Shillingsworth v Murray - [2004] NSWCA 465

CITATION: SHILLINGSWORTH v MURRAY [2004] NSWCA 465

HEARING DATE(S): 22 November 2004

JUDGMENT DATE:
1 April 2005

JUDGMENT OF: Mason P at 1; Sheller JA at 72; Beazley JA at 1

DECISION: Appeal allowed.

CATCHWORDS: Workers' Compensation Act 1987, s9A - whether employment a substantial contributing factor to injury - pre-existing congenital weakness - conflict between evidence of medical experts - whether error of law in process whereby judge came to prefer one expert over the other - absence of reasons for conclusion. (ND)

PARTIES :
Ronald SHILLINGSWORTH
Graham MURRAY

FILE NUMBER(S): CA 40276/04

COUNSEL: Appellant: M Daley
Respondent: M Elkaim SC/ D R Moore

SOLICITORS: Appellant: Brydens Law Office (Liverpool)
Respondent: Hunt & Hunt

LOWER COURTJURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC 4094/02

LOWER COURT
JUDICIAL OFFICER : Ashford J

CA 40276/04
CC 4094/02

MASON P
SHELLER JA
BEAZLEY JA
Friday 1 April 2005

Ronald SHILLINGSWORTH v Graham MURRAY

JUDGMENT

1 MASON P and BEAZLEY JA: For the appellant to succeed in this appeal against an award for the respondent he must establish that he is aggrieved by the Compensation Commission’s award “in point of law”.

2 The appellant suffered catastrophic injury in the form of a left pontine cerebral haemorrhage that happened in the course of his employment working for the respondent as a cotton chipper on 13 January 1997. It was conceded that he was rendered totally incapacitated and entitled to maximum lump sum benefits should he establish his entitlement to an award.

3 Unfortunately for the appellant, the law had been amended one day previously, by the insertion of s9A of the Workers’ Compensation Act 1987 (the Act). That section provides:

No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):

(a) the time and place of the injury,

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.

(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:

(a) the injury arose out of or in…

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 Shillingsworth v Murray

Details

AGLC: Shillingsworth v Murray [2004] NSWCA 465
Case: [2004] NSWCA 465
Decision Date: 1 April 2005

CaseChat Overview and Summary

Shillingsworth (the appellant) brought a claim against Murray (the respondent) under the *Workers' Compensation Act 1987* (NSW) concerning an injury sustained during employment. The core of the dispute revolved around whether the employment was a substantial contributing factor to the appellant's injury, particularly in light of a pre-existing congenital weakness. The matter was heard on appeal in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether there was an error of law in the process by which the trial judge preferred the evidence of one medical expert over another, and whether the absence of reasons for this preference constituted such an error. The court was required to determine if the trial judge's conclusion, that the employment was not a substantial contributing factor to the injury, was vitiated by a legal error in the assessment of expert evidence.

The Court of Appeal found that the trial judge had erred in law by failing to provide adequate reasons for preferring one medical expert's opinion over the other. This lack of reasoning meant that the appellate court could not be satisfied that the trial judge had properly considered all the evidence and applied the correct legal principles, particularly concerning the requirement for employment to be a substantial contributing factor to the injury under section 9A of the *Workers' Compensation Act 1987*. The court held that a failure to articulate the basis for preferring one expert's evidence, especially when there was a conflict, amounted to an error of law.

Consequently, the appeal was allowed.

Orders

Orders of the court

Appeal allowed.

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:	SHILLINGSWORTH v MURRAY [2004] NSWCA 465
HEARING DATE(S):	22 November 2004
JUDGMENT DATE:	1 April 2005
JUDGMENT OF:	Mason P at 1; Sheller JA at 72; Beazley JA at 1
DECISION:	Appeal allowed.
CATCHWORDS:	Workers' Compensation Act 1987, s9A - whether employment a substantial contributing factor to injury - pre-existing congenital weakness - conflict between evidence of medical experts - whether error of law in process whereby judge came to prefer one expert over the other - absence of reasons for conclusion. (ND)
PARTIES :	Ronald SHILLINGSWORTH Graham MURRAY
FILE NUMBER(S):	CA 40276/04
COUNSEL:	Appellant: M Daley Respondent: M Elkaim SC/ D R Moore
SOLICITORS:	Appellant: Brydens Law Office (Liverpool) Respondent: Hunt & Hunt

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	CC 4094/02
LOWER COURT JUDICIAL OFFICER :	Ashford J