O'Dwyer v Broken Hill City Council [2000] NSWCA 20

New South Wales Court of Appeal

CITATION : O'Dwyer v Broken Hill City Council [2000] NSWCA 20 FILE NUMBER(S) : CA 40291/99 HEARING DATE(S) : 24 February 2000 JUDGMENT DATE : 24 February 2000

PETER JAMES O'DWYER PARTIES : v BROKEN HILL CITY COUNCIL JUDGMENT OF : Handley JA at 1; Fitzgerald JA at 13; Hodgson CJinEq at 14

LOWER COURT JURISDICTION : Compensation Court LOWER COURT 1860/98 FILE NUMBER(S) : LOWER COURT Burke CCJ JUDICIAL OFFICER :

COUNSEL : G Little/E Techera (Appellant) P Sweeney (Respondent) SOLICITORS : Buckworth Keady & Chalker (Appellant) McCabes Lawyers (Respondent) CATCHWORDS : APPEAL FROM COMPENSATION COURT - NO ERROR OF LAW - NO QUESTION OF PRINCIPLE DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40291/99 1860/98 HANDLEY JA FITZGERALD JA HODGSON CJinEQ

24 February 2000

PETER JAMES O'DWYER v BROKEN HILL CITY COUNCIL

JUDGMENT

1 HANDLEY JA: This is an appeal by an unsuccessful applicant from a decision of Burke CCJ given in Broken Hill on 16 April 1999. 2 The applicant was a mechanic and at the time of the incident giving rise to the proceedings was working for the Broken Hill City Council. On 30 June 1995 he was adjusting a speedometer cable on one of the Council vehicles when he experienced back pain. Arising from that incident he brought claims under ss 66 and 67 against his employer seeking lump sum compensation. 3 The applicant had a long history of back problems dating back at least to 1980. Burke CCJ, in a 6 page judgment, said that he was not persuaded that the applicant's back and neck problems were the result of the injury referred to. He concluded that his conditions were the result of long-standing problems in his lumbar and cervical spine. 4 The appeal to this Court is limited by statute to questions of law and Mr Little who appeared for the appellant has said all that could possibly have been said to identify an error of law in the Judge's reasons. 5 It is clear, on principle and on authority, that a decision of a tribunal of fact against the party bearing the legal onus of proof is seldom capable of being challenged for error of law if the tribunal of fact asked itself the right question and considered evidentiary materials available to it for the relevant purpose. These difficulties in the way of the appellant's task were faced up to by Mr Little, but he was driven to accept that the only basis on which the appellant could challenge this decision was for inadequacy of reasons. 6 The general principle that a failure to give sufficient reasons by a Judge in the Compensation Court is an error of law is well established. However it appears to me that the Judge has given adequate reasons for his decision that the worker had not discharged the onus of proof. 7 Mr Little identified two passages in the Judge's reasons which he said demonstrated that he had failed to explain why the worker had not discharged the onus of proof. These are identified in his written submissions in paras 11 and 18 and we also had the benefit of Mr Little's oral submissions on these matters. The first passage is: