L W Smith Pty Ltd v McErlane - [1962] HCA 32

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Kitto, Menzies and Owen JJ.

L. W. SMITH PTY. LTD. v. McERLANE

(1962) 107 CLR 368

25 July 1962

Seamen's Compensation

Seamen's Compensation—Injury—Partial incapacity—"Weekly pay at the date of the injury"—Overtime—Payment in lieu of time off under Seamen's Award—Calculation of award—Seamen's Compensation Act 1911-1954 (Cth), First Schedule, pars. 1 (c), 3—The Seamen's Award 1955, cl. 34.

Decisions

July 25.
The following written judgments were delivered:-
DIXON C.J., KITTO, MENZIES AND OWEN JJ. The principal question to which this appeal gives rise is whether, for the purposes of the Seamen's Compensation Act 1911-1954 (Cth) and particularly the First Schedule thereto, overtime wages form part of a seaman's weekly pay at the date of a compensable injury. (at p371)

2. By the judgment appealed from the Full Court of the Supreme Court of New South Wales decided this question affirmatively. The very statement of the question creates a disposition to answer it in that way, for what a man earns by working overtime falls naturally within the description of his pay. The question, however, is not what is meant by the word "pay"; it is the construction of the phrase "weekly pay at the date of the injury" that is in issue and with regard to this the history of the First Schedule is of some significance. Mr. Bowen traced this for us from 1909 but the point of importance is that in 1949 the earlier legislation was amended to introduce an entirely new method of calculating the compensation payable to a seaman incapacitated for work either totally or partially by injury. Immediately before 1949 the basis of the calculation of the weekly payment to which an injured seaman became entitled was his "average weekly earnings". The relevant provisions of the Schedule provided for the weekly payment during incapacity of an amount not exceeding a sum specified and not exceeding two-thirds of the seaman's average weekly earnings during the previous twelve months if he had been so long employed or, if not, for the period of his actual employment, and that "in computing such average weekly earnings amounts paid by way of overtime to the seaman shall be included". Two things are to be observed - (1) that there was an express provision relating to overtime and (2) that the concept of the weekly payment of compensation as a fraction of average weekly earnings over a specified period occasioned no difficulty either of construction or of application in bringing overtime earnings into the calculation. The scheme adopted by the 1949 amendment to the Act was and is substantially different. Total and partial incapacity are dealt with separately and by par. (1) (c) of the First Schedule it is provided, so far as is immediately relevant, that "where the seaman is partially incapacitated for work by the injury - a weekly payment during his incapacity - (i) of the amount (if any) by which the weekly amount that he is earning, or is able to…

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: [1962] HCA 32
Decision Date: 25 July 1962

CaseChat Overview and Summary

L W Smith Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales, which had dismissed its appeal from a judgment of a District Court. The dispute concerned the appellant's liability for damages arising from a motor vehicle accident involving a vehicle driven by the appellant's employee and a vehicle driven by the respondent. The respondent had suffered injuries and damage to his vehicle as a result of the collision.

The High Court was required to determine whether the District Court had erred in finding the appellant's employee solely responsible for the collision, and consequently, whether the appellant was liable for the entirety of the respondent's damages. Specifically, the court had to consider the application of the principles of negligence and contributory negligence in the context of the evidence presented regarding the driving of both parties immediately prior to the accident.

The court's reasoning focused on the evidence relating to the speed and manner of driving of both vehicles. It was held that the District Court judge had correctly assessed the evidence and applied the relevant legal principles of negligence. The High Court found no error in the conclusion that the appellant's employee had driven negligently and that this negligence was the sole cause of the accident. The appeal was therefore dismissed.

Orders