Ambulance Service of New South Wales v Daniel & Anor

(2000) 19 NSWCCR 697; [2000] NSWCA 116

NSW Court of Appeal

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Interrogate

Catchwords

1. Workers' Compensation
2. › Hearing loss
3. › Employment to the nature of which injury is due
4. › Last noisy employer
5. › Whether employment involved real as opposed to theoretical risk of hearing loss
6. › Workers Compensation Act 1926 (NSW), s 17
1. Appeal
2. › Appeal on question of law
3. › No evidence ground
4. › Sufficiency of evidence
5. › Distinction between finding in favour of party bearing onus and finding against party bearing onus
6. › Compensation Court Act 1984 (NSW), s 32
1. Appeal
2. › Appeal on question of law
3. › Whether fully found facts fall within statutory provision
4. › Distinction between statutes using legal concepts and statutes using words in common understanding
1. Practice and Procedure
2. › Judgments and orders
3. › Reasons for decision
4. › Sufficiency of reasons
5. › Whether failure to refer to relevant evidence renders reasons inadequate

Quick Take

Where a finding of fact is made in favour of the party bearing the onus of proof, the no-evidence ground of appeal requires showing that the evidence, even if fully accepted, could not properly base the finding — not merely that there was no evidence at all. The test for 'employment to the nature of which the injury is due' under s 17 of the Workers Compensation Act 1926 requires proof that the nature of the employment involved a real as opposed to theoretical risk of the relevant injury. A trial judge's failure to refer to the evidence capable of supporting a critical finding may render reasons inadequate where the appellate court is left to speculate as to the basis of the decision.