Maksymczuk v Gillespie Bros Pty Ltd [1957] HCA 89

ER ?

>: BRE <

Barry SPEE a za % Q m >]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

MAKSYMCZUK : APPLICANT,

GILLESPIE BROTHERS PROPRIETARY

LIMITED RESPONDENT,

APPELLANT ;

AND

REsponpDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Workers' Compensation (N.S.W.)—Periodic journey—Interruption—Substantial— H.C, ov A. Risk—Material increase in—Award—Workers' Compensation Act 1926-1954

(W.8.W.), 8.7 (1) (6)*

Held, that the onus of proving that the conditions stated in the proviso tos. 7 (1) (b) of the Workers' Compensation Act 1926-1954 have been satisfied lies upon the applicant for compensation and not upon the respondent

employer.

Decision of the Supreme Court of New South Wales (Full Court): Gillespie Bros. Pty. Ltd. v. Maksymezuk (1957) S.R. (N.S.W.) 610; 74 W.N. 365,

affirmed.

*Section 7 (1) (b). Where a worker has received injury without his serious and wilful misconduct on any of the daily or other periodic journeys referred to in paragraph (c) of this subsection, or on any of the other journeys referred to in paragraph (d) of this subsection, and the injury be not received—(i) during or after any substantial inter- ruption 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, place of pick-up, or place referred to in subparagraph (i) of para- graph (d) of this subsection, as the case may be; or (ii) during or after any other break in any such journey, which the Commissioner, having regard to all

the circumstances, deems not to have been reasonably incidental to any such journey ; the worker (and in the case of the death of the worker, his depend- ants), shall receive compensation from the employer in accordance with this Act. Provided that a worker (and in the case of the death of the worker, his dependants) shall be entitled to receive compensation under this paragraph notwithstanding that the injury was received during or after any 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 materi- ally increased by reason only of such substantial interruption, substantial deviation or other break.