METROPOLITAN COAL CO, LTD Vs. JACOB PYE

JUDGEMENT

(1.) This is an appeal from a decision of the High Court of Australia reversing a decision of the Supreme Court of New South Wales on a case stated under the provisions of the Workers' Compensation Act 1926-1929 S.37 (4) at the request of the appellant company, by the Workers' Compensation Commission of New South Wales. The only question for determination is whether an applicant for compensation under the Act must in order to establish his claim not only prove that he has contracted a disease arising out of and in the course of his employment, but go on to prove that it was not caused by silica dust (in which case the employer would not be liable)or whether it suffices for him to prove the first proposition only, leaving it to the employer to show, if he can, that the disease was due to silica dust. It is a short though important question of construction relating to the onus of proof. The directly relevant sections are as follows : Section 7 (1).-A worker who has received an injury whether at or away from his place of employment, (and in the case of the death of the worker, his dependants) shall receive compensation from his employer in accordance with this Act. Section 6 (1) -In this Act, unless the context or subject-matter otherwise indicates or requires.....'Injury' means personal injury arising out of and in the course of the employment and includes a disease so arising whether of sudden onset or of such a nature as to be contracted by gradual process other than a disease caused by silica dust. Section 5.- Nothing in this Act shall affect the operation of the Workmen's Compensation (Silicosis) Act 1930, as amended by this Act . . .

(2.) By the Workmen's Compensation (Silicosis) Act 1920, as amended by the Workers Compensation Act 1926-1929 and by the Scheme made by the Minister there under, provision is made for the payment of compensation by the employers of workmen in specified industries and processes or groups of industries and processes involving exposure to silica dust who suffer death or total disablement or partial disablement from diseases of the pulmonary or respiratory organs caused by exposure to silica dust. "Coal mining" is not included in the industries or processes or groups of industries or processes specified in such Act or the Scheme made thereunder. The appellant company owns and works coal-mines situated in the State of New South Wales, and the respondent was formerly employed by the appellants as miner in one of their coal-mines.

(3.) On 6 March 1933, the respondent filed an application for compensation which was heard by the Commission, being the appropriate tribunal under the Acts, on 11 and 12 May 1933. On behalf of the respondent there was put in evidence a certificate by a Medical Board (which by S. 51 (3) of the Act is conclusive evidence as to the matter certified) stating that the respondent had "a partially incapacitating pulmonary fibrosis which could be due to coal dust." The respondent also called two radiologists, who had made X-ray examinations of his lungs, and three other medical men. The result of their evidence was that the radiograph showed pneumonosconiosis, there being a mottling on the lungs which meant fibrosis and fine particles of dust, and that the condition observed might be brought about by silica dust or other dusts. The appellants called no evidence and submitted that there was no case to answer. On 12 May 1933 the Commission found : "(1) that the incapacity for work of the applicant" (the respondent herein) "since 27 April has been and still is partial ; (2) that the applicant's partial incapacity for work is due to pulmonary fibrosis and results from the inhalation of dust in the respondent's" (the appellant herein) coal mine ; (3) that the disease which partially incapacitates the applicant for work is of such a, nature as to be contracted by a gradual process and his employment with the respondent was employment to the nature of which the disease was due ; (4) that on the evidence before it the Commission is not satisfied that the partial incapacity for work of the respondent results from a disease caused by silica dust."