GLEN REES T/as GLYNMAR PASTORAL CO v WALKER [1988] NSWCA 127

GLEN REES T/as GLYNMAR PASTORAL CO v WALKER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 27 July, 13 December 1988, 13 December 1988

[1988] NSWCA 127

WORKERS' COMPENSATION — multiple injuries — cause of incapacity — whether any evidence of incapacity resulting from injury with one or both employers — whether evidence to support the award against one employer — status of the evidence contained in the medical reports — held: (Samuels JA, Kirby P concurring; Mahoney JA dissenting) No evidence to sustain award against one employer — award against that employer therefore disclosed an error of law — appeal allowed.

JUDGES — reasons — duty to give — equal apportionment — Workers' Compensation Act 1926, s7A — judge finds liability in both of two employers alleged to have injured worker — apportions liability equally — no reasons given for equal apportionment — whether reasons required — discretion expressed in very general terms — basis of duty to state reasons — held (Kirby P; Samuels JA not deciding, Mahoney JA contra) The trial judge merely stated apportionment — gave no reasons — failure to give reasons, however briefly, is error of law. Pettit vy Dunkley [1971] 1 NSWLR 376 Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.

Compensation Court Act 1984 s32. Workers' Compensation Act 1926, s7A.

ORDERS

(By majority)

1. Appeal allowed:

2. Award of Judge Moroney dated 13 August 1988 by which the appellant was required to pay compensation to the second respondent, set aside; and

3. The first respondent to pay the appellant's costs of the appeal, but to have if so qualified a certificate under the Suitors' Fund Act 1951.

Samuels JA This in my opinion is one of the rare cases in which an appeal fromthe Compensation Court based upon the asserted absence of evidence is soundly conceived.