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Alto Ford Pty Ltd v Antaw

Alto Ford Pty Ltd v Antaw

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Case Copied 19 July 1999 21 min read

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CITATION: ALTO FORD PTY LIMITED v ANTAW [1999] NSWCA 234

FILE NUMBER(S): CA 40462/98

HEARING DATE(S): 7 July 1999

JUDGMENT DATE:
19 July 1999

PARTIES :

Alto Ford Pty Limited - Appellant
Brian Roy Antaw - Respondent

JUDGMENT OF: Meagher JA at 1; Sheller JA at 2; Cole AJA at 27

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : 17903/96

LOWER COURT JUDICIAL OFFICER: Ashford CCJ

COUNSEL: J D Hislop QC/J W Catsanos - Appellant
L King SC/I Raine - Respondent

SOLICITORS: Dunhill Madden Butler - Appellant
Taperell Rutledge - Respondent

CATCHWORDS: WORKERS COMPENSATION - diseases of gradual process - injury to eye - when date of injury deemed to have occurred - when date of incapacity deemed to have occurred - employment to the nature of which the disease was due

ACTS CITED: Workers Compensation Act 1926
Workers Compensation Act 1987

CASES CITED:
Arnott Snack Products Pty Ltd v Yacob (1983) 155 CLR 171
Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724
Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269
Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431

DECISION: Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40462/98
CC 17903/96

MEAGHER JA
SHELLER JA
COLE AJA

ALTO FORD PTY LIMITED v ANTAW
In 1976 the respondent was injured when a metallic particle struck his left eye while employed as a mechanic by the appellant. He settled a claim under s16 of the Workers Compensation Act 1926 in respect of a 10 per cent loss of sight of the left eye. Nine years after the date of injury he left the appellants employ and was thereafter employed by at least six employers as a motor mechanic. During a period of 5 to 6 years the respondent suffered a gradual deterioration of his vision. On April 1996 he ceased full time work and continued to undertake house painting and motor repair work on a casual basis until October 1996. Since that time the respondent had looked for employment but without success.
The respondent applied for a determination by the Compensation Court and was awarded weekly compensation from 10 August 1993, a lump sum payment under s66 of the Workers Compensation Act 1987 in respect of a 40 per cent further loss of sight of the left eye, s60 expenses and a lump sum for pain and suffering under s67.
The appellant appealed from this decision on three grounds. First, that under s15(1)(b) compensation was not payable by it because it was not the employer who last employed the respondent in employment to the nature of which the disease was due. Second, assuming the first point was not accepted, that pursuant to s15(1)(a) the injury should be deemed to have happened on or before 30 June 1987 and accordingly compensation under s67 was not available, and compensation for permanent injury should have been calculated in accordance with s16 of the 1926 Act and not s66 of the 1987 Act.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWCA 234
Decision Date: 19 July 1999

CaseChat Overview and Summary

Alto Ford Pty Ltd (the employer) appealed to the New South Wales Court of Appeal against a decision of the Workers Compensation Commission. The dispute concerned a claim for workers compensation by Mr Antaw (the worker) for a disease of gradual process affecting his eye. The Commission had found that the worker had suffered an injury and awarded compensation.

The Court of Appeal was required to determine when the date of injury was deemed to have occurred and when the date of incapacity was deemed to have occurred, in circumstances where the worker's employment was to the nature of which the disease was due. Specifically, the court considered the application of the relevant provisions of the *Workers' Compensation Act 1987* (NSW) to a disease that developed over time.

The Court of Appeal reasoned that the date of injury for a disease of gradual process is the date on which the worker first became aware, or ought reasonably to have become aware, of the injury and its connection to their employment. The date of incapacity is the date on which the worker first suffered a loss of earnings as a result of that injury. The court found that the Commission had erred in its application of these principles, leading to an incorrect determination of the relevant dates.

Consequently, the appeal was allowed, and the decision of the Workers Compensation Commission was set aside.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	ALTO FORD PTY LIMITED v ANTAW [1999] NSWCA 234
FILE NUMBER(S):	CA 40462/98
HEARING DATE(S):	7 July 1999
JUDGMENT DATE:	19 July 1999
PARTIES :	Alto Ford Pty Limited - Appellant Brian Roy Antaw - Respondent
JUDGMENT OF:	Meagher JA at 1; Sheller JA at 2; Cole AJA at 27

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	17903/96
LOWER COURT JUDICIAL OFFICER:	Ashford CCJ

COUNSEL:	J D Hislop QC/J W Catsanos - Appellant L King SC/I Raine - Respondent
SOLICITORS:	Dunhill Madden Butler - Appellant Taperell Rutledge - Respondent
CATCHWORDS:	WORKERS COMPENSATION - diseases of gradual process - injury to eye - when date of injury deemed to have occurred - when date of incapacity deemed to have occurred - employment to the nature of which the disease was due
ACTS CITED:	Workers Compensation Act 1926 Workers Compensation Act 1987
CASES CITED:	Arnott Snack Products Pty Ltd v Yacob (1983) 155 CLR 171 Bohanna & Appleton v Bohanna (1996) 13 NSWCCR 724 Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431
DECISION:	Appeal allowed