Colliar v Bulley

Case [2000] NSWCA 1

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Colliar v Bulley & Anor [2000]  NSWCA 1

FILE NUMBER(S):
40505/98

HEARING DATE(S):           13 September 1999

JUDGMENT DATE:            07/02/2000

PARTIES:
Mr & Mrs R Colliar t/as Mid North Coast Mushrooms
(Appellant)
v
Marilyn Dawn Bulley
(First Respondent)

Yancu Pty Limited t/as Riverview Motor Inn
(Second Respondent)

JUDGMENT OF:      Priestley JA Meagher JA Davies AJA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):        18667/96

LOWER COURT JUDICIAL OFFICER:     Truss DCJ

COUNSEL:
A:   P Deakin QC, L Stone
R1: M Sneddon (Submitting)
R2: M Cranitch SC, K Sibley

SOLICITORS:
A:   Hickson Wisewoulds
R1: Walker Smith Solicitors
R2: Sparke Helmore Solicitors

CATCHWORDS:
Workers Compensation - whether s16 of Workers Compensation Act 1987 applied
whether worker's employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of his disease of osteoarthritis
whether a frank injury may fall within s16
what is an injury.

LEGISLATION CITED:
Workers Compensation Act 1987, ss4,9,16,22
Compensation Court Act 1984, s32

DECISION:
Appeal allowed.  See para 80.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA     40505/98
  CC     18667/96

PRIESTLEY JA
MEAGHER JA
DAVIES AJA

MONDAY 7 FEBRUARY 2000

MR & MRS R COLLIAR t/as MID NORTH COAST MUSHROOMS
v Marilyn Dawn BULLEY & ANOR

JUDGMENT

1     PRIESTLEY JA: Pursuant to s 32 of the Compensation Court Act in the form it had taken before the worker in this case had commenced her proceedings (see Act No 89 of 1995, Schedule 3 Pars [13] and [29]), this appeal is one in which the appellants’ only right of appeal is one which limits their grounds to points of law. The appeal was conducted for the appellants on this basis.

2 Although the notice of appeal contained a number of grounds, in the appellants’ written submissions the grounds were reduced to one: that the trial judge erred in law in failing to find that an injury the worker suffered on 6 October 1995 was a progressive disease injury (as I call it as I explain later) and not a frank injury, as her Honour found. This ground involved the assertion that as a matter of law s 16 of the Workers Compensation Act 1987 (the Act) applied to the alleged progressive disease injury.

3 This question of law can only be properly understood by reference to ss 4 and 16 of the Act as it stood before it was very significantly amended by Act No 120 of 1996, so before coming to the facts of the case I will seek to describe briefly the meaning and relationship of those sections, insofar as they are relevant to the appeal.

4     The statutory background.

Section 4 was of basic importance to the Act because it defined (and limited) the width of the term “injury” in the Act’s primary provision entitling a worker to compensation. This was s 9 which was as follows:

“(1) A worker who has received an injury (and, in the case of the…

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AGLC
Colliar v Bulley [2000] NSWCA 1
Case
[2000] NSWCA 1
Decision Date

CaseChat Overview and Summary

This case involved an appeal from a determination of the Compensation Court of New South Wales concerning a worker's claim for workers' compensation. The appellant, Mr. Colliar, and his wife, the second employer, were seeking to challenge the application of section 16 of the *Workers Compensation Act 1987* (the Act) to their liability. The worker, Mrs. Bulley, had a pre-existing condition of osteoarthritis in her knees, which was aggravated by her employment as a mushroom picker. She later suffered a distinct incident on 6 October 1995, where she slipped and fell onto her knees while cleaning a spa.

The central legal issues before the court were whether section 16 of the Act applied to the worker's condition, and if so, which employer was liable. Specifically, the court had to determine if the worker's employment was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of her disease. A further question arose as to whether a "frank injury," as opposed to a progressive disease, could fall within the ambit of section 16, and what constituted an "injury" for the purposes of the Act.

The trial judge had concluded that because a "frank injury" occurred on 6 October 1995, section 16 did not apply to that specific incident. Furthermore, the trial judge did not find that a progressive disease injury had occurred on that day, thus also precluding the application of section 16 in that context. The appellate court found that, based on the trial judge's factual findings, this reasoning was valid and that the appellants had failed to demonstrate any error of law.

Consequently, the appeal was allowed, and the court ordered that the appeal be dismissed with costs.

Orders

Orders of the court

Appeal allowed. See para 80.

Background

Background to the litigation

The facts.The question of construction of s 16 which the appellant sought to raise in this appeal was argued by reference to the facts emerging from the following account. The worker, who is the first respondent in the appeal, was employed, by an employer (Mr and Mrs Baker) whom I will call the first employer, starting on 14 March 1989, as a labourer picking mushrooms. In doing this work she gradually developed burning and stiffness in the knees. The first employer sold the mushroom growing business to the appellants in this appeal (Mr and Mrs Colliar), whom I will call the second employer, on 23 September 1991. The worker continued her employment picking mushrooms. The problems with her knees were gradually becoming worse. The second employer closed the mushroom growing business on or about 15 December 1992. The worker was then unemployed for about thirteen months. She then began employment with the second respondent in the appeal (Yancu Pty Ltd, (Yancu)), whom I will call the third employer. This work was that of a “laundry person/domestic” in a motel. She continued to have problems with her knees but was able to do the work. Then, on 6 October 1995 there was an incident at work about which she gave the following evidence:“Q. Something happened to you on 6 October 1995. A.---That’s right.Q. What was that. A.---Well, I was cleaning a spa, I had sprayed the tiles above the spa.Q. Where was the spa. A.---In Room 10 at the motel.Q. You were cleaning the bathroom, were you. A.---Yes, the spa area was separate to the bathroom and I was cleaning the spa area which was tiles and the spa, and I’d sprayed it with cleaner and stepped into the spa to do the tiles and I just slipped and crashed down on my knees in the spa.Q. When you crashed down on your knees in the spa how did you feel about yourself. A.---Well, do you mean did it hurt?Q. Yes, did it hurt. A.---Yes, it hurt.Q. What part of your body did you hurt. A.---My knees.Q. When you fell how badly did you feel, how strong was the pain. A. It was pretty bad but I - after a few minutes I was able to get myself together ... ...Q. ... Then how did you feel about yourself when you got home. A. Well, I - when I got home and sat down and then I couldn’t walk, it was just, it was really bad.Q. The pain was really bad. A.---Yes.Q. So it was getting worse, was it. A.---Yes.Q. What happened then, did you go and see someone. A.---That was actually a Friday when that happened and Keiren, the manager, he wasn’t there that day anyway. No, I just put up with it until -Q. This was on the - the accident you had was on 6 October 1995.A. Yes.Q. Did you go back to work. A.---No, I didn’t go back again until the 12th, when Keiren rang me to go back to work I said I couldn’t go back in because I’d hurt my knees....Q. So you had spent 6 days at home, had you, approximately. A. Yes.Q. How did you feel during the 6 days, were your knees getting better or worse or stable, or what. A.---No, they - mainly the right one, it was pretty bad.Q. What about the left one, was that also painful. A.---It was a bit sore but it wasn’t like the other one. The other one was the worst but like it affected both of them but mainly the right one.”The worker then said that she had only gone back to work on one day after 6 October 1995. She was asked about this day:“Q. Would it have been about 13 October. A.---Well, it could have been, I’m not sure, and then - and I couldn’t stand it, it was just killing me so I knew I couldn’t do it so then I went to the doctor, that would have been the 19th and I had cortisone injection into that knee on that day.Q. How did you feel after the cortisone injection. A.---Well, I did get some relief from it after about 4 or 5 days it did seem to feel a little bit better.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Conclusion.Put shortly, the course of the trial judge’s reasoning was that she found there was a frank injury on 6 October 1995, therefore no question of the application of s 16 arose in regard to that injury. Further, although perhaps less fundamentally, she did not find there was progressive disease injury on that day, so again no question of the application of s 16 arose. On the facts of the case as the trial judge found them, and in my opinion was entitled to find them, her line of reasoning seems to me to be fully valid. In my opinion the appellants have been unable to show that the trial judge made any error of law in her decision. In my opinion the appeal should be dismissed with costs. MEAGHER JA: I agree with Davies AJA. DAVIES AJA: This is an appeal from a determination of the Compensation Court of New South Wales. The issue is whether the provisions of s 16 of the Workers Compensation Act 1987 (“the Act”) should have been applied so as to exculpate from liability Mr and Mrs Colliar, who are the present appellants and were the third respondents below. As the appeal is brought under s 32 of the Compensation Court Act 1984, it is limited to a question of law. Section 9(1) of the Act provides, inter alia:(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act. Section 16 of the Act provides, inter alia:(1)If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:(a)the injury shall, for the purposes of this Act, be deemed to have happened:(i)at the time of the worker’s death or incapacity, or(ii)if death or incapacity has not resulted from the injury - at the time the worker makes a claim for compensation with respect to the injury, and(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.(2)Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Compensation Court. Section 22 provides, inter alia:(1)If:(a)the death or incapacity of a worker, or(b)a loss suffered by a worker as referred to in Division 4 of Part 3, or(c)a liability under Division 3 of Part 3 to a worker,results from more than one injury to the worker, liability to pay compensation under this Act is to be apportioned in such manner as the Compensation Court determines.(1A)Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury. Mrs Bulley commenced employment as a labourer picking mushrooms with Mr and Mrs Baker, who were the first respondents below. The job required her to kneel on a concrete platform to pick mushrooms. The floor was generally wet and cold. She also had to climb up and down about four or five rungs of a ladder to pick from a top level. In 1991, that business was acquired by Mr and Mrs Colliar. Until the business closed on or about 15 December 1992, Mrs Bulley continued to perform the same work, which aggravated the underlying osteoarthritic condition in her knees.

Ratio Decidendi

Legal Principle Established

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