Fisher v Hebburn Ltd [1960] HCA 80

High Court of Australia McTiernan, Fullagar, Kitto, Menzies and Windeyer JJ. Fisher v Hebburn Ltd [1960] HCA 80

ORDER Appeal allowed with costs. Discharge the order of the Supreme Court. Order that in lieu thereof the questions in the stated case be answered in the following manner: On the facts appearing from the stated case the worker was entitled to an award of compensation consisting of weekly payments in respect of himself which it was within the discretion of the Commission to fix at £8 16s. 0d., but he was not entitled to any weekly payments in respect of his wife, and that the cause be remitted to the Workers' Compensation Commission of New South Wales to vary the award accordingly.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 McTiernan J.

I am of the opinion that the appeal should be allowed.

I have had the opportunity of reading the judgment of Kitto and Menzies JJ. in this case. I agree with the construction which they have placed on the provisions of the Workers' Compensation Act upon which the case depends and that, having regard to the facts found by the Workers' Compensation Commission, the award which it made in favour of the appellant is a correct application of those provisions except as regards the payment which the award would require in respect of the appellant's wife.

Fullagar J.

This is an appeal from the Supreme Court of New South Wales (Full Court). The Workers' Compensation Commission made an award of compensation under the Workers' Compensation Act, 1926-1954 N.S.W. in favour of the appellant, but, on an appeal by way of case stated the Supreme Court held that he was not entitled to compensation.

The appellant, who is now aged about seventy years, spent most of his working life in coal mines. His last employer was the respondent company, in whose mine he worked from 1925 to 1949. In April 1949 he became totally incapacitated by an arterial disease known as Buerger's disease. He has remained totally incapacitated, and has not worked since that time. Buerger's disease was not contracted in the course of his employment in coal mines nor was his employment in coal mines a contributing factor to it. On 12th May 1949, having reached the age of sixty years, he was compulsorily retired from the coal mining industry under the provisions of the Coal and Oil Shale Mine Workers (Superannuation) Act, 1941-1952 N.S.W.. From the date of his retirement he received a pension under that Act.