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O'Connor v S P Bray Ltd

O'Connor v S P Bray Ltd

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Case Copied 30 April 1937 48 min read

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56 CLR 464

S. P. BRAY LIMITED

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Workers' Compensation-Compensation received by worker-Worker certified fit for

work-Payments of compensation stopped-Claim by worker-Rejected by Workers' Compensation Commission-Action for damages by worker against SYDNEY,

employer--Alternative remedies-Option-Knowledge of worker-Workers Com- 1936,

pensation Act 1926-1929 (N.S.W.) (No. 15 of 1926-No. 36 of 1929), sec. 63.* Aug. 13, 14,

Action-Statutory duty-Breach-rerson injured thereby-Right of action- Service

lift "--Scaffolding and Lifts Act 1912 (N.S.W.) (No. 38 of 1912), Second Schedule, reg. 31 (b). April 30.

After an accident in December 1930, the appellant for some time received compensation under the Workers' Compensation Act 1926-1929 (N.S.W.). Late in 1931 a medical board certified that he was fit for light work, and finally, in December 1933, the weekly payments made on the part of the employer, the respondent, were brought to an end. The appellant then took proceedings before the Workers' Compensation Commission to establish that his incapacity continued. An award was made in favour of the respondent on the ground that the appellant had recovered from his incapacity. In an action at common law commenced in August 1934 by the appellant against the respondent in respect of the same injury, the jury was directed that a question it had to consider was whether, when the appellant took compensation and proceeded under the Workers' Compensation Act, he was aware that he might instead sue at common law. The jury found a general verdict for the appellant, a deduc- tion being made from the damages awarded of the amount received by him as compensation. * The provisions of this section are set out at p. 422, ante.

56 CLR 465

Held, by Dixon, Evatt and McTiernan JJ. (Starke J. dissenting) that, as the jury by its verdict had found that when the appellant received compensation and proceeded under the Workers' Compensation Act he was not aware of his alternative rights under sec. 63 of that Act, he was entitled to maintain an action at common law in respect of the same injury.

Latter v. Muswellbrook Corporation, ante, p. 422, applied. Reg. 31 (b) under the Scaffolding and Lifts Act 1912 (N.S.W.) prescribes that safety gear must be provided for all lifts excepting direct-acting lifts, and service lifts, in which no person travels.

Held, by Dixon, Evatt and McTiernan JJ., that a person injured as a result of the non-observance of the statutory duty thus imposed has a cause of action against the person responsible under the regulation for the care, control and management of the lift.

Meaning of the expression "service]lift" " considered. Decision of the Supreme Court of New South Wales (Full Court): O'Connor v. S. P. Bray Ltd., (1936) 36 S.R. (N.S.W.) 248 53 W.N. (N.S.W.) 72, reversed.

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court of New South Wales Cornelius O'Connor sought to recover from S. P. Bray Ltd., his employer, the sum of £3,000 for injuries…

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: [1937] HCA 18
Decision Date: 30 April 1937

CaseChat Overview and Summary

The appellant, Cornelius O'Connor, an employee of the respondent, S. P. Bray Ltd., sustained injuries when a goods lift in the employer's premises fell. Following the accident, the appellant received workers' compensation payments for a period. After a medical board certified him fit for light work, these payments were eventually terminated. The appellant then pursued a claim before the Workers' Compensation Commission, which found in favour of the employer, determining that the appellant had recovered from his incapacity. Subsequently, the appellant initiated a common law action against his employer for damages, alleging breach of statutory duty under the Scaffolding and Lifts Act 1912 and negligence in the care and management of the lift. The jury returned a general verdict for the appellant, with a deduction for compensation already received. The Full Court of the Supreme Court of New South Wales set aside this verdict and entered judgment for the respondent. The appellant appealed to the High Court.

The legal issues before the High Court included whether the appellant was precluded from bringing a common law action due to his prior proceedings under the Workers' Compensation Act, specifically concerning the interpretation of section 63 of that Act and the concept of election. Additionally, the court had to determine whether the lift in question was a "service lift in which no person travels" for the purposes of regulation 31(b) of the Scaffolding and Lifts Act 1912, and if not, whether a breach of this regulation gave rise to a private cause of action for the appellant's injuries. Finally, the court considered whether there was sufficient evidence to support the claim of negligence against the employer.

A majority of the High Court (Dixon, Evatt, and McTiernan JJ.) held that the appellant was entitled to maintain his common law action. This was based on the principle, established in *Latter v. Muswellbrook Corporation*, that section 63 of the Workers' Compensation Act does not bar a common law action unless the worker elected to proceed under the Act with knowledge of their alternative common law rights. The jury's verdict, by finding the appellant was unaware of these rights, negatived such an election. Regarding the Scaffolding and Lifts Act, the majority found that the lift was not a "service lift in which no person travels" and that a breach of regulation 31(b) did confer a private right of action. The court also found sufficient evidence to support the negligence claim. Starke J., dissenting, maintained his view that the prior proceedings under the Workers' Compensation Act, which had resulted in a final award, precluded the common law action.

The High Court, by majority, reversed the decision of the Supreme Court of New South Wales. The appeal was allowed, and the case was remitted to the Supreme Court for a new trial on the issues of liability and damages, with the jury's verdict for the appellant being reinstated in principle, subject to the outcome of the new trial.

Orders