BHP v Hutchins; Hutchins v BHP No. Scgrg-97-1616, Scgrg-97-1619 Judgment No. S6720

[1998] SASC 6720

BROKEN HILL PROPRIETARY COMPANY LTD  v  HUTCHINS; HUTCHINS V BROKEN HILL PROPRIETARY COMPANY LTD

Full Court: Duggan, Williams and Bleby JJ (Ex tempore)

BLEBY J:  I deal first with the worker’s appeal and deal separately with each of the grounds. 

So far as ground 1 of the worker’s appeal is concerned, that is, the finding as to lack of mutuality on the termination of the worker’s employment, in my opinion no question of law arises on this ground.  The Tribunal in my opinion correctly held that the decision made by the Review Officer was open to her on the facts.   In my opinion the question of Jones v Dunkel does not arise in those circumstances, and I would revoke leave to appeal. 

So far as ground 2 is concerned, that is, the ground relating to the rejection of the claim for the 5 per cent loss of function of the right arm, similarly in my opinion no question of law arises.  The Tribunal in my opinion correctly held that the decision made was open to the Review Officer on the facts and I would revoke leave to appeal on that ground. 

So far as ground 3 is concerned, in my opinion the Tribunal was correct in holding that the issue of the correct rate of payment of weekly compensation was not before the Review Officer and that the Review Officer erred in rejecting the worker’s claim.  The Tribunal correctly identified the issue before the Review Officer as being an application for an extension of time in which to bring an application and not the application itself, which the Review Officer purported to decide.  The Tribunal correctly quashed the Review Officer’s decision, but erred in holding that the Review Officer did not have jurisdiction to decide the question she purported to decide. 

The Review Officer’s decision having been quashed, the application for extension of time remains, in my opinion, to be determined by the Review Officer, as does the substantive application.  In my opinion no further order is necessary by this Court. 

So far as the employer’s appeal is concerned, in relation to grounds 1 to 3 of the employer’s Notice of Appeal, that is, relating to the findings by the Review Officer of partial incapacity and the restoration of mutuality, the Tribunal correctly held that there was evidence on which the Review Officer could find that there was partial incapacity in the worker, notwithstanding some superficial confusion in the reasons of the Review Officer as to her acceptance or otherwise of some of the worker’s evidence. 

In my opinion it is sufficiently clear that the Review Officer accepted sufficient of that evidence to justify a finding of partial incapacity and that that was supported by other evidence before the Review Officer. 

In my opinion the Tribunal was also correct in holding that there was sufficient evidence that the necessary degree of mutuality had been restored upon the worker notifying the employer of his availability to perform work in February of 1995.  Accordingly in my opinion no question of law arises and I would revoke leave to appeal on these grounds. 

So far as grounds 4 and 5 of the employer’s appeal is concerned, they relate to the non-economic loss assessments under s43 of 15 per cent for the cervical spine and 10 per cent for the lumbar spine.  Questions of law were argued as to whether the tribunal correctly applied the decision of this Court in Taylor v Broken Hill Proprietary Company Ltd (1997) 191 LSJS 440 to the situation before it. There may be a sense in which Taylor’s case was incorrectly applied by the Tribunal in the circumstances, and that it was used as justification for not interfering with the Review Officer’s decision.   However, the real question is whether the determination of the Tribunal is correct.  The argument before the Tribunal challenged the two s43 assessments.  In my opinion there was evidence before the Review Officer on which the assessments could be made and which justified the Review Officer’s conclusions.  Those assessments were not interfered with by the Tribunal.  Although a point of law was raised, it is not necessary for the resolution of the appeal.  There has been no error in the result in the two assessments and accordingly I would revoke leave to appeal on those two grounds as well. 

Ground 6 of the employer’s appeal was withdrawn and I would also revoke leave on that ground. 

DUGGAN J:  I agree with the orders proposed by Justice Bleby and I agree with the reasons which he has advanced for making those orders. 

WILLIAMS J:  I agree with the views expressed by Justice Bleby and the orders which he proposes. 

DUGGAN J:  The orders of the court will be as follows. 

1......... Leave to appeal on grounds 1 and 2 of the worker’s appeal is revoked.  In relation to ground 3 the court makes no order.

1. Leave to appeal is revoked on all grounds in the employer’s appeal.

MR BESANKO:                  I ask for costs in relation to the worker’s appeal. 

MR BARRETT:  And I ask for costs in relation to the employer’s appeal. 

DUGGAN J:  No order as to costs.