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ICM Agriculture Pty Ltd v Perry

ICM Agriculture Pty Ltd v Perry

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Case Copied 8 August 2002 11 min read

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NEW SOUTH WALES COURT OF APPEAL

CITATION: ICM AGRICULTURE PTY LTD v PERRY [2002] NSWCA 257

FILE NUMBER(S):
40664/01

HEARING DATE(S): 26 June 2002

JUDGMENT DATE: 08/08/2002

PARTIES:
ICM AGRICULTURE PTY LTD v SIMON PERRY

JUDGMENT OF: Mason P Meagher JA Handley JA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): WC 56537/99

LOWER COURT JUDICIAL OFFICER: Hughes J

COUNSEL:
Appellant: J Hislop QC/ R Hanlon
Respondent: G Little SC/ R J Taylor

SOLICITORS:
Appellant: Henry Davis York
Respondent: Wendy Baker

CATCHWORDS:
WORKERS COMPENSATION - whether employee injured in the course of employment - whether employee resided on the employer's property because he had been induced or encouraged to do so - when an injury is sustained where and while the worker is living on the employer's premises - whether employment a substantial contributing factor to the injury - whether trial judge adequately applied s 9A, Workers Compensations Act 1987 - whether s 9A satisfied merely because the injury arose out of or in the course of employment. (ND)

LEGISLATION CITED:
Compensation Court Act 1984
Workers Compensation Act 1987

DECISION:
See par 22.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40664/01
MASON P
MEAGHER JA
HANDLEY JA
Thursday 8 August 2002

ICM AGRICULTURE PTY LTD v Simon PERRY

JUDGMENT

MASON P: This appeal challenges orders made by Judge Hughes awarding workers compensation to the respondent (the worker). The right of appeal is limited by s32 of the Compensation Court Act 1984 which relevantly provides:
32. Appeal to Court of Appeal from Judge on question of law
(1) If a party to any proceedings before the Court constituted by a Judge is aggrieved by an award of the Judge in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.
(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Compensation Court for determination by the Compensation Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.
….
The notice of appeal asserts various errors of law in the finding that the worker suffered injury arising out of or in the course of his employment (cf Workers Compensation Act 1987, s4); and that the employment concerned was a substantial contributing factor to the injury (cf s9A).
The facts set out below emerge from the judgment or the unchallenged evidence of the worker whom the primary judge accepted as a witness of truth.
The worker was severely burned as a result of a fire on 20 December 1997. He was then asleep at the “barracks” at his place of employment on his employer’s property called “Cowl Cowl Station”, Hillston. The property is 85km x 20km in size. The appellant said that “the farm” was about 20km from Hillston, which I infer…

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: [2002] NSWCA 257
Decision Date: 8 August 2002

CaseChat Overview and Summary

ICM Agriculture Pty Ltd (the appellant) appealed an award made by the Compensation Court in favour of Mr Perry (the respondent), concerning a workers compensation claim. The dispute centred on whether Mr Perry's injury was sustained in the course of his employment, particularly in light of his residence on the employer's property.

The primary legal issues before the Court of Appeal were whether the injury was sustained in the course of employment, whether the employment was a substantial contributing factor to the injury, and whether the trial judge had adequately applied section 9A of the *Workers Compensation Act 1987* (NSW). Specifically, the court considered whether section 9A was satisfied merely because the injury arose out of or in the course of employment, and whether the employee's residence on the employer's property was a consequence of inducement or encouragement.

The Court of Appeal found that the trial judge had erred in law in their application of section 9A. While there was a finding that the injury occurred in the course of employment and evidence capable of establishing that it arose out of employment, an explicit finding to that effect was not made. The court noted that the underlying facts were capable of establishing a substantial connection between the employment and the injury, but this was not mandated. The cause of the fire, which was relevant to section 9A, had been inadequately explored and was not the subject of findings.

Consequently, the Court of Appeal allowed the appeal, set aside the award made by the Compensation Court, and remitted the matter for further determination. The respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

See par 22.

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

The appellant is entitled to have the award set aside. Remitter would normally follow in a case like the present, because the error of law affected the ultimate decision (cf Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177) and because this Court lacks jurisdiction to make factual findings (North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412, Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 464). The appellant resists this, arguing for an award in its favour on the basis that such a result is inevitable. I disagree. Here there was a finding that the injury was incurred in the course of employment. There was also evidence capable of establishing that it arose out of the employment, but no finding to that effect is explicitly made (cf, however the passage containing the error of law). The underlying facts were, in my view, capable of establishing a substantial connection (I hasten to say that they do not mandate such a result). The question of how the fire started would be relevant to s9A, but it was barely explored and certainly not made the subject of findings. I propose the following orders:1.Appeal allowed.2.Set aside award made on 1 August 2001.3.Matter remitted to Compensation Court for further determination in accordance with the reasons of the Court of Appeal.4.Respondent to pay appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act, if qualified. MEAGHER JA: I agree with Mason P. HANDLEY JA: I agree with Mason P.