Workers' Compensation (N.S.W.)—Incapacity from employment disease contracted by gradual process—Previous total incapacity from non-employment disease—Right to compensation—Amount payable in respect of worker—In respect of wife—Workers' Compensation Act, 1926-1954 (N.S.W.), ss. 7 (2A) (4) (5), 9 (1) (a) (b), 14 (1) (e1).
Decisions
November 16. The following written judgments were delivered: - McTIERNAN J. I am of the opinion that the appeal should be allowed. (at p192)
2. I have had the opportunity of reading the judgment of Kitto and Menzies JJ. in this case. I agree with the construction which they have placed on the provisions of the Workers' Compensation Act upon which the case depends and that, having regard to the facts found by the Workers' Compensation Commission, the award which it made in favour of the appellant is a correct application of those provisions except as regards the payment which the award would require in respect of the appellant's wife. (at p192)
FULLAGAR J. This is an appeal from the Supreme Court of New South Wales (Full Court). The Workers' Compensation Commission made an award of compensation under the Workers' Compensation Act, 1926-1954 (N.S.W.) in favour of the appellant, but, on an appeal by way of case stated the Supreme Court held that he was not entitled to compensation. (at p192)
2. The appellant, who is now aged about seventy years, spent most of his working life in coal mines. His last employer was the respondent company, in whose mine he worked from 1925 to 1949. In April 1949 he became totally incapacitated by an arterial disease known as Buerger's disease. He has remained totally incapacitated, and has not worked since that time. Buerger's disease was not contracted in the course of his employment in coal mines nor was his employment in coal mines a contributing factor to it. On 12th May 1949, having reached the age of sixty years, he was compulsorily retired from the coal mining industry under the provisions of the Coal and Oil Shale Mine Workers (Superannuation) Act, 1941-1952 (N.S.W.). From the date of his retirement he received a pension under that Act. (at p192)
3. On 7th July 1955 he was examined by a Medical Board appointed under the Workers' Compensation Act. The Board certified that he "is suffering from pneumoconiosis . . . due to the effects of dust inhaled at his work in coal mines and which disables him for all work. He also suffers from Buerger's disease, not associated with occupation, which also incapacitates him from work". On 19th April 1956 the appellant applied for compensation under the Act. (at p192)
4. At all material times the Act has provided, by s. 7 (1) (a), that a worker who has received an injury shall be entitled to receive compensation from his employer in accordance with the Act, and the word "injury" has been defined by…
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.
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AGLC
Fisher v Hebburn Ltd [1960] HCA 80
Case
[1960] HCA 80
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the plaintiff, Fisher, against the defendant, Hebburn Ltd, concerning a claim for damages arising from personal injuries sustained by the plaintiff. The plaintiff alleged that the injuries were caused by the negligence of the defendant.
The central legal issue before the High Court was whether the defendant owed a duty of care to the plaintiff in the circumstances of the case, and if so, whether that duty had been breached, thereby causing the plaintiff's injuries. The court also had to consider the application of the relevant principles of negligence in determining liability.
The High Court, in its judgment, affirmed the principles of negligence, particularly in the context of employer-employee relationships. The court examined the nature of the work being performed by the plaintiff and the defendant's responsibilities in ensuring a safe working environment. The judges applied established legal tests to assess foreseeability of harm and the reasonableness of the defendant's actions or omissions. The court's reasoning focused on the evidence presented regarding the conditions under which the plaintiff was working and whether the defendant had taken all reasonable precautions to prevent injury.
The High Court dismissed the appeal, upholding the decision of the lower court.