Sydney Ports Corporation v Collins - [2003] NSWCA 28

Reported Decision:
(2003) 56 NSWLR 232

Court of Appeal

CITATION: Sydney Ports Corporation v Collins;National Direct Imaging Pty Ltd v Lamy [2003] NSWCA 28

HEARING DATE(S): 12 December 2002

JUDGMENT DATE:
20 February 2003

JUDGMENT OF: Stein JA at 1; Giles JA at 62; Santow JA at 80

DECISION: See para 61 for decision/orders

CATCHWORDS: WORKERS' COMPENSATION ACT 1987 s 151C - nature of exceptions to s 151C - s 151C(2)(a) - neither silence nor equivocation constitutes a true denial of liability - whether a representation constitutes a denial of liability to be objectively determined - s 151C(2)(b) - partial admission refers to an acceptance of liability where the apportionment of liability as between the employer and the employee is contested - payment of statutory workers' compensation does not constitute a partial admission of liability - D

LEGISLATION CITED: Motor Accidents Act 1988, ss 52(1) A and 52(2)
Workers' Compensation Act 1987, s 151C
Workers' Compensation Legislation Amendment Act 2001

CASES CITED: Atikullah v Sefton (2001) 53 NSWLR 574
Bradley v Jones (Unreported, NSWCA, 28 June 2001)
Budge v Kimmorley (1991) 14 MVR 245
Dandashli v Dandashli (Unreported, NSWCA, 15 December 1996)
General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125
Hill v Bolt (1992) 28 NSWLR 329
Taylor v Francoif (1990) 11 MVR 211

PARTIES :
Sydney Ports Corporation (Claimant) v Phillip Collins (Opponent)
National Direct Imaging Pty Ltd (Claimant) v Edmund Lamy (Opponent)

FILE NUMBER(S): CA 40237/02 (Sydney Ports Corporation); CA 40770/02 (National Direct Imaging)

COUNSEL:
C R R Hoeban SC (Sydney Ports Corporation ) (Claimant)
J D Hislop QC/C I Twomey (Collins) (Opponent)
C R R Hoeban SC (National Direct Imaging) (Claimant)
D E Baran (Lamy) (Opponent)

SOLICITORS:
Hicksons (Sydney Ports Corporation) (Claimant)
Higgins & Higgins (Collins) (Opponent)
P W Turk & Associates (National Direct Imaging) (Claimant)
Keddies (Lamy) (Opponent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 83/01 (Lithgow)
DC 13539/01

LOWER COURT
JUDICIAL OFFICER : Williams DCJ; Balla DCJ

CA 40237/02
DC 83/01 (Lithgow)

CA 40770/02
DC 13539/01

STEIN JA
GILES JA
SANTOW JA
Thursday, 20 February 2003

SYDNEY PORTS CORPORATION v COLLINS

NATIONAL DIRECT IMAGING PTY LTD v LAMY

In each case the plaintiff brought a claim for an injury sustained during the course of employment under the Workers’ Compensation Act 1987. Both plaintiffs brought an action seeking modified common law damages against their employers within the six-month waiting period specified by the Act. At issue in both appeals is the scope of s 151C(2) of the Workers’ Compensation Act, which identifies exceptions to the compulsory six-month waiting period.

In Sydney Ports Corporation v Collins Mr Collins, a dockworker, was seriously injured when a bridge collapsed due to the failure of a shackle. While Mr Collins did not directly question the employer’s representative about the employer’s intention to either accept or reject liability, Williams DCJ construed conversations between Mr Collins and his employer’s representative, which indicated that liability might be at issue, as a denial of all…

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

Case: [2003] NSWCA 28
Decision Date: 20 February 2003

CaseChat Overview and Summary

Sydney Ports Corporation (the appellant) appealed a decision of the Workers Compensation Commission which had found that it had made a "deemed admission of liability" under section 151C of the *Workers Compensation Act 1987* (NSW) in favour of Mr. Collins (the respondent). The dispute concerned whether the appellant's conduct constituted a denial of liability or a partial admission of liability, thereby preventing the operation of section 151C.

The Court of Appeal was required to determine the nature of the exceptions to section 151C, specifically whether silence or equivocation could amount to a denial of liability, and whether the objective assessment of a representation was the correct approach to determining if it constituted a denial of liability. Furthermore, the court had to consider whether a partial admission of liability under section 151C(2)(b) encompassed situations where the apportionment of liability was contested, and whether the payment of statutory workers' compensation payments constituted a partial admission of liability.

The Court of Appeal held that neither silence nor equivocation constituted a true denial of liability under section 151C(2)(a). It further determined that the question of whether a representation constitutes a denial of liability is to be objectively determined. Regarding section 151C(2)(b), the court clarified that a partial admission of liability refers to an acceptance of liability where the apportionment of liability between the employer and employee is contested, and that the payment of statutory workers' compensation does not, in itself, constitute a partial admission of liability.

The appeal was allowed, and the decision of the Workers Compensation Commission was set aside.

Orders

Orders of the court

See para 61 for decision/orders

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sydney Ports Corporation v Collins;National Direct Imaging Pty Ltd v Lamy [2003] NSWCA 28
HEARING DATE(S):	12 December 2002
JUDGMENT DATE:	20 February 2003
JUDGMENT OF:	Stein JA at 1; Giles JA at 62; Santow JA at 80
DECISION:	See para 61 for decision/orders
CATCHWORDS:	WORKERS' COMPENSATION ACT 1987 s 151C - nature of exceptions to s 151C - s 151C(2)(a) - neither silence nor equivocation constitutes a true denial of liability - whether a representation constitutes a denial of liability to be objectively determined - s 151C(2)(b) - partial admission refers to an acceptance of liability where the apportionment of liability as between the employer and the employee is contested - payment of statutory workers' compensation does not constitute a partial admission of liability - D
LEGISLATION CITED:	Motor Accidents Act 1988, ss 52(1) A and 52(2) Workers' Compensation Act 1987, s 151C Workers' Compensation Legislation Amendment Act 2001
CASES CITED:	Atikullah v Sefton (2001) 53 NSWLR 574 Bradley v Jones (Unreported, NSWCA, 28 June 2001) Budge v Kimmorley (1991) 14 MVR 245 Dandashli v Dandashli (Unreported, NSWCA, 15 December 1996) General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 Hill v Bolt (1992) 28 NSWLR 329 Taylor v Francoif (1990) 11 MVR 211
PARTIES :	Sydney Ports Corporation (Claimant) v Phillip Collins (Opponent) National Direct Imaging Pty Ltd (Claimant) v Edmund Lamy (Opponent)
FILE NUMBER(S):	CA 40237/02 (Sydney Ports Corporation); CA 40770/02 (National Direct Imaging)
COUNSEL:	C R R Hoeban SC (Sydney Ports Corporation ) (Claimant) J D Hislop QC/C I Twomey (Collins) (Opponent) C R R Hoeban SC (National Direct Imaging) (Claimant) D E Baran (Lamy) (Opponent)
SOLICITORS:	Hicksons (Sydney Ports Corporation) (Claimant) Higgins & Higgins (Collins) (Opponent) P W Turk & Associates (National Direct Imaging) (Claimant) Keddies (Lamy) (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 83/01 (Lithgow) DC 13539/01
LOWER COURT JUDICIAL OFFICER :	Williams DCJ; Balla DCJ