Rizzi v Grazcos Co-Operative Ltd - [1981] HCA 37

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Aickin and Wilson JJ.

RIZZI v. GRAZCOS CO-OPERATIVE LTD

(1981) 153 CLR 669

28 July 1981

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Compensation—Amount payable—Compensation based on worker's current weekly wage rate—Worker employed on piece work—Whether worker paid under an award fixing or providing for the fixing of a rate for a weekly or longer period—Workers' Compensation Act 1926 (N.S.W.), s. 9.

Decisions

July 28.
The following written judgments were delivered:-
GIBBS C.J., MASON, MURPHY AND AICKIN JJ. This is an appeal from a decision of the Supreme Court of New South Wales (Court of Appeal) allowing an appeal brought from the Workers' Compensation Commission. The appellant was employed by the respondent as a shearer. It is common ground that the appellant was employed on piece rates - i.e. he was paid at the rate fixed by cl. 14 of the Pastoral Industry Award 1965 (Cth), as amended for every 100 sheep shorn. He was not paid by the day or the week. On 7 September 1977 the appellant sustained an injury arising out of or in the course of his employment and as a result was totally incapacitated for work for a period exceeding twenty-six weeks. The appellant applied to the Workers' Compensation Commission for the determination of the liability of, and the amount of compensation payable by, the respondent, and on that application the Commission made an award by which it was ordered, inter alia, that the respondent should pay $214.20 from 9 September 1977 to 11 December 1977 and $216.95 from 12 December 1977 to 7 March 1978 on the basis of total incapacity. An appeal brought by the present respondent to the Court of Appeal was allowed, and the award was varied by substituting the figure of $144.57 for the figures $214.20 and $216.95 respectively. The present appeal is brought from that decision. (at p671)

2. The different results reached by the Workers' Compensation Commission and the Court of Appeal reflect a difference of opinion as to the effect and application of the provisions of s. 9(1) and (8) of the Workers' Compensation Act 1926 (N.S.W.) ("the Act"). Those sub-sections in their present form were inserted in the Act by the Workers' Compensation Rates (Amendment) Act 1977 (N.S.W.) whose provisions came into operation on 9 December 1977. Before that date, s. 9 of the Act provided that where incapacity for work had resulted from the injury the compensation payable by the employer should include a weekly payment during the incapacity which should not exceed 85 per cent of the worker's average weekly earnings for the previous twelve months if he had been so long employed by the employer, and if not then for any less period during which he had been in the employment. The Amendment Act of 1977 for the first time provided a different basis of compensation for the first twenty-six weeks of the incapacity from that payable during the remaining period of the incapacity. By s.…

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: [1981] HCA 37
Decision Date: 28 July 1981

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Rizzi v Grazcos Co-Operative Ltd*. The dispute concerned the appellant's claim for damages for personal injuries sustained in a motor vehicle accident. The appellant alleged that the respondent, a co-operative society, was vicariously liable for the negligent driving of one of its members, who was driving a vehicle owned by the respondent at the time of the accident.

The central legal issue before the High Court was whether the driver of the vehicle was acting as an agent or employee of the respondent at the time of the accident, thereby rendering the respondent vicariously liable for his negligence. The court had to determine the nature of the relationship between the driver and the respondent, and whether the driver was acting within the scope of any such relationship when the accident occurred.

The High Court ultimately found that the driver was not acting as an agent or employee of the respondent at the time of the accident. The court reasoned that the evidence did not establish that the respondent had the right to control the manner in which the driver performed his task, nor that the driver was subject to the respondent's control in the way an employee or agent would be. The principles of vicarious liability require a sufficient degree of control or a relationship akin to employment for liability to attach to the principal. As this was not established, the appeal was dismissed.

Orders