Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476

Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476

By majority, the appeal was allowed because the worker's case was conducted as an orthopaedic injury claim and no psychiatric injury or condition was pleaded or relied upon, yet the trial judge used psychiatric or functional matters as an essential basis for finding liability and causation without notifying counsel. The employer was deprived of a real opportunity to seek psychiatric evidence or make submissions on that approach, creating significant procedural unfairness requiring the trial orders to be set aside and a new trial ordered.

Jurisdiction
Australia
Judgment Date
21 December 1999
Procedural Posture
Workers Compensation Appeal / Appeal From Orders of the Compensation Court Awarding Weekly and Lump Sum Compensation
Outcome
Appeal allowed; orders of the trial judge set aside; new trial ordered.
Legal Topics
['procedural Fairness' 'natural Justice' 'trial Practice' 'causation' 'unpleaded Case']
['workers Compensation' 'civil Procedure'] ['procedural Fairness' 'natural Justice' 'trial Practice' 'causation' 'unpleaded Case']

Case Brief

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Procedural Posture

Workers Compensation Appeal / Appeal From Orders of the Compensation Court Awarding Weekly and Lump Sum Compensation

Legal Issues

  1. 1 ["Whether the appellant was denied procedural fairness by the trial judge's use of the respondent's psychiatric or functional condition in assessing credibility and determining liability and causation." 'Whether orders were made for the worker on a basis neither pleaded nor otherwise contended for by the worker, without notice to the employer.' 'Whether there was an absence of evidence for material findings.']

Ratio Decidendi

By majority, the appeal was allowed because the worker's case was conducted as an orthopaedic injury claim and no psychiatric injury or condition was pleaded or relied upon, yet the trial judge used psychiatric or functional matters as an essential basis for finding liability and causation without notifying counsel. The employer was deprived of a real opportunity to seek psychiatric evidence or make submissions on that approach, creating significant procedural unfairness requiring the trial orders to be set aside and a new trial ordered.

Court Disposition

Appeal allowed; orders of the trial judge set aside; new trial ordered.

Orders

  • ['Appeal allowed.' 'Orders of trial judge set aside.' "There is to be a new trial of the worker's claims in the Compensation Court." "Respondent to bear appellant's costs of appeal." 'Respondent to have a certificate under the Suitors Fund Act.']