Ansett Australia v Dale

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Ansett Australia v Dale [2001]  NSWCA 314

FILE NUMBER(S):
40331/00

HEARING DATE(S):               30 May 2001

JUDGMENT DATE: 14/09/2001

PARTIES:
Ansett Australia Limited
(Appellant)
v
Margaret Anne Dale (as Executrix of the Estate of the late Phillip Mewburn Dale)
(Respondent)

JUDGMENT OF:       Powell JA Davies AJA Ipp AJA    

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          42302/98

LOWER COURT JUDICIAL OFFICER:     Davidson CCJ

COUNSEL:
A:  Mr J D Hislop QC, Mr N Chen
R:  Mr L King SC, Mr R F Wilkins

SOLICITORS:
A:  Gillis Delaney Brown
R:  Jones Staff & Co

CATCHWORDS:
Workers Compensation
worker died shortly after receiving head injury
whether worker suffered brain damage
whether injury was permanent
whether worker could recover 100% as a most extreme case
whether employee's and dependant's rights amounted to double compensation
whether employee's claim for 100% compensation was inconsistent with the Human Tissue Act 1983
whether error of law in award of 100% compensation.

LEGISLATION CITED:
Workers Compensation Act 1987, ss 25, 66, 67, Table
Compensation Court Act 1984, s 32
Human Tissue Act 1983, s33

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES

COURT OF APPEAL

CA         40331/00
CC         42302/98

POWELL JA
DAVIES AJA
IPP AJA

FRIDAY, 14 SEPTEMBER 2001

ANSETT AUSTRALIA LIMITED v MARGARET ANNE DALE
(As Executrix of the Estate of the Late Phillip Mewburn Dale)

JUDGMENT

1. POWELL JA:  As the basic facts which have given rise to this appeal have been set out by Davies AJA in the Judgment which he has prepared, which Judgment I have read in draft, it is not necessary that I repeat them here.

2. There are, as it seems to me, three matters which call for consideration or comment, they being:

   a.what is comprehended by the phrase “brain damage” appearing in the Table to Division 4 of Part 3 of the Act;

   b.whether it was open to Davidson CCJ, in the circumstances of this case, to hold that such brain damage as had been sustained by the deceased, constituted a most extreme case; and

   c.whether, in the circumstances of this case, it was open to Davidson CCJ to hold that such brain damage as had been sustained by the deceased was permanent.

   Brain damage

3. The question of what was comprehended by the phrase “brain damage” was considered by this Court in Langdon v. State of New South Wales (1996) 13 NSWCCR 552. In the course of his Judgment, Mahoney P wrote supra at 555:

   “It was necessary for the appellant to establish that he had suffered ‘permanent brain damage’ within the terms of the Table to which reference is made in, inter alia, sections 66 and 67 of the Workers Compensation Act 1987. It is not sufficient that the appellant establish that, because of the injury he has suffered, his mental capacity has been reduced or his mental functioning has deteriorated. It is necessary to show that there has been ‘permanent brain damage’. In principle, that is both necessary…