arily absent from place of employment-Nearby river-Swimming therein by youth-Not good swimmer-River-Volume and velocity of water increased by rain-Youth drowned Voluntarily subject himself to any abnormal risk of injury Workers' Compensation Acts 1926-1951 (N.S.W.) (No. 15 of 1926- No. 25 of 1951), S. 7 (1) (e). *

A youth, who on several occasions during lunch recesses had left his place of employment and had gone to a nearby river to bathe, similarly proceeded on the particular occasion accompanied by two other youths. By reason of recent rain the river had risen about eight inches and was flowing more swiftly. The youth, who was not a good swimmer, in making his way back from a sandbank to which he had waded, took a course, SO far as appeared, by an error of judgment, which involved him in difficulties, and was carried beyond his depth and drowned.

Held, by Dixon C.J. and Taylor J. (Webb J. dissenting), that upon the evidence it was open to the Workers' Compensation Commission to find that the deceased had not voluntarily subjected himself to an abnormal risk of injury within the meaning of S. 7 (1) (e) (ii) of the Workers' Compensation Acts 1926-1951 (N.S.W.).

Held, further, by Dixon C.J. and Taylor J., that under S. 7 (1) (e) of the Workers' Compensation Acts 1926-1951 the burden rests upon an applicant to prove that the conditions of liability laid down by par. (e), except the absence of serious and wilful misconduct, were fulfilled.

Decision of the Supreme Court of New South Wales (Full Court) affirmed. The provisions of S. 7 (1) (e) of the Workers' Compensation Act 1926-1951 are set out in the judgment of Dixon C.J. and Taylor J. at p. 7 (post).

90 CLR 2

APPEAL from the Supreme Court of New South Wales.

In an application to the Workers' Compensation Commission for determination dated 4th June 1952, the applicant, Bertha Stapley, of 112 Smith Street, Penrith, claimed compensation under the Workers' Compensation Acts 1926-1951 (N.S.W.) from the respond- ent, George M. Taylor, of 62 Station Street, West Ryde, builder, for the death of her son, Thomas Stapley, aged sixteen years, upon whom she was partially dependent and who was employed by Taylor as a carpenter, the said death occurring on 11th January 1952 at Agnes Banks where, whilst swimming in the Nepean River during a recess, the deceased was drowned.

The respondent by his answer denied his liability to pay com- pensation on the grounds, inter alia, (i) that the injury to the deceased worker was not caused by injury in the course of his employment and that he voluntarily submitted himself during absence from his place of employment to an abnormal risk; and (ii) that the injury to the deceased worker was not caused by an injury in the course of his employment.

The following facts were proved or admitted…

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.

Continue reading Taylor v Stapley

Details

AGLC: Taylor v Stapley [1954] HCA 12
Case: [1954] HCA 12
Decision Date: 13 April 1954

CaseChat Overview and Summary

This case concerned an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appeal arose from an application for workers' compensation made by Bertha Stapley, the mother of Thomas Stapley, a sixteen-year-old trainee carpenter. Thomas Stapley had been temporarily employed by George M. Taylor, a builder, and tragically drowned in the Nepean River during his lunch break on 11 January 1952. The employer denied liability, arguing that the injury was not caused in the course of employment and that the deceased had voluntarily subjected himself to an abnormal risk.

The legal issues before the High Court were whether the Workers' Compensation Commission was entitled to find that the deceased had not voluntarily subjected himself to an abnormal risk of injury, as required by section 7(1)(e)(ii) of the *Workers' Compensation Acts 1926-1951* (N.S.W.), and whether the burden of proof rested on the applicant to establish the conditions of liability under that section. The deceased, a poor swimmer, had gone swimming in the Nepean River with colleagues during his lunch recess. The river was swollen and flowing more swiftly due to recent rain. While wading back from a sandbank, the deceased entered deeper water, got into difficulties, and drowned.

Dixon C.J. and Taylor J. held that the question of whether a risk is "abnormal" is largely a question of fact and degree, to be determined by the Workers' Compensation Commission. They reasoned that the deceased had intentionally gone to bathe in the river, but his decision to cross at a point that led him into deeper water appeared to be an error of judgment rather than a voluntary submission to an abnormal risk. The Court affirmed that the burden of proof for the conditions of liability under section 7(1)(e), excluding serious and wilful misconduct, rests with the applicant. They concluded that it was open to the Commission, on the evidence presented, to find that the deceased had not voluntarily subjected himself to an abnormal risk, and therefore the appeal should be dismissed. Webb J. dissented, finding that on the evidence, the Commission was not entitled to make such a finding.

The High Court dismissed the appeal with costs, affirming the decision of the Supreme Court of New South Wales.

Orders