Receipt of compensation-Injuries resulting from negligence of worker's husband -Right of employer paying compensation to be indemnified by person liable to pay damages where injury caused" under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof " Whether husband such a person-Workers' Compensation Act 1926-1954 (No. 15 of 1926-No. 18 of 1954) (N.S.W.), 8. 64.

Section 64 of the Workers' Compensation Act 1926-1954 (N.S.W.) provides inter alia that " Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof-(b) if the worker has recovered compensation under this Act, the person by whom the compensation was paid shall be entitled to be indemnified by the person so liable to pay damages as aforesaid."

Held, that under the section a husband is not liable to indemnify an employer who has paid compensation to a wife in respect of injuries sustained by her as a result of the husband's negligence.

The question whether the disability of one spouse to sue another for what would otherwise be a tort is substantive or merely procedural, discussed.

Broom v. Morgan (1952) 2 All E.R. 1007; (1953) 1 Q.B. 597, considered. Decision of the Supreme Court of New South Wales (Full Court), affirmed.

APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

On 29th April 1955 Tooth &Co. Ltd. commenced an action in the Supreme Court of New South Wales against Eric Tillyer claiming the sum of £908 7s. 3d. On 11th May 1955 the defendant demurred

95 CLR 606

A. to the plaintiff's declaration. The facts appear in the judgments

The demurrer was heard before a Full Court of the Supreme Court of New South Wales constituted by Owen J., Roper C.J. in Eq., and Sugerman J., which on 17th May 1956 upheld the demurrer.

From this decision the plaintiff sought special leave to appeal to the High Court of Australia.

R. W. Fox, for the applicant. Section 64 (b) of the Workers' Compensation Act 1926 (N.S.W.) is in a common form and enables an employer who has paid com- pensation to be indemnified in certain circumstances by the person causing the injury. The purpose of the provision is to enable the employer to recover where the tortious act of a third party is responsible for the injury. The words "creating a legal liability in some person " are to be read in this sense. It seems clear that the section does not cover contractual liability between the injured and the person causing the injury, nor is the right of indemnity excluded by separate contractual arrangements between those parties, made either before or after the…

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 Tooth & Co Ltd v Tillyer

Details

AGLC: Tooth & Co Ltd v Tillyer [1956] HCA 49
Case: [1956] HCA 49
Decision Date: 22 August 1956

CaseChat Overview and Summary

Tooth & Co Ltd (the applicant employer) sought special leave to appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The dispute arose from an action commenced by Tooth & Co Ltd against Eric Tillyer (the respondent husband) seeking indemnity under section 64(b) of the Workers' Compensation Act 1926-1954 (N.S.W.). The employer had paid workers' compensation to the respondent's wife for injuries she sustained due to the respondent's alleged negligence while driving a motor vehicle.

The central legal issue before the High Court was whether section 64(b) of the Workers' Compensation Act 1926-1954 (N.S.W.) entitled an employer who had paid compensation to an injured worker to be indemnified by a third party, where the injury was caused by the negligence of that third party, and that third party was the injured worker's husband. Specifically, the court had to determine if the husband, by reason of the marital relationship, was a person against whom a "legal liability" to pay damages was created under the circumstances described.

The High Court, in refusing special leave to appeal, affirmed the decision of the Supreme Court of New South Wales. The Court reasoned that section 64(b) requires that the injury be caused under circumstances creating an actual legal liability in some person other than the employer to pay damages. In New South Wales, a wife cannot sue her husband in tort for personal injuries, except in limited circumstances relating to the protection of her separate property, which did not apply here. Therefore, no legal liability to pay damages was created in the husband, and consequently, the employer could not claim indemnity under section 64(b). The Court distinguished this situation from cases where a tortfeasor's immunity from suit might be considered procedural rather than substantive, concluding that in this instance, the absence of a cause of action meant there was no legal liability.

Orders