KELLY v GLENROC PASTORAL CO PTY LTD and ANOR [1994] NSWCA 162

KELLY v GLENROC PASTORAL CO PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER, and POWELL JJA 25 March 1994, 4 May 1994

[1994] NSWCA 162

WORKERS' COMPENSATION — INJURY — s4, s33, s15 AND 16 WORKERS' COMPENSATION ACT 1987 — HISTORY OF WORKERS' COMPENSATION ACT, 1987 — LUMBAR SPONDYLOSIS — DISC PROTRUSION — CONTRACTED IN THE COURSE OF EMPLOYMENT — GRADUAL PROCESS DISEASE — CONGENITAL — DEGENERATIVE.

FACTS:

K, a shearer, suffered lumbar spondylosis and disc protrusions. Upon reaching incapacity to work he sought compensation from G Pty Ltd, his most recent employer, for a) a frank injury under s33 and s4; b) and c) under either s15 or s16 of the Workers Compensation Act, 1987. The orders sought were refused, her Honour apparently not believing K was employed as a shearer. K appealed against the finding on s15.

HELD:

(1) A finding that K was not employed as a shearer was not open on the evidence in the court below.

(2) Under s15 the applicant worker needed to prove only that the gradual process disease causing his incapacity was due to the nature of his employment with the respondent employer, his last employer. K was not required to establish that the disease had any other connection with his employment (Smith v Mann (1932) 127 CLR 426). However, (per Powell JA) s4, s33 and s15 do not each provide separate causes of action. (Coates v Commissioner for Railways (1959-1960) 78 WN 377 not followed on this point). The language of s4 refers to "a disease which is contracted in the course of employment" (s4(b)(i)). The back injuries do not come within this definition as there is no gradual process or industrial disease 'due' to employment as a shearer, because either (per Meagher JA and Powell JA) his lumbar spondylosis was congenital; or (per Sheller JA) it was a degenerative disease not relevantly caused by employment. Medical reports tendered below did not support a cause of action under s15.