissioner's servants or agents.
The High Court was required to determine whether the Commissioner was vicariously liable for the negligence of its employees, specifically in relation to the provision of a safe system of work and the proper supervision of its employees. The central legal issue was whether the actions or omissions of the Commissioner's employees, which allegedly led to the respondent's injuries, were attributable to the Commissioner in a manner that established negligence on its part.
The Court considered the principles of vicarious liability and the duty of care owed by an employer to its employees. It was held that an employer owes a non-delegable duty to its employees to take reasonable care for their safety. This duty extends to providing a safe system of work, adequate plant and equipment, and competent supervision. The Court found that the evidence established a breach of this duty by the Commissioner, as its employees had failed to implement adequate safety measures and supervision, leading to the respondent's injuries. The appeal was dismissed.