Favelle Mort Ltd v Murray

[1976] HCA 13

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Stephen, Mason and Jacobs JJ.

FAVELLE MORT LTD. v. MURRAY

(1976) 133 CLR 580

1 April 1976

Workers' Compensation (N.S.W.)

Workers' Compensation (N.S.W.)—Injury—Statutory definition including disease contracted in course of employment to &hich employment a contributing factor—Employee sent by employer to foreign company to be on continuous call as supervisor of cranes—Viral meningo-encephalitis contracted—Whether injury within ordinary meaning of term—Whether disease to &hich employment a contributing factor—Workers' Compensation Act, 1926 (N.S.W.), s. 6 "Injury".

Decisions

1976, April 1.
The following written judgments were delivered: -
BARWICK C.J. In September 1968 the respondent, Terence Murray, a project engineer employed by the appellant, Favelle Mort Ltd., was sent from Sydney to New York, to work as a troubleshooter on call at all times, supervising the setting up and functioning of eight of its cranes which had been specially designed for use on the construction of the World Trade Centre building in New York. He was also called upon to service other cranes which the appellant had supplied to American clients. Prior to his departure the respondent had been in good health but, upon his return to Sydney in December 1969, he was ill: it was diagnosed that he had contracted viral meningo-encephalitis; that is to say, that he had been attacked by a virus and, as a consequence, he had developed meningo-encephalitis. This attack has not proved fatal: but he has suffered and is still suffering serious consequential disabilities. (at p582)

2. In the course of making an award in favour of the appellant in an application by the respondent for worker's compensation, Judge Langsworth, the chairman of the New South Wales Workers' Compensation Commission, made the following findings:
1. That the respondent had proved, on the balance of probabilities, that he contracted the disease before returning to Sydney on the morning of 13th December 1969.
2. That the disease was meningo-encephalitis due to an unidentified virus and was not due to herpes simplex.
3. That his employment with the appellant while absent from Sydney was continuous.
4. That the respondent contracted the viral disease whilst in the course of his employment.
5. That the contraction of meningo-encephalitis stemming from exposure to viral infection is a common risk in both Australia and the United States of America.
6. That there was no evidence that the employment especially exposed him to risk of viral infection.
7. That there was no evidence upon which it could be shown that his employment abroad, including the travelling to and from Sydney, was a contributing factor to the contraction of the disease. The learned chairman held that the meningo-encephalitis did not come within the statutory definition of "injury" as set out in s. 6 of the Worker's Compensation Act, 1926 (N.S.W.), as amended ("the Act"), which provides:

' "Injury" means personal injury arising out of or in the course of employment, and includes - (a) a disease which is contracted by the worker in the course of his employment whether…