ARCHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD [1997] NSWCA 26

ARCHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and BEAZLEY JJA 28 August 1997, 22 October 1997

[1997] NSWCA 26

Workers' Compensation — Claim for weekly compensation — Causal connection — Onus of proof — Presumptio hominis.

Evidence — Rule in Browne vy Dunn — Requirements of procedural fairness — Principle in Jones vy Dunkel — Preconditions to attract operation of the principle.

The appellant was injured whilst on a periodic journey from his place of employment when he was struck by a motor vehicle whilst crossing a road, sustaining a head injury. The appellant claimed that as a consequence of the accident he continues to suffer the effects of brain damage and anosmia. The respondent disputed there was any causal connection between his current complaints and the accident. His claim for weekly and other compensation was dismissed by the Compensation Court of New South Wales. An appeal was available only in respect of an error of law. Four alleged errors of law were identified:

(i) the application of a wrong onus to the appellant's claim that he suffered anosmia caused by his work related accident by requiring satisfaction to the point of certainty;

(ii) placing an onus on the appellant to disprove alternative causes of anosmia, an onus which the respondent properly bore;

(iii) a failure to apply the principles in Browne v Dunn (1894) 6 R67;

(iv) a wrong application of the principle in Jones v Dunkel (1959) 101 CLR 298.

Held, dismissing the appeal:

(i) The language in the judgment in respect of onus was unexceptional and was an obvious reference to the civil onus.

(ii) In circumstances where the appellant failed to satisfy the trial judge that the anosmia was caused by the accident, the respondent bore no evidentiary onus to establish that the anosmia was caused by some other condition.