AUSTRALIAN ELECTRICAL INDUSTRIES PTY LTD v MARLBOROUGH [1989] NSWCA 10

AUSTRALIAN ELECTRICAL INDUSTRIES PTY LID v MARLBOROUGH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and MEAGHER JJA 28 April 1989, 16 June 1989 [1989] NSWCA 10

WORKERS' COMPENSATION — appeal — error of law — whether judge fails to apply the statute correctly — whether no evidence to support Compensation Judge's conclusion — successive injuries to worker — worker dies from complication of operation to repair hernia — whether death "results from" respective injuries — whether open to judge to find that it "results from" both injuries and to apportion liability principally to earlier injury — HELD: (1) "Results from" is not a phrase limited to the immediate proximate cause of the incapacity or death but poses a question of fact to be determined by the Compensation Judge on the basis of a consideration of all of the facts. Conkey and Sons Ltd v Miller (1977) 51 ALJR 583 applied; The Commonwealth v Butler (1958) 102 CLR 465 considered; Pickersgill v Freightbases Pty Limited [1983] 3 NSWLR 117 explained; Pirelli Ericsson Cables Ltd (formerly Conqueror Cables Pty Limited) v Spadina and Anor, Court of Appeal, unreported, 24 April 1986; (1986) NSWJB 92 and Woolworths Limited v Allen, Court of Appeal, unreported, 25 May 1988; (1988) NSWJB 86 discussed. However (per Priestley JA) this must be done on the basis of that meaning of "results from" explained in Pickersgill; (2) (Kirby P and Meagher JA; Priestley JA dissenting). It was open to the trial judge to find as a fact that the death of the worker had resulted from the earlier as well as the later injury; (3) (per Kirby P and Meagher JA; Priestley JA dissenting). Such a finding did not involve an error of law. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 applied; (5) (Kirby P and Meagher JA; Priestley JA not expressing an opinion). The statement of reasons of the trial judge, although imperfect, was not so inadequate as to fail to disclose the ground for his finding and so to constitute an error of law. Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 applied; Russell vy F J Walker Limited, Court of Appeal, unreported, 10 February 1989; (1989) NSWJB 28 considered.