Electric Power Transmission Pty Ltd v D'Urso - [1970] HCA 40

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

ELECTRIC POWER TRANSMISSION PTY. LTD. v. D'URSO

(1970) 124 CLR 338

3 November 1970

Worker's Compensation (N.S.W.)

Worker's Compensation (N.S.W.)—Assessment and amount of compensation—Incapacity—Re-employment of partially incapacitated worker—Unwillingness to accept suitable employment—"Failure to provide suitable employment"—Worker's Compensation Act, 1926 (N.S.W.), as amended, s. 11 (2).*

Decisions

November 3.
The judgment of BARWICK C.J., MENZIES, WINDEYER AND OWEN JJ. was delivered by BARWICK C.J.
The appellant is the former employer of the respondent worker who in the employment had been partially incapacitated for work. The appeal which is by special leave is against a judgment of the Court of Appeal of the Supreme Court of New South Wales which, by a majority, allowed an appeal against the decision of the Workers' Compensation Commission: (1970) 91 WN (NSW) 756 The Commission had rejected the worker's claim against the employer for compensation as for total incapacity which the respondent had made on the footing that the employer had failed to provide suitable employment for the worker during his partial incapacity for work as required by s. 11 (2) of the Workers' Compensation Act (N.S.W.). (at p340)

2. The judgment of the Workers' Compensation Commission is as follows, and we set it out in full:

"On the probabilities I am satisfied that the applicant sustained an injury to his back on 13th December 1966 in the nature of a lumbo-sacral disc lesion which was already the site of degenerative changes. Since 21st September 1967 the applicant has been partially incapacitated for his pre-injury work but has been fit for light work not involving much bending or lifting. Had he remained uninjured and continued in the same or comparable employment he would have been earning in the vicinity of $60, and since 21st September 1967 he has been able to earn in suitable employment about $40 a week. I find that the respondent has not failed to provide suitable employment since 21st September 1967 because, in the view I have formed of the applicant, he has not been genuinely available for suitable work if such had been made available to him. On the basis of those findings, I make an award under s. 11 (1) at the rate of $20 a week from 21st September 1967 and continuing. Medical and hospital expenses in accordance with s. 10; costs rule 46; one qualifying fee for Dr. Rowe. I certify for advice on evidence."

That is to say, the Commission found in substance that the worker should not be treated as totally incapacitated. (at p341)

3. In the Supreme Court, all members of the Court were of the opinion that there was evidence before the Commission to support a finding that if suitable work had been offered by the employer to the worker he would not have accepted it, and that a request which the worker had made to the employer for work was not bona fide. (at p341)

4. The majority considered, however, that…

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: [1970] HCA 40
Decision Date: 3 November 1970

CaseChat Overview and Summary

Electric Power Transmission Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of New South Wales. The dispute concerned the appellant's liability for injuries sustained by the respondent, Mr. D'Urso, who was employed by the appellant as a linesman. Mr. D'Urso suffered injuries when he fell from a pole while working on the appellant's transmission lines. The respondent's claim was based on negligence, alleging that the appellant failed to provide a safe system of work.

The High Court was required to determine whether the appellant had breached its duty of care to the respondent by failing to implement a safe system for the erection and maintenance of transmission lines, specifically in relation to the provision and use of safety equipment such as safety belts. The court also considered whether the respondent's own conduct contributed to his injuries, and if so, the extent to which this should reduce any damages awarded.

The court found that the appellant had failed to establish a safe system of work. It was held that the provision of safety belts was inadequate, and that the appellant had not taken sufficient steps to ensure their proper use or to provide adequate training and supervision. The court applied the principles of common law negligence, emphasizing the employer's non-delegable duty to provide a safe working environment. The court also considered the defence of contributory negligence, finding that while the respondent had not been entirely free from blame, his actions did not significantly contribute to the accident.

The appeal was dismissed, and the judgment of the Supreme Court of New South Wales in favour of the respondent was affirmed.

Orders