Hatfield Engineering v Fitzgerald [2003] NSWCA 345

New South Wales Court of Appeal

CITATION : Hatfield Engineering v Fitzgerald [2003] NSWCA 345 HEARING DATE(S) : 8 July 2003 JUDGMENT DATE : 25 November 2003

JUDGMENT OF : Hodgson JA at 1; Santow JA at 2; Ipp JA at 54 DECISION : (1) Appeal dismissed; (2) Appellant to pay respondent's costs of this appeal.

CATCHWORDS : WORKERS' COMPENSATION - Discretion of the Court under s17 Compensation Court Act 1984 (NSW) to reconsider orders made pursuant to s15(1) Workers' Compensation Act 1926 (NSW) - February 1986 redemption of weekly payments by lump sum payment - CHANGED CIRCUMSTANCES - Major injuries to right leg suffered in 1980 - lump sum compensation for 50% loss of use of right leg awarded in 1983 - right leg amputated in 1998 curing problems of recurrent infection and septicaemia. Whether s17(4) incapable of application to an agreement between worker and employer where redemption amount has been determined by the court - Failure to re-consider specifically the lump sum determination as required by s17(4) - Whether trial judge applied a solely subjective test in consideration of the objective requirement for foreseeability of amputation - Whether trial judge's discretion miscarried, taking into account extensive delay. Compensation Court Act 1984 (NSW) s17 LEGISLATION CITED : Workers' Compensation Act 1926 (NSW) s15; s36; s60 Workers' Compensation Act 1987 s151A(5) Brisbane South Regional Health Authority v Taylor [1996-97] 186 CLR 541 Hardaker v Wright & Bruce Pty Limited (1960) 62 SR(NSW) 244 Hilliger v Hilliger (1952) 52 SR(NSW) 105 CASES CITED : House v the King (1936) 55 CLR 499 McIlwraith McEarchern Limited v Sweetman (1930) 44 CLR 116 State of New South Wales v Taylor (2001) 204 CLR 461 Suttor v Gundowda (1950) 81 CLR 418 PARTIES : HATFIELD ENGINEERING PTY LIMITED (Appellant) Bruce James FITZGERALD (Respondent) FILE NUMBER(S) : CA 40520/02 COUNSEL : J D Hislop, QC/ N E Chen (Appellant) L King, SC/ G Niven (Respondent) SOLICITORS : Gillis Delaney Brown (Appellant) Giles Paynes & Co (Respondent)