Clark v Flanagan [1934] HCA 73; (1934) 52 CLR 416 (13 November 1934)

HIGH COURT OF AUSTRALIA

Clark Applicant , Appellant ; and Flanagan Respondent , Respondent .

H C of A

Gavan Duffy C.J., Rich, Starke, Dixon and McTiernan JJ.

14 August 1934, 13 November 1934

Gavan Duffy C.J.

The Court proposes to ask for further information. In the meantime the case will stand adjourned.

[The answers made by the Workers' Compensation Commission to questions directed to it by the High Court are shown in the judgment of Starke J. hereunder.]

The following judgments were delivered:—

Nov. 13

Gavan Duffy C.J.

The appeal should be dismissed with costs. I agree with the reasons about to be given by my brother Dixon.

Rich J.

I agree. The appeal should be dismissed. The answers given by the Commission to the questions put to it have left the appellant without a case, in spite of the very able argument put forward by Mr. Ingham.

Starke J.

This was a claim for compensation under the Workers' Compensation Act 1926-1929 of New South Wales . It appeared that the applicant was employed by the respondent for some months stripping wattle bark. According to the applicant, he attempted, whilst he was so engaged, to strike a tomahawk into the trunk of a tree, but the tomahawk was deflected by a bough, glanced off the trunk of the tree, struck his hand, which was resting on another bough of the tree, and severed his left forefinger. The Workers' Compensation Commission heard the claim, and at the conclusion of the evidence the Commission made an award in the following terms: "Having duly considered the matters submitted the Commission finds that the evidence does not establish that applicant's injury to his left forefinger was intentionally self-inflicted as alleged, nor does it establish that applicant's injury arose out of and in the course of his employment with the respondent."

Thereupon the Commission ordered and awarded, so far as material, as follows: "That the award of the Commission herein be made in favour of the respondent." The Commission then, pursuant to sec. 37 of the Act, stated certain questions of law for the Supreme Court of New South Wales. The questions were:—1. Did the Commission err in law in holding that the evidence did not establish that applicant's injury arose out of and in the course of his employment with the respondent? 2. The Commission having found that the evidence did not establish that the injury was intentionally self-inflicted, did the Commission err in law in making its award in favour of the respondent? 3. The Commission having found that the evidence did not establish that the injury was intentionally self-inflicted, should the Commission have held that the applicant was entitled to receive compensation under the Act? 4. In the absence of any express finding as to how the admitted injury was sustained, did the Commission err in law in holding that the injury did not arise out of and in the course of applicant's employment?

The Supreme Court decided questions 1, 2 and 3 in the negative, and, as neither party pressed for an answer to question 4, that question was not answered.

The decision of the Supreme Court was plainly right. The onus of proving that the injury arose out of and in the course of his employment was upon the applicant, and he failed to satisfy the Commission that it arose during the work he was employed to do. But this Court nevertheless gave leave to appeal. And it was seriously argued on the appeal that the Commission's finding meant that the applicant was injured in the performance of his work, but that the Commission was unable to say whether the injury was intentionally self-inflicted by the applicant. The facts stated by the Commission are, to my mind, incapable of any such interpretation. But for greater certainty this Court, following a precedent in the House of Lords (Penrikyber Navigation Colliery Co. v. Edwards [1]), inquired from the Commission what the facts stated by it meant. The inquiries and answers are as follows:—

Questions.		Answers.
Do the facts stated by the Commission mean:—
(1)	That the worker injured himself by a blow from a tomahawk	Yes.
	and that before	Yes. Before he injured himself he was working at the tree.
	and up to his doing so	No. The Commission did not accept his evidence that he was working at the tree when he injured himself.
	he was working at the tree, but that the Commission on the evidence is unable to say whether he injured himself intentionally or not?	Yes.
	Or
(2)	That the Commission is unable on the evidence adduced before it to say whether the worker injured himself
	(a) at the tree	Yes.
	or
	(b) by a blow from the tomahawk?	No. The worker injured himself by a blow from the tomahawk.

It is clear, on these facts, that the applicant has not established that his injury arose out of and in the course of his employment. It is unnecessary to consider whether the applicant should have succeeded if the first question had been answered in the affirmative.

The appeal ought to be dismissed.

Dixon J.

The appellant claimed worker's compensation for loss of two joints of his left forefinger. He was employed by the respondent, near Bombala, stripping wattle bark. Before he reported his injury, he had been stripping bark from a wattle tree that he had felled. His case was that, having prized some bark up with his tomahawk, he was about to use both hands to pull it off the tree. To leave his right hand free he attempted to strike the tomahawk into the tree. But it caught a branch by which it was deflected, with the result that it cut off the end of his finger. No person was nearer to him than fifty yards at the time.

The Workers' Compensation Commission felt some dissatisfaction with his evidence, particularly with his account of how the blow of the hatchet was deflected. The Commission entertained some suspicion that his injury was self-inflicted. In the end it made the following award:—"Having duly considered the matters submitted the Commission finds that the evidence does not establish that the applicant's injury to his left forefinger was intentionally self-inflicted as alleged, nor does it establish that the applicant's injury arose out of and in the course of his employment with the respondent."

The appellant required a special case under sec. 37 (4), which the Commission accordingly stated for the decision of the Supreme Court. The statement of facts contained in the special case was open to the interpretation that until the delivery of the blow which amputated his finger joints, the appellant was working at the tree, but that the Commission was unable to determine affirmatively whether the appellant had struck his forefinger unintentionally in the process of work or intentionally.

The Supreme Court decided the questions submitted by the special case against the appellant upon the ground that it meant that the Commission had been unable to accept the appellant's evidence as reliable and had been left with nothing to show that his story was substantially or at all accurate. Special leave to appeal from this decision was obtained from this Court, because, as I infer, the case was considered to raise the question of law whether, when it appeared that an injury occurred while the worker was at work, the onus of proving that it was intentionally self-inflicted fell upon the employer.

Upon the hearing of the appeal, I was inclined to think that from the statement of facts in the special case we should understand that the appellant injured himself by a blow from his tomahawk, and that before and up to his doing so he was working at the tree, but that the Commission on the evidence was unable to say whether he injured himself intentionally or not. A majority of the Court, however, considered that it was desirable to consult the Commission as to the meaning intended to be conveyed by the special case. The Commission has now informed us that it was unable on the evidence to say that, when the worker injured himself with a tomahawk, he was at the tree, and that it did not accept his evidence that he was working at the tree when he injured himself. This, in substance, confirms the interpretation of the special case adopted by the Supreme Court. It leaves no room for the specific question of law which appeared to arise, because there is no finding to the effect that the appellant's injury was sustained when at work. Mr. Ingham contends, however, that the Commission was bound in point of law to find that at the time of injury the workman was at the tree ostensibly working. It must be conceded that the material before the Commission strongly supports such a conclusion of fact, but the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law (see Shepherd v. Felt and Textiles of Australia Ltd. [2]; Driver v. War Service Homes Commissioner [No. 1] [3]). We are not exercising a jurisdiction to control findings of a tribunal of fact, as a Court does upon an application to set aside a verdict of a jury. We are limited to questions of law. Mr. Ingham also contended that, once the explanation was suggested that the injury was self-inflicted, the burden of supporting it by evidence fell upon the employer and unless the Commission were satisfied affirmatively that the injury was self-inflicted, it was bound to hold that the injury arose out of the employment and could not take into account the possibility of self-infliction as an explanation of the unsatisfactory proofs offered by the worker. I do not agree with this view. As I understand the law, there is no rule requiring affirmative proof that an unlawful act or misconduct has actually taken place when the possibility of its occurring is relied on as a reasonable explanation of facts otherwise tending to prove an issue against the party suggesting it. The general rule is laid down in Doe d. Devine v. Wilson [4]. That was a case where the authenticity of a document was in question and it was sought to throw the burden of proving it to be a forgery on the party impugning it. Speaking for the Privy Council, Sir John Patteson said: "In a civil case the onus of proving the genuineness of a deed is cast upon the party who produces it, and asserts its validity. If there be conflicting evidence as to the genuineness, either by reason of alleged forgery, or otherwise, the party asserting the deed must satisfy the jury that it is genuine. The jury must weigh the conflicting evidence, consider all the probabilities of the case, not excluding the ordinary presumption of innocence, and must determine the question according to the balance of those probabilities" [5]. Self-inflicted injury or other misconduct as an explanation of what might otherwise be due to accident appears to me to be in the same category.

The existence in the Act of an express proviso that no compensation shall be payable for self-inflicted injury (sec. 7 (3) (c)) does not make it less necessary that the applicant should affirmatively establish the conditions of liability, one of which is that the injury arose out of the employment. It may be that, if he proves that while actually at his work he received such an injury as that now in question, this onus must as a matter of law be treated as sufficiently discharged, unless and until the employer shows that the injury was intentionally inflicted. But when the place and occasion of injury remain unproved, the so-called presumption of innocence cannot be used to shift the burden of proof. It is only one of the arguments of probability to be taken into account by the tribunal of fact.

I think the appeal should be dismissed with costs.

McTiernan J.

I agree.

Appeal dismissed with costs.

E. M. Mitchell K.C., Bradley K.C., and J. E. Pilcher , for the respondent, were not further called upon.

Solicitor for the appellant, Abram Landa .

Solicitors for the respondent, Dawson, Waldron, Edwards & Nicholls .

Endnote