Kandos Coomber Colliery Co Ltd v Bromwich - [1948] HCA 43

KANDOS COOMBER COLLIERY COMPANY

RESPONDENT, BROMWICH

RESPONDENT. APPLICANT, Workers' Compensation-Injury-Partial incapacity due to employment disease-

Pulmonary fibrosis-Total incapacity due to non-employment disease-Cardio- vascular degeneration-Worker simultaneously affected by both diseases at date of medical examination-Commission unable to find whether worker SO totally incapacitated before contracting employment disease-Compensation-Onus- Workers' Compensation Act 1926-1947 (N.S.W.) (No. 15 of 1926-No. 9 of Dec. 14. 1947), 88. 6, 7.

A worker claimed compensation under the Workers' Compensation Act 1926-1947 (N.S.W.), in respect of total incapacity alleged to be due, in April 1945, to (a) pulmonary fibrosis caused or aggravated by his work as a coal miner employed by a company, and (b) cardio-vascular degeneration accelerated thereby." In May 1947, a medical board certified that the worker suffered from (i) a partially (331%) incapacitating pulmonary fibrosis probably due to inhalation of mixed dusts, and (ii) a totally incapacitating cardio-vascular degeneration. The Workers' Compensation Commission found, inter alia, that in May 1947 the worker was affected simultaneously by both (i) pulmonary fibrosis, a disease contracted by a gradual process and in relation to which his 331% incapacity could be due to his employment, and (ii) cardio- vascular degeneration, a progressive disease not associated with his employ- when he ceased work in February 1945. There was not any finding that the worker had become totally incapacitated by a non-employment injury before sustaining pulmonary fibrosis.

Held, by Latham C.J., Starke and Dixon JJ. (Rich and Williams JJ. dissent- ing), that the worker had not brought himself within the provisions of the

77 CLR 372

Workers' Compensation Act 1926-1947 (N.S.W.), and was not entitled to compensation.

Decision of the Supreme Court of New South Wales (Full Court): Brom- wich v. Kandos Coomber Colliery Co. Ltd., (1948) 48 S.R. (N.S.W.) 532; 65 W.N. (N.S.W.) 243, reversed.

APPEAL from the Supreme Court of New South Wales.

On 25th August 1947, Henry Edward Charles Bromwich filed a claim under the Workers' Compensation Act 1926-1947 (N.S.W.) against Kandos Coomber Colliery Co. Ltd. for compensation under that Act. Bromwich alleged that on 13th April 1945 whilst working as a "groom shoeing horses underground and working in screen on surface" at the company's Kandos Coomber Mine he was totally incapacitated for work by pulmonary fibrosis caused by and/or aggravated by coal-mining work also cardio-vascular degeneration accelerated thereby " and he claimed compensation at the rate of £3 10s. per week from the company as from that date.

The company denied its liability to pay compensation to Brom- wich on the grounds, inter alia, that he did not suffer injury arising out of or in the course of his employment with the company and that he was not incapacitated as a result of injury arising out of or in the course of his employment with the company.

Bromwich was examined by a medical board appointed at his request by the Workers' Compensation Commission under S. 51 (4) of the Act. By its certificate dated 7th May 1947, the medical board reported that the finding of…

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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Details

Case: [1948] HCA 43
Decision Date: 14 December 1948

CaseChat Overview and Summary

The applicant, a coal miner, claimed workers' compensation for total incapacity allegedly caused by pulmonary fibrosis (an employment-related disease) and cardiovascular degeneration (a non-employment disease). A medical board found the applicant suffered from a 33.3% incapacitating pulmonary fibrosis and a totally incapacitating cardiovascular degeneration. The Workers' Compensation Commission found the applicant was simultaneously affected by both conditions and that his pulmonary fibrosis was related to his employment, but it could not determine whether the applicant was totally incapacitated by the non-employment disease before contracting the employment disease. The Supreme Court of New South Wales upheld the Commission's award of compensation.

The High Court was required to determine whether the applicant had discharged the onus of proving that his incapacity resulted from an injury within the meaning of the Workers' Compensation Act 1926-1947 (N.S.W.). Specifically, the court had to consider whether the applicant's total incapacity due to cardiovascular degeneration, a non-employment related disease, precluded him from receiving compensation for partial incapacity caused by pulmonary fibrosis, an employment-related disease, particularly when the onset of each condition and their respective contributions to incapacity were unclear.

A majority of the High Court (Latham C.J., Starke and Dixon JJ.) held that the applicant had not brought himself within the provisions of the Act and was not entitled to compensation. The court reasoned that the onus rests on the worker to prove that their incapacity resulted from an employment injury. In this case, the Commission was unable to find that the incapacity resulting from the pulmonary fibrosis arose at a time when the worker had any capacity for work, as it was equally possible that the cardiovascular degeneration had already caused total incapacity before the pulmonary fibrosis developed to a degree that caused partial incapacity. Therefore, the worker had not established that some incapacity resulted from the employment injury. The court distinguished this case from situations where the employment injury is the sole or primary cause of incapacity, or where the employer fails to prove that the worker had no capacity to lose due to a pre-existing condition.

The appeal was allowed, and the second question in the case stated was answered in the affirmative, meaning the Commission erred in law in making an award in favour of the applicant.

Orders