Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59 (12 March 2004)

Last Updated: 16 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59

FILE NUMBER(S):

40239/03

HEARING DATE(S): 02/03/2004

JUDGMENT DATE: 12/03/2004

PARTIES:

Lesley Kay WILLIAMS - Appellant

BOAMBEE BAY TIME SHARE RESORT PTY LIMITED - First Respondent

NORTHCOAST NEWS PTY LIMITED t/as THE ADVOCATE - Second Respondent

JUDGMENT OF: Sheller JA Santow J Stein AJA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): CC 33410/00

LOWER COURT JUDICIAL OFFICER: Maguire J

COUNSEL:

Mr A. Street SC with Mr J De Greenlaw - Appellant

Mr G. Watson SC with Mr N Chen - First Respondent

Mr J. McIntyre SC - Second Respondent

SOLICITORS:

McCulloch & Buggy - Appellant

Sparke Helmore - First Respondent

Hicksons - Second Respondent

CATCHWORDS:

Injuries suffered during successive courses of employment - failure to award weekly payments - application of s 40 of Workers Compensation Act 1987 - failure to give adequate reasons.

LEGISLATION CITED:

Workers Compensation Act 1987

DECISION:

1. Appeal upheld with costs.

2. Order making no award for weekly payments set aside.

3. Matter remitted to the Compensation Court as now constituted by the District Court of New South Wales for the hearing and determination of the appellant's entitlement to weekly payments of compensation under ss 36, 37 and 40 of the Workers Compensation Act 1987

4. The respondents to have a certificate under the Suitors Fund Act if otherwise entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40239/03

CC 33410/00

SHELLER JA

SANTOW JA

STEIN AJA

FRIDAY, 12 MARCH 2004

Lesley Kay WILLIAMS v BOAMBEE BAY TIME SHARE RESORT PTY LTD & ANOR

Summary

The appellant applied to the Compensation Court for awards of compensation under ss 66 and 67 of the Workers Compensation Act 1987 (the Act) and for weekly payments of compensation under s 40. The trial judge made s 66 and s 67 awards and apportioned them equally between the two respondents, who were successive employers of the appellant. His Honour declined to award weekly payments of compensation saying that there were many jobs that the appellant could do despite her impairments.

The appellant appealed (such appeal being confined to error of law) submitting that his Honour had failed to apply s 40 of the Act in that he had failed to determine what the worker would have been earning but for the injury, then determining the weekly amount the worker is earning or able to earn in suitable employment and subtracting one from the other.

The appellant submitted that the medical evidence was persuasive that she had a partial incapacity for work and was prima facie entitled to weekly payments. His Honour's judgment did not indicate what relevant principles were applied or considered and gave no valid or inadequate reasons for rejecting the claim.

Held:

1. What his Honour said in para 42 of the judgment did not satisfy s 40 of the Act.

2. The reasons given by his Honour in para 42 of the judgment were inadequate and failed to address the appellant's claim for weekly compensation payments.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40239/03

CC 33410/00

SHELLER JA

SANTOW JA

STEIN AJA

FRIDAY, 12 MARCH 2004

Lesley Kay WILLIAMS v BOAMBEE BAY TIME SHARE RESORT PTY LTD & ANOR

Judgment

1 SHELLER JA: I agree with Stein AJA.

2 SANTOW JA: I agree with Stein AJA.

3 STEIN AJA:

Introduction

The appellant, Lesley Kay Williams, appeals against the dismissal of her claim for weekly payments of compensation by the Compensation Court.

4 In a judgment delivered on 7 March 2003 his Honour Judge Maguire made awards of compensation under ss 66 and 67 of the Workers Compensation Act 1987, (the Act). He apportioned the awards equally between the two respondents, Boambee Bay Time Share Resort Pty Ltd (the first respondent) and Northcoast News trading as The Advocate (the second respondent).

5 In declining to make an award for weekly payments of compensation under s 40 of the Act his Honour said simply:-

"This lady has considerable experience and talent. She has worked for a considerable period of time since she was first injured. I find that there are many jobs that she could do despite her impairments. I make no award for weekly payments."[Para 42]

6 It is the submission of senior counsel for the appellant that his Honour erred in failing to adequately consider her claim for weekly compensation and in failing to determine any entitlement she may have to payments in accordance with s 40 of the Act. In addition, it is submitted that his Honour failed to give adequate reasons for rejecting the applicant's claim for weekly compensation. The appeal is limited to error of law, s 32 of the Compensation Court Act, 1984.

Section 40 of the Act

7 The starting point is s 40 of the Act. It concentrates on loss of earning capacity as a result of partial incapacity (reduced physical capacity) by reason of work related injuries, see Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) 155 CLR 171 at 178. Weekly payments of compensation to an injured worker are not to exceed the reduction in the worker's earnings "but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case".

8 In Mitchell v Central West Health Service (1997) 14 NSWCCR 527 the Court of Appeal laid down the relevant principles of law and adumbrated five steps to be followed in assessing a s 40 claim. The applicant submits that his Honour failed to follow those principles. These steps include determining what the worker would have been earning but for the injury, then determining the weekly amount the worker is earning or able to earn in suitable employment and subtracting the second from the first.

Brief facts

9 A brief summary of the facts will suffice. The applicant is a right handed person and suffered an injury to her right shoulder while working as a casual housemaid for the first respondent on 24 October 1992. According to the evidence provided she fell while cleaning a shower on her very first day of work.

10 She did not return to work with the first respondent but later obtained employment in the customer service area with Telstra. She worked with Telstra for a couple of years until her husband's transfer of employment elsewhere on the north coast.

11 In July 1996 she commenced work with the second respondent doing customer service work. On 24 November 1996 there was a flood which affected her employer's premises and the applicant had an accident involving her left wrist when pulling up carpet.

12 She was at that time still suffering from pain in her right shoulder from the first injury in 1992 assessed by Dr McGlynn as being equivalent to a 25% loss of the efficient use of that shoulder.

13 The applicant returned to work on 21 January 1998 but her employment was terminated on 4 February 1998. From that time she has not worked although she has sought employment and undertaken some rehabilitation.

The application for compensation and decision

14 On 16 August 2002 the applicant filed applications for compensation seeking lump sum payments under ss 66 and 67 and the payment of weekly compensation under s 40 from 6 February 1998 and continuing.

15 The primary judge was satisfied that the applicant had suffered a loss of efficient use of the right arm at and above the elbow as a result of the work injuries with the first respondent in 1992 and the second respondent in 1996. He said that he was also satisfied that her neck was damaged in the accidents and that she had a loss of efficient use of the left arm caused by over-use in protecting her right arm.

16 His Honour found that the applicant had a 25% loss of efficient use of the right arm at and above the elbow and also a 5% loss of efficient use of the left arm at and above the elbow. Further, she had a 10% permanent impairment of the neck. "The applicant [had also] suffered a great deal of pain and distress and anxiety and will continue so to do." This sounded in a s 67 award of $12,500.

Submission of the Appellant

17 It is the submission of Mr Street SC on behalf of the appellant that the language used by his Honour in rejecting the applicant's claim for weekly payments is not the language of s 40.

18 Counsel submitted that his Honour should have acknowledged the overwhelming medical evidence that the applicant had a partial incapacity for work in the physical sense and was prima facie entitled on the evidence to receive a s 40 award. He submitted that his Honour failed to follow s 40 and the principles and steps laid down in Mitchell. Further, his reasons were inadequate and did not indicate what relevant principles were applied and considered. In effect, Mr Street contended that his Honour gave no valid reasons at all for the rejection of the claim.

Respondents' submissions

19 On behalf of the first respondent Mr Watson SC submitted that his Honour was correct to reject the claim for weekly payments and that, properly understood, albeit concise, his reasons were adequately stated. The applicant could be in no doubt that her claim failed because the judge was not satisfied that the amount she was able to earn after the first injury was less than that earned before. The issue under s 40 was whether the applicant's post-injury ability to earn was less than her pre-injury earnings and so much was made clear in exchanges between his Honour and the applicant's counsel during his address.

20 Mr Watson SC submitted that reading the judgment as a whole, and in the context of the way the case was run, the reasons given were sufficient.

21 Counsel added one further submission which should be promptly dealt with. Without filing a cross-appeal or contention, Mr Watson submitted that the overall apportionment by his Honour was erroneous and no miscarriage of justice would occur if the apportionment was set aside. It may also be noted that no such submission was made in the written submissions of the first respondent.

22 On behalf of the second respondent Mr McIntyre SC opposed the application pointing out that his Honour found, and was entitled to find, that both injuries were relevant.

23 I do not think that the first respondent should be entitled to raise this issue at this stage in the absence of any cross-appeal or other indication or notice.

24 Mr McIntyre also supported Mr Watson`s submission that there was no breach of s 40 in his Honour's approach, nor were his reasons inadequate. His Honour was not required to detail all of the steps in his reasoning, and a broad outline is sufficient. He also submitted that the applicant failed to prove the remuneration she could have earned in the jobs she could perform. In other words, she failed to prove what she could have earned, or for that matter, what she would have earned if she had not been injured.

25 In this latter respect it is clear that no such point was taken below.

26 Finally, Mr McIntyre submitted that it was clear to anyone in the Court what his Honour's thinking was on the issue and there was no need to give detailed reasons. In effect the judge was saying that the applicant had a substantial capacity to earn.

Consideration

27 In my opinion, the applicant's challenge to his Honour's judgment should be upheld.

28 What his Honour said in para 42 was simply not enough to satisfy s 40 of the Act. His Honour did not address the weekly amount the worker would probably have been earning if uninjured, s 40(2)(a), nor what the worker would be able to earn in suitable employment after the injury, s 40(2)(b). It is no answer to say that the evidence was lacking because his Honour did not say so.

29 It is instructive to examine the few sentences in his Honour's reasons in para 42 of the judgment.

30 The first sentence that the applicant has "considerable experience and talent" says nothing by itself. The second sentence is factual.

31 The third sentence is the most problematic, while the last sentence is the decision to reject the claim. In the third sentence his Honour said:-

"I find that there are many jobs that she could do despite her impairments."

32 This acknowledges the applicant's partial incapacity but tells us nothing of the "many jobs that she could do". Not only does his Honour fail to inform the reader of what these jobs are, we know nothing of what his Honour believed that the applicant would be likely to earn in the jobs, nor whether she would have suffered a reduction in her ability to earn in the general labour market reasonably accessible to her. In other words, there was no attempt to come to grips with the requirements of s 40.

33 Further, in my opinion, the reasons given are plainly inadequate. I say that while deprecating a tendency of many judges today to give overly long (and sometimes rambling) reasons. Brevity in reasons is to be admired but they must still pass the tests enunciated in the authorities.

34 It was acknowledged by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 271-273 that a judge is not required to make a finding in respect of every fact leading to the final conclusion of fact, nor reason from one fact to the next along the chain of reasoning to that conclusion. Nevertheless, a judge must distinguish between the essentials and the peripherals. This is so particularly where there is a right of appeal to be exercised. Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted.

35 As McHugh JA said at 280, lengthy or elaborate reasons are not required. However, it is necessary that the essential ground(s) upon which the decision rests should be articulated. The parties (and the Courts) are entitled to see what matters were considered and what the view reached by the judge was on fact and law.

36 While his opinion was a dissenting one, Kirby P said (at 259):-

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this Court can and should correct. To adapt the words of Chilwell J in Connell v Auckland City Council [1977] 1 NZLR 630 at 634 the failure of a court to afford reasons in such a case may, in a modern community, result in a litigant who is not only "disappointed" but "disturbed". Such a result would be unacceptable precisely because of the statutory limitation on appeals to this Court. It would be doubly so because of the strict approach taken by the Court to that limitation. The corollary of the Court's strict approach is the obligation of the judge of the Compensation Court, by his reasons, to demonstrate, in his determination of relevant factual disputes, that his conclusion amounts to a proper application of the statute. That was not done here."

37 Unfortunately, the reasons given by his Honour fail to address the applicant's claim for weekly payments or give adequate reasons for its rejection. They are legally inadequate reasons and there is no dispute that inadequate reasons may constitute an error of law.

38 Accordingly, the appeal should be allowed. I propose the following orders:-

1. Appeal upheld with costs.

2. Order making no award for weekly payments set aside.

3. Matter remitted to the Compensation Court as now constituted by the District Court of New South Wales for the hearing and determination of the appellant's entitlement to weekly payments of compensation under ss 36, 37 and 40 of the Workers Compensation Act 1987.

4. The respondents to have a certificate under the Suitors Fund Act if otherwise entitled.

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LAST UPDATED: 12/03/2004