WorkCover Corporation v O'Neil No. Scciv-03-837

[2003] SASC 313

WORKCOVER CORPORATION v O’NEIL
[2003] SASC 313

Full Court:      Doyle CJ, Perry and Vanstone JJ (ex tempore)

1. DOYLE CJ:         I would reject the application by the respondent for an order rescinding leave to appeal on what are now grounds 1 and 2 of the notice of appeal.

2. The reasons of the acting judge disclose that he acted on a view expressed by the respondent’s treating surgeon. That view is based on the history provided by the respondent. The acting judge’s reasons show that the acting judge rejected much if not all of that history and what appears to be a crucial aspect of the history. On the face of it, it is arguable that there was no acceptable evidence to support the acting judge’s conclusion and that in substance is ground 2. That is, that as a matter of law, there was no evidence capable of supporting the finding the acting judge made.

3. It is also arguable that the acting judge must have decided simply to accept the view of the treating surgeon and has not arrived at a finding of his own.  A clear examination of the case may show that this is not the case, but ground 1 is arguable and it raises an error of law.

4. I would refuse leave to appeal on ground 3. The acting judge has provided what appear to be full reasons. They are either right or wrong. I consider that it is not reasonably arguable that the reasons are inadequate to the extent that their inadequacy is, itself, an error of law as distinct from the reasons being unpersuasive or being illogical, which is not, of itself, an error of law.

5. I agree that no point of general principle is involved, but if the acting judge has reached a decision that is not open, as a matter of law, a significant error has been made. The interests of justice require it to be corrected. It could provide a basis for later claims by the respondent.

6. For the same reason, the fact that not much money is involved is not a reason to rescind the leave granted.

7. Accordingly, I would dismiss each of the applications before the court.

8. The orders of the court are as follows:

   1.     In accordance with the opinion of the majority, that leave to appeal granted by order of this Court, dated 18 July 2003, be rescinded.

   2.     That leave to appeal on proposed ground 3, in the notice of appeal, be refused.

   3.     That the costs of each application before the court today be paid by WorkCover Corporation.

9. PERRY J:             In my opinion, the question sought to be agitated by ground of appeal 1, whether the trial judge misdirected himself as to his responsibility to decide the issue of causation, is not reasonably arguable and the leave, insofar as it related to that ground, should be rescinded.

10. In my view, on no construction of the acting judge’s reasons for decision  could it be suggested that he has in some way abdicated his responsibility in that regard to a medical witness; in this case, Mr Keene.

11. As for proposed ground 2, I am of the same view, namely, that it is not reasonably arguable. The finding of fact referred to in ground 2 is a finding of fact which, on the argument which has been presented to this Court, is a finding of fact which has not been shown to be completely unsupported by evidence.

12. I agree with the Chief Justice that leave should be refused as to proposed ground 3.

13. VANSTONE J:     I agree with the orders proposed by Perry J and the reasons he has given.