Fraher v Wunderlich Ltd - [1963] HCA 53

HIGH COURT OF AUSTRALIA

Dixon C.J., Taylor, Menzies, Windeyer and Owen JJ.

FRAHER v. WUNDERLICH LTD.

(1963) 110 CLR 466

20 November 1963

Workers' Compensation (Vict.)

Workers' Compensation (Vict.)—Compensation—Assessment—Injury consisting in part of Table injury and in part of other injury—Whether right to compensation under Table in addition to other compensation—Workers Compensation Act 1958 (Vict.), ss. 9*, 11**.

Decisions

November 20.
The following written judgments were delivered: -
DIXON C.J. This appeal is from an order of the Supreme Court of Victoria made on an appeal from the Workers Compensation Board of Victoria. The appeal to the Supreme Court is by way of case stated under s. 56 of the Workers Compensation Act 1958 which is limited to a question of law. The question of law involved turns upon the operation of s. 9 (2) and the clauses therein referred to and upon s. 11 and the Table therein referred to. Section 11 (1) provides that notwithstanding anything in the foregoing provisions of the Act as to the rate of compensation, but subject to the following provisions of this section, the amount of compensation payable for any injury mentioned in the first column of the Table appended to the sub-section shall, subject to the said Table, be the amount set out opposite such injury in the second column of the said Table. In the list of injuries set out in the Table is the total loss of a leg. Opposite that injury the figure 2,100 pounds is given. At the head of the column in which the various injuries are set out is the simple word "Injury". At the head of the money column are the words "Amount of Compensation Payable". Under or after the Table are various clauses or sub-sections giving a more amplified effect to various injuries which do not come quite within the Table, and it will be necessary to refer to these provisions. In the present case the worker, who is the appellant in this Court, lost twenty-five per cent of the use of his right leg and was otherwise injured. According to the case stated the appellant suffered a fracture of the right patella which necessitated the removal by surgery of the patella whereby the right leg became unstable, resulting in the permanent partial loss of the use of the right leg of twenty-five per cent. Before the Board the parties agreed that the injury constituted an anatomical loss of twenty-five per cent of the use of the right leg. It is provided that for the purposes of the Table the total loss of a limb shall be deemed to include the total loss of the use of such limb. Section 11 (2) provides, inter alia, that where a worker suffers any injury which consists of a lesser but substantial degree of any injury for which compensation is payable under the Table, the injury shall, subject to the provisions of this section, be regarded as an injury for which compensation based on the Table…

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.

Continue reading Fraher v Wunderlich Ltd

Details

AGLC: Fraher v Wunderlich Ltd [1963] HCA 53
Case: [1963] HCA 53
Decision Date: 20 November 1963

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Fraher v Wunderlich Ltd*. The dispute concerned the plaintiff's claim for damages for personal injuries sustained as a result of a fall from a roof. The plaintiff alleged that the defendant, his employer, was negligent in failing to provide a safe system of work, specifically by not providing adequate safety equipment or supervision.

The central legal issue before the Court was whether the defendant had breached its duty of care to the plaintiff. This involved determining whether the employer had taken all reasonable precautions to prevent the injury, considering the circumstances of the work being performed on the roof. The Court also had to consider the plaintiff's own conduct and whether any contributory negligence on his part should reduce the damages awarded.

The Court ultimately found that the defendant had failed to establish that it had taken all reasonable steps to ensure the safety of its employee. The evidence indicated a lack of adequate supervision and a failure to provide appropriate safety measures for working at height. The Court applied the principles of negligence, requiring an employer to take reasonable care for the safety of their employees, and found that this duty had been breached. The appeal was dismissed.

Orders