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Wilkinson v Perisher Blue Pty Ltd

Wilkinson v Perisher Blue Pty Ltd

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Case Copied 14 August 2012 82 min read

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250
Hearing dates: 4 July 2012
Decision date: 14 August 2012
Before: Campbell JA; at [1]
Barrett JA; at [2]
Hoeben JA; at [3]
Decision:
(1) The appeal is dismissed.
(2) The appellant is to pay the respondent's costs of the appeal, including any costs incurred by the respondent as a result of the filing of the Summons for Leave to Appeal by the appellant on 27 September 2011.
[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: PRACTICE AND PROCEDURE - Application on morning of trial for order pursuant to s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) that respondent not entitled to dispute liability - refusal by Trial Judge to entertain motion - motion dismissed pursuant to sections 56 - 58 Civil Procedure Act 2005 - no error in Trial Judge's treatment of motion - had motion been considered on its merits, would still have been dismissed - relevant discretionary considerations - agreement by parties for late filing of defence - parties should be held to such agreements made in the course of litigation - whether principles of waiver and estoppel applied - respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power - TORT - negligence - collision between skier and snowboarder at ski resort - skier in the course of his employment by ski resort - whether breach of duty by employer - whether unsafe system of work - causation - PRACTICE AND PROCEDURE - admission of evidence - whether witness qualified to give evidence - whether evidence rendered inadmissible by s 318(1)(d) WIM Act.
Legislation Cited: Civil Procedure Act 2005 (NSW) - ss 56, 57, 58
Workers Compensation Act 1987 - ss 66, 67, 151C, 151H
Workplace Injury Management and Workers Compensation Act 1998 - ss 105, 313 - 318, 364, 366, 368, 370, 371, 375
Workers Compensation Commission Rules 2006, rule 17.7
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170
Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364
Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226
Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839
Gerlach v Clifton Bricks Pty…

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: [2012] NSWCA 250
Decision Date: 14 August 2012

CaseChat Overview and Summary

The appeal concerned a collision between a skier and a snowboarder at a ski resort, where the skier was an employee of the resort. The primary dispute involved whether the employer, Perisher Blue Pty Ltd, had breached its duty of care to the employee by failing to implement an adequate system of work, and whether this breach caused the employee's injuries. The appeal was heard in the Court of Appeal of New South Wales.

The court was required to determine several legal issues. Firstly, it had to consider whether the Trial Judge erred in refusing to entertain an application made on the morning of the trial for an order that the respondent was not entitled to dispute liability, and whether this refusal was justified under sections 56-58 of the Civil Procedure Act 2005. Secondly, the court needed to assess whether, had the application been considered on its merits, it would have been dismissed, taking into account relevant discretionary considerations and the parties' agreement regarding the late filing of the defence. The court also had to consider the applicability of principles of waiver and estoppel, and whether the respondent could rely on a specific rule of the Workers Compensation Commission Rules 2006 that was argued to be beyond the Commission's power. Finally, the court was to consider issues relating to the admission of evidence, including witness qualifications and admissibility under section 318(1)(d) of the Workplace Injury Management and Workers Compensation Act 1998.

The court reasoned that the Trial Judge had not erred in refusing to entertain the application on the morning of the trial, as it was brought at a late stage and the parties had previously agreed to the late filing of the defence. The court held that parties should be held to such agreements made during litigation. Furthermore, even if the application had been considered on its merits, it would have been dismissed due to the discretionary considerations involved. The court found that the respondent was not entitled to rely on rule 17.7(6) of the Workers Compensation Commission Rules 2006, as it was beyond the Commission's power. The court dismissed the appeal.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The appellant is to pay the respondent's costs of the appeal, including any costs incurred by the respondent as a result of the filing of the Summons for Leave to Appeal by the appellant on 27 September 2011.

[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.]

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.

Medium Neutral Citation:	Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250
Hearing dates:	4 July 2012
Decision date:	14 August 2012
Before:	Campbell JA; at [1] Barrett JA; at [2] Hoeben JA; at [3]
Decision:	(1) The appeal is dismissed. (2) The appellant is to pay the respondent's costs of the appeal, including any costs incurred by the respondent as a result of the filing of the Summons for Leave to Appeal by the appellant on 27 September 2011. [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:	PRACTICE AND PROCEDURE - Application on morning of trial for order pursuant to s 318(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act) that respondent not entitled to dispute liability - refusal by Trial Judge to entertain motion - motion dismissed pursuant to sections 56 - 58 Civil Procedure Act 2005 - no error in Trial Judge's treatment of motion - had motion been considered on its merits, would still have been dismissed - relevant discretionary considerations - agreement by parties for late filing of defence - parties should be held to such agreements made in the course of litigation - whether principles of waiver and estoppel applied - respondent not entitled to rely upon rule 17.7(6) of the Workers Compensation Commission Rules 2006 which was beyond power - TORT - negligence - collision between skier and snowboarder at ski resort - skier in the course of his employment by ski resort - whether breach of duty by employer - whether unsafe system of work - causation - PRACTICE AND PROCEDURE - admission of evidence - whether witness qualified to give evidence - whether evidence rendered inadmissible by s 318(1)(d) WIM Act.
Legislation Cited:	Civil Procedure Act 2005 (NSW) - ss 56, 57, 58 Workers Compensation Act 1987 - ss 66, 67, 151C, 151H Workplace Injury Management and Workers Compensation Act 1998 - ss 105, 313 - 318, 364, 366, 368, 370, 371, 375 Workers Compensation Commission Rules 2006, rule 17.7
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170 Aon Risk Services Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; 160 CLR 301 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Con-stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; 160 CLR 226 Czatyrko v Edith Cowan Univeristy [2005] HCA 14; 79 ALJR 839 Gerlach v Clifton Bricks Pty…