GIRRAWHEEN TAVERN -v- JOSEPH [2003] WASCA 244

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 244
Court:	THE FULL COURT (WA)
Case No:	FUL:81/2001	Heard:	17 MARCH 2003
Coram:	PARKER J WHEELER J MCKECHNIE J	Delivered:	14/10/03
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GIRRAWHEEN TAVERN CHRISTOPHER ANANIAS JOSEPH
Catchwords:	Workers Compensation Disability Degree of disability Aggravation of separate work related injuries Workers Compensation Disability Whether permanent
Legislation:	Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947 Workers' Compensation & Rehabilitation Act 1981, s 93D
Case References:	Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1999 Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249 Hewitt v Benale Pty Ltd [2002] WASCA 163; [2002] ACLR 450 Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511; [2000] VSCA 65 Petkovski v Galletti [1994] 1 VR 436 Re A Medical Assessment Panel; Ex parte Ansett Australia Ltd, unreported; FCt SCt of WA; Library No 980364; 26 June 1998 Re Monger; Ex parte Dutch [2001] WASCA 220. , Re Monger; ex parte United Construction Pty Ltd [2002] WASCA 253 Re Skirving; Ex parte Forward, unreported; FCt SCt of WA; Library No 980737; 18 December 1998 Stockman v Argyle Diamond Sales Ltd [2002] WASCA 89 Bushby v Morris [1980] 1 NSWLR 81 Cooperative Bulk Handling Ltd v Taylor, unreported; FCt SCt of WA; Library No 960528; 17 September 1996 McComish v Fydelor (1994) 12 SR (WA) 4 Morris v George [1977] 2 NSWLR 552 Re Gillett; Ex parte Rusich [2001] WASCA 111 White v Order of the Servants of Mary (Inc) (1995) 13 SR (WA) 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GIRRAWHEEN TAVERN -v- JOSEPH [2003] WASCA 244 CORAM : PARKER J

WHEELER J

MCKECHNIE J

HEARD : 17 MARCH 2003 DELIVERED : 14 OCTOBER 2003 FILE NO/S : FUL 81 of 2001 BETWEEN : GIRRAWHEEN TAVERN

Applicant

AND

CHRISTOPHER ANANIAS JOSEPH

Respondent

Catchwords:

Workers Compensation - Disability - Degree of disability - Aggravation of separate work related injuries

Workers Compensation - Disability - Whether permanent

Legislation:

Law Reform (Contributory Negligence and Tortfeasers' Contribution) Act 1947

Workers' Compensation & Rehabilitation Act 1981, s 93D

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant : Mr J R Ludlow

Respondent : Mr M R Pearson

Solicitors:

Applicant : McAuliffe Williams & Partners

Respondent : Friedman Lurie Singh

Case(s) referred to in judgment(s):

Chestone Holdings Pty Ltd v Garbelini, unreported; FCt SCt of WA; Library No 980584; 19 October 1999.
Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249.
Hewitt v Benale Pty Ltd [2002] WASCA 163; [2002] ACLR 450.
Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511; [2000] VSCA 65.
Petkovski v Galletti [1994] 1 VR 436.
Re…

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: [2003] WASCA 244
Decision Date: 14 OCTOBER 2003

CaseChat Overview and Summary

The Girrawheen Tavern appealed against a decision of the Workers' Compensation Board in relation to an employee, Joseph, who had suffered multiple work-related injuries. The key issue was the degree of Joseph's disability and whether the injuries had resulted in a permanent impairment. The Board had found that Joseph's disability was permanent and total, a finding that the Girrawheen Tavern contested.

The Girrawheen Tavern argued that Joseph's disability was not as severe as found by the Board, and that his injuries were not permanent. The court had to determine whether the Board's finding was supported by the evidence and whether the Girrawheen Tavern had acted reasonably in managing Joseph's injuries. The Girrawheen Tavern submitted that the Board had erred in law and failed to consider the relevant evidence.

The court found that the Board had properly considered the evidence and applied the correct legal principles. The Girrawheen Tavern had not demonstrated that the Board's findings were unreasonable or that there was an error of law. The court held that Joseph's disability was indeed permanent and total, and dismissed the Girrawheen Tavern's appeal. The Girrawheen Tavern was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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