Maksymczuk v Gillespie Bros Pty Ltd

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appeal concerned a claim for workers' compensation brought by Parania Maksymczuk, on behalf of herself and her two children, following the death of her husband, Wasyl Maksymczuk. The deceased, an employee of Gillespie Bros. Pty. Ltd., was killed by an electric train while on a periodic journey between his place of employment and his home. The respondent employer contested the claim, alleging the death occurred during a substantial interruption or deviation from the journey for reasons unconnected with employment.

The central legal issue before the High Court was the onus of proof regarding the proviso to section 7(1)(b) of the *Workers' Compensation Act 1926-1954* (N.S.W.). This proviso allows compensation even if an injury occurs during a substantial interruption or deviation from a periodic journey, provided that the risk of injury was not materially increased by that interruption or deviation. The Workers' Compensation Commission had held that the onus lay on the employer to prove that the risk of injury was materially increased, while the Supreme Court had determined that the onus rested on the applicant seeking compensation.

The High Court, in dismissing the appeal, reasoned that the proviso to section 7(1)(b) operates as an exception that imposes liability on the employer. Applying ordinary principles of onus of proof, the Court held that the burden lies on the party seeking to rely on such a condition to establish it. Therefore, the applicant for compensation bore the onus of proving that the risk of injury was not materially increased by the substantial interruption or deviation from the journey.

The appeal from the Supreme Court of New South Wales was dismissed with costs.