THE BROKEN HILL PTY CO LTD v DERON [1998] NSWCA 226

THE BROKEN HILL PROPRIETARY CO LTD v DERON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MASON P and MEAGHER JA

18 March 1998, 27 March 1998

[1998] NSWCA 226

LIMITATION OF ACTIONS — WORKERS COMPENSATION

Workers Compensation Act 1926 s63(3)(a) — worker paid compensation in 1970 — commences common law action more than three years later — whether worker knew of receipt of compensation — HELD — trial judge erred in finding employer had not established worker knew of receipt of compensation.

Gleeson CJ By an action commenced in 1988 the respondent, Mr Deron, sued the appellant, BHP, for damages for personal injury received by him in the course of his employment with BHP. The injury was sustained in June 1970. There may be a connection between the delay in commencing the proceedings and the fact that, as well as suing BHP, the respondent also sued certain solicitors.

The appellant pleaded, by way of defence, that the respondent's claim against it was statute-barred. An order was made that this be determined as a separate issue. The trial of that issue came before Sperling J, who resolved it in favour of the respondent. The appellant, by leave, appeals against that decision.

The primary ground of appeal is a challenge to Sperling J's decision on a question of fact. That decision did not turn upon an assessment of the credibility of witnesses, but depended mainly upon inferences to be drawn from primary facts which were substantially undisputed, and from documents in the nature of business and professional records. It is argued on behalf of the appellant that the primary judge's decision was wrong and should be reversed. The principles governing an appellate court's proper function when dealing with such a challenge to a primary judge's findings of fact are not in dispute. (See, for example, Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 and the authorities there discussed.)