From the year 1941 until 25 August 1955 the plaintiff employed a worker who in such employment was from time to time exposed to and inhaled into his lungs injurious particles of material due to the nature of his employment with the plaintiff and by a gradual process contracted the disease of silicosis, and on or about 30 October 1956 instituted a claim for compensation against the plaintiff. The plaintiff apparently had been his only employer. The worker instituted a claim for compensation accompanied by a certificate given by a Dr. Charles W Wilson who certified that the worker was on 23 June 1956 suffering from silicosis and was thereby disabled from earning full wages at the work at which he was employed by the plaintiff. The worker died on or about 24 May 1957. His widow proceeded to prosecute the claim he had made and caused a further claim to be filed with the Workers Compensation Board for an award for herself and her three children. The Board made an award against the plaintiff of 350 pounds and 10 guineas costs in respect of the worker's claim and of 2480 pounds and funeral expenses (amounting to 14 pounds) and costs (amounting to 141 pounds 13s.) in respect of the widow's claim. The plaintiff has paid these sums and also the sum of 26 pounds 5s. his solicitor's costs of and incidental to these applications and awards. He seeks in the present action to recover the amount which he has so paid from one or the other or from both the two defendants.

No suggestion was made before me that the awards against the plaintiff were not perfectly proper or that the whole of the payments so made by it would not be recoverable from one or other of the defendants, but counsel for each of them submitted that the other defendant was alone liable.

S12(1) of the Workers Compensation Act 1958 provides: "Where (a) a medical practitioner certifies that a worker is suffering from a disease and is thereby disabled from earning full wages at the work at which he was employed...and the disease is due to the nature of any employment in which the worker was employed at any time prior to the date of disablement, then...the worker or his dependants shall be entitled to compensation under this Act as if the disease were a personal injury arising out of or in the course of that employment and the disablement shall be treated as the happening of the injury."

S3 provides, inter alia: "'Disease' includes any physical or material ailment disorder defect or morbid condition whether of sudden or gradual development and also includes the aggravation acceleration or recurrence of any pre-existing disease as aforesaid."

Mr. Murphy, who appeared for the plaintiff, argued that both defendants were liable to indemnify the plaintiff since the worker had either first contracted the disease due to his employment by the plaintiff during the time covered by the insurance of the first-named defendant or at any rate the disease had been aggravated by his employment during such employment, and that his disease had been further aggravated by his employment during the year covered by the insurance of the second-named defendant.

Mr. Griffiths, for the first-named defendant, submitted that the second-named defendant was alone liable to indemnify the plaintiff. The reason for this he said lay in the words of s12(1) of the Workers Compensation Act 1958, "the disablement shall be treated as the happening of the injury". The injury, therefore, he argued must be treated as having been sustained on 23 June 1956 and was in the period covered by the insurance of the second-named defendant and not in the period covered by the insurance of the first-named defendant. That the section made the date of disablement the date of the injury, he argued, was sufficiently plain from the words of the section and was supported by the judgment of the House of Lords in Blatchford v Staddon and Founds, [1927] AC 461, and the judgment of the Court of Appeal in Ellerbeck Collieries Ltd v Cornhill Insurance Company Ltd, [1932] 1 KB 401.

It was of course obvious that in arguing thus he must meet a difficulty in the judgment of the Judicial Committee in Victoria Insurance Co. v Junction North Broken Hill Mine, [1925] AC 354. Mr. Griffiths attempted to get over this difficulty by arguing that, since that case was concerned with an appeal from a New South Wales decision and was concerned with a New South Wales statute, it was not binding on me and suggesting that between two judgments of merely persuasive authority I should choose to follow that of the House of Lords. I am not prepared to do this. The section of the Act, which the Judicial Committee was construing in Victoria Insurance Co. v Junction North Broken Hill Mine, is, so far as any question of construction goes, identical with s12(1) of the Workers Compensation Act 1958 and, in my opinion, I am bound to apply the same construction here. What the Judicial Committee determined was that s12(1) of the Workers Compensation Act 1916 of New South Wales had the effect that what was not an accident should be treated as if it were an accident for the purposes of the Act but not of making the date of the disablement or suspension the date of the happening of the accident.

I therefore propose to read s12(1) as making what was not the happening of any injury, namely, the disablement from earning full wages, the happening of an injury not as making the date of such disablement the date of the injury.

It remains for me to inquire whether there is material before me on which I can determine whether the injury by the disease of silicosis was sustained by the worker in the period covered by the contract of indemnity with the first defendant or in the period covered by the contract of indemnity with the second defendant or in both periods.

[His Honour then considered the evidence and held that the injury had been sustained by the worker in both the period covered by the first contract and the period covered by the second contract. He continued:--]

The result is that each of the defendants must indemnify the plaintiff for what he has been obliged to pay.

I was asked to reserve the question of what proportion of such payments each of the defendants should pay. I said I would hear counsel for the defendants and I will do so, but I may say that I do not know what authority I have to deal with such a matter.

The plaintiff will, of course, be entitled to an order for his costs against both defendants, but I think it will be convenient to delay making any formal order until I have heard counsel for the two defendants on the point on which I have agreed to hear argument.

Solicitors for the plaintiff: Alan Wainwright and Co.

Solicitor for the first-named defendant: Thomas F Mornane, Crown Solicitor.

Solicitors for the second-named defendant: Lander and Rogers.