Carthew v Badger & Ors [2004] NSWCA 317

New South Wales Court of Appeal

CITATION : Carthew v Badger & Ors [2004] NSWCA 317 HEARING DATE(S) : 1 Septemer 2004 JUDGMENT DATE : 14 September 2004

JUDGMENT OF : Giles JA at 1; Santow J at 29; Ipp JA at 30 DECISION : Appeal dismissed with costs.

CATCHWORDS : Employee injured diving into swimming pool - dispute over whether injury in course of or arising out of employment - conflicting accounts of circumstances in which it occurred - judge preferred evidence of employer's witnesses - appeal on ground of error in point of law - error in that judge's reasons inadequate - whether inadequate for failure to refer to parts of evidence of employee's witnesses - judge found their evidence unreliable and accepted employer's witnesses - open to judge to do so - the parts fell with the whole and no inadequacy - whether inadequate for failure to refer to a third party's report of incident - report consistent with evidence of employer's witnesses - not so critical that reference required and no inadequacy. ND Beale v Government Insurance Office of New South Wales (1997) 44 NSWLR 430; Fitzgibbon v The Waterways Authority [2003] NSWCA 294; CASES CITED : Mifsud v Campbell (1991) 21 NSWLR 725; Sinha v Health Care Complaints Commission [2001] NSWCA 206; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Ariel Claire Carthew - Appellant PARTIES : Stephen Badger (t/as Stephen Badger Swim School) - First Respondent Workcover Authority of New South Wales - Second Respondent North Sydney Council - Third Respondent FILE NUMBER(S) : CA 40960/03 P Webb QC & M J Gollan - Appellant COUNSEL : W Ward - First Respondent G Swinton & J Trainor - Second Respondent L King SC & C Robertson - Third Respondent Higgins & Higgins - Appellant SOLICITORS : Tsolakis Solicitors - First Respondent W Cooper - Second Respondent Moray & Agnew - Third Respondent