McILVAIN v THE COUNCIL OF THE SHIRE OF GUNNEDAH [1998] NSWCA 152

McILVAIN v THE COUNCIL OF THE SHIRE OF GUNNEDAH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER JA and FITZGERALD AJA 15 September 1998, 2 October 1998

[1998] NSWCA 152

WORKERS COMPENSATION — trial Judge's failure to give reasons was an error of law

The appellant applied in the Compensation Court for determination of the liability and the compensation payable by the respondent in relation to injuries he claimed to have received on 13 October 1994 and 31 March 1995. On 13 October 1994 he was employed by the respondent, however, on 31 March 1995 he was no longer employed by the respondent but was engaged in driving a truck, which he owned in connection with the respondent's business.

The trial Judge held that the appellant was not entitled to damages for the 31 March 1995 injuries because at that time the appellant was carrying on a cartage business. However, his Honour held that the appellant was entitled to damages for the 13 October 1994 injuries and that the appellant could not receive damages for impairment of his back and loss of use of his right leg because those injuries arose from the 31 March 1995 injuries.

The appellant appealed from this decision arguing that the trial Judge made an error of law by failing to give reasons for his decision that the appellant was not a deemed worker under Sch | cl2 of the Workers Compensation Act 1987 when he suffered injury on 31 March 1995. Additionally, it was argued that the trial Judge had failed to adequately consider the appellant's submissions based on Davis v Pioneer Concrete (1976) 1 NSWLR 562.

Held:

1. The trial Judge failed to give reasons for his finding that the appellant was not a deemed worker and as such this amounted to an error of law. Similarly, his Honour's failure to give reasons for rejecting a relationship between the injury sustained on 13 October 1994 and his incapacity after 10 April 1995 amounted to an error of law. Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 402 and Davis v Pioneer Concrete referred to. Pettit v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 280 applied.