Barbaro v Leighton Contractors Pty Ltd

Re: ANTONIO BARBARO
And: LEIGHTON CONTRACTORS PTY. LIMITED (1980) 44 FLR 204
F.C. No. 8 of 1979
Workmen's Compensation Ordinance 1951 - Evidence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Connor(2) and Franki(3) JJ.

CATCHWORDS

Workmen's Compensation Ordinance 1951 - Payments of compensation on basis of total incapacity made voluntarily - Cessation of such payments without agreement or arbitration - Effect of paragraph 12 of First Schedule of Ordinance - Application by worker for arrears of payments and for award on basis of continuing total incapacity or alternatively partial incapacity - Whether onus of proof as to continuance of total incapacity on employer or worker - Whether onus of proof of partial incapacity on worker.

Workers' Compensation - Incapacity - Liability admitted by employer - Voluntary weekly payments made by employer to worker pursuant to Ordinance - Payments based on total incapacity - Payments stopped by employer - Application for arbitration by worker - Whether payment may be stopped or varied without agreement or arbitration - Onus of proof - Whether employer to prove continuing total or partial incapacity - Workmen's Compensation Ordinance 1951 (A.C.T.), s. 7 (1), First Schedule pars. 1 (b), 1 (c), 12.

Evidence - Onus of proof - Workers' compensation - Incapacity - Liability admitted by employer - Employer made voluntary weekly payments to worker pursuant to Ordinance - Payments based on total incapacity - Payments stopped by employer - Worker applied for arbitration - Whether employer to prove continuing total or partial incapacity - Workmen's Compensation Ordinance 1951 (A.C.T.), s. 7 (1), First Schedule pars. 1 (b), 1 (c), 12.

HEADNOTE

The appellant was accidentally injured in the course of his employment with the respondent. The respondent promptly admitted liability and made weekly payments to the appellant in accordance with the provisions of the Workmen's Compensation Ordinance 1951 ("the Ordinance") on the basis that the appellant was totally incapacitated for work. The respondent discontinued the weekly payments in March 1977 and the appellant commenced proceedings two months later in the Court of Petty Sessions of the Australian Capital Territory seeking arbitration with respect to compensation payable to him. The court dismissed the application and an appeal was made to the Supreme Court of the Australian Capital Territory which in turn dismissed the appeal. The appellant then appealed to the Full Court of the Federal Court of Australia.

Held: Per Smithers and Franki JJ., Connor J. dissenting - The appeal should be dismissed because: (1) The onus of proof lay with the respondent to show that total incapacity had ceased.
(2) In the present case the appellant was not totally incapacitated for work at the relevant time.
(3) When it was shown that the total incapacity had ceased then the onus passed to the appellant to prove, on the balance of probabilities, his entitlement to an award on the basis of partial incapacity.

Phillips v. Commonwealth (1964), 110 CLR 347, applied.

Commonwealth v. Muratore (1978), 53 ALJR…