NEW BROKEN HILL CONSOLIDATED LTD v JONES [1995] NSWCA 312

NEW BROKEN HILL CONSOLIDATED LTD v JONES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 12 May 1995, 12 May 1995

[1995] NSWCA 312

WORKERS COMPENSATION — APPEAL

WORKERS COMPENSATION — appeal — whether judge erred in his factual conclusions — whether his view of causation open on medical evidence — whether his reasons sufficient — no error shown — no new question of principle.

Priestley JA This appeal is from a decision of his Honour Judge O'Meally of the Compensation Court to make an award for an applicant worker. The principal issue in the case was whether an occlusion of the worker's sub clavian artery in 1987 resulted from a work injury suffered in 1982. The employer contended that it was the result of an earlier work injury in 1975 for which the worker had been fully compensated.

Basing himself on medical evidence given by a vascular surgeon, Dr Walsh, Judge O'Meally found it was more probable than not that the occlusion was the result of the 1982 injury. In my opinion it is plain from the Judge's reasons that he reached this conclusion on the basis that:

(1) The worker had accurately described certain symptoms which first manifested themselves after the 1982 injury; and

(2) that he accepted Dr Walsh's opinion that the 1982 injury more probably than not was because of the occlusion.

For the employer it was submitted in the appeal that the trial Judge had given no proper reasons for acting on step 1 and that he was wrong in step 2. The arguments were well put by the employer's counsel but I do not agree with them. I think it is possible to deal properly with them without going into the detail that it was necessary to explore when counsel was putting the arguments to the Court.

As to his Honour's first step it was said that because there were materials showing some inconsistency in the worker's evidence about the relevant symptoms, his Honour was bound to do more than simply indicate that he accepted the worker's evidence on those matters. In the circumstances of this case, where plainly the worker's acceptability on these matters was in issue, there was some reliable evidence independent of the worker's own testimony and the Judge saw the worker tested in the witness box, I think it was enough for the Judge to refer to the evidence generally as he did and indicate, elliptically it is true, but as the employer's counsel did not dispute, unmistakably, that he accepted the worker on the symptoms in question.

As to the second step the strong point for the employer was that Dr Walsh's opinion on the critical issue as stated in the witness box was different from the one that he had expressed earlier in a written report. It was submitted that his reasons for changing his opinion were not really tenable. Even if that be so the question would still remain which opinion was preferable, the earlier or the later.

2 UNREPORTED JUDGMENTS

The trial Judge heard the doctor cross examined on the later opinion. He thought the doctor's explanation made sense and he accepted it. I think his conclusion was reasonable on the material before him and also I agree with it.

These were the matters of substance argued for the employer in the appeal. As

5 Ido not agree that the Judge made any mistake, the appeal should in my opinion be dismissed with costs.

Clarke JA I agree.

Handley JA I also agree. 10 Priestley JA: The order is that the appeal is dismissed with costs.

1. Appeal dismissed. 2. Appellant to pay respondent's costs of appeal.

15 Counsel for the appellant: DT KENNEDY Solicitors for the appellant! AUSTEN BROWN THOMPSON, BROKEN

HILL 20 Counsel for the respondent: R WILKINS Solicitors for the respondent: FITZPATRICK SWIFT, BROKEN HILL3040