Pickwell v Cotswold Australia Pty Limited

[2001] NSWCA 462

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Pickwell v Cotswold Australia Pty Limited [2001]  NSWCA 462

FILE NUMBER(S):
40426/01

HEARING DATE(S):               06/12/01

JUDGMENT DATE: 06/12/2001

PARTIES:
Edward Pickwell (Appellant)
Cotswold Australia Pty Limited (Respondent)

JUDGMENT OF:       Spigelman CJ Heydon JA Ipp AJA   

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S):          CC 47868/98/1

LOWER COURT JUDICIAL OFFICER:     Neilson CCJ

COUNSEL:
Mr M J Cranitch QC/Mr R I Goodridge (Appellant)
Mr L King SC/Mr C S Robertson (Respondent)

SOLICITORS:
Firths (Appellant)
Vardanega, Roberts (Respondent)

CATCHWORDS:
Torts - Workers' Compensation - Appeal from Compensation Court - "Journey Claim" - Whether injury was one "arising out of or in the course of employment" - Whether worker crossed the boundary of the land on which his place of abode was situated - Where worker injured in motor vehicle accident whilst travelling to work - Whether evidence supporting worker's contention on which he bore onus of proof could if fully accepted properly base finding of fact - Workers Compensation Act 1987 (NSW), s 10 - ND

LEGISLATION CITED:
Compensation Court Act 1984
Workers Compensation Act 1987

DECISION:
See para 42

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40426/01

CC 47868/98/1

SPIGELMAN CJ
HEYDON JA
IPP AJA

6 December 2001

EDWARD PICKWELL v COTSWOLD AUSTRALIA PTY LIMITED

Judgment

1. HEYDON JA:  This is an appeal by a worker against orders made by Neilson CCJ in the Compensation Court of New South Wales on 18 May 2001.  The worker instituted proceedings in consequence of a motor cycle accident on 21 March 1997 which rendered him a paraplegic. 

2. On 19 November 1999 Commissioner Hogg made an award in favour of the worker. The principal features of it were that he was awarded weekly compensation, $121,000 under s 66(2) of the Workers Compensation Act 1987 and $45,000 under s 67. The employer appealed and Judge Neilson allowed the appeal.

   The pleadings

3. The worker's amended application of 11 February 1999 described the circumstances of the injury as follows:

4             (a)    Date of injury (if over a period of time, state the period as accurately as possible):	5            (a)  21/03/1997
6            (b) Place where the injury happened:	7            (b)  Ben Lamond Road, Minto
8            (c)   What work was being done at the time of injury:	9            (c)  Travelling to work
10          (d)     How did the injury occur:	11          (d)  Motor Vehicle Accident

1. The worker's amended application described the nature of the injury as follows:

(a)     Nature of injury:	(a)    Back, right leg and left leg
(b)     Incapacity for work (state whether total, partial or partial claimed as total and the periods for each:	(b)    Total in the alternative partial   deemed total in the further alternative partial

The employer's insurer was described as "MMI Insurance". 

1. The amended answer filed by the employer was:

   "Take notice

   A.           That the respondent wholly denies that it is liable to pay to the Applicant the compensation claimed upon the following grounds:

   1.            That if the Applicant did receive injury as alleged,…