FRANCIS v DUNLOP (t/as WAGGA SHOWER SCREENS AND GLASS) [1998] NSWCA 84

FRANCIS v DUNLOP (t/as WAGGA SHOWER SCREENS & GLASS) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and HANDLEY JJA and FITZGERALD AJA 16 November 1998, 16 December 1998

[1998] NSWCA 84

WORKER'S compensation — appeal in relation to refusal of application under s151A of Workers Compensation Act to revoke election to claim permanent loss — per Priestley JA and Fitzgerald AJA (Handley JA in dissent) — leave should be granted to the appellant.

Priestley JA I agree with the conclusion reached by Fitzgerald AJA in this matter.

I also agree with his reasons, subject to an additional consideration.

S151A(5) provides that a worker may not revoke an election of the kind in question in the present case unless various conditions are fulfilled. One of these is stated (in s151A(5)(c)) in full in the reasons of Handley JA and Fitzgerald AJA. This condition is that at the time of the election by the worker, there was, looked at objectively, "no reasonable cause to believe that the further deterioration would occur" (my underlining [italicising]).

When the question the provision puts into the mind of the objective observer at the time of the election is stated in the present tense, that question becomes "Is there any reasonable cause to believe a particular further deterioration will occur"? (Unless the person seeking the court's leave to revoke the election discharges the onus to show the answer to the question is no, the condition will not be fulfilled.)

It seems to me that for a person to believe that something will occur that person must not only think that the thing will occur but also accept as a truth that it will occur. This is my own understanding of the word in its context here. To check whether my understanding is either consistent with or conflicts with recorded uses of the word, I have looked at The Oxford English Dictionary 2" ed (the OED).