GRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers) [1995] NSWCA 185

GRIFFIN v BACTAND PTY LTD (T/as Southern Commercial Divers)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, CLARKE and MEAGHER JJA

14 August 1995, 29 September 1995

[1995] NSWCA 185

WORKERS COMPENSATION ACT — APPEAL — FAILURE TO PROVIDE ADEQUATE REASONS — PAYMENTS UNDER S40 — UNSUPPORTED BY EVIDENCE

FACTS The appellant received an injury in the course of his employment as a diver. He sought weekly payments of compensation together with lump sums under s66 and s67 of the Workers Compensation Act, 1987. Judge O'Toole declined to make any awards under s66 and s67.

The appellant challenged her Honour's failure to make any award under s66 and that the weekly payment was inadequate.

HELD (per Clarke JA; Gleeson CJ 8 Meagher JA agreed) While it was open to Judge O'Toole to conclude that the appellant suffered a continuing incapacity, her reasoning process, to the extent that it was exposed in the judgment contained a number of errors. She failed adequately to explain how the observation that she mentioned led to her conclusion. As it seems to me her Honour seemed to think that once the reports of the equipment testing came to hand the doctors who supported the appellant changed their opinions or, at least, their perceptions. In the circumstances this was a fairly serious criticism of the doctors and was not, as I earlier pointed out, supported by any evidence at all. In the face of these errors and the lack of a satisfactory

exposure of the reasoning process it is my opinion that the judgment cannot stand and must be set aside. The appellant was entitled to have his case tried and decided upon the basis of a properly reasoned judgment.

Her Honour also failed to apply s40 of the Workers Compensation Act properly. Her award for weekly compensation does not appear to be supported by evidence.