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Commonwealth v Hornsby

Commonwealth v Hornsby

Case [1960] HCA 27 19 May 1960

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HIGH COURT OF AUSTRALIA

Dixon C.J., Fullagar, Taylor, Menzies and Windeyer JJ.

THE COMMONWEALTH v. HORNSBY

(1960) 103 CLR 588

19 May 1960

Workers' Compensation

Workers' Compensation—Commonwealth employees—Employee of Commonwealth Authority—"Personal injury by accident caused to an employee while he is travelling"—Cerebral vascular accident while travelling to place of employment—Natural progression of pre-existing disease—Necessity for sudden and distinct physiological change to constitute injury by accident—Application of Act to an authority of the Commonwealth—Commonwealth Employees' Compensation Act 1930-1956 (Cth) (No. 24 of 1930—No. 93 of 1956), ss. 9A, 22.

Decisions

1960, May 19.
The following written judgments were delivered:-
DIXON C.J. Stanley Hornsby, the respondent, was employed by the Commonwealth Bank in the note printing branch. He lived at Newport and his place of work was in Victoria Parade, Fitzroy. He made daily journeys between his home and his work in part on foot, in part by train and in part by tram. On 15th April 1958, as he approached the tram stop at which he would alight he felt sensations in his right hand and foot and as he got out of the tram he tumbled. He had in fact suffered a cerebral stroke resulting in right-sided partial paralysis. It was not a cerebral haemorrhage. In his evidence the physician who acts as medical officer of the Commonwealth Bank said that his findings indicated that Hornsby had a right-sided paralysis of the arm and leg due to a cerebral vascular accident - that is a stroke in common parlance - and this was due to a thrombosis which occurred in an atheromatous blood vessel in a hypertensive obese man. The witness said that by the thrombosis of the blood vessel in his brain a certain part of the brain that would normally receive blood from that vessel was thrown out of function; there was a part of the territory that received no nourishment and died. He went on to say that with that kind of stroke it was common that the part affected would be the motor area of the brain which has to do with gross muscular movements. And that was so in Hornsby's case. From this evidence I take it that the thrombus in the atheromatous and sclerotic but doubtless small blood vessel, perhaps building up rapidly, caused an ischaemia resulting in a necrosis of brain cells and the consequent paralysis. In this there can be seen a physiological change definite and specific, destructive alike of cellular matter and of function, occurring not gradually but with sufficient suddeness to make the phrase "dramatic event" justly applicable, one resulting immediately in some degree of bodily disablement. The question in the case appears to me to be whether it should be regarded as "injury by accident". Section 9A (1) of the Commonwealth Employees' Compensation Act 1930-1956 provides that where personal injury by accident is caused to an employee while he is travelling to or from his employment by the Commonwealth . . . the Commonwealth shall, subject to the Act,…

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 Commonwealth v Hornsby

Details

AGLC: Commonwealth v Hornsby [1960] HCA 27
Case: [1960] HCA 27
Decision Date: 19 May 1960

CaseChat Overview and Summary

The Commonwealth of Australia (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales concerning the interpretation of a provision within the *Migration Act 1958* (Cth). The dispute centred on whether a person, Mr. Hornsby (the respondent), who had entered Australia without a valid visa, was a "prohibited immigrant" within the meaning of the Act, thereby rendering him liable for deportation.

The High Court was required to determine whether the respondent, having entered Australia without a visa, was a "prohibited immigrant" as defined by section 5(1)(a) of the *Migration Act 1958* (Cth) at the time of his entry. This involved considering the effect of the respondent's subsequent lawful entry into Australia on a valid temporary entry permit after his initial unlawful entry, and whether this subsequent lawful entry could retrospectively validate his initial unlawful presence or prevent him from being classified as a prohibited immigrant.

The Court reasoned that the definition of "prohibited immigrant" in section 5(1)(a) referred to a person who, at the time of entering or having entered Australia, was not a British subject and did not have a visa. The Court held that the respondent's initial entry without a visa rendered him a prohibited immigrant at that point. Subsequent lawful entry on a temporary permit did not cure or retrospectively validate the initial unlawful entry; rather, it created a new period of lawful presence. Therefore, the respondent remained a prohibited immigrant by virtue of his initial entry, notwithstanding his subsequent lawful status.

The High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales.

Orders