Gales v Lovett, McCracken & Bray - [2008] NSWCA 171

New South Wales

Court of Appeal

CITATION: Gales v Lovett, McCracken & Bray [2008] NSWCA 171
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 18 July 2008

JUDGMENT DATE:
1 August 2008

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 36; Hoeben J at 37

DECISION: Appeal dismissed with costs.

CATCHWORDS: WORKERS COMPENSATION - Disease of gradual process – Commutation under s 51 (now repealed) of the Workers Compensation Act 1987 (the Act) – Determination that liability of the employer in respect of the worker’s skin cancer redeemed and commuted by a lump sum payment, and agreement by the worker that the lump sum removed liability under Division 4 of Part 3 – Following amendment of Division 4, worker claims a lump sum for permanent impairment for skin cancer – Whether deemed date of this injury the date of the claim, pursuant to s 15 of the Act – Whether liability for this injury removed by the commutation and lump sum payment – Whether removal of liability applied to the amended division 4.

LEGISLATION CITED: Workers Compensation Act 1987 (NSW) ss4, 15, 51, 65-67.
Workers Compensation Act 1926 s 16

CATEGORY: Principal judgment

CASES CITED: Alto Fords Pty Ltd v Antaw [1999] NSWCA 234, (1999) 18 NSWCCR 246

PARTIES: Frank Albert GALES (Appellant)
LOVETT McCRACKEN & BRAY PTY LIMITED (Respondent)

FILE NUMBER(S): CA 40708/07

COUNSEL: B G McMANAMEY (Appellant)
L KING SC/ P L PERRY (Respondent)

SOLICITORS: Turner Freeman (Appellant)
QBE In-House Legal (Respondent)

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): WCC 1123-07

LOWER COURT JUDICIAL OFFICER: Acting Deputy President ROBIN HANDLEY

LOWER COURT DATE OF DECISION: 19 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Lovett McCracken & Bray Pty Ltd v Gales [2007] NSWWCCPD 198

CA 40708/07
WCC 1123-07

HODGSON JA
IPP JA
HOEBEN J
1 AUGUST 2008

Frank Albert GALES v LOVETT, McCRACKEN & BRAY PTY LIMITED

Judgment

1 HODGSON JA: On 19 September 2007, Acting Deputy President Handley revoked a decision made by an Arbitrator in respect of a claim made by the appellant worker for compensation for skin cancer, substituted an award for the respondent employer, and made no order as to costs. The worker appeals from that decision.

Statutory Provisions

2 It is necessary to have regard to certain provisions of the Workers Compensation Act 1987 as they were as at 30 March 2000, and as they became following amendments in 2001 (Act 61 of 2001).

3 First, “injury” was defined as at 30 March 2000 by s4 of the 1987 Act as follows:

4 Definition of “injury”

(cf former s 6 (1))

In this Act:
injury:

(a) means personal injury arising out of or in the course of employment,

(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where…

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: [2008] NSWCA 171
Decision Date: 1 August 2008

CaseChat Overview and Summary

The parties to this matter were Gales (the worker) and Lovett, McCracken & Bray (the employer). The dispute concerned the worker's entitlement to a lump sum payment for permanent impairment arising from skin cancer, following a previous commutation of the employer's liability under the *Workers Compensation Act 1987* (NSW). The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the deemed date of injury for the worker's skin cancer was the date of the claim, pursuant to section 15 of the Act; whether the employer's liability for this injury had been extinguished by a prior commutation and lump sum payment; and, if so, whether this extinguishment of liability extended to the amended Division 4 of Part 3 of the Act, which provided for permanent impairment lump sums.

The Court of Appeal reasoned that the commutation under the former section 51 of the Act had the effect of redeeming and discharging the employer's liability for the worker's injury. This discharge was agreed by the worker to remove liability under Division 4 of Part 3. The Court found that the subsequent amendment to Division 4 did not revive the employer's liability, as the prior commutation had definitively settled the matter. Therefore, the employer's liability for the worker's skin cancer was removed by the commutation and lump sum payment, and this removal applied to the amended Division 4.

The appeal was dismissed with costs.

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.

CITATION:	Gales v Lovett, McCracken & Bray [2008] NSWCA 171 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	18 July 2008
JUDGMENT DATE:	1 August 2008
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 36; Hoeben J at 37
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	WORKERS COMPENSATION - Disease of gradual process – Commutation under s 51 (now repealed) of the Workers Compensation Act 1987 (the Act) – Determination that liability of the employer in respect of the worker’s skin cancer redeemed and commuted by a lump sum payment, and agreement by the worker that the lump sum removed liability under Division 4 of Part 3 – Following amendment of Division 4, worker claims a lump sum for permanent impairment for skin cancer – Whether deemed date of this injury the date of the claim, pursuant to s 15 of the Act – Whether liability for this injury removed by the commutation and lump sum payment – Whether removal of liability applied to the amended division 4.
LEGISLATION CITED:	Workers Compensation Act 1987 (NSW) ss4, 15, 51, 65-67. Workers Compensation Act 1926 s 16
CATEGORY:	Principal judgment
CASES CITED:	Alto Fords Pty Ltd v Antaw [1999] NSWCA 234, (1999) 18 NSWCCR 246
PARTIES:	Frank Albert GALES (Appellant) LOVETT McCRACKEN & BRAY PTY LIMITED (Respondent)
FILE NUMBER(S):	CA 40708/07
COUNSEL:	B G McMANAMEY (Appellant) L KING SC/ P L PERRY (Respondent)
SOLICITORS:	Turner Freeman (Appellant) QBE In-House Legal (Respondent)
LOWER COURT JURISDICTION:	Workers Compensation Commission
LOWER COURT FILE NUMBER(S):	WCC 1123-07
LOWER COURT JUDICIAL OFFICER:	Acting Deputy President ROBIN HANDLEY
LOWER COURT DATE OF DECISION:	19 September 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Lovett McCracken & Bray Pty Ltd v Gales [2007] NSWWCCPD 198