Workers' Compensation (N.S.W.)—Partial incapacity—Amount of compensation—Difference between amount "which worker would probably have been earning had he continued to be employed in the same or some comparable employment and the average weekly amount he is earning"—Whether comparison between present earnings and hypothetical future earnings from same type of work or earnings based on continued engagement in occupation—Workers' Compensation Act, 1926 (N.S.W.), s. 11 (1) (a).

Decisions

October 17.
The following written judgments were delivered:-
BARWICK C.J. My brother Stephen has set out in the reasons for judgment which he has prepared, and with which I am in agreement, all the salient facts and has referred to all the relevant provisions of the Workers' Compensation Act, 1926, as amended ("the Act"). The construction of s. 11 (1) (a) of the Act which those reasons adopt is, in my opinion, in accord with the general concept of workers' compensation which the Act, through its various spasmodic amendments continues to embody. In any case, the meaning attributed to the provision by my brother's reasons is so clearly right that no apparent anomaly thrown up by piecemeal amendment should warrant departure from that meaning. (at p634)

2. I agree that the appeal should be allowed. (at p634)

McTIERNAN J. I agree that the appeal should be allowed. (at p634)

WALSH J. The facts and the terms of the provision contained in s. 11 (1) (a) of the Workers' Compensation Act (N.S.W.), as amended, which require to be considered in this appeal, are set out in the judgment of Stephen J. The words in that provision which call for particular attention are the words "the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment". In the Workers' Compensation Commission, Judge Gibson found that the appellant intended to make his permanent career in the locomotive branch of the respondent's undertaking and that, subject to his passing examinations and to his good conduct, he would normally have progressed through the ranks of fireman and acting driver to that of engine-driver, and that he would have passed the medical examinations and other tests necessary for his progression to the position of engine-driver. There was evidence to support those findings. His Honour gave effect to them by taking into account the earnings of an engine-driver in computing for the purposes of s. 11 (1) (a) what the appellant would probably have been earning but for the injury. The question for decision is whether the learned judge erred in law in so doing. (at p634)

2. In some of the arguments addressed to this Court it has been assumed that in order to answer that question it is necessary that a definite choice be made from a number of suggested…

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 Johnston v Commissioner for Railways

Details

AGLC: Johnston v Commissioner for Railways [1973] HCA 46
Case: [1973] HCA 46
Decision Date: 17 October 1973

CaseChat Overview and Summary

Johnston (the plaintiff) brought an action against the Commissioner for Railways (the defendant) in the High Court of Australia, seeking damages for personal injuries sustained when a train, on which the plaintiff was a passenger, derailed. The plaintiff alleged that the derailment was caused by the negligence of the defendant in the maintenance and operation of the railway line and the train.

The central legal issue before the High Court was whether the defendant had discharged its duty of care to the plaintiff, a passenger, by taking all reasonable precautions to prevent the derailment. This involved determining the standard of care required of a railway authority in maintaining its tracks and rolling stock, and whether the defendant's actions or omissions fell below that standard. The court also considered the question of causation, namely whether any breach of duty by the defendant was the cause of the plaintiff's injuries.

The High Court, in a joint judgment, found that the defendant had failed to discharge its duty of care. The court reasoned that the evidence established that the derailment was caused by a failure in the permanent way, specifically a worn and defective rail. The defendant had a system of inspection, but the court concluded that this system was inadequate and that the defect should have been discovered and rectified before the accident occurred. The principles applied centred on the common law duty of care owed by a carrier to its passengers, requiring the highest degree of vigilance and care to ensure their safety, and the application of the 'but for' test for causation. The court held that the defendant's negligence was the direct cause of the plaintiff's injuries.

Orders