SYDNEY COUNTY COUNCIL v FURNER [1991] NSWCA 263

SYDNEY COUNTY COUNCIL v FURNER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, HANDLEY JJA and Hope AJA 30 June 1991, 19 August 1991

[1991] NSWCA 263

WORKERS COMPENSATION — Worker suffering lung cancer which resulted in his death — Worker exposed to creosote in course of his employment — Medical evidence that exposure to creosote can probably cause cancer in humans — Worker a heavy smoker — Medical evidence accepted by Compensation Court that smoking a most likely cause of lung cancer and that exposure to creosote could not be excluded as a cause — Award by Compensation Court in favour of worker's widow. HELD that finding established exposure to creosote as a possible cause and not a probable cause and that it had not been found that exposure to creosote was a probable cause — No evidence to establish that exposure to creosote probably resulted in worker's death. Appeal allowed and award directed in favour of employer.

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Bonnington Castings Ltd v Wardlaw [1956] AC 613 Australian Iron and Steel Ltd v Connell (1959) 102 CLR 522 St. George Club Ltd v Hines (1961) 35 ALJR 106 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Pyrmont Publishing Company Pty Ltd v Peters (1972) WCR (NSW) 27 Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 Pickergill v Freight Bases Pty Ltd (1983) 3 NSWLR 117 Australian Electrical Industries Pty Ltd v Marlborough (CA unreported 16 June 1989)

Samuels JA I agree with Hope AJA. Handley JA I agree with Hope AJA.

Hope AJA Mrs. Beryl Jean Furner, the widow of the late Leonard Stanley Furner,a worker who had been employed by the Sydney County Council and who died on 29 January 1981, claimed compensation from the Council in respect of his death. In the Compensation Court Manser J found that Mr. Furner died as a result of injuries suffered by him in the Council's employ and awarded Mrs. Furner a sum of $30,000.