Carthew v Badger & Ors

Case [2004] NSWCA 317
CITATION: Carthew v Badger & Ors [2004] NSWCA 317
HEARING DATE(S): 1 Septemer 2004
JUDGMENT DATE:
14 September 2004
JUDGMENT OF: Giles JA at 1; Santow J at 29; Ipp JA at 30
DECISION: Appeal dismissed with costs.
CATCHWORDS: Employee injured diving into swimming pool - dispute over whether injury in course of or arising out of employment - conflicting accounts of circumstances in which it occurred - judge preferred evidence of employer's witnesses - appeal on ground of error in point of law - error in that judge's reasons inadequate - whether inadequate for failure to refer to parts of evidence of employee's witnesses - judge found their evidence unreliable and accepted employer's witnesses - open to judge to do so - the parts fell with the whole and no inadequacy - whether inadequate for failure to refer to a third party's report of incident - report consistent with evidence of employer's witnesses - not so critical that reference required and no inadequacy. ND
CASES CITED: Beale v Government Insurance Office of New South Wales (1997) 44 NSWLR 430;
Fitzgibbon v The Waterways Authority [2003] NSWCA 294;
Mifsud v Campbell (1991) 21 NSWLR 725;
Sinha v Health Care Complaints Commission [2001] NSWCA 206;
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;

PARTIES :

 Ariel Claire Carthew - Appellant
Stephen Badger (t/as Stephen Badger Swim School) - First Respondent
Workcover Authority of New South Wales - Second Respondent
North Sydney Council - Third Respondent
FILE NUMBER(S): CA 40960/03
COUNSEL: P Webb QC & M J Gollan - Appellant
W Ward - First Respondent
G Swinton & J Trainor - Second Respondent
L King SC & C Robertson - Third Respondent
SOLICITORS: Higgins & Higgins - Appellant
Tsolakis Solicitors - First Respondent
W Cooper - Second Respondent
Moray & Agnew - Third Respondent
LOWER COURTJURISDICTION: Compensation Court
LOWER COURT FILE NUMBER(S): CC 12381/02
LOWER COURT
JUDICIAL OFFICER : 		Hughes CCJ


                          CA 40960/03
                          CC 12381/02

                          GILES JA
                          SANTOW JA
                          IPP JA

                          Tuesday 14 September 2004
CARTHEW v BADGER & ORS
Judgment

1 GILES JA: On 30 March 2001 Ms Ariel Carthew was injured when she dived into a shallow 25 metre swimming pool at North Sydney Olympic Pool (“the Pool”) and struck her head on the bottom of the pool. At the time she was employed by Mr Stephen Badger, who conducted a swimming school at the Pool. She claimed compensation under the Workers Compensation Act 1987 (“the Act”), joining as respondents Mr Badger as her employer, Workcover Authority of New South Wales because Mr Badger was uninsured, and North Sydney Council as the alleged principal of Mr Badger.

2 The proceedings were heard before Hughes CCJ on 26 February and 23 June 2003. His Honour published his reasons on 9 October 2003. He made awards in favour of each of the respondents.

3 Ms Carthew appealed to this Court. Her appeal was limited to an appeal in point of law or in relation to the…

Continue reading Carthew v Badger & Ors

Sign in free to access the full text

Details
AGLC
Carthew v Badger & Ors [2004] NSWCA 317
Case
[2004] NSWCA 317
Decision Date

CaseChat Overview and Summary

The appeal in *Carthew v Badger & Ors* concerned an employee who sustained an injury while diving into a swimming pool. The central dispute revolved around whether the injury occurred in the course of or arose out of the employee's employment. The primary judge had favoured the evidence presented by the employer's witnesses over that of the employee. The appeal was brought on the grounds of alleged errors of law, specifically that the primary judge's reasons were inadequate.

The court was required to determine whether the primary judge's reasons for preferring the employer's evidence and rejecting the employee's evidence were legally insufficient. This involved considering whether the judge's failure to refer to specific parts of the employee's witnesses' testimony constituted an inadequacy, given that the judge had found their evidence generally unreliable. Furthermore, the court had to assess whether the judge's omission to mention a third-party report of the incident rendered the reasons inadequate.

The court held that it was open to the primary judge to find the employee's witnesses unreliable and to accept the employer's witnesses' evidence. The judges reasoned that if the overall evidence of a witness is found to be unreliable, then specific parts of that evidence do not need to be separately addressed to avoid a finding of inadequacy in the reasons. Regarding the third-party report, the court found that as it was consistent with the employer's witnesses' evidence and not so critical as to necessitate specific reference, its omission did not render the reasons inadequate. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.