Harbon v Geddes - [1935] HCA 25

RESPONDENT. DEFENDANT,

THE COMMISSIONER FOR ROAD TRANSPORT

AND TRAMWAYS (NEW SOUTH WALES) APPELLANT BUTLER

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Workers' Compensation-Claim under Workers' Compensation Act made by worker

prior to his death-Compensation received by worker-Claim under same Act made by worker's widow-Amount so claimed paid by employer into office of Commission-Not taken out-Action by widow under Compensation to Relatives Act 1897-1928 (N.S.W.)-Alternative remediesOption-Knowledge of claimant

" Proceed under this Act"-" Proceed - Workers' Compensation Act 1926- 1929 (N.S.W.) (No. 15 of 1926-No. 36 of 1929), sec. 63*.

In an action under the Compensation to Relatives Act 1897-1928 (N.S.W.) brought by a widow against her deceased husband's employer, it was pleaded Sec. 63 of the Workers' Compensa-

responsible. (2) In such case the tion Act 1926-1929 (N.S.W.), provides

worker may, at his option, proceed as follows - (1) Nothing in this Act

under this Act or independently of shall affect any civil liability of the

this Act, but he shall not be entitled employer where the injury was caused

to compensation under this Act, if he by the personal negligence or wilful act

has obtained judgment against his of the employer or of some person for

employer independently of this Act." whose act or default the employer is

53 CLR 34

that before his death, which resulted from an injury received during his employment, the husband had claimed under, and had received compensation payments and other benefits as provided by, the Workers' Compensation Act 1926-1929 (N.S.W.) in respect of the injury which caused his death, and that upon a claim made under the latter Act, by his widow for herself and her children, subsequent to his death and before the action, the employer had paid the full amount payable under the Act into the office of the Commission. It was not alleged that either the husband or the widow was aware of the option conferred by sec. 63 (2) of the Act. The widow neither applied for nor received any part of the amount SO paid in. (N.S.W.)

Held, by Rich, Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that the widow was not precluded from exercising the option conferred by sec. 63 (2) of the Workers' Compensation Act, and was, therefore, entitled to pursue her remedy under the Compensation to Relatives Act :-

By Rich and Dixon JJ., on the ground that the matters pleaded did not involve legal proceedings as contemplated by the word 'proceed " in sec. 63 (2).

By Evatt and McTiernan JJ., on the ground that it was not shown that either the husband or the widow was aware of, or had really and effectively exercised, the option conferred by sec. 63 (2).

Per Rich, Starke and Dixon JJ.: The mere making of a claim under the Workers' Compensation Act 1926-1929 (N.S.W.), although acted upon by the employer, does not constitute a final election under sec. 63 (2) to claim com. pensation under that Act.

Per Evatt and McTiernan…

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 Harbon v Geddes

Details

AGLC: Harbon v Geddes [1935] HCA 25
Case: [1935] HCA 25
Decision Date: 1 May 1935

CaseChat Overview and Summary

In *Harbon v Geddes*, the High Court of Australia considered an appeal from the Supreme Court of New South Wales concerning a widow's claim for damages under the *Compensation to Relatives Act 1897-1928* (NSW) following her husband's death. The employer pleaded that the deceased worker had previously claimed and received compensation under the *Workers' Compensation Act 1926-1929* (NSW), and that the widow had subsequently made a claim under that Act, with the employer paying the full compensation amount into the Commission's office. The central dispute was whether these actions precluded the widow from pursuing her common law remedy.

The legal issue before the High Court was the interpretation of section 63(2) of the *Workers' Compensation Act 1926-1929* (NSW), which stipulated that a worker could, at their option, proceed under that Act or independently of it, but not both. Specifically, the court had to determine what constituted an exercise of this option, and whether the actions taken by the deceased worker and his widow amounted to a conclusive election that barred the widow's claim under the *Compensation to Relatives Act*.

A majority of the High Court (Rich, Dixon, Evatt, and McTiernan JJ.) held that the widow was not precluded from pursuing her remedy. Rich and Dixon JJ. reasoned that the word "proceed" in section 63(2) referred to legal proceedings, and the actions described in the plea did not constitute such proceedings. Evatt and McTiernan JJ. found that it was not demonstrated that either the deceased worker or the widow was aware of, or had effectively exercised, the option conferred by section 63(2). The majority also agreed that the mere making of a claim under the Workers' Compensation Act, even if acted upon by the employer, did not amount to a final election. Starke J. dissented, finding that the actions taken by the deceased worker in *Harbon v Geddes* did constitute a concluded election, thereby barring the widow's claim.

Consequently, the High Court allowed the appeal in *Harbon v Geddes*, reversing the decision of the Supreme Court and ordering judgment for the plaintiff on the demurrer. In the related case of *Butler v Commissioner for Road Transport and Tramways (N.S.W.)*, the High Court affirmed the Supreme Court's decision, holding that the widow was entitled to pursue her remedy under the *Compensation to Relatives Act*.

Orders