Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214 Hearing dates: 30 June 2011 Decision date: 29 July 2011 Before: Giles JA at [1], Hodgson JA at [47], Handley AJA at [48] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WORKERS COMPENSATION - sole working director of respondent killed in cycling accident - claim for death benefits compensation - injury was in course of employment - Commission found employment concerned not a substantial contributing factor to the injury (Workers Compensation Act 1987, s 9A(1)) - whether erroneous decision in point of law in so finding - Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324 - whether approached from perspective of the cycling rather than of the employment concerned - consideration of causal linkage between employment and injury - no erroneous decision in point of law - injury in course of employment does not lead to finding of employment being substantial contributing factor to injury. APPEALS - need to identify erroneous decision in point of law. Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324; (2009) 75 NSWLR 503; Da Ros v Qantas Airways Limited [2010] NSWCA 89; (2010) 8 DDCR 103; Durham v Durham [2011] NSWCA 62; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271. Category: Principal judgment Parties: Susan Van Wessem - Appellant Entertainment Outlet Pty Ltd - First Respondent Representation: D Campbell SC & R de Meyrick - Appellant M Cranitch SC & S Flett - Respondent Beston Macken McManis - Appellant Sparke Helmore - Respondent File Number(s): CA 2010/333479 Decision under appeal Citation: Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97 Date of Decision: 2010-09-10 00:00:00 Before: Keating P File Number(s): WCCA 1-01009/09