Kandos Coomber Colliery Co Ltd v Bromwich

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.