GOVERNMENT CLEANING SERVICES v ELLUL [1996] NSWCA 225

GOVERNMENT CLEANING SERVICES v ELLUL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and BEAZLEY JJA 17 July 1996, 12 August 1996 [1996] NSWCA 225

WORKERS COMPENSATION — Assessment and amount of compensation — Award under s66 and s67 Workers Compensation Act 1987 Application of s68A — Whether trial judge must accept "available evidence".

Workers Compensation Act 1987, s68A(1), (2), (8) 1. Appeal be dismissed. 2. Amend order No 3 made by Armitage J on February 1996 so as to insert 4 May 1995 instead of 21 July 1993. 3. The appellant to pay the respondent's costs of the appeal.

Mahoney P The facts are stated in the judgment of Beazley JA which I have had the advantage of reading. I agree with her Honour's judgment and with the orders she proposes.

In deference to the submissions made by Mr Hoeben SC I shall add a short observation upon the operation of s68A(8). As Beazley JA has said, this is a curious provision. Its objective is no doubt that of avoiding avoidable litigation. That is a desirable objective. It is desirable that legislation should contain an appropriately worded provision for this purpose. But, as the argument has indicated, it is unlikely that the present provision will achieve that effect.

It may be that the craftsman of the subsection intended to use in the formulation of it what is currently described as plain English. The use of language of that kind is, in my respectful opinion, to be welcomed. But if litigation is to be avoided, it is necessary that plain language be precise language and that it be used to express precise thought. The concepts involved in the criteria used in s68A ("difficult", "costly", "absence" and "at odds") are not precise and their imprecision may well defeat the purpose to which the subsection was directed.

Upon the basis of the reasoning of Beazley JA, it is not necessary to pursue further the difficult questions which the terms of the subsection pose. As her Honour has said, there was no available evidence of the proportion of loss solely due to the pre-existing condition and accordingly the result achieved by the trial judge may be accepted.