Humberstone v Northern Timber Mills [1949] HCA 49

High Court of Australia Latham C.J. Rich and Dixon JJ. Humberstone v Northern Timber Mills [1949] HCA 49

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 Latham C.J.

W. R. C. K. Humberstone died on 3rd December 1947 as the result of over-exertion in an effort to remove a punctured tyre from a wheel which he had taken off his motor truck. His widow made a claim against the respondent firm, Northern Timber Mills, under the Workers' Compensation Act 1928 Vict. as amended. The firm denied liability. The Workers' Compensation Board held that the deceased was a worker within the definition of worker contained in s. 3 of the Workers' Compensation Act 1928, holding that he worked under a contract of service with the firm as his employer. The Board also held that his injury arose out of and in the course of his employment by the firm. The Board proposed to make an award in favour of his widow, the claimant, for £1,000 with costs. The Board stated a case under s. 9 (3) of the Workers' Compensation Act 1937 for the determination of the Full Court of the Supreme Court upon the following questions of law:—"(1) Whether there was any evidence upon which the Board could find that the deceased was a "worker" within the meaning of the Acts. (ii) If the answer to (i) is Yes, whether there was any evidence on which the Board could find that the injury by accident arose out of or in the course of the employment." The Full Court answered the first question "No" and accordingly it became unnecessary to answer the second question. The claimant appeals to this Court.

The evidence showed that Humberstone had been working since 1924 in carrying timber, boxes and sometimes logs from the North Fitzroy Railway Siding. Originally he held himself out as a carrier for general employment. There was a signboard at his residence and he used to carry furniture and provide transport for picnic parties. But for twelve or fourteen years he had, with only occasional exceptions, done work only for the respondent firm. He attended at the firm's timber mills at a regular hour in the morning and carried timber &c. as required by the firm. He stopped work at a regular hour in the evening and at a regular time for lunch. On occasions he carried for some other persons when otherwise he would have returned with an empty truck, but he then mentioned the proposal that he should do such work to the management of the firm. Apparently he retained for himself payments by other persons on these infrequent occasions.