Smith v Mann [1932] HCA 30

Smith v Mann [1932] HCA 30 - HCA 1932 case summary — Zoe

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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

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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

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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

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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

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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

gave a consultative or advisory opinion for the guidance of the Workers' Compensation Commission. The award of the Commis- sion, as settled by the Registrar of the Commission pursuant to rule 27 of the Rules made under the Workers' Compensation Act 1926- _ 1929, was as follows: "' Having duly considered the matters sub- mitted, the Commission hereby orders and awards as follows : - (1) The Commission finds that the above named applicant was not incapacitated for work by an injury received in the course of his employment as a worker employed by the above named respondent, _ that is to say, by a disease contracted in the course of his employment and to which the employment was a contributing factor. (2) The Commission, therefore, makes its award in favour of the respondent." Sub-sec. 7 of sec. 37 of the Workers' Compensation Act 1926-1929 is in these terms: '' The decision of the Supreme Court upon the hearing of any such case shall be binding upon the Commission and upon all the parties to such proceeding." In view of the provisions of this sub-section, it is clear that if the Commission had made an award in favour of the present appellant, and the Supreme Court, by its decision under sec. 37 of a question that arose in the proceed- ings, denied the liability of the respondents to pay compensation to the appellant, the decision would have overruled the award and the respondent would not have been bound by the award to pay any compensation to the appellant. A decision of the Supreme Court under sec. 37, given as it was in this case, after an award had been made by the Commission, is, in my opinion, not an advisory

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Before

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Judgment (189 paragraphs)