Van Wessem v Entertainment Outlet Pty Ltd

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214

Hearing dates:

30 June 2011

Decision date:

29 July 2011

Before:

Giles JA at [1], Hodgson JA at [47],
Handley AJA at [48]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

WORKERS COMPENSATION - sole working director of respondent killed in cycling accident - claim for death benefits compensation - injury was in course of employment - Commission found employment concerned not a substantial contributing factor to the injury (Workers Compensation Act 1987, s 9A(1)) - whether erroneous decision in point of law in so finding - Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324 - whether approached from perspective of the cycling rather than of the employment concerned - consideration of causal linkage between employment and injury - no erroneous decision in point of law - injury in course of employment does not lead to finding of employment being substantial contributing factor to injury.
APPEALS - need to identify erroneous decision in point of law.

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324; (2009) 75 NSWLR 503;
Da Ros v Qantas Airways Limited [2010] NSWCA 89; (2010) 8 DDCR 103;
Durham v Durham [2011] NSWCA 62;
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271.

Category:

Principal judgment

Parties:

Susan Van Wessem - Appellant
Entertainment Outlet Pty Ltd - First Respondent

Representation:

D Campbell SC & R de Meyrick - Appellant
M Cranitch SC & S Flett - Respondent
Beston Macken McManis - Appellant
Sparke Helmore - Respondent

File Number(s):

CA 2010/333479

 Decision under appeal 

Citation:

Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97

Date of Decision:

2010-09-10 00:00:00

Before:

Keating P

File Number(s):

WCCA 1-01009/09

Judgment

1. GILES JA : The appellant is the widow of the late Stephen Van Wessem. Mr Van Wessem was the sole working director of the respondent. He was killed whilst cycling on Bobbin Head Road in the Ku-ring-gai National Park. The appellant claimed death benefits compensation pursuant to s 25 of the Workers Compensation Act 1987 ("the 1987 Act"). The workers compensation insurer of the respondent disputed the claim.

1. In proceedings brought by the appellant in the Workers Compensation Commission under the provisions of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act"), an Arbitrator found in favour of the respondent. On appeal from the Arbitrator's decision the President,…