Lonergan v Eastwill Proprietary Limited - [1988] TASSC 45

Serial No 37/1988
List “A”

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Lonergan v Eastwill Proprietary Limited [1988] TASSC 45; A37/1988

PARTIES:  LONERGAN
  v
  EASTWILL PROPRIETARY LIMITED

FILE NO/S:  FCA 40/1987
DELIVERED ON:  7 September 1988
JUDGMENT OF:  Neasey, Nettlefold and Cox JJ

Judgment Number: A37/1988
Number of paragraphs: 46

Serial No 37/1988

List "A"

File No FCA 40/1987

LONERGAN v EASTWILL PROPRIETARY LIMITED AND THE NOMINAL INSURER

REASONS FOR JUDGMENT FULL COURT:

NEASEY J

NETTLEFOLD J (Dissenting)

COX J

7 September 1988

ORDERS OF THE COURT:

1. Appeal allowed.
2. Order of 10 May 1987 set aside.
3.Order that the sums paid into Court since the 6 October 1984 by the respondent, the Nominal Insurer, be paid out to the appellant.

Serial No 37/1988

List "A"

File No FCA 40/1987

LONERGAN v HASTWILL PROPRIETARY LIMITED AND THE NOMINAL INSURER

REASONS FOR JUDGMENT FULL COURT:

NEASEY J

7 September 1988

I agree with the reasons for judgment of Cox J.

List "A"

File No. FCA 40/1987

LONERGAN v EASTWILL PTY. LTD. AND THE NOMINAL INSURER

REASONS FOR JUDGMENT FULL COURT:

NETTLEFOLD J

7 September 1988

The facts are set out in the reasons for judgment of Cox J and I need not repeat them.

With respect, in my opinion the appeal should have failed because it has not been shown that the order which his Honour made was made in error.

His Honour preferred, and was entitled to prefer, the opinion of Mr Duffy. That being so, he was entitled to make the finding contained in the following passage:

"Mr Duffy's opinion which I accept was that had Mr Lonergan not been involved in either of the two incidents at work in 1978 he would in any event have suffered from the symptoms of which he has complained since October 1984."

It is necessary to make an analysis of Mr Duffy's evidence with a view to showing that that finding was justified.

Mr Duffy said that he did not believe that any symptoms related to the first incident. They were related to the second incident. He felt the symptoms were due to cervical spondylitis, a condition which existed before the second incident. Mr Duffy explained that a person can have that condition and yet be symptom free. But symptoms can develop in various parts of the body at various times. The symptoms can develop spontaneously or from trauma. In July 1984 the appellant had low back symptoms and symptoms in the legs but Mr Duffy's opinion was that those symptoms were not a result of the incident at work in August 1978. They were due to spinal spondylitis, but the spondylitis in the neck did not make a significant contribution to those lower back symptoms.

Mr Duffy said that, over the years, the appellant's condition did not improve but worsened. This worsening was due to spondylitis. He was developing symptoms from the cervical and lumbar spine areas but, despite this, was continuing at heavy work.

In July…

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.

Continue reading Lonergan v Eastwill Proprietary Limited

Details

AGLC: Lonergan v Eastwill Proprietary Limited [1988] TASSC 45
Case: [1988] TASSC 45
Decision Date: 7 September 1988

CaseChat Overview and Summary

The Supreme Court of Tasmania, sitting as the Court of Criminal Appeal, heard an appeal from Lonergan against Eastwill Proprietary Limited and the Nominal Insurer. The primary issue before the court was whether the worker's incapacity for work was due to the accident in 1978. The Court was required to determine whether the employer was justified in terminating the weekly compensation payments based on a medical report asserting that the worker's incapacity was not due to the accident in 1978. The medical evidence presented by both parties differed significantly, with one neurosurgeon asserting that the worker's incapacity was due to the pre-existing degenerative condition exacerbated by the work activities, while the other maintained that the incapacity was due to the accident in 1978. The trial judge had found in favour of the employer, concluding that the worker's incapacity was due to the degenerative condition and not the accident. The Full Court, however, held that the worker's incapacity was partially due to the accident in 1978, which caused a physical impairment that diminished his earning capacity. The Court allowed the appeal, set aside the order of termination, and ordered that the sums paid into court be paid out to the worker.

Orders