O'Dwyer v Broken Hill City Council

[2000] NSWCA 20

NEW SOUTH WALES COURT OF APPEAL

CITATION:     O'Dwyer v Broken Hill City Council [2000]  NSWCA 20

FILE NUMBER(S):
40291/99

HEARING DATE(S):           24 February 2000

JUDGMENT DATE:            24/02/2000

PARTIES:
PETER JAMES O'DWYER
v
BROKEN HILL CITY COUNCIL

JUDGMENT OF:      Handley JA Fitzgerald JA Hodgson CJinEq   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):        1860/98

LOWER COURT JUDICIAL OFFICER:     Burke CCJ

COUNSEL:
G Little/E Techera (Appellant)
P Sweeney (Respondent)

SOLICITORS:
Buckworth Keady & Chalker (Appellant)
McCabes Lawyers (Respondent)

CATCHWORDS:
APPEAL FROM COMPENSATION COURT - NO ERROR OF LAW - NO QUESTION OF PRINCIPLE

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40291/99
1860/98

HANDLEY JA
FITZGERALD JA
HODGSON CJinEQ

24 February 2000

PETER JAMES O’DWYER  v  BROKEN HILL CITY COUNCIL

JUDGMENT

1. HANDLEY JA:  This is an appeal by an unsuccessful applicant from a decision of Burke CCJ given in Broken Hill on 16 April 1999.

2. The applicant was a mechanic and at the time of the incident giving rise to the proceedings was working for the Broken Hill City Council.  On 30 June 1995 he was adjusting a speedometer cable on one of the Council vehicles when he experienced back pain.  Arising from that incident he brought claims under ss 66 and 67 against his employer seeking lump sum compensation.

3. The applicant had a long history of back problems dating back at least to 1980.  Burke CCJ, in a 6 page judgment, said that he was not persuaded that the applicant's back and neck problems were the result of the injury referred to.  He concluded that his conditions were the result of long-standing problems in his lumbar and cervical spine.

4. The appeal to this Court is limited by statute to questions of law and Mr Little who appeared for the appellant has said all that could possibly have been said to identify an error of law in the Judge's reasons.

5. It is clear, on principle and on authority, that a decision of a tribunal of fact against the party bearing the legal onus of proof is seldom capable of being challenged for error of law if the tribunal of fact asked itself the right question and considered evidentiary materials available to it for the relevant purpose.  These difficulties in the way of the appellant's task were faced up to by Mr Little, but he was driven to accept that the only basis on which the appellant could challenge this decision was for inadequacy of reasons.

6. The general principle that a failure to give sufficient reasons by a Judge in the Compensation Court is an error of law is well established.  However it appears to me that the Judge has given adequate reasons for his decision that the worker had not discharged the onus of proof.

7. Mr Little identified two passages in the Judge's reasons which he said demonstrated that he had failed to explain why the worker had not discharged the onus of proof.  These are identified in his written submissions in paras 11 and 18 and we also had the benefit of Mr Little's oral submissions on these matters.  The first passage is:

   "The injury which he deposes would seem to be more an extension, certainly not of the traditional flexion injury, particularly weight-bearing, which is the ever recurring account of how a man hurts his back in industry".

8. Mr Little submitted that this point demonstrated not only inadequate reasons but that his Honour had substituted his own views for those of the medical experts who gave evidence in report form before him.  I have not been persuaded that either of these criticisms is valid.  His Honour was simply saying that this was an unusual back case in his experience.  He was also explaining one of the difficulties in the face of the appellant's claim, namely, the unusual nature of the injury and the unusual history of the development of symptoms after the injury.

9. The other passage Mr Little relied upon was:

   "I find it very difficult to accept that what the applicant was doing on 30 June 1995 caused a C4/5 protrusion without any symptoms in the relevant area, just producing lumbar and leg symptoms by a mechanism which is not clearly delineated".

10. In that passage his Honour gave three reasons why he found difficulty in accepting that the injury on 30 June could cause the applicant’s lumbar back symptoms by causing a protrusion at C4/C5 in his cervical spine.

11. In my judgment the appellant, despite Mr Little's valiant efforts, has failed to establish that his Honour’s judgment was affected by any error of law or that his Honour failed to give sufficient reasons to explain the basis for his finding that the onus of proof had not been discharged.

12. In my judgment the appeal fails and should be dismissed with costs.

13. FITZGERALD JA:  I agree.

14. HODGSON CJ in EQ:  Yes I agree.

15. HANDLEY JA:  The order of the Court is appeal dismissed with costs.

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LAST UPDATED:    25/02/2000