Darling Island Stevedoring and Lighterage Company Limited v Jacobsen [1945] HCA 22

as rae

70 C.L.R.J OF AUSTRALIA. 635

(HIGH COURT OF AUSTRALIA.)

DARLING ISLAND STEVEDORING - APPELLANT ;

LIGHTERAGE COMPANY LIMITED ResPonpeENT,

AND

JACOBSEN 4 F a : é : . RESPONDENT. APPLICANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Workers' Compensation—Injury—Journey between place of abode and place of H.C, or A. employment—Default or wilful act—Onus of proof—Workers' Compensation Act 1945, 1926-1942 (NV...) (No. 15 of 1926—No. 13 of 1942), 8. 7 (1) (b). Ww

Section 7 of the Workers' Compensation Act 1926-1942 (N.S.W.), as amended 5¥P% by «. 3 of Act No. 13 of 1942, provides, inter alia, that, where a worker has "9:

received injury "without his own default or wilful act" on any of the daily Mrtnourse, or other periodic journeys referred to in the section, the worker or his depen- Oct. 11. dants in case of his death shall receive compensation from the employer.

Rich, Starke, Held, by Rich, Dixon, McTiernan and Williams JJ. (Starke J. dissenting), yoyo xem ana that the onus of proving that a worker received injury by reason of "his own Williams JJ. default or wilful act" lies upon the employer: it is not for the worker (or his dependants) to prove that the injury was received without such default or wilful act. Decision of the Supreme Court of New South Wales (Full Court): Jacobsen vy. Darling Island Stevedoring & Lighterage Co. Ltd., (1945) 45 S.R. (N.S.W.) 264; 62 W.N. 154, by majority, affirmed,

AppEaL from the Supreme Court of New South Wales.

An application under the Workers' Compensation Act 1926-1942 (N.S.W.) was made on 13th February 1943 to the Workers' Compen- sation Commission by Natalie Jacobsen, on behalf of herself and two infant dependants, for compensation claimed to be payable by Darling Island Stevedoring & Lighterage Co. Ltd. in respect of the death of her husband, Arthur Edward Jacobsen, aged twenty-eight years,