Appeal dismissed.; If the respondent seeks an order for costs, it should within 14 days either submit a note that this is agreed, or else apply for an order for costs by written submissions, and in the latter case the appellant may reply by written submissions within a further 14 days.
CATCHWORDS:
WORKERS' COMPENSATION - Injury - Course of employment - Interval - Whether real connection between employment and injury - Whether employment a substantial contributing factor.
Christoper Michael McMahon - appellant Anthony Lagana & Joseph Lavella t/as The Vessel "Nimble II" - respondent
FILE NUMBER(S):
CA 40868/03
COUNSEL:
Mr. R.I. Harrington for appellant Mr. W.P. Kearns SC for respondent
SOLICITORS:
Lee Sames Egan, Lismore for appellant Lee & Lyons,Sydney for respondent
LOWER COURTJURISDICTION:
Compensation Court
LOWER COURT FILE NUMBER(S):
WCC 2537/02
LOWER COURT JUDICIAL OFFICER :
Deputy President Dr. G. Fleming
CA 40868/03 WCC 2537/02
HODGSON JA SANTOW JA STEIN AJA
Thursday 27 May 2004
McMAHON V. LAGANA & ANOR.
Judgment
1 HODGSON JA: On 1 September 2003, Deputy President Dr. G. Fleming affirmed the decision of the Workers’ Compensation Commission constituted by an Arbitrator, that decision being an award for the respondent employer in a claim for compensation brought by the appellant worker under the Workers’ Compensation Act 1987 (the Act). The appellant appeals to this Court from the Deputy President’s decision.
CIRCUMSTANCES
2 The appellant was born on 29 April 1975, and lived at Evans Head.
3 He was employed by the respondent as a deckhand on a fishing vessel named “Nimble II”. He started working out of Ulladulla, over 500km from Evans Head, on 7 July 2001.
4 The vessel fished between Gabo Island, Victoria, and Southport, Queensland. As part of the appellant’s employment, he lived on the boat unless it was fishing near Evans Head, in which case he would live at home. He lived on the boat not only while it was at sea, but also while it was moored. There were no set hours of duty while working on the vessel, and the appellant was required to go out and fish at short notice and at all hours, depending on weather conditions.
5 At the time of his injury, which occurred on 7 October 2001, the appellant was living on the vessel whilst it was moored at Ulladulla wharf. The vessel…
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
AGLC
McMahon v Lagana [2004] NSWCA 164
Case
[2004] NSWCA 164
Decision Date
CaseChat Overview and Summary
McMahon (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Workers Compensation Commission which had dismissed his claim for workers' compensation against Lagana (the respondent). The dispute concerned whether an injury sustained by the appellant during a break from work was an injury arising out of or in the course of his employment.
The primary legal issue before the Court of Appeal was whether the appellant's injury, sustained during a tea break, was an injury arising out of or in the course of his employment. This required the court to consider whether there was a sufficient connection between the employment and the injury, and whether the employment was a substantial contributing factor to the injury.
The Court of Appeal affirmed the Commission's finding that the appellant's injury did not arise out of or in the course of his employment. The court applied the principles established in cases concerning injuries sustained during work intervals, emphasising that for such an injury to be compensable, there must be a real connection between the employment and the injury, and the employment must be a substantial contributing factor. The court found that the circumstances of the appellant's injury during the tea break did not meet this threshold, as the break was a period of personal activity not sufficiently connected to his employment duties.
The appeal was dismissed. The respondent was granted leave to seek costs by written submissions within 14 days, with the appellant having a further 14 days to reply.
Orders
Orders of the court
Appeal dismissed.; If the respondent seeks an order for costs, it should within 14 days either submit a note that this is agreed, or else apply for an order for costs by written submissions, and in the latter case the appellant may reply by written submissions within a further 14 days.