Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen

The parties to this appeal were Darling Island Stevedoring & Lighterage Co Ltd (the appellant) and Natalie Jacobsen (the respondent), who brought proceedings on behalf of herself and her infant dependants. The dispute concerned a claim for workers' compensation following the death of her husband, Arthur Edward Jacobsen, who sustained fatal injuries while travelling on a daily journey between his home and place of employment. The appellant denied liability, arguing that the injury was not sustained on a qualifying journey or, alternatively, that it was sustained due to the deceased's own default or wilful act. The High Court of Australia heard the appeal from the Supreme Court of New South Wales.

The central legal issue before the High Court was the onus of proof regarding the deceased worker's "own default or wilful act" under section 7(1)(b) of the *Workers' Compensation Act 1926-1942* (NSW). Specifically, the court had to determine whether it was incumbent upon the dependants to prove that the injury was received *without* the worker's default or wilful act, or whether the employer bore the burden of proving that the injury *was* caused by the worker's default or wilful act.

A majority of the High Court, comprising Rich, Dixon, McTiernan, and Williams JJ., held that the onus of proving that a worker received an injury by reason of "his own default or wilful act" lies upon the employer. The reasoning focused on the substance of the provision rather than its form. The majority considered that the requirement of absence of default or wilful act was not a primary condition for establishing the right to compensation, but rather a special exception or defence that the employer must prove to defeat a claim. This interpretation was supported by the general principle that fault or wrongdoing is not presumed and must be proven by the party alleging it, and that the burden of proving a negative is generally not imposed on the claimant. Starke J., dissenting, held that the wording of the section placed the onus on the worker or dependants to prove the absence of default or wilful act.

The High Court, by majority, dismissed the appeal and affirmed the decision of the Supreme Court of New South Wales. Consequently, the Workers' Compensation Commission's award in favour of the appellant company was overturned, and the matter was to proceed on the basis that the employer bore the onus of proving the deceased's default or wilful act.