Athval Management Pty Ltd v Doherty

ATHVAL MANAGEMENT PTY LTD v Sonja DOHERTY JUDGMENT

1 POWELL JA: I ask Heydon JA to give the first judgment. 2 HEYDON JA: Background This is an appeal from an award by Bishop CCJ in the Compensation Court in favour of the applicant below and against the respondent below after a hearing was conducted, and reasons for judgment were delivered, on 16 November 1999. It is convenient to use here the nomenclature of the parties at first instance. 3 The trial judge correctly described the facts as quite straightforward, the issues as "exceptional," "difficult" and "unique," and the result as turning on a "very fine" and "very difficult" point. However, in view of the helpful written and oral submissions put by both parties, it is possible to proceed to judgment now. 4 On the morning of 23 April 1997 the applicant suffered an injury to her left leg in the following circumstances. She intended to drive her two children to school before proceeding to her place of work. At Red 10U-11K the trial judge said: "...inside her property there was a double carport which contained her car and that of her husband. When her car was parked in there, it was not possible to access the passenger side doors because of the proximity of the side wall of the carport, it being necessary to leave room for her husband's vehicle. On the morning in question she had her children with her. She went out to the carport, she put her own jacket and other things onto the passenger side front seat by throwing them through the window and then, as she sometimes did, she lent over to start the ignition with a view to moving the car slightly outside the carport so that the children could get in and they could set off. Unfortunately, the car was left in gear. It leapt forward and because of the very natural concern as to the whereabouts of her daughter whom she understood to be in front of the carport, the applicant immediately tried to regain control of the vehicle as it moved forward down the driveway which had a slight downward slope out the front of the carport to which I have made reference. She lost her footing and fell and in fact, the rear wheel of the car ran over her leg while she was lying in the gutter at the foot of the driveway. ...[The] evidence is perfectly clear that that gutter where the injury physically occurred was outside the boundary of the applicant's property."

Fortunately, this frightening incident concluded when the applicant's fourteen year old son had the presence of mind to pursue the vehicle after it ran over his mother and, after catching it, to apply the handbrake without further injury being caused to anyone. 5 At a later point in his reasons for judgment, the trial judge referred to the last observation quoted, relating to the injury occurring outside the boundary, as a finding that the injury occurred outside the boundary. The significance of that finding is that s 10(4) of the Workers Compensation Act 1987 provides: "For the purposes of this section, a journey from the worker's place of abode commences at, and a journey to the worker's place of abode ends at, the boundary of the land on which the place of abode is situated."

Section 10(1) deems an injury received on a journey so defined as being an injury arising out of or in the course of employment, and makes compensation payable accordingly. 6 The trial judge recorded the submission of the respondent in the following terms (Red 12G-I): "...what had occurred in this particular case was that there was the physical difficulty in getting the children into the car, and indeed, the applicant herself was not even in the car, and one could not say, accepting the overall purpose of what the applicant wished to do, that in fact the journey had physically commenced before this unfortunate accident occurred."

That was part of what it submitted, but not all. 7 The trial judge said the cases made very clear "the primacy of the intention of the worker." He said of s 10(4) that the opening words "For the purposes of this section" are: "important. They indicate that the extent of the compensation protection offered on journey injuries is limited by the parameters set out in the section and in subs (4) in particular. What I think that means is that if an injury is received on the journey inside the boundary of the workers' property, then the injury is not compensable."

The trial judge continued (Red 13D-Q): "...the intention of the worker was clearly expressed by Mrs Doherty, namely that she was going to put the children in the car and go to work, dropping them first at their school as she had done on many occasions before. I do not consider that s 10(4) in any way presents an obstacle to the Court accepting that intention. I think that one construction that is open is that the journey in the general sense had in fact commenced when the applicant and her children went to the carport, but the compensation protection that was offered to the applicant did not start until the boundary was crossed. The matter can perhaps be tested by looking at a couple of other situations. If, for example, the applicant and her children were in the car and the car had got to the bottom of the drive and got to the point where the applicant's injury occurred and was hit by another car, there would be absolutely no question of the applicant's entitlement. Similarly, if the applicant had taken the car and the children outside the boundary and one of the children said that he or she had forgotten a book for school and the applicant waited outside the boundary in the car while the child retrieved the book and was hit by a car, there would be undoubted compensation cover for the accident in question. I think the correct solution to this case, difficult and unique as it is, … is that I accept that the applicant had an intention before the emergency arose to go on a journey to work, dropping the children off to school on the way. I think that that journey had actually commenced and I think that the fact that the injury occurred just outside the boundary of the property, is sufficient for the applicant to obtain the protection of the legislation." 8 The applicant took a preliminary point. The point was that the reasoning of the trial judge turned on a finding of fact open to him, and not on any error of law. Hence there was no right of appeal: Compensation Court Act 1984 s 32(1). Perhaps in anticipation of this point, the grounds of appeal were formulated thus (Red 17J-18J): "1. His Honour misdirected himself as to the question of fact which he had to determine. 2. His Honour erred in law in concluding it was open to him to find a journey had commenced when the [applicant] and her children went to the carport. 3. His Honour failed to determine the [applicant's] intention at the time she crossed the boundary of the land on which her place of abode was situated. 4. There was no evidence to support His Honour's conclusion that the [applicant] was on a journey at the time of injury. 5. The facts found were necessarily outside the statutory description contrary to his Honour's conclusion. 6. His Honour's application of the law to the facts found was unreasonable. 7. His Honour's conclusion that the [applicant] was on a journey when injured was unreasonable."

At least grounds 6 and 7 appear to move close to the categories of attack analysed by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6 as factual, not legal. Perhaps also in anticipation of the point, the respondent seized on the trial judge's expression "construction," and in four places selected the notion of the trial judge's "construction of the section" as integral to its argument. Whether or not this characterisation is sound, the preliminary point may be put aside for the moment.

The Respondent's Arguments 9 The respondent contended first that two "other situations" referred to by the trial judge did not advance his reasoning. While the trial judge's actual observations in this regard are sound, the respondent's contention is also correct because the instances discussed differ significantly from the present case. 10 The balance of the respondent's contentions were in summary as follows (respondent's written submissions paragraphs 12-14): "12. The [respondent] contends...that...the [applicant's] claim could not succeed because in crossing the boundary, the [applicant] had no intention of commencing a journey to her place of employment, her actions being either involuntary, or, if voluntary, motivated by a desire to regain control of the vehicle. 13. Alternatively,...the [applicant] had not commenced upon the intended journey at the time of injury, as her intention was that such journey should not commence until she and the children were seated inside the vehicle and these preparatory matters had not occurred prior to injury. There was no evidence to support a contrary finding. 14. As a further alternative submission, his Honour's conclusion that the [applicant] was on a journey when injured was unreasonable and should be overturned - Hill v Green (NSW Court of Appeal, unreported, 22 December, 1999 per Fitzgerald JA at paragraphs 229-247)."

The First Point: What Was the Applicant's Intention at the Time She Crossed the Boundary? 11 The first submission of the respondent does not challenge the trial judge's finding that "the journey in the general sense had...commenced when the applicant and her children went to the carport," and does not challenge the finding that her intention, at least initially, was to go to work after putting the children in the car and dropping them at school. Rather, the primary aspect of the submission distinguishes between two "journeys". One was the "journey in the general sense" (i.e. the conclusion about when it commenced to which a court might come if s 10(4) did not exist). The other was the "journey" defined by s 10(4). The statutory journey commenced when the applicant crossed the boundary and what mattered was her intention at that point. On one version of the applicant's argument the trial judge made a specific finding about her intention at that point. On another version he did not. He did make findings about her initial intentions on leaving the house, but not about how long they lasted. This was despite the fact that Ms J C Chapman (counsel for the respondent below, and appearing with Mr J D Hislop QC, in this Court) put the matter to the trial judge in the following way: "It is my submission that what your Honour has to determine is when the boundary is crossed, what was the applicant's intention at that time? Was it her intention to commence her journey, to drive her children to school, move on to work? No, the answer is no. That is the only question your Honour must pose. Her intention was to stop the vehicle." 12 So far as the Notice of Appeal seeks an award in favour of the respondent, the submission has a secondary aspect. It seeks to infer from the circumstantial evidence that the intention of going to work via school had been interrupted. Once the car began moving, the applicant must have abandoned that intention and she either became the passive victim of events or attempted to control them by grabbing the steering wheel. So far as she had an intention, her intention was to save her daughter from injury "because of the very natural concern as to the whereabouts of her daughter," as the trial judge found. In this regard the applicant's unchallenged evidence was (Combined 3R-S and 4D-I): "Q. The starting motor, did it leave the flat? A. Yes, it left the flat, it did the normal hop a manual does when you start it, the jump, the jerk, and it took off. I just grabbed the steering instinctively. I knew my daughter was standing near the front of it because she was waiting to get in that car, because I have to move the car for her to get into the front seat. ... Q. Having turned the ignition on the vehicle it then moved the starter motor and there is a gentle downwards slope once you get off the flat of the garage floor, is that right? A. That is correct. Q. With you partially in and partially out endeavouring to steer the vehicle, what happened then? A. I was dragged down the driveway on my left hand side because I'd lost my footing. I was dragged down the driveway. There was actually a black drag mark my skirt left down the driveway, all the way down the driveway. Q. What happened next? A. All I remember was there was a fairly large thump and I lost my handgrip on the steering wheel and basically fell out of the car. The back driver's side I remember seeing it drive over my left hand side. I was actually at that time - well I never moved from that spot and I was actually in the gutter on the road. Q. As you were dragged it was your right hand side in contact with the outside area? A. The concrete. Q. Precisely where was it you actually lost your grip on the steering wheel and fell beneath the wheels of the car? A. It was where I lay - it was where the car ran over me and that was in the gutter of the road. It was the gutter and the road. I was actually on the road gutter area. Feet facing the road."

In cross-examination (Combined 6H-N) the evidence of the applicant was as follows: "Q. In fact when you saw Dr Deveridge that your daughter screamed out to stop? A. She was screaming the whole - like I was lying on the floor, I thought she was under the car because she was screaming the whole time. I knew she was in front of the car when the car jumped and she was screaming and, you know, the car clipped her just on the leg when it went past her. Q. It is fair to say that when you started the car and it jumped and went forward you were surprised? A. I was shell shocked. Q. The reason you grabbed the steering wheel was because immediately you thought it was going to hit your daughter? A. I grabbed the steering wheel probably more reaction than anything else. I knew my daughter was in front of it. It happened so quickly. Q. There was a secondary intention to stop the car from running away perhaps? A. Perhaps but it was so quick, it was just so quick. Q. So you say the main reason was you grabbed it so your daughter was not hit or injured? A. No, I knew she was in front of it, I grabbed the steering and I would say it was a reaction. I knew my daughter was in front of it and as a reaction I probably grabbed it to take it away from her, yes, I would say so." 13 The submission appears to be directed in support of grounds 1, 3, 4 and 5 of the Notice of Appeal. In the language of ground 1, the trial judge misdirected himself because the factual question of the applicant's intention (which determined the character of what she was doing as the car crossed the boundary and then ran her over) had to be answered as at the moment the boundary was crossed and not earlier. In the language of ground 3, the trial judge failed to make a finding about her intention at that time. In the language of ground 4, evidence sufficient to characterise what the applicant was doing from the point in time that she crossed the boundary until she was run over had to be evidence of an intention to go to work, and there was no evidence that in that brief time period she had that intention. In the language of ground 5, the facts found by the trial judge about the applicant's conduct after the car, having begun to move, crossed the boundary, were necessarily outside the statutory expression "journey". 14 The submissions of the applicant were as follows (applicant's written submissions paragraphs 16-25): "16. The mere fact that circumstances beyond the [worker's] control have taken a worker away from the intended mode or path of travel to or from work does not it is submitted prevent a Judge finding there is a right to compensation. If the worker's train journey takes the worker beyond his or her intended station because the train overruns its stop, and he or she is injured after alighting at the next station, this is still part of the journey. Other involuntary situations would naturally be covered it is submitted. Such a situation is a part of the journey not an interruption or deviation it is submitted. 17. This is because there is no voluntary abandonment. It is also because the Act extends to misadventure on the journey, in fact that is why the Section exists. 18. In the present case there was no voluntary abandonment of the journey, it commenced at the latest after the worker left the front door, as found by the trial Judge. 19. Once the car was under her control she would have proceeded in the normal way to work. The transit of the car down the driveway was in its manner unexpected, nevertheless, it was a continuation of her journey to work in the same way as in the example above. 20. This is a finding of fact which was open to the trial Judge and not an appellable error of law, it is submitted. 21. Other similar situations it is submitted, are if a worker while walking down the driveway lost her footing and slid down the driveway not being injured until she transited the boundary line, or if a worker was driving down the driveway when the car's brakes failed and the car collided with another vehicle in the street causing injury to the worker. If the Appellant's submissions are correct, the worker would fail to recover unless the brake failure occurred outside the gate. 22. It is injury which attracts the right to compensation and the cause is essentially irrelevant, as was the [worker's] trip to church in [ Kerr v New South Wales Club [1971] WCR 13] once there is an intention to journey, so long as injury is suffered outside the boundary. 23. An illustration of this point is a case [digested] in Mills New South Wales Workers' Compensation 2nd edition page 208, Williams v Ducon Condenser Ltd [1949] WCR 122, where a worker while riding a bicycle home struck a stone on the footpath outside the gate to her home but was thrown inside the boundary where she suffered injury. She failed to recover. The worker did not intend to conclude the journey in the manner in which she concluded it. She was carried into her property by momentum. She was in the course of a journey when these events overtook her, as was the worker in the present case. 24. Injury here occurred outside the driveway boundary line, and was compensable either because the manner of arrival there was a progression of the journey or because the manner of arrival was irrelevant, only the intention to journey and implementation of the intended manner of travel, are relevant. The Act assumes a misadventure or unintended happening. 25. It is self evident that a worker cannot exit the boundary of her property and continue to work unless he or she has formed the intention to journey much earlier, both geographically and temporally, than the place and moment of exit." 15 There are two difficulties with these contentions of the applicant. The first is that they do not accommodate s 10(4). The second is that they do not accommodate the need, if intention is crucial to the characterisation of conduct as a journey, for analysis of what the worker's intention is at the moment the journey starts. What the worker's intention was before any conduct said to constitute a journey starts can be relevant to what it was when the conduct started in the sense that it may have continued unchanged to the later time, but the earlier intention is not determinative of a finding as to the later intention. 16 The example propounded by the applicant of the train overrunning the worker's station discussed in paragraphs 16 and 17 of the applicant's written submissions is irrelevant to the present circumstances and reflects the first difficulty. In that example, the moment the worker left the relevant place of abode or work, the activity was characterised as a journey by reason of the worker's intention at that time, and nothing happened which either changed that intention or that characterisation. 17 The argument advanced in paragraphs 18-20 does not grapple with the first difficulty. The submission that the journey "commenced at the latest after the worker left the front door, as found by the trial Judge" cannot stand with the statutory mandate in s 10(4) that it commenced only when the boundary was crossed. The submission that the "transit of the car down the driveway was...a continuation of her journey to work in the same way" as in the example of the train overrunning the station does not face up to the fact that far from the relevant journey continuing, it had not started. And the submission that once "the car was under her control she would have proceeded in a normal way to work," even if one bears in mind the likelihood of a significant interval while the applicant accounted for her children and all three people recovered from the acute distress which the experience must have stimulated, ignores the fact that the applicant's acts in proceeding to work would not have become a "journey" until the boundary was passed. 18 The examples given in paragraph 21 may or may not give the workers involved recovery. Whether they do depends on an analysis of what the intention of each worker was as the boundary was crossed (in the light of all relevant circumstances, including the worker's intention at an earlier time). A case where a worker slid down a long drive might have a different outcome from a case where the worker's footing was lost as a result of a stumble just before the boundary line. In the example of the failed brakes, much might depend on when the worker realised that the failure had occurred. 19 The authorities cited in paragraphs 22 and 23 of the applicant's written submissions are distinguishable. In any event the actual decision in Williams v Ducon Condenser Ltd [1949] WCR 122 does not support the applicant's position; rather it demonstrates the extremely technical and fine distinctions which the statute compels. At 125 Rainbow J said: "Sympathy must be extended to the applicant, but the matter is not one that should be influenced by any such considerations. It is infinitely better that the law should be certain. If it is not thought adequate, the remedy lies in the hands of the legislators to clarify or amplify. If and where capable of attainment in the construction of an Act of Parliament, certainty is always to be preferred to an all too ready and facile modern disposition to treat its application and scope as giving rise solely to questions of fact, with as many varying and variable answers being given to similar problems as there are judges, and with Appellate Courts giving attention only to the question of whether there was any evidence to support a particular decision. In my opinion the words place of abode should be considered to mean and include the house or premises, the curtilage, messuage and appurtenances, if that be the correct conveyancing description of the whole of the land and boundaries of the home here in the father's possession where the applicant resided."

Rainbow J did go on to say (at 125-6): "If in riding out of the driveway some untoward event had precipitated Miss Williams on to the roadway outside her home and she had suffered injury, it appears to me that she would have been entitled to recover because she would have received her injury on the route of her journey to work and between her home and workplace. Indeed, as I recall, I so decided in an unreported case where a young man hurrying up some garden steps to go to work tripped on the top or second-top step and fell through the gate on to a concrete path outside and so suffered a fractured wrist bone: Beach v Westinghouse Brake (A/sia) Ltd. (11/12/47)."

That description of Beach's case suggests that at the moment when the young man fell through the gate he continued to have an intention to go to work. The quoted passage says nothing about what Miss Williams' assumed intention was just after the untoward event and just before she crossed the boundary. Thus it does not support the trial judge's conclusion. Those instances are not instances where an intervening event occurred comparable to that involved in the present case, capable of terminating the pre-existing intention. 20 Paragraph 24 assumes the matter which is to be decided, namely that at the moment of injury outside the boundary the applicant was on a journey. 21 As to paragraph 25, while the movement of the worker across the boundary of the land on which the worker's place of abode is situated must depend on an intention formed at a point in time before the moment when that movement takes place and in a place distinct from that boundary, it does not follow that the worker must have formed the intention to journey "much earlier, both geographically and temporally, than the place and moment of exit." 22 The applicant put oral submissions to the effect that the purpose of the Act was to compensate for injury in the course of a journey. This injury occurred in the course of a journey commenced when the car was started or earlier. The problem is that the true purpose of the Act is to compensate for injury once the journey has started. The relevant "journey" being narrowed so as to commence only at the boundary. 23 The applicant also submitted that the relevant intention which the judge found to exist when the applicant left her house was never lost. At most a subsidiary intention may have arisen when the emergency occurred. Reference was made in the course of argument to an expression employed by Moffitt J in Kerr v New South Wales Club [1971] WCR 13 at 19 where his Honour spoke of the need to determine "what was the worker's dominant purpose." In my judgment the trial judge never decided whether the relevant intention was lost before the boundary was crossed. 24 Accordingly, in my judgment the respondent's submission in its primary aspect is correct. Despite the invitation of counsel for the respondent, the trial judge made no finding that just before the movement across the boundary, which s 10(4) marks as the place at which and the time at which the conduct alleged to be a journey commenced, the applicant had an intention of commencing a journey. The evidence and the findings point towards an absence of any such intention before commencing the conduct alleged to be the s 10(4) journey, as distinct from the intention preceding the conduct found to be a "journey in the general sense". But the fact remains that no distinct finding about the applicant's intention just before crossing the boundary was made. This was because of misdirection on the part of the trial judge in the sense that he directed himself that it was sufficient to make a finding about the applicant's intention when she left the house, so that he failed to direct his mind to whether there was any such intention operative at the time the boundary was crossed. 25 Mr Hislop submitted that the trial judge made a finding sufficient for success on this appeal without any remitter to the Compensation Court at Red 11F-H (quoted on page 2 above). In my opinion that is not a finding of "intention" sufficient to negate the continuance of the pre-existing intention at the time the applicant left her house. 26 In short, grounds 1 and 3 in the Notice of Appeal are made out, though grounds 4 and 5 are not. As to ground 4, there was some evidence which might have supported the trial judge's conclusion, but no specific finding of the necessary kind was made. As to ground 5, it cannot be said that the facts found were necessarily outside the statutory description; had specific findings of the necessary kind been made, they may well have been.

Was the Error by the Trial Judge In Relation to the First Issue an Error of Law? 27 The trial judge's error lay in a misdirection leading to a non-direction. He directed himself that the essential fact to be found - a matter having "primacy" - was the intention of the worker in relation to "the journey in the general sense". In consequence he failed to direct himself in relation to what intention had primacy in relation to the s 10(4) journey. Assuming that the trial judge's express finding that the applicant had commenced a journey when the applicant and her children went to the carport, and his implied finding that it continued until the boundary was passed, were findings of fact, they fall within one of the categories of findings of fact which can be disturbed by an appellate tribunal having jurisdiction to determine only questions of law, namely findings that were made because the primary tribunal "misdirected itself in law": The Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138 per Jordan CJ. This category was described by Glass JA (Samuels JA concurring) as follows in relation to the Workers' Compensation Commission: "A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself i.e. has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date": Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. The finding that there was a relevant journey which commenced before the boundary was crossed because of an intention formed before the applicant started the car "defined otherwise than in accordance with law the question of fact which" the trial judge had to answer because it did not pay appropriate attention to s 10(4).

Second Issue: Did the Trial Judge Err in Not Concluding that the Applicant's Intention Was that the Journey Should Not Commence Until the Applicant and her children were seated inside the vehicle? 28 This submission, which reflects the submission to the trial judge which he recorded at Red 12G-J, need not be considered for the following reasons. First, it is a submission put in the alternative to the first submission: since the first submission was sound, the second does not arise. Secondly, the suggested contention involves an invitation to substitute a new finding of fact for the trial judge's finding that the intention of the applicant "before the emergency arose [was] to go on a journey to work, dropping the children off to school on the way [and] that that journey had actually commenced" (Red 13P-Q). 29 The respondent attempted to escape s 32(1) by contending that there was no evidence to support any finding to the contrary of that contended for. It is true that there is no specific question directed to obtaining a specific answer that the applicant's intention was not to begin her journey until she and the children became seated inside the car, and there is no specific answer to that effect. However, at Combined 3D-Q the following evidence appears: "Q. On this particular occasion it was your plan to drive to work, was it not? A. On that particular day I was going to go to work but I was taking my son and daughter to school first. My son had an excursion, he had to be at school before the bus arrived that morning. HIS HONOUR: Q. That morning before you left your car had been reversed into the car port? A. Like always, I park it up against very close to the brick wall and reversed into the car port, yes. Q. So it was facing the front? A. Facing the road, yes. FRAME: Q. Just tell us about the journey itself. On these occasions when you would take your children to school and go on to work, just take us through the journey very briefly would you, from the time you leave your driveway? A. Well I would drive straight to St Columbus. I go down Road, down Wilson Way on to the Highway at St Columbus and it comes straight back and I go straight into work from there, back down the highway straight into View Street, Hope Street. Q. If you were not dropping your children at school but going directly to work, what route would you take? A. Same way, from my road on to Old Bathurst Road. However, rather than turning right into Wilson Road I would turn left into Wilson Way on to Leighton Avenue, into Hope Street. Q. At what time did you leave the front door with the intention of starting the journey? A. That morning I left right on 8 o'clock. Q. From the time you left your front door, tell us what you did, will you? A. Well I locked the front door. The kids put their bags in the boot of the car I threw my jacket, my handbag and my assignment, I'd just completed it because I was doing my conveyancing course, in the car, turned the ignition and it went down the drive. Q. At the time you actually put the key in the ignition, were you sitting in the car or standing alongside the car? A. Well sort of half in and out because I'd thrown everything in there and leaned in to turn the ignition which is what I do, I get into the car and off I go. Q. Did you put your gear into the car? A. It was in the car.

Q. How did you get it in the car? A. Threw it into the passenger seat. I put the assignment in between the seat.

Q. Was the window open or the door open? A. The door was open.

Q. So through the open door you put your material in. Were you in a bent position? A. I was in a bent position, just turning the ignition.

Q. You turned on the motor car? A. Yes."

That is evidence capable of supporting a finding that the applicant's intention was to the contrary of that contended for. Accordingly, even if there were an error, it is not an error capable of correction by this Court.

Third Issue: Was the Conclusion Unreasonable? 30 Mr Hislop, in writing, propounded a third argument which was briefly to the effect that the consequence of certain observations of Fitzgerald JA in Hill v Green (1999) 48 NSWLR 161 is that if the Court were of the view that the trial judge's findings were unreasonable they could be set aside as constituting errors of law. Orally, Mr Hislop abandoned any such contention. I wish only to say of it that I agree with what Mason P said in Hill v Green para [86].

Relief 31 Order 2 in the Notice of Appeal (Red 18N) was that the order of Bishop CCJ in the Compensation Court of New South Wales dated 16 November 1999 be set aside and an award be entered in favour of the appellant. The primary judge's error rested on misdirection and non-direction leading to a failure to determine the particular relevant facts one way or the other. Prima facie that calls for a new trial unless it is open for this Court to decided the factual questions for itself. That could only be done if the answer were inevitable. The answer is not inevitable and accordingly, regrettably, the matter must be remitted to the Compensation Court for further hearing. 32 Orders I propose the following orders. 1. Appeal allowed. 2. The award of Judge Bishop in the Compensation Court of New South Wales dated 16 November 1999 is set aside. 3. The matter is remitted to the Compensation Court for re-hearing. 4. The respondent (applicant below) is to pay the appellant's costs of the appeal. 5. The respondent (applicant below), if otherwise entitled, is to have a certificate pursuant to the Suitors' Fund Act 1951. 33 POWELL JA: I agree. 34 STEIN JA: I also agree. 35 POWELL JA: The orders of the court are thus those which have been proposed by Heydon JA.

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