McDermott v Harvey - [1999] NSWCA 337

CITATION: McDermott & Anor v Harvey & Ors [1999] NSWCA 337 revised - 21/09/99

FILE NUMBER(S): CA 40056/99

HEARING DATE(S): 10 August 1999

JUDGMENT DATE:
21 September 1999

PARTIES :

E.R. McDermott & Peter Harvey v Ross L. Harvey, G.N. Burcher, J.C. Maloney, Roger Turner, Shane Clive Ward

JUDGMENT OF: Priestley JA at 1; Beazley JA; Davies AJA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S) : CC7435/97

LOWER COURT JUDICIAL OFFICER: Johns CCJ

COUNSEL: Claimant - M. Inglis
Opponent 1 - D. Cutler
Opponents 2-5 Submitting

SOLICITORS: Claimant - A.O. Ellison & Co
Opponent 1 - Dibbs Crowther Osborne

CATCHWORDS: Workers Compensation Act 1987; Application of ss 16 and 18; Disease Injury

ACTS CITED: Workers Compensation Act 1987
Workers Compensation Legislation Amendment Act 1995

CASES CITED:
Carver v Doolan (Unreported, Compensation Court, Bishoip J, 26/2/98)

DECISION: Application dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40056/99
CC 7435/97

PRIESTLEY JA
BEAZLEY JA
DAVIES AJA

Tuesday, 21 September 1999

McDERMOTT & ANOR v HARVEY & ORS

WORKERS COMPENSATION ACT 1987 - APPLICATION OF SECTIONS 16 AND 18 - Worker suffering disease injury (ss 4(b) and 16 of Workers Compensation Act) - claims against last employer - last employer joins other employers - at hearing all matters put in issue - judge holds last employer liable and also orders contribution by earlier employers - question raised whether once judge found against employers “ the entitlement of the worker ... to receive compensation ” was disputed within the meaning of s 18(3) - judge holds entitlement to receive compensation in dispute at all relevant times - earlier employers seek leave to appeal - Court of Appeal agreed with trial judge, application for leave to appeal dismissed with costs.
Workers Compensation Act 1987 - ss 15, 16, 16(1)(b), 16(2), 18(3)
Workers Compensation Legislation Amendment Act 1995
Carver v Doolan (Unreported, Compensation Court, Bishop J, 26 February 1998)

ORDERS
Application for leave to appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40056/99
CC 7435/97

PRIESTLEY JA
BEAZLEY JA
DAVIES AJA

Tuesday, 21 September 1999

McDERMOTT & ANOR v HARVEY & ORS

1 PRIESTLEY JA: In the Compensation Court on 17 December 1998 Johns J made various orders for compensation in favour of a worker against an employer named Harvey, including an order under s 16 of the Workers Compensation Act 1987 (the Act). Mr Harvey was the employer who last employed the worker within the meaning of s 16(1)(b). Pursuant to s 16(2) Johns J also ordered that other employers of the worker during the twelve months preceding his s 16 incapacity were liable to make contributions to the employer by whom compensation was payable, that is, Mr Harvey. 2 The present proceedings in the Court of Appeal raise the question whether Johns J was right in making the contribution orders or whether, as two of the other employers argue, he was precluded from doing so by s 18(3) of…

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 McDermott v Harvey

Details

AGLC: McDermott v Harvey [1999] NSWCA 337
Case: [1999] NSWCA 337
Decision Date: 21 September 1999

CaseChat Overview and Summary

McDermott (the applicant) sought leave to appeal against a decision of the Workers Compensation Commission. The dispute concerned the applicant's entitlement to workers compensation benefits under the *Workers Compensation Act 1987* (NSW) for a disease injury. The primary issue before the Court of Appeal was whether the Commission had erred in its interpretation and application of sections 16 and 18 of the Act.

The Court of Appeal was required to determine whether the Commission had correctly applied the principles governing claims for compensation for disease injuries, specifically in relation to the date of injury and the employer's liability. The applicant contended that the Commission had misconstrued the relevant statutory provisions, leading to an incorrect assessment of his claim.

In dismissing the application, the Court of Appeal found no error in the Commission's decision. The Court affirmed that for a disease injury, the date of injury is generally the date the worker first becomes aware of the injury and its relationship to their employment. The Court also confirmed that liability for such injuries attaches to the employer at the time of the incapacity or the date of diagnosis, whichever is the later. The applicant's arguments did not demonstrate any misapplication of these principles by the Commission.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs.

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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CITATION:	McDermott & Anor v Harvey & Ors [1999] NSWCA 337 revised - 21/09/99
FILE NUMBER(S):	CA 40056/99
HEARING DATE(S):	10 August 1999
JUDGMENT DATE:	21 September 1999
PARTIES :	E.R. McDermott & Peter Harvey v Ross L. Harvey, G.N. Burcher, J.C. Maloney, Roger Turner, Shane Clive Ward
JUDGMENT OF:	Priestley JA at 1; Beazley JA; Davies AJA

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC7435/97
LOWER COURT JUDICIAL OFFICER:	Johns CCJ

COUNSEL:	Claimant - M. Inglis Opponent 1 - D. Cutler Opponents 2-5 Submitting
SOLICITORS:	Claimant - A.O. Ellison & Co Opponent 1 - Dibbs Crowther Osborne
CATCHWORDS:	Workers Compensation Act 1987; Application of ss 16 and 18; Disease Injury
ACTS CITED:	Workers Compensation Act 1987 Workers Compensation Legislation Amendment Act 1995
CASES CITED:	Carver v Doolan (Unreported, Compensation Court, Bishoip J, 26/2/98)
DECISION:	Application dismissed with costs.