BABCOCK AUSTRALIA LTD v PROUDFOOT [1993] NSWCA 15

BABCOCK AUSTRALIA LTD v PROUDFOOT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and CRIPPS JJA 14 September 1993, 29 September 1993

[1993] NSWCA 15

The appeal was brought pursuant to s32 Compensation Court Act from the decision of the Compensation Court dismissing an application for review of a determination made by a Commissioner. The Commissioner had found that the respondent suffered injury on a daily or periodic journey from his place of employment to his home and as a result became totally incapacitated for work. Moroney CCJ determined that the Commissioner's findings were open and no reason had been shown why it should be interfered with. The respondent after work had stopped first at a nearby hotel and then at a friend's house.

Held: Moroney CCJ did not err in confirming the Commissioner's decision that the respondent was on a journey to which s10 applied. Moroney CCJ did err in upholding the Commissioner's decision that the respondent had discharged the onus of proving that his actions did not materially increase the risk.

Clarke JA I agree with Cripps JA. Handley JA I agree with Cripps JA.

Cripps JA This is an appeal from a decision of Judge Moroney of the Compensation Court on 2 April 1993 dismissing an application for review of a determination made by Commissioner Cross on 9 December 1992. Commissioner Cross determined that the respondent suffered injury on a daily or periodic journey from his place of employment to his home on 21 May 1988 as a result of which he became totally incapacitated for work. It is common ground that the worker had a car accident and that, as a result, became quadriplegic.

The appeal is brought pursuant to s32 of the Compensation Court Act 1984. The appeal is not confined to questions of law. The order the subject of the appeal was made by Moroney CCJ pursuant to s36 of the Compensation Court Act 1984. The nature and scope of the "review jurisdiction" contemplated by s36 was discussed extensively by Kirby P in Watson v Hanimex Colour Services Pty Ltd (Court of Appeal, 28 November 1991, unreported). It is unnecessary to dwell on the matter further because the review was conducted as if the question to be determined by Moroney CCJ was whether Commissioner Cross was right (and, if not, what order should he have made) on the material before him. Neither party sought to adduce further evidence. Because Moroney CCJ did not see and hear witnesses, it was assumed he would acknowledge the dominant position of Commissioner Cross in his assessment of the credibility and reliability of witnesses (see Owners of Steamship Hontestroom v Owners of Steamship Sagaporack (1927) AC 37, Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 and Abalos v Australian Postal Commission (1990) 171 CLR 167). Where facts were undisputed or, if disputed, were found, it was assumed Moroney CCJ would determine what proper inferences should be drawn (Warren v Coombes (1979) 142 CLR 531 and Chambers v Jobling (1986) 7 NSWLR | at 8).