Maksymczuk v Gillespie Bros Pty Ltd [1957] HCA 89

High Court of Australia Dixon C.J. Williams and Taylor JJ. Maksymczuk v Gillespie Bros Pty Ltd [1957] HCA 89

ORDER Appeal dismissed with costs.

The oral judgment of the Court was delivered by:—

Dec. 16 Dixon C.J.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales. The order answers a question relating to the burden of proof raised by a special case from the Workers' Compensation Commission and allows the appeal brought by means of the special case with costs. The question relates to the burden of proof with respect to certain facts on which liability depends.

The case is one in which the applicant to the commission could only succeed by making out a case under the proviso to s. 7 (1) (b) of the Workers' Compensation Act 1926-1954.

The scantiness of the known facts of the case is the source of the difficulty. It is a claim in respect of the death of a worker. The worker himself was employed at Gillespie Brothers' mill at Pyrmont. He lived at a suburb called Revesby to and from which he went by train. He met his death on the railway line on 26th August 1955.

On that day he left his place of employment about 4.30 p.m. The railway journey, if he had gone directly, would have occupied about an hour, and his wife said in evidence that it was his custom to return home about 7 o'clock in the evening. Apparently, and there is evidence to support the inference, he used to go to an hotel in the neighbourhood of the mill after finishing his work and there he used to drink for a little while.

On the night of his death, assuming he left the mill towards half past four, he went to an hotel nearby with a friend, who was described as a non-drinking friend. The latter says that the deceased ordered some beer; and after a second round of beer the friend left.