Hatfield Engineering Pty Ltd v Fitzgerald

Case [2003] NSWCA 345

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Hatfield Engineering v Fitzgerald [2003]  NSWCA 345

FILE NUMBER(S):
40520/02

HEARING DATE(S):               8 July 2003

JUDGMENT DATE: 25/11/2003

PARTIES:
HATFIELD ENGINEERING PTY LIMITED  (Appellant)
Bruce James FITZGERALD  (Respondent) 

JUDGMENT OF:       Hodgson JA Santow JA Ipp JA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          15813/85

LOWER COURT JUDICIAL OFFICER:     Curtis J

COUNSEL:
J D Hislop, QC/ N E Chen  (Appellant)
L King, SC/ G Niven  (Respondent)

SOLICITORS:
Gillis Delaney Brown  (Appellant)
Giles Paynes & Co  (Respondent)

CATCHWORDS:
WORKERS' COMPENSATION - Discretion of the Court under s17 Compensation Court Act 1984 (NSW) to reconsider orders made pursuant to s15(1) Workers' Compensation Act 1926 (NSW) - February 1986 redemption of weekly payments by lump sum payment - CHANGED CIRCUMSTANCES - Major injuries to right leg suffered in 1980 - lump sum compensation for 50% loss of use of right leg awarded in 1983 - right leg amputated in 1998 curing problems of recurrent infection and septicaemia.  Whether s17(4) incapable of application to an agreement between worker and employer where redemption amount has been determined by the court - Failure to re-consider specifically the lump sum determination as required by s17(4) - Whether trial judge applied a solely subjective test in consideration of the objective requirement for foreseeability of amputation - Whether trial judge's discretion miscarried, taking into account extensive delay.

LEGISLATION CITED:
Compensation Court Act 1984 (NSW) s17
Workers' Compensation Act 1926 (NSW) s15; s36; s60
Workers' Compensation Act 1987 s151A(5)

DECISION:
(1)  Appeal dismissed
  (2)  Appellant to pay respondent's costs of this appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40520/02

HODGSON JA
SANTOW JA
IPP JA

25 NOVEMBER 2003

HATFIELD ENGINEERING PTY LIMITED v Bruce James FITZGERALD

Judgment

  1. HODGSON JA:  I agree with Santow JA. 

  2. SANTOW JA: 

    INTRODUCTION

    This is an appeal from a decision of Curtis J in the Compensation Court of New South Wales, against his determination that an order earlier made by Freeman J be reconsidered and set aside. The essential circumstances were that Freeman J ordered pursuant to s15(1) of the Workers’ Compensation Act 1926 (NSW) that the liability of the appellant and then defendant, Hatfield Engineering Pty Limited, to make weekly payments to the respondent and then plaintiff, Bruce James Fitzgerald, in respect of an injury suffered by him on 15 July 1980 be redeemed by the payment of $110,000, in addition to the payments already made under that Act.

  3. The original order made by Freeman J was pursuant to s15 of the Workers’ Compensation Act 1926 (NSW), quoted below:

    “Redemption of weekly payments either in whole or in part

    15.  (1)  Subject to this Act, the liability in respect of any weekly payment may, with the consent of the worker, be redeemed either in whole or in part by the payment of a lump sum, determined by the Court, having regard to any dispute as to liability to pay compensation under this Act and the injury, age, and occupation…

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AGLC
Hatfield Engineering v Fitzgerald [2003] NSWCA 345
Case
[2003] NSWCA 345
Decision Date

CaseChat Overview and Summary

Hatfield Engineering Pty Ltd (appellant) appealed a decision of the Compensation Court of New South Wales concerning a worker's compensation matter. The dispute arose from an application to reconsider a redemption of weekly payments by a lump sum payment, which had been ordered in February 1986. The respondent worker had suffered severe injuries to his right leg in a 1980 motorcycle accident, for which he was awarded compensation for a 50% loss of use of his leg in 1983. The application for reconsideration was made after the respondent's right leg was amputated in 1998 due to recurrent infections and septicaemia.

The court was required to determine whether the Compensation Court had the power to reconsider its previous order under section 17 of the *Compensation Court Act 1984* (NSW), particularly in light of changed circumstances. Specifically, the court had to consider if section 17(4) was applicable to an agreement where the redemption amount had already been determined by the court, whether the trial judge had failed to properly reconsider the lump sum determination as required, and if the trial judge's discretion had miscarried by applying a solely subjective test to the foreseeability of the amputation and by taking into account the extensive delay in the application.

The court affirmed that the power to reconsider under section 17 of the *Compensation Court Act 1984* (NSW) was extremely wide, allowing the court to rescind, alter, or amend any previous decision. This power was not limited to cases of changed circumstances or fresh evidence, but could extend to reconsidering errors of fact or law. However, the court also emphasised the general principle that litigation should not be interminable, and parties must present all available evidence at the original hearing. The court found that the trial judge had properly exercised their discretion, considering the objective requirement for foreseeability of the amputation and the extensive delay.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed

(2) Appellant to pay respondent's costs of this appeal.

Background

Background to the litigation

I now turn to the salient facts before considering the reasoning of the trial judge. SALIENT FACTS The respondent at the age of 17 years, was involved in a motorcycle accident with a motor car on his way to work on 15 July 1980, suffering major injuries to his right leg, including a fractured right femur, a compound fracture of the right femur and fibula, ligamentous injury to the right knee, severe soft tissue injuries to the right leg (requiring multiple skin grafts) and vascular injury to the lower right leg (Combined, 54) and de-gloving injury to the right leg (Red, 7F). The respondent was employed by the appellant as an apprentice at this time. The injury was so severe it required eight units of blood. He spent four days in intensive care and ten weeks in skeletal traction. The injuries required several skin grafts and operations including the insertion of a plate into the leg of the respondent (Combined, 51). The respondent was in hospital for 6 weeks after the accident (Combined, 51). As the trial judge recounted (Red, 7) “Dr Lowy reported to the applicant’s solicitors in 1981 that although the applicant had sustained massive injuries to his right leg, ‘apparently he was lucky to avoid amputation’. The doctor went on to say that ‘surgical treatment has been successful and his rehabilitation programme is well under way’. While minimally increasing mobility and further resolution of problems could be expected, the doctor believed the permanent loss of efficient use of the right leg was 50 to 60 per cent. Dr Lowy, noting that the applicant had been a promising wrestler, having represented Australia overseas, said ‘It is strength of character that has enabled him to rehabilitate himself following a most traumatic and disfiguring accident’. Dr Bruce, [an orthopaedic surgeon] on 23 July 1981 noted a skin graft lying directly on the subcutaneous surface of the tibia which resulted in an adherent scarring which is active and prone to ulceration. Although Dr Bruce expressed the opinion that further surgery to the right foot was probable to provide a greater range of movement and greater control of the foot, he believed that the loss of muscle tone, the stiffness of the ankle and the contour deformity of the leg would be a permanent disability. Dr Baldwin on 29 July 1981 reported to the applicant’s solicitors that the applicant had been left with severe functional deficit of his right limb; that he had permanent unsightly scarring and that he had a degree of functional impairment. Dr John Bannister was qualified to express an opinion and in a report of 7 October 1981 said this: This man has had a shocking injury requiring extensive medical treatment. He still has quite significant disability with a loss of normal sensation and active feet movements. I doubt he will ever play any active sport again and it is unlikely that he will become active in a job where repetitive walking on the plane or going up and down stairs could be anticipated. His prognosis for the future for recovery to these activities is extremely poor. I would feel he does have a significant loss of lower limb function of approximately 50 per cent permanent loss of function of the lower limb for general activities. He may have to give consideration to removal of the plate from the femur if irritation commences.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The power to reconsider is contained in s17 of the Compensation Court Act 1984 (NSW) in these terms: “17. Decisions of the Court (1) A decision of the Court in any matter shall be upon the real merits and justice of the case. (2) The Court shall not be bound to follow strict legal precedent. (3) Subject to Part 4 of this Act, a decision or proceeding of the Court shall not: (a)be vitiated by reason of any informality or want of form, or (b)be liable to be challenged, appealed against, reviewed, quashed or called in question by any court. (4) Nothing in subsection (3) shall prevent the Court from reconsidering any matter which has been dealt with by it, or from rescinding, altering or amending any decision previously made or given by the Court, all of which the Court shall have authority to do.” Section 17 is in similar terms to its predecessor s36, then found in the Workers’ Compensation Act 1926 (NSW). The principal difference between the earlier legislation and s17 is that the earlier Act provided for the relevant discretion to reconsider to be vested in the Commission rather than the Compensation Court. It was common ground between the parties that the authority conferred on the court, whereby the court is not prevented from “reconsidering any matter which has been dealt with by it” or “from rescinding, altering or amending any decision” was extremely wide. In the words of Street CJ in Hilliger v Hilliger (1952) 52 SR(NSW) 105, “no limit is set in the section to the power of the court …”. The joint judgment of Owen and Walsh JJ in Hardaker v Wright & Bruce Pty Limited (1960) 62 SR(NSW) 244 at 248 specifically approved that passage and the following one, quoted below: “I see no reason for limiting the generality of the words used in the section, and whether the question be one of fact or one of law, if the circumstances warrant it, I think that there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important, naturally, to keep well in mind the distinction between the existence of the power and the occasion of its exercise, and courts should not lose sight of the general rule that public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.” Importantly in Hardaker (supra) at 249 it was expressly accepted that changed circumstances, or fresh evidence concerning the original circumstances, was a ground for reconsideration though “such reconsideration is not necessarily [so limited]” but “may, in a proper case, extend to considering whether an error has been made, whether of fact or of law, and to making such new or altered award as the circumstances, when thus reconsidered, appear to require”.

Ratio Decidendi

Legal Principle Established

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