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Employment to the nature of which the disease was due

Alto Ford Pty Limited v Antaw [1999] NSWCA 234 (19 July 1999) per Sheller JA:

19 This brings me back to the appellant's first point. It turns upon the meaning of the expression "employment to the nature of which the disease was due". In Tame v Commonwealth Collieries PL (1947) 47 SR (NSW) 269, at 272, Jordan CJ said:

'The meaning of the phrase `employment to the nature of which the disease was due' is explained in Blatchford v Staddon [1927] AC 461 at 470.

`This part of the section is not concerned directly with something arising out of the particular service of the particular employer sued, but with results which are incidental to the class of employment, in which the workman has served several employers.'

'It is not necessary that the presence, or some aggravation, of the disease should be in some degree due to service with the last employer. I think that `employment to the nature of which the disease was due' means an employment of such a kind as to involve a risk to the employee of contracting the gradual process disease which is disabling him.'

20 It is not difficult to imagine simple examples such as the Court confronted in that case. An employee complains of a disease contracted by the gradual process of the inhalation of silica dust. Compensation is payable by the employer who last employed the worker in employment of a kind as to expose him to the risk of inhaling silica dust.

As was pointed out, the example emphasises that the section is primarily directed to diseases not the result of a frank injury. In the present case, absent any evidence of this, it is difficult to conceive that employment as a motor mechanic is employment of such a kind as to involve a risk to the employee of suffering a loss of vision.

However, that must be so or the subsection could not work. If the answer is that the employment is not of such a kind then the appellant itself is not an employer by whom compensation is payable pursuant to s15 (1) (b).

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