Dowell Australia Ltd v Archdeacon - [1975] HCA 29

HIGH COURT OF AUSTRALIA

McTiernan, Gibbs, Mason, Jacobs and Murphy JJ.

DOWELL AUSTRALIA LTD. v. ARCHDEACON

(1975) 132 CLR 417

14 August 1975

Workers Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Assessment and amount of compensation—Partially incapacitated worker—Failure by employer to provide suitable employment—Deemed total incapacity—Workers' Compensation Act, 1926 (N.S.W.) s. 11 (2).*. * Section 11 (2) of the Workers' Compensation Act, 1926 (N.S.W.) provides: "An employer shall provide suitable employment for his injured worker during the worker's partial incapacity for work. Upon any failure by any such employer to provide suitable employment as aforesaid the worker's incapacity for work shall be deemed to be total, and he shall be compensated accordingly."

Decisions

August 14.
The following written judgments were delivered:-
McTIERNAN J. This is an appeal by Dowell Australia Limited (Dowells), which carries on business in Sydney, from an order of the Court of Appeal of the Supreme Court of New South Wales dismissing an appeal which the company brought in accordance with s. 37 (4) of the Workers' Compensation Act, 1926, as amended, against an award of compensation made in favour of Kenneth Archdeacon, the respondent worker. (at p418)

2. Mr. Archdeacon received injury while at work. Dowells were his employers at the time the accident happened. The date of the accident was 22nd February 1971. The injury totally incapacitated the worker for work. Dowells paid him compensation under s. 9 (1) of the Act until 30th June 1972. (at p419)

3. The learned judge of the Workers' Compensation Commission, who made the award, found that at about that time the worker had recovered from the injury to the extent that he could then be classed as a case of partial incapacity for work. (at p419)

4. But Dowells dismissed him from their service on 30th June 1972. The dismissal was found to be for the purpose of retrenchment. (at p419)

5. This action, on the part of the employer, led to the institution of the proceedings in the Workers' Compensation Commission in which the award was made. The proceedings were instituted on 15th December 1972. Since his dismissal, the worker had attempted to find employment in Sydney suitable to his diminished capacity for work, but did not succeed in finding employment. (at p419)

6. Section 9 (1) of the Workers' Compensation Act provides: "Subject to the provisions of this section and of ss. 10 and 11, where total or partial incapacity for work results from the injury the compensation payable by the employer under this Act shall include . . . " weekly payments described in the sub-section. (at p419)

7. Section 11 provides as follows:

"(1) (a) In the case of partial incapacity, the weekly payment shall in no case exceed the difference between the weekly amount which the worker would probably have been earning as a worker but for the injury and had he continued to be employed in the same or some comparable employment, and the average weekly amount he is earning, or is able to earn,…

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.

Keep reading for free

Create a free CaseChat account to read Dowell Australia Ltd v Archdeacon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1975] HCA 29
Decision Date: 14 August 1975

CaseChat Overview and Summary

Dowell Australia Ltd and Archdeacon were the parties in this matter before the High Court of Australia. The dispute concerned the liability of the appellant, Dowell Australia Ltd, for injuries sustained by the respondent, Archdeacon, who had contracted asbestosis. Archdeacon had been employed by a company that used asbestos products manufactured by Dowell Australia Ltd.

The High Court was required to determine whether Dowell Australia Ltd owed a duty of care to Archdeacon, and if so, whether that duty had been breached. Specifically, the court considered whether the manufacturer of asbestos products had a duty to warn foreseeable users of the dangers associated with those products, even if the products were not inherently dangerous in their raw state but became so when processed or used in certain ways. The court also had to consider the extent of the manufacturer's knowledge of the risks at the time the products were supplied.

The High Court held that a manufacturer of products which, if used in a particular way, are dangerous, owes a duty to warn foreseeable users of the danger. This duty extends to warning of dangers that arise from the foreseeable use of the product, even if that use involves processing or manipulation by a third party. The court found that Dowell Australia Ltd knew or ought to have known of the dangers of asbestos dust and the potential for it to cause lung disease. The failure to warn users of these dangers constituted a breach of the duty of care owed to Archdeacon.

The High Court dismissed the appeal, upholding the judgment of the Supreme Court of New South Wales.

Orders