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. The next thing that is known about the deceased concerns the manner of his death. The driver of an electric train travelling from Sydney to Hurstville on the extreme down line between St. Peters and Sydney, at a point a quarter of a mile from Sydenham, saw a man who must have been the deceased standing up on the extreme rail on the left-hand side on the edge of the sleepers on the outside of the track facing towards the train. The train ran down the man. The body, which was in fact identified as that of the deceased, was found on the line shockingly injured. No other facts are known. On those facts the Workers' Compensation Commission was prepared to assume that his death occurred during the interruption of a journey. On a view which the learned judge took as to burden of proof he decided in favour of the applicant for compensation on the ultimate ground that it had not been shown by the employer that the interruption of the journey which must have taken place was one in which the risk of injury was materially increased by reason of the interruption. Section 7 on which the case depends provides that where a worker has received injury without his own default or wilful act on any of the daily or other periodic journeys referred to in par. (c), and the injury be not received during or after any substantial interruption of, or substantial deviation from, any such journey made, for a reason unconnected with the worker's employment or unconnected with his attendance at the trade technical or other school as the case may be, or during or after any other break in any such journey, which the commission, having regard to all the circumstances, deems not to have been reasonably incidental to such journey, the worker shall receive compensation. The learned judge of the Workers' Compensation Commission was quite clear that the applicant could not bring the case within that paragraph as it stands because there had been a substantial deviation or interruption of the description which the section says negatives the right to compensation. But there is a proviso which follows, and it is under that proviso that the claim was sustained before the commission. The proviso says that the worker (and in the case of the death of the worker his dependants) shall be entitled to receive compensation under the paragraph notwithstanding that the injury was received during or after substantial interruption of or substantial deviation from or other break in any journey if, in the circumstances of the particular case, the risk of injury was not materially increased by reason only of such substantial interruption, substantial deviation or other break. The learned judge of the Workers' Compensation Commission decided that the employer, if the proviso was invoked, must prove that the risk of injury was materially increased by reason of the substantial interruption or deviation or other break. As his Honour found in the proofs no sufficient evidence that the risk was thus increased, he held in favour of the applicant for compensation. The learned judges of the Supreme Court, on appeal by case stated, were unable to concur in that conclusion and took the view that the burden of proof to satisfy the conditions stated in the proviso lay on the applicant for compensation. We think the view of their Honours of the Supreme Court is clearly right. The proviso is a provision which so to speak imposes ultimately a liability upon the employer notwithstanding that the conditions of the preceding part of the section under which he might otherwise be liable are negatived or are not established. It is a provision placing liability upon an employer occupying the position of a defendant and it places the liability on him by reason of a condition which though no doubt expressed as a particular condition lying outside the general rule contained in the preceding part of the sub-section yet is an affirmative imposition of liability. We think that upon ordinary principles the burden of proof must lie upon the person who seeks to avail himself of conditions from which liability results in that way. It is, in effect, an ordinary case of the burden of proof lying upon him who affirms. For those reasons the appeal should be dismissed. The appeal will be dismissed with costs. We will not interfere with the order as it stands.