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[1932] HCA 30
High Court of Australia
1932-07-01
McTiernan JJ
Original judgment source is linked above.
H.C. or A. to the taxpayer's actual expenditure upon the purpose for 1932.
she receives the income, I shall do no more than remit the as to the Commissioner.
Feperab Appeal allowed with costs. Assessment set asi Be 2 and remitted to the Commissioner of Tax
TAXATION. mae Solicitors for the appellant, Blake & Riggall. Foll, o> Solicitor for the respondent, W. H. Sharwood, Crown Solicitor
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
H.C. or A. Workers' Compensation - Injury - Disease - Contracted by gradual process - M
1932, brought about or contributed to by employment during twelve months
baa ar disablement - Necessity of proof - Disease incidental to employment in que Sypwey, Cause - Condition of worker - Certificate of Medical Board - Conelusi April 6,7; Case stated to Supreme Court subsequent to award - Appeal therefrom to Hi
Aug. 4. Court - Workers' Compensation Act 1926 (N.S.W.) (No. 15 of 1926), secs. 6*
san Duty (1), (4), 374, 51 (3)* - The Constitution (63 & 64 Vict. c. 12), sec. 73 , Rich,
Starke, Dixon Where a worker has contracted a disease which is of such a nature as and MeTiernan
contracted by a gradual process, it is not necessary for him, on an appli for compensation in accordance with sec. 7 (4) of the Workers' Co Act 1926 (N.S.W.), to establish that the disease was actually brought
*The Workers' Compensation Act his place of employment, and to. 1926 (N.S.W.), provided : - By sec. 6; the employment was a contri "Injury? means personal injury, and factor, but does not include a d includes' a disease which is contracted caused by silica dust." By see. by the worker in the course of his '(1) A worker who receives pet employment, whether at or away from injury . . . in the course
contributed to by the employment of the employer or employers during the twelve months preceding his disablement : it is enough if the disease is incie dental to that class of employment so that it can be attributed to service therein,
Harmey v. Board of Fire Commissioners of New South Wales, (1927) 1 W.C.R. (N.S.W.) 247, disapproved.
'The Workers' Compensation Commission, under sec. 51 of the Workers Compensation Act 1926 (N.S.W.), referred to a medical board questions as to The Board, in its certificate, answered the questions and also expressed its opinion as to the cause of the applicant's condition. 'The Supreme Court held that the cause of the condition did not come within the scope of the questions referred to the Board and, therefore, the Commission was not bound by that part of the certificate. On appeal to the High Court,
Held, by Rich, Starke, Dixon and McTiernan JJ. (Gavan Duffy C.J. dissenting), that the Board's certificate, stating the condition and the cause of that condition, was a certificate as to the condition of the applicant within the meaning of sec. 51 of the Act, and bound the Commission.
the condition of an applicant, and his fitness for employment.
Upon a preliminary objection to the hearing of the appeal to the High Court, on the ground that the decision of the Supreme Court upon a case stated by the Workers' Compensation Commission under see. 37 of the Workers' Compensation Act 1926 (N.S.W.) was merely an advisory or consultative opinion, and "judgment, decree, order or sentence" within the meaning of sec. 73 of the Constitution from which an appeal would lie:
Held, by Rich, Starke, Dixon and McTiernan JJ., that a decision of the Supreme Court, given after the making of an award by the Commission, was
not an advisory or consultative opinion but was a final determination of the rights of the parties in the matter in which it was given, and an appeal would lie therefrom.
Decision of the Supreme Court of New South Wales (Full Court): Smith v. Mann, (1931) 48 N.S.W.W.N. 171, reversed.
In proceedings before the Workers' Compensation Commission of New South Wales, the applicant, Joseph Smith, claimed compensa- tion in respect of disablement from a disease, that is, lead-poisoning, arising, as he alleged, out of and in the course of his employment as
employment, whether at or away from his place ofemployment . . . shall receive compensation from his employer in accordance with this Act." "(4) Where the injury is a. disease which is of such a nature as to be contracted by a gradual process compensation shall be payable by the employer in
whose employment the worker is or who last employed the worker. Any employers who, during the twelve months preceding a worker's incapacity, employed him in any employment to the nature of which the disease was due, shall be liable to make to the employer by whom compensation is payable such
H.C. or A. a painter, of such a nature as to be contracted by a gradual
The respondents to the application were John Mann, who applicant's last employer, and Mossop & Cooper, W. R. J. Cox, H Seymour Ltd. and A. A. Decros, who were joined as being who during the twelve months previous to the date of incapacit employed the applicant in an employment to the nature of wl disease was alleged to be due. #
In his application the applicant: stated that he became incap tated by lead-poisoning on 6th July 1929, and he claimed comp tion as from that date until " certified fit." At the request of respondents the applicant was referred to a Medical Bo accordance with the provisions of sec. 51 of the Workers' tion Act 1926-1929 (N.S.W.), for a certificate as to his condition fitness for employment. The respondents subsequently d liability to pay compensation to the applicant, on the groun the alleged injury was not received by him in the course employment, and that the said employment was not a contrib factor in the contracting of the disease alleged in his parti On the matter coming on for hearing the Commission held that Medical Board's certificate, the terms of which appear be ov, not conclusive in favour of the applicant, but, after hearing ev
the applicant had not proved his case, and that he was not tated by injury received in the course of his employment which the employment with any of the five respondents
contributions as, in default of agree- ment, may be determined by the Commission." By sec, 37 (1): "No award, order or proceeding of the Com- mission shall be . . . liable to be challenged, appealed against, reviewed, quashed, or called in question by any Court of judicature, on any account whatsoever." By sec. 37 (4) (as amended by sec, 8 of Act No. 36 of 1929) : - When any question of law arises in any proceeding before the Commission, 'the Commission may of its own motion, and shall, if in the manner and within the time prescribed by rules any party to the proceeding so requests, state a case for the decision of the Supreme Court thereon. A case may be stated under this section, not- withstanding that an award, order,
direction or decision has been given by the Commission." 7 (7): "The d of the Court upon the hearing of ar case shall be binding upon mission and ae all bar) roceeding."" sec. 5
. - etl to matter is referred shall, in with rules made by the
necessary, which he is fit, and such othe tion as the Commission may Any such certificate . :
contributing factor. The applicant claiming that a question of H. ©. or A.
law had arisen, namely, whether the claim for compensation being for incapacity following on a disease which was of such a nature as to be contracted by a gradual process, it was material for the Commission to consider whether the applicant was incapacitated by a disease contracted in the course of his employment with the employers who last employed him, and to which the employment was a contributing factor, requested the Commission to state a case for the opinion of the Supreme Court under sec. 37 (4) of the Act. The Commission refused the request. The applicant then applied to the Supreme Court for a writ of mandamus requiring the Com- mission to state a case for the decision of the Court, which was granted: Hx parte Smith; Re Workers' Compensation Commission (a).
The case which was accordingly stated by the Commission for the decision of the Supreme Court was substantially as follows : -
It was not disputed that the applicant was suffering from a disease of such a nature as to be contracted by a gradual process. The applicant gave evidence that his age was fifty-eight years, and that he had been engaged in the painting trade for forty-four years. His work as a painter included whitewashing, kalsomining, burning-off, sand-papering, and rubbing down old paintwork. In painting he had used dry colours, but his experience had been mostly with white lead. Applicant stated that he had worked a total of thirty-three weeks during the twelve months preceding his disablement: the details of such employment being, from 6th July to 8th November 1928, employed by the respondent Mossop & Cooper, burning-off and painting indoors and out of doors, using ordinary paint; from 16th November to 30th November 1928, employed by the respondent Decros, external painting with premixed paint, and sand-papering ; 3rd December 1928 to 11th January 1929, employed by the respon- dent Cox, burning-off and used white lead, priming and mill white ; 19th February to 4th April 1929, employed by the respondent H. T. Seymour Ltd., sand-papering, burning-off, and used paint containing white lead; from 29th June to 5th July 1929, employed by the
respondent John Mann, mixing paint, painting and s but left work feeling ill.
About six weeks prior to the filing of the application for ; mination by the Commission, application was made on behalf respondent Mann for the examination of the applicant by a Board. Following the usual practice, the applicant's me industrial histories were taken by an officer of the Comm an order of reference was made referring the applicant to two who had been appointed "a Medical Board, to certify (a) as condition of the above named worker ; and (6) as to his fit employment, specifying where necessary the kind of emplo for which he is fit." No other question or matter was referre the Medical Board. The certificate of the Medical Board, in evidence, was as follows : - *' Medical examination of Smith. - Employer: John Mann. - We hereby give you n having duly examined the said Joseph Smith . . . in ance with the order of the Commission we certify as follo Condition of the Worker. - Complains of loss of power in right and arm and right leg. Presents signs of right sided plegia. B.P. 200/110. Coast Hospital records 17/7/1929: power right side of face, right upper and right lower limb. punctate basophilia. W.R. - ve. Urine, no albumin; lead in ur °08 mgm. per litre. B.P. 160/120. His fitness for e specifying where necessary the kind of employment for wl he is fit: Unfit. And express an opinion as to whether o what extent incapacity is due to the injury: See below. - facts as to the employment alleged by the worker, and on whi this certificate is granted, are as follows: - We are of opit that the worker has right sided hemiplegia resulting from thrombosis following arteriosclerosis and nephritis. We the opinion that his condition is one of degenerative disease. worker whose exposure to lead dust has been marked one ca dissociate his disease from his work which has been in our either the cause or aggravation of his disease - Dated this 31 of December 1929. - Charles Badham, Leslie W. Dunlop, } Board." (The printed order of reference and certificate forms us were those prescribed in Div. IV. of the Rules made un
Workers' Compensation Act 1926-1927.) The Commission considered 1. ©. oF A.
the Medical Board's certificate to be conclusive evidence of (a) the condition of the worker, and (6) his fitness for employment.
The opinion expressed by the Medical Board that the applicant suffered from right sided hemiplegia resulting from cerebral throm- bosis following arteriosclerosis and nephritis, and that his condition was one of degenerative disease was not disputed ; but allegations made on his behalf that he suffered from lead-poisoning, and that the arteriosclerosis and nephritis above mentioned were sequele of lead-poisoning were two of the matters in dispute before the Com- mission.
The Commission considered that questions for determination by it included the cause of the applicant's condition and whether his unfit- ness for employment was due to " injury " received in the course of his employment with any of the above mentioned respondents, and to which such employment was a contributing factor. In consider- ing the opinion expressed by the Medical Board that "in a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work," the Commission interpreted " work" to mean applicant's work as a painter during the last forty-four years.
Three medical witnesses gave evidence to the effect that an examination of the applicant disclosed no signs specifically indicative of lead-poisoning, and that the examination of his gums with the aid of a lens did not reveal any sign of a blue line. Two of the medical witnesses agreed that it was possible that the applicant's work as a painter for forty-four years had been the cause of the aggravation of the condition which was now disabling him. The third medical witness stated that in his opinion the applicant was not susceptible to the action of lead, and his condition on examination was no different from that of a man with arteriosclerosis and nephritis who had not been exposed to lead ; in his opinion the applicant's association with lead was not in any way connected with his condition.
The Commission found that the applicant had not proved his case, and that he was not incapacitated by injury received in the course of his employment and to which his employment with any of the five respondents was a contributing factor.
The principal considerations which guided the Commission arriving at its finding were: - (a) There was no evidence of active lead-poisoning, such as (i.) punctate basophilia in
respondents ; or (iii.) blue line on his gums: (6) on applica ot medical history given in evidence before the Commission it was of opinion that the probability that his incapacity was due to sequela of lead-poisoning at the most was no more than equal to th probability that his incapacity was due to a pathological o dition unassociated with his work which could in any event him about the time that it did: (c) if the arteriosclerosis and nephritis from which the applicant suffered were sequel of le poisoning, as could be inferred by the opinion expressed by Medical Board, then the disease of lead-poisoning must ne have been contracted many years before his employment the respondents: and (d) the evidence did not establish that applicant's employment with any of the respondents either vated or accelerated the existing diseases from which he s
An award was prepared and settled in the following a "Having duly considered the matters submitted, thet
that the . . . applicant was not eae for work by au injury received in the course of his employment as a worker employed by the. . . respondents, that is to say, by a disease contracted
contributing factor. (2) The Commission, therefore, makes its award in favour of the respondents."
The questions of law submitted by the Commission for the d of the Supreme Court were as follows : -
(1) The Commission having referred the applicant worker to Medical Board, which it had appointed under the pro visions of sec. 51 of the Workers' Compensation Ad 1926-1927 to certify as to (a) the condition of the worker; and (6) his fitness for employment, specifying where necessary the kind of employment for which he is fit, and the Medical Board having certified as to (a) and (b)
and having in addition expressed in that certificate the following opinion, "In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease " - were the Commission and the parties bound to regard that opinion as conclusive evidence as to the cause of the applicant's condition ?
(2) The applicant worker, being incapacitated by a disease which is of such a nature as to be contracted by a gradual process, and having claimed compensation from his last employer - did the Commission err in law in considering (a) the cause of the gradually contracted disease which resulted in the applicant worker's incapacity for work ; (b) whether he contracted such disease in the course of his employment and the employment was a contributing factor thereto ; (c) whether his employment with his last employer - or failing proof of that, with any of the other respondents - aggra- vated his pre-existing condition and accelerated his incapacity for work, in order to find whether applicant was "a worker who received personal injury" in terms of sub-sec. 1 of sec. 7 of the above mentioned Act ?
(3) Having regard to the facts that the Commission, after having duly considered the matters submitted, was satisfied that the applicant was incapacitated by a disease which is of such a nature as to be contracted by a gradual process, but although he had worked in an employment to the nature of which lead-poisoning may be due, there was no evidence of active lead-poisoning ; and further that it had not been established that the conditions which incapacitated him were the sequel of lead-poisoning, or that his work since the commencement of the Workers' Compensation Act 1926 had been either the cause or the aggravation of the disease which incapacitated him - was the applicant worker entitled in law to be paid compensation under the pro- visions of the Workers' Compensation Act ?
(4) Whether, the Commission having referred the applicant to be examined by a Medical Board under sec. 51 of the
above mentioned Act and the said Medical Board h reported to the Commission as follows: " We are of | opinion that the worker has right sided hemiplegia resulti from cerebral thrombosis following arteriosclerosis an nephritis. We are of the opinion that his condition is one of degenerative disease. In a worker whose exposure lead dust has been marked one cannot dissociate his di from his work which has been in our opinion the cau aggravation of his disease," and the said Medical Board having certified accordingly - such certificate of such Me Board is conclusive evidence as to the matters so certified
(5) Whether, such certificate having been given by a Me Board under sec. 51 of the above mentioned Act, it is to the Commission to make a finding as to the wot condition or as to any other matter so certified to the certificate of the Medical Board.
(6) Whether, the claim for compensation being for incapa following on a disease which is of such a nature as to contracted by a gradual process, it is material to e whether the applicant is incapacitated by a dis contracted in the course of his employment with f employer who last employed him and to which the emplo ment was a contributing factor in determining whe applicant is entitled to be paid compensation under #l provisions of the above mentioned Act.
The Supreme Court answered questions 1 and 3 in the and did not see fit to make any answer to the other que Smith v. Mann (1).
From this decision the applicant now appealed to the High
Ingham, for the respondents. There is a preliminary objectio that in this matter no appeal lies to this Court. By secs. and 37 of the Workers' Compensation Act exclusive jurisdic is conferred upon the Commission to hear and determine 4 matters and questions arising under the Act, and the action decision of the Commission is final, subject only to the stating &
case on a question of law for the decision of the Supreme Court, in H- ©. or A.
which event such decision is, by sub-sec. 7 of sec. 37, made binding on the Commission and upon all parties to the proceedings. The matter was dealt with by the Supreme Court in a consultative capacity only, and the decision of the Court, not being a " judgment, decree, order or sentence "' within the meaning of sec. 73 of the Constitution, no appeal will lie therefrom (Ex parte County Council of Kent and Councils of Dover and Sandwich (1); Commonwealth v. Brisbane Milling Co. (2) ).
[Ricu J. referred to In re Knight and Tabernacle Permanent Building Society (3).]
That case must be read in the light of the decision in C. 7. Cogstad & Co. v. H. Newsum, Sons & Co. (4).
{Ricu J. If the Commission has the final duty of determining the application, is not the obtaining of the opinion of the Supreme Court an interlocutory matter in respect of which an appeal does not lie 2]
That aspect was dealt with by Bowen L.J. in In re Knight (3).
[Starke J. The Supreme Court "ordered" that the questions submitted be answered in a certain way: Would not an appeal lie from such order? (See Corporation of Peterborough v. Overseers of the Parish of Wilsthorpe (5).) |
There is no appeal, whether the proceedings are final or inter- locutory, if the original tribunal has power to determine the matter (Cogstad & Co. v. Newsum, Sons & Co. (4) ).
[Drxon J. referred to Tata Iron and Steel Co. v. Bombay Chief Revenue Authority (6).]
The case of Overseers of the Poor of Walsal v. Directors of the London and North Western Railway Co. (7) is distinguishable because the order there appealed against was made on a certiorari.
Miller, for the appellant. An appeal in this matter lies as of tight. Under sec. 37 of the Act a case may be stated notwithstanding the making of an order or of a decision by the Commission. Here
(4) (1921) 2 A.C. 528. (5) (1883) 12 Q.B.D, 1. (6) (1923) 39 TLR. 288, (7) (1878) 4 App. Cas. 30,
(1) (1891) 1 Q.B. (2) (1916) 21 C.L.R. (3) (1892) 2 QB. 6
H.C. ov A. the application for a case to be stated was made after the Commis
had made an award and had thereby discharged its duty.
Act provides that the decision of the Medical Board shall bi and conclusive, and, as the result of evidence contradictory to Medical Board's report having been admitted by the Supreme Co the appellant was refused compensation. In the circumstances decision of the Supreme Court was corrective and not m consultative. If the matter is interlocutory, special leave to appeal should be granted on the ground that the finding of the Mi Board was not accepted as final and conclusive. Leave should granted for the purpose of determining also whether the appell has to prove that his employment during the preceding months caused the condition which incapacitated him.
Gavan Durry C.J. The Court will reserve its decision on 1 preliminary objection. In the meantime the appeal will be heard on the merits.
immaterial whether employment with any of the respon contributed to such condition. The Commission was bound on the report of the Medical Board and, having regard to the of such report, it was not open for the Commission to say that | appellant did not suffer from lead-poisoning. The Medical B certificate was wholly a certificate as to condition, and the fact 1 some of the Board's statements appear in a wrong part of the
is immaterial: Where a disease is contracted by gradual process, I! is not necessary for the applicant for compensation to prove sec. 7 (4) of the Act that the particular employment during
preceding twelve months caused or contributed to the condition 4. ©. or A.
(W'Gowan v. Merry & Cunninghame Ltd. (1) ). oar [Drxon J. referred to Blatchford v. Staddon & Founds (2).] Serre
That case shows that it is not material to consider whether the Mie
last employment did or did not contribute to the condition complained of, but the certificate of the Medical Board is conclusive, on the face of it, that the particular employment which the Board was considering could not be dissociated from the appellant's condition. It was not necessary for the Board to say that the appellant had lead- poisoning. The word "injury" in the Act has a specific meaning, and was intended by the Legislature to cover three cases, namely, an accident in the general sense, a disease contracted suddenly, and a disease contracted by gradual process. The liability of the last employer is established, irrespective of length of employment or whether the employment contributed to the condition, so long as the work done was of the same nature as that to which the condition isattributable (Blatchford v. Staddon & Founds (2) ).
({McTrernan J. referred to Harmey v. Board of Fire Commissioners of New South Wales (3).]
The certificate of the Medical Board on the questions submitted to it, namely, as to the condition and fitness of the appellant, is final and conclusive and cannot be reviewed by the Commission or the Court (Short v. Parker (4) ). The certificate as given establishes the right of the appellant to compensation from the respondents. Alternatively, on the true interpretation of sec. 7 (4), the matter should be referred back to the Commission to determine whether the employment of the appellant during the forty-four years he was engaged in the industry caused or contributed to the condition which finally disabled him.
Ingham, for the respondents. In his claim for compensation the appellant alleged that the nature of the injury upon which he based his claim was lead-poisoning. The Medical Board certified only that he had arteriosclerosis, which is a condition common to any person above the age of fifty years. The appellant failed to show
(1) (1915) S.C. 34; 52Se.L.R. 30. (3) (1927) 1 W.C.R. (N.S.W.) 247. (2) (1927) A.C. 461. (4) (1926) 95 L.J. K.B, 849; 135 LT. 52
that such condition was attributable, in any way, to his ocew All the medical men who gave evidence stated that there y trace of lead-poisoning. The Commission was justified, in circumstances, in finding that the appellant had not establi that he had at any time suffered from lead-poisoning. The Medical Board's certificate should have been confined to answers to question specifically put by the Commission to the Board, and to the that the certificate exceeds such answers it should be disre (Walker v. Cadzow Coal Co. (1) ). The Board was not asked t express an opinion as to whether, and to what extent, the incapacity was due to the injury. The Board has, in addition to answé the specific questions submitted to it as to condition and fit and without being requested so to do, expressed opinions as to #1 cause of the injury. The certificate was as to a present conditior and not as to a past condition. As the certificate did not ce lead-poisoning the Commission was entitled to hear evidence as: whether the appellant had, or ever had suffered from, lead-poiso (Richard Evans & Co. v. Scahill (2) ). Upon the evidence b: it the Commission found that the appellant was not suffering Jead-poisoning, and it was not satisfied that he had ever suf from such poisoning, or that the condition of arteriosclerosis a been caused by lead-poisoning from which the appellant had suff (Starke J. referred to Docherty v. Archibald Russell Ltd. (3).]_ That case is distinguishable because there there was it medical evidence that the applicant concerned was suffering the injury complained of ; here there is no such evidence. Alth the case of Dean v. Rubian Art Pottery Ltd. (4) was in part overru by Blatchford v. Staddon & Founds (5), the former case was th authority followed up to the time of the passing of the Workers Compensation Act 1926, and it must be taken that the Legislat intended that the applicant had to show that the injury com) of was in part contracted in the employment of the employer s Even assuming that the condition of arteriosclerosis was due lead-poisoning, it would still be necessary to establish that it contracted wholly or in part whilst in the employ of the empl
(1) (1925) S.C. 395. (3) (1918) S.C. 115. (2) (1927) 137 LT. 161. (4) (914) 2 KB. 213. (5) (1927) A.C. 461.
against whom the claim is made (Harmey v. Board of Fire Commis- sioners of New South Wales (1) ). Blatchford v. Staddon & Founds (2) is not applicable, because under the relevant Act there were two schemes, which is not the position here. Sec. 7 (4) of the Act
does not create any new or additional responsibility. In brief the respondent contends (1) that the certificate does not certify lead- poisoning; (2) that it is necessary to show that the disease was contracted or aggravated whilst in the employment of the employer sued, and (3) the connection between the disease and such employer must be found by the Court and not by the Medical Board.
Miller, in reply. Walker v. Cadzow Coal Co. (3) is distinguishable because the person there concerned was found not to be suffering from a disease referable to his oceupation, which is different from the position here.
Gavan Durry C.J. In my opinion the appeal should be dismissed. T agree with the statement of reasons contained in the judgment of Ferguson J.
Ricu J. This case raises two questions of general importance as well as some matters which affect the rights and liabilities of the individual parties. The first of these matters is the correctness of the interpretation which in Harmey v. Board of Fire Commissioners of New South Wales (1) the Workers' Compensation Commission gave to sub-secs. 1 and 4 of sec. 7 of the Workers' Compensation Act 1926-1929. I find myself unable to agree with the interpretation adopted by this decision. It appears to me altogether too narrow. In my opinion the provision was not intended to restrict the right of the workers, but to enlarge them. Its object was to fix upon the ultimate employer of the worker a direct liability to him, leaving that employer to recover from previous employers subject to the
(1) (1927) 1 W.C.R. (N.S.W.) 247. (2) (1927) A.C. 461. (3) (1925) S.C. 395.
H.C. or A. Jimitation of time expressed in the section. No doubt in the case 1932.
of the ultimate as in that of the other employers the emplo must be one to the nature of which the disease of the worker due, but it is not necessary that the worker should establish that the disease from which he is suffering was actually brought abo or contributed to by the employment of the last employer. Th second question of general importance is how far the certificate. the Medical Board given under sec. 51 concludes the question o the causation of the disease. The material question submitted to the Medical Board in this case was that of his condition. Upon # construction of the certificate the Board gave, I do not doubt they intended to certify that his condition was one of degenera disease arising from lead-poisoning. Is it open to the Commi to disregard the finding of the Medical Board so certified in so as it attributes the degenerative disease to lead-poisoning ? object of the section was to leave the condition or the bodily state physically and pathologically of the worker to a medical author
and to withdraw it from the lay tribunal. Condition is a wide w but it is pointed rather at an existing state of affairs than at events by which it was caused. At the same time, in consi the nature and character of diseases, the distinction between caus and effect, as in other departments of life, is often unreal and cannot be strictly maintained. In the case of a broken skull there is no difficulty in distinguishing between the blow and the injury, buf i would be impossible to predicate of a man that he was suff from alcoholic poisoning and yet leave undecided the questi whether he had imbibed alcohol. The question whether the findi of lead-poisoning goes to the condition of a man is largely one of fact. When lead-poisoning causes or contributes to such a st as that in which this worker was objectively found, is his dise condition, when regarded from the point of view of his p and future capacity, which involves prognosis and remedy, same as or different from that of a person presenting like obj symptoms arising from other causes? My perusal of the evi leads me to give a negative answer to the question. Consequently the worker's condition includes " lead-poisoning " and the Commis- sion was not at liberty to find that his incapacity arose or might
have arisen from other causes. I think that the preliminary ©. oF A.
objection should be overruled, and that the remaining contentions of the respondent fail.
The appeal should be allowed with costs, and the questions should beanswered : (1) Yes; (2) In view of the Medical Board's certificate, Yes; (4) Yes; (5) No; (6) No. It is unnecessary to answer question 3.
Srarke J. This was a claim by a worker for compensation under the Workers' Compensation Act 1926-1927 of New South Wales. A worker who receives personal injury in the course of his employ- ment is entitled to compensation from his employer in accordance with the Act, and '' injury " includes a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor, but does not include a disease caused by silica dust (see Act, secs. 6,7). And, by sec. 7 (4), where the injury isa disease which is of such a nature as to be contracted by a gradual process, compensation shall be payable by the employer in whose employment the worker is or who last employed the worker. Any employers who during twelve months preceding a worker's incapacity employed him in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensa- tion is payable such contributions as in default of agreement may be determined by the Workers' Compensation Commission.
Under the Workmen's Compensation Act 1906 of England, it was formerly held that the disease must be contracted or accelerated during employment by the worker's last employer if he were to succeed against him, but the House of Lords dissented from this view and held that it was enough if his work with his last employer was of the same nature and character as the work to which the disease was due, and that it was not necessary to prove that it was the employment with his last employer that caused the ' disable- ment" (Dean v. Rubian Art Pottery Ltd. (1); Blatchford v. Staddon & Founds (2); Ellerbeck Collieries Ltd. v. Cornhill Insurance Co. (3)). The Workmen's Compensation Act of 1916 of New South Wales
(1) (1914) 2 K.B. 213, (2) (1927) A.C, 461. (3) (1982) 1 K.B. 401, at pp. 409, 410.
followed the actual terms of the English Act. And, while of 1926-1927 of New South Wales has changed the langua scheme and intention are the same, and the reasoning on Blatchford v. Staddon & Founds (1) is founded applies as y it as to the English Act. Both Acts should, therefore, receive t] same interpretation. This brings me to the facts of the present ¢: The worker was a man fifty-eight years of age who had employed in the painting trade for forty-four years. Mann, his employer, employed him in that trade for a week in 1929. Hey engaged in mixing paint, painting, and scraping down, and he work feeling ill."" Notice of the disablement seems to have been In November of 1929, the Commission, pursuant to the Act of 1927 (secs. 50-52) made a reference to a Medical Board to certi as to the condition of the worker; (b) as to his fitness for employ " specifying where necessary the kind of employment for wh is fit." The Act provides that any such certificate given by Medical Board shall be conclusive evidence as to the matte certified. The Board, on 3rd December 1929, gave the following certif
by the worker, and on which this certificate is granted, are as fol
degenerative disease. In a worker whose exposure to lead dust H. C. or A.
has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease." Tn January of 1930 the worker made application to the Workmen's Compensation Commission for compensation under the Act. He alleged that he was suffering from lead-poisoning, due to the nature of his employment, that of a painter; and that he was last so employed by John Mann. Other employers who during the twelve months preceding the worker's incapacity employed him as a painter were also added to the proceedings. The Commission on the hearing received medical evidence of the condition of the worker. The Commission found that the worker "'was not incapacitated for work by an injury received in the course of his employment as a worker employed by the . . . respondents, that is to say by a disease contracted in the course of his employment and to which the employment was a contributing factor." By this it meant that the injury was not received in the course of the worker's employment with Mann and the other employers joined in the proceedings and to which the employment was a contributing factor, and further that the worker's disease, though of a nature contracted by a gradual process, was probably due to a pathological condition unassociated with the nature of his employment with Mann and the other employers who during the preceding twelve months had employed him. But the Act contains no limitation of time within which the disease must be contracted. It must arise, no doubt, from the nature of the employment. But it is not necessary that it should arise "out of the particular service of the particular employer sued": it is enough if the disease is "incidental to that class of employment so that it can be attributed to service therein " (Blatchford v. Staddon & Founds (1) ). The compensation can be tecovered only against the employer in whose employment the worker is or who last employed him. And the employer by whom such compensation is payable may obtain contribution from the employers who during the twelve months preceding a worker's incapacity employed him in any employment to the nature of which
H.C. or A. the disease is due. The Commission thus appears to have proces
Further, the Commission also considered that it must dete the cause of the workman's condition. The certificate of the M Board has already been stated : - " We are of the opinion that { worker has right sided hemiplegia resulting from cerebral thromb following arteriosclerosis and nephritis. We are of the opinio that his condition is one of degenerative disease. In a worker who exposure to lead dust has been marked one cannot dissociate hi disease from his work which has been in our opinion either the cau or aggravation of his disease." Nothing turns on the posit which this opinion is found in the certificate. The import question is whether it is part of the function of the Medical Boa in giving a certificate as to the worker's condition to state the caus of that condition. If so, the certificate is conclusive, and Commission was bound by it. Now it seems to me that "it impossible," to use the language of Farwell L.J. in Haylett v. & Co. (1), " to have the consequence without the cause, whi the gist of the liability." The Medical Board is not certi the air, but with reference to injuries or diseases relevant to com) tion under the Act. "It seems to me," as Atkin L.J. said in v. Parker (2), " that the words ' condition of the workman very well mean to a doctor the same thing as if he were aske his condition such that he is suffering from a disease which is fact caused by long exposure to dust. See also M'Avan v. Spinning Co. (3). The certificate of the Medical Board, stating: condition and the cause of that condition, was, in my opi certificate as to the condition of the worker within the meaning 0 the Act, and bound the Commission.
A case was stated for the decision of the Supreme Court u various questions of law, but the Supreme Court only dealt the medical certificate, and said that in expressing an opinion the cause of the condition the Medical Board was ext function. But with this view, for the reasons already cannot agree.
(1) (1908) 2 K.B. 837, at p. 841. (2) (1926) 95 L.J. K.B., at p. 861: 135 L.T., at p. 537. (3) (1901) 3 F, (S.C) 1048.
Lastly, it was argued that the decision of the Supreme Court was H. ©. or 4
not an appealable, but merely a consultative or advisory, order. There is nothing advisory about the decision : it was given in favour of the employer after the award of the Commission, and it is binding upon the Commission and all parties to the proceedings.
The appeal should be allowed, and the questions stated in the case answered as follows: (1) Yes; (2) Yes, in so far as it disregarded the certificate of the Medical Board ; (3) The question is not answered ; (4) Yes; (5) No; (6) No.
The proceedings should be remitted to the Workers' Compensa- tion Commission of New South Wales, with a direction to do therein as shall be just, and consistent with the judgment of this Court, and if necessary to deal with any claim against the employers added to the proceedings that may be substantiated.
Dixon J. This is an appeal from an order of the Supreme Court of New South Wales determining questions raised by a special case which the Workers' Compensation Commission stated under sec. 37 (4) of the Workers' Compensation Act 1926 as amended to 1929.
A preliminary objection was made by the respondent to the competence of the appeal on the ground that the order of the Supreme Court is advisory in its character or, at any rate, is not final but interlocutory. The objection depends upon the provisions under which the case is stated. The case may be stated by the
_ Commission before it makes its award, or after it has made its award, and the Commission is bound to state a case if required to do so by one of the parties. The case, which is confined to questions of law, is stated "for the decision of the Supreme Court thereon," and the decision of the Supreme Court is binding upon the Commission and upon all the parties to the proceeding. As the provision originally stood it was construed by the Supreme Court to mean that the Commission might state a case during the course of a proceeding, but not after the proceeding had been determined by an award (Roberts v. Jones (1) ). As it now stands amended, it is apparent that the provision authorizes two kinds of proceeding by way of case stated. A special case that is stated by the Commission
H.C. or A. before making any order or award can do no more than obtain:
the Supreme Court rulings upon questions of law by wh Commission must be governed in determining the proceedin pending before it. A case stated after an award or order has be made by the Commission has a very different operation. | Commission has then determined the proceedings pending b and its award or order concludes the matter, except in so far asi award or order may be affected by the decision of the Court upon the case stated. Accordingly, the statement of a after award becomes a means of invoking the jurisdiction of Supreme Court so that it may revise or reconsider, within the li of the questions of law raised, the determination of the Commissi If the decision of the Supreme Court upon any of those qu means that the order or award of the Commission was erroneot made, that order or award can no longer remain in operatit determination of the proceedings before the Commission. Bi decision of the Supreme Court to the contrary results in the cont ance of the order or award in full force and effect as the ex of the legal rights of the parties.
In the present case the Supreme Court so decided questio law in the case stated as to support the order of the Comm Thus the order of the Supreme Court finally concluded the right the appellant. It was final and not advisory. It follows preliminary objection should be overruled.
The appeal itself raises some difficult questions. The ap claimed compensation under sec. 7 (4) for total incapacity re from injury consisting of a disease which is of such a nature : be contracted by a gradual process. The appellant was a by trade, and the disease he relied upon was that of lead-poison The respondent Mann was the employer in whose employment | worker was, or who last employed him (sec. 7 (4) ); and th the claim was made against that respondent in the first instan¢ But he had employed the appellant for a very short time ' accordingly he caused the remaining respondents, four in numbe to be joined as the employers who, during the twelve preceding the worker's incapacity, employed him in the employ to the nature of which the disease was said to bedue. The aj
incapacity arose from right sided hemiplegia, itself the result of 1. ©. or A. 1932.
cerebral thrombosis caused by arteriosclerosis and nephritis. He was fifty-eight years of age and had been a painter for forty-four years. Evidence was given before the Commission to the effect that the absorption of lead causes or aggravates arteriosclerosis and nephritis, and that although these conditions are common among all classes of whatever occupation, yet there is a greater incidence among those working in trades in which lead is used, such as painting. The appellant showed some traces of lead absorption but, on the other hand, blood changes common in chronic lead-poisoning and changes in the nervous system were not found. Conflicting medical opinions were expressed upon the question whether the appellant's condition was caused by the absorption of lead or arose independently. The Commission considered that, upon the medical history of the appellant as it appeared from the evidence, the probability that his incapacity was due to the sequela of lead-poisoning was, at most, no more than equal to the probability that his incapacity was due to a pathological condition unassociated with his work which could in any event disable him about the time that it did; and that if the arteriosclerosis and nephritis from which he suffered were sequel of lead-poisoning then the disease of Jead-poisoning must necessarily have been contracted many years before his employment with the present respondents. The ultimate conclusion of the Commission was that the appellant had not established his claim and was not incapacitated by injury which he received in the course of his employment with any of the five respondents and to which this employment was a contributing factor. It could not be maintained that the Commission, upon the materials before it, was not at liberty to reach this conclusion which is limited to a denial that the employment by any of the five respondents contributed to the "injury," that is, the disease, and that it was received in the course of that employment. The Commis- sion considered that a finding thus limited was enough to negative the appellant's claim because of the interpretation which the Commission had in previous cases placed upon sub-secs. 1 and 4 of sec. 7 construed with the aid of the definition of "injury " in
H.C. or A. sec. 6 (1). In Harmey v. Board of Fire Commissioners of New
Wales (1) the Commission ruled that the combined effect of enactments is to place the onus on the worker claiming compen for disablement by disease of proving that in the course of employment with the last employer he contracted a disease to the employment was a contributing factor. This i gives too narrow an operation to sub-sec. 4 of sec. 7, the eff which is to enable a worker, if in the course of his occupation receives injury by contracting a disease by a gradual process thro the nature of his occupation, to obtain compensation from employer in whose employment in that occupation the worker at the time of his incapacity, or, who last before his incapacity employed him, leaving that employer to recover contribution fre any other employers who in the twelve months prior to his incaj pac employed the worker in that occupation. 4 If the definition of injury were written into the material part sub-sec. 1 of sec. 7 of the Act of 1926-1927, it would run as follo " A worker who receives personal injury including a disease wl contracted by the worker in the course of his employment a which the employment was a contributing factor shall receive pensation from his employer in accordance with this Act." Su 8 4 provides : - " Where the injury is a disease which is of such a n as to be contracted by a gradual process compensation shall payable by the employer in whose employment the worker is or wh last employed the worker. Any employers who, during the twely months preceding a worker's incapacity, employed him in an employment to the nature of which the disease was due, shall I liable to make to the employer by whom compensation is pay
now in operation appear to be an attempt to provide for i or occupational diseases in a more compendious and general It is difficult to suppose that the new provisions were mi
confine the worker's right to compensation within narrower limits H- C: or A. than the old. No doubt in the expression " shall receive compensa- ees, tion from his employer" in sub-sec. 1 of sec. 7, the words "his Swrrn employer " refer to the employer in the course of whose employment hes. personal injury was received. Thus, when the definition of injury pixon 3. is applied so that disease is included, the words must refer to the
employment in the course of which the disease is contracted and
which is a contributing factor in the contracting of the disease. But sec. 6 contains many provisions which must operate as extensions imposing the liability created by sec. 7 on persons who are not employers. Sub-sec. 4 of sec. 7 deals with the special cases of diseases contracted by a gradual process, and this also operates by way of extension. The nature of a disease contracted by a gradual process is such as to make it difficult, and sometimes impossible, to say how far a particular period of employment contributed. The purpose of the sub-section is to pitch upon the latest employer for the purpose of immediate liability to the worker, leaving him to recover over from others by way of contribution. The description of the disease implied in the expression in the second paragraph "employment to the nature of which the disease was due" may properly be carried back into the first paragraph for the purpose of understanding its meaning. In other words, the diseases dealt with are those which are contracted by a gradual process and are due to the nature of an employment. The expression in the first paragraph " in whose employment the worker is or who last employed the worker " implies a reference to a point of time or event, and it is apparent that the occurrence of incapacity is the event or time intended. The employer at the time of, or last before, the incapacity is made primarily liable. It seems proper to understand the provision in the first paragraph as confined to employers who do employ or have employed the worker in an employment to the nature of which the disease is due, but any further restriction upon the class of employment or any further requirement as to causation Seems unwarranted. From this construction of sub-sec. 4 of sec. 7 it follows that the ultimate finding made by the Commission stated by it in the special
case is not enough to negative the liability of the respondents. But, VOL, XLVII, 29
H.C. or A. although the ultimate finding of the Commission does not
the respondents' liability to the appellant, the Commission the principal considerations which guided it in arriving at finding, and among them is the opinion that the probability # the incapacity was due to the sequela of lead-poisoning was at no more than equal to the probability that it was due to an indep dent pathological condition. This amounts to a finding, based the onus of proof, to the effect that exposure to lead dust and t lead, in his trade of painter, was not a cause contributing to tl appellant's incapacity. The Commission found that he incapacitated by a disease which is of such a nature as to } contracted by a gradual process, and that he had worked in ; employment, namely, a painter's trade, to the nature of wh lead-poisoning may be due, and that, if the incapacity was d the sequel of lead-poisoning, lead-poisoning was contracted bef his employment with the respondents, but that it had not established that the conditions by which he was incapacitated the sequel of lead-poisoning. Although these subsidiary findi are expressed in a way which emphasizes " active lead-pois "lead-poisoning " and " lead-intoxication," it seems clear that the Commission intended to cover all lead ab: and to hold that the appellant had failed to prove to the satisfac of the Commission that the lead which he absorbed had appreciable causal connection with his pathological condition. Full Court of New South Wales proceeded upon this view of th
claim, unless it was outside the authority of the Co make the finding.
Board did certify that the appellant's condition was due to poisoning, but considered that, if this was the effect of certificate, the Board had certified upon a matter not referred to Sub-sec. 3 of sec. 51 requires the Medical Board, in accordance
the rules made by the Commission, to give a certificate as to the H.C. or A condition of the worker and his fitness for employment, specifying oe where necessary the kind of employment for which he is fit and such - Swuru other information as the Commission may require. It provides 4, Pie that any such certificate given by a Medical Board shall be con- clusive evidence of the matters so certified. In this case, the Board was, by the terms of the reference, confined to the condition of the appellant and his fitness for employment. From the evidence given by the medical witnesses it inferentially appears that the patho-
~ logical condition of a patient with arteriosclerosis and nephritis
when it has been brought on or hastened by lead absorption may differ from that of such a patient who has not been exposed to lead- poisoning, and it certainly nowhere appears affirmatively that, in the diagnosis, prognosis and treatment of such a degenerative disease as that from which the appellant was suffering, it is immaterial whether it originated in or was aggravated or accelerated by a condition of lead absorption or of lead-intoxication. In many cases of traumatic injury and some cases of disease the state of the patient and the cause of that state are two independent matters. But a present stage in a continuous developing pathological condition can seldom be considered apart from previous stages, and, when it arises out of or has been influenced by some organic effect produced in the human body the consequences of which are not exhausted, the so-called "causes" of the man's present state may form an inseverable part of the description of his " condition." No doubt sec. 51 (3) should be strictly construed but, after all, it was intended to leave medical questions to the determination of medical men.
The " condition " of a patient cannot be described except by refer- ence to the character of his disease, and the character of his disease may be, and perhaps more often than not is, determined or condi- tioned by its origin. In the state of degeneration by disease which existed in the case of the appellant, the conclusion that it began with or was affected by lead absorption or intoxication enters into and forms part of the complete description of his condition. It follows that it was within the province of the Medical Board to
The remaining question is whether the Board did so certify. F a medical certificate under sec. 51 (3) definiteness and pr of expression are desirable, but the formality of a judgment oro legal instrument cannot be expected. It should be read in re to the question which has arisen and the circumstances of the together with such evidence as may be needed in explanation technical expressions. If, when so read, it appears with rez clearness that the Board intended to state any conclusion or opini that conclusion should be treated as a matter certified whether th certificate records the opinion or conclusion under one heading another. In this case the certificate under the heading " Condit of the worker " sets out various symptoms ascertained from ination and from inquiry. Then after the unfitness of the y for employment is stated, a note, "see below," is placed printed request to "express an opinion as to whether or to extent incapacity is due to the injury." Below, the following ment appears upon the certificate : - " We are of the opinion #l the worker has right sided hemiplegia resulting from cerebral thr bosis following arterioscelerosis and nephritis. We are of | opinion that his condition is one of degenerative disease. worker whose exposure to lead dust has been marked one dissociate his disease from his work which has been in our opini either the cause or aggravation of his disease."
This appears plainly to mean that, in the opinion of the exposure to lead dust has been the cause or aggravation of a sclerosis and nephritis followed by thrombosis causing hemiplegi The position on the form in which this statement of opini
absorption of lead induced or increased the arteriosclerosis nephritis.
For the reasons given this is a matter falling within the d tion of the worker's condition and accordingly the certificat conclusive of it. It follows that the grounds upon which the Cor mission made its award cannot be supported. ,
The questions should be answered as follows : - (1) Yes; Having regard to the certificate of the Medical Board, Yes;
This should not be answered, as the answer would involve some . ©. oF A.
inferences of fact ; (4) Yes; (5) No; (6) No. The appeal should be allowed with costs.
McTiernan J. A preliminary objection was taken by counsel ,,,
for the respondents to this appeal, on the ground that the decision of the Supreme Court against which the appeal was brought is not a judgment, decree, order or sentence within the meaning of sec. 73 of the Constitution of the Commonwealth. In support of this submission it was contended that upon the true construction of sec, 87 of the Workers' Compensation Act 1926-1929 of New South Wales, under which the Supreme Court was invoked, the Court merely
or consultative opinion, but a final determination of the rights the parties in the matter in which it was given. The prelimi objection should be dismissed.
The facts of the case have already been fully reviewed, and it i not necessary that they should be stated again. A number 9 questions were propounded in the stated case for the purpose testing the validity of the reasons by which the Workers' Com sation Commission said it was guided in arriving at its decision make an award in favour of the respondents. These questions ma be reduced to the two questions which were argued at the he: of this appeal, namely, (1) whether, upon its true construction, certificate of the Medical Board was conclusive that the condi of the appellant was that he had lead-poisoning, and (2) whet the Commission was in error in confining its inquiry to the app employment with the five respondents for the purpose of mining whether this appellant received "personal injury in course of his employment," within the meaning of the Act.
See. 51 (1) of the Workers' Compensation Act 1926 provides t where notice has been given of an injury to a worker, any su worker shall, if so required by the Commission, submit hims examination by a medical referee or a medical board. By "Injury " means personal injury, and includes a disease wl contracted by the worker in the course of his employment, whel at or away from his place of employment, and to which the a1 ment was a contributing factor. Sec. 51 (3) provides that medical authority, to whom any matter is referred, shall in a ance with rules made by the Commission give a certificate as to condition of the worker and his fitness for employment, specifyir where necessary the kind of employment for which he is fit an r other information as the Commission may require. "
An application was made on behalf of the respondent John Mami apparently after the receipt of the notice of " injury," and ab weeks prior to the application for an award, for the examination the appellant by a Medical Board. The medical and industri histories of the appellant were taken by an officer of the sion and an order was made referring the appellant to a Mec Board to certify " (a) as to the condition of the above named workel
and (6) as to his fitness for employment, specifying where necessary the kind of employment for which he is fit." The Commission did not require any other information. The terms of the certificate which was given by the Medical Board need not be repeated. The certificate is headed " Medical examination of Joseph Smith." It will be noted that the medical officers who gave the certificate exhausted the space under the heading " Condition of the worker " by writing particulars of the complaint which the worker made to them, the signs which they observed and the result of their examina- tion. The first sentence of the final part of the certificate is as ; follows : " We are of opinion that the worker has right sided hemi- plegia resulting from cerebral thrombosis following arteriosclerosis and nephritis." This sentence immediately follows the direction on the printed form handed to the Board to '
"express an opinion as to whether or to what extent incapacity is due to the injury." The Medical Board was not expressly asked by the Commission to certify as to this matter. The respondents did not dispute that the appellant was afflicted, as the Board certified, with right sided hemiplegia resulting from cerebral thrombosis following arterio- sclerosis and nephritis. The certificate continues: " We are of opinion that his condition is one of degenerative disease." Though this sentence is not under the heading " Condition of the worker," it is an opinion as to his condition. The question remains, what is
the significance of the following statement "In a worker whose exposure to lead dust has been marked one cannot dissociate his disease from his work which has been in our opinion either the cause or aggravation of his disease"? It was contended on behalf of the tespondents that this sentence states the cause of the appellant's condition rather than the condition itself, and it should therefore be rejected as beyond the terms of the Commission's reference to the Board. This statement is not written under the heading " Con- dition of the worker," but I do not think that it is impossible on that ground to regard it as a statement as to his condition. Upon a fair reading of the certificate does that statement mean that the appellant was suffering from lead-poisoning ? I think it does. It is true that arteriosclerosis and nephritis are pathological conditions which may be found in persons who have not been poisoned by the
_ poisoning, that his disease cannot be dissociated from the fact th
absorption of lead. But these conditions are sequela of poisoning. I think that the statement of the Medical cognizant as it was of the medical and industrial history of a and discovering in him those sequele and other symptoms of ley
he was in his employment exposed in a marked degree to lead du and that his work has been either the cause or the aggravatio his disease, is a certificate under sec. 51 as to the condition of t worker. In my opinion it certifies that he is suffering from poisoning, which is an industrial disease. In this view the e was conclusive evidence that the appellant was suffering from poisoning, and any finding of the Commission at variance y conclusion cannot be supported.
The answer to the other question, namely, whether the Con sion was in error in confining its inquiry to the appellant's empl ment with the five respondents for the purpose of de whether he received " personal injury " in the course of his en ment, turns upon the definition of "injury" in sec. 6, and ug sub-secs. 1 and 4 of sec. 7 of the Workers' Compensation Act 19 1929. The definition of "injury " has already been quoted. sec. ] says that a worker who receives such an injury wheth or away from his place of employment (and in the case of the of a worker, his dependants) shall receive compensation employer in accordance with the Act; and sub-sec. 4 says tl where the injury is a disease which is of such a nature as contracted by a gradual process, compensation shall be payabl the employer in whose employment the worker is or who la employed the worker, and that any employers who, during th twelve months preceding a worker's incapacity, employed hin any employment to the nature of which the disease was due, shal liable to make to the employer by whom compensation is pa} such contributions as, in default of agreement, may be deter by the Commission. q
These provisions supplant secs. 5 and 12 of the Workmen's Co pensation Act 1916. Sec. 5 (1) of that Act provided that if in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employet
should be liable to pay compensation in accordance with the First !!- ©. oF A
Schedule in the Act. Sec. 12 provided for the payment of compen- sation in the case where a workman died from or was disabled by any industrial disease contained in the Third Schedule to the Act. Questions arose under sec. 5 as to liability when a mishap, arising
out of and in the course of the employment, set up a disease, the _ question being whether the disease or the mishap caused the personal injury. In Eke v. Hart-Dyke (1) Cozens-Hardy M.R. said : - "Neither this Court nor the House of Lords has ever attempted to ' say that a mere disease without accident, not attributed to some- thing which may properly be called an accident, entitles a workman to compensation under the Act. No doubt there have been some ' (See also Pyper v. Manchester
cases which were very near the line." Tiners Ltd. (2).)
Reading sec. 7 (1), sec. 6 and sec. 7 (4) together, it will be seen that the Legislature has provided that compensation shall be pay- able, subject to the provisions of the Act, where a worker (a) receives personal injury, or (b) contracts a disease in the course of his employ- ment and to which the employment was a contributing factor, or (¢) contracts a disease in the course of his employment and to which his employment is a contributing factor and the disease is of such
anature as to be contracted by a gradual process. The Legislature,
having defined injury to include disease, replaced the elaborate provisions contained in sec. 12 of the earlier Act by the more com-
pendious provisions relating to the payment of compensation to _ a worker incapacitated by an industrial disease contained in sec. 7 (4). The category of industrial diseases is not limited as it was under the earlier Act. The class of diseases to which sec. 7 (4) relates are diseases of such a nature as to be contracted by a gradual process. In the case of personal injury, in the primary sense of the word, the disablement would occur in the course of the employ- ment in which the injury was received. But the gradual process by which the disease was contracted which ultimately disabled a workman may have extended over the course of his employment with a number of employers. The difficulties of a worker, disabled
(1) (1910) 2 K.B, 677, at p. 681. (2) (1916) 2 K.B, 691.
by such a disease, in making a claim, are diminished by the p visions of sub-sec. 4, which enable him to claim compensation fro the employer in whose employment he is or who last employed |
The statement of Scrutton L.J. in Ellerbeck Collieries Cornhill Insurance Co. (1) is in point notwithstanding the dif ences between sec. 7 of the present Act and sec. 43 of the Workme Compensation Act 1925 (15 & 16 Geo. V. ¢. 84) in relation to it was made. Scrutton L.J. said (2) : - '' But it seems to me fl the policy was intended to cover the liability of the emplo the results of industrial diseases caused by the employment. one tries to fit in these results to a scheme for compensat accidents arising out of and in the course of the employmen difficulty arises at once. An "accident " happens on a fixed easily ascertainable date. But it is very difficult to say wh industrial disease, such as miners' nystagmus or lead-poiso begins. It is a gradual deterioration due to the employment wl may be going on during service by the workman under s employers in the same industry until it results in disablement wl may appear when the workman has only just begun to work um a particular employer. Under these circumstances it would be} difficult for the workman to pick the proper employer to sue. - Legislature saw the difficulty, and provided a conventional artificial means for enabling the workman to get compensati leaving the various employers to fight out their proportion of liability between themselves."
It is admitted in the present case that the appellant was st from a disease of such a nature as to be contracted by a process. The case stated says: "' The Commission found applicant had not proved his case and that he ' was not ines tated by injury received in the course of his employment a which the employment was a contributing factor - meaning employment with any of the five above named respondents wh were represented before the Commission." That finding was 2 sufficient, in my opinion, to dispose of the appellant's claim compensation in respect of the disease from which he was suf It was a disease of such a nature as to be contracted by ag
process and the appellant had been employed as a painter prior to "©. or A
the period to which the Commission limited the inquiry. The decision of the Workers' Compensation Commission in Harmey v. Board of Fire Commissioners of New South Wales (1), which was
~ the intention of the Le; _ was in these terms : - 'is to place the onus on the worker claiming compensation for dis-
lement by disease of proving that he received an injury (ie., ntracted a disease to which the employment was a contributing or) in the course of his employment with the last employer.
twelve months preceding disablement that the worker was working ~ inan employment to the nature of which his disease was due. The is of the statute indicate in the case of diseases contracted
ually that the contraction of any such complaint could continue the time when the disease first manifested itself. The words contracted by a gradual process' indicate that the contraction _ need not be limited to a specific point of time in one employment but might extend over employments covering a period of twelve months at least' (2). Sub-sec. 4 confines the liability of making contribution to the employers who, during the twelve months pre- ceding the worker's incapacity, employed him in any employment to the nature of which the disease was due, but the Commission is not limited to the course of the worker's employment during that period for the purpose of determining whether he has contracted a disease in the course of his employment and to which his employ- ment is a contributing factor and which is of such a nature as to be contracted by a gradual process. In the present case the question does not arise whether the Legislature intended that "the employer in whose employment the worker is" or "who last employed the
worker" should be an employer who employed him in any employ- ment to the nature of which the disease was due. The respondent Mann, as well as all the other respondents employed the appellant as
a painter. (1) (1927) 1 W.G.R. (N.S.W.) 247, (2) (1927) 1 W.G.R, (N.S.W.), at p. 260.
applied by it in this case, does not, in my opinion, correctly interpret yperjerman 3.
The appeal should be allowed and the questions answe follows : (1) Yes, that the cause of his condition was lead-poi (2) Yes, as the certificate was conclusive as to his condition, andt inquiry should not have been limited to his employment as a paiz with the respondents ; (3) See answer to (2); (4) Yes; (5)} (6) No.
discharged. In liew thereof questions i case stated answered as follows: (1) } (2) Having regard to the certificate « Medical Board, Yes; (3) Not ansi (4) Yes; (5) No; (6) No. The respo to pay the costs of this appeal and special case.
Solicitor for the appellant, Abram Landa. Solicitors for the respondents, Stephen, Jaques & Stephen.