WOOLCOCK v RADFORD EARTHMOVERS PTY LTD [1988] NSWCA 179

WOOLCOCK v RADFORD EARTHMOVERS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, MAHONEY and McHuGH JJA 23 June 1988, 23 June 1988 [1988] NSWCA 179

WORKERS' COMPENSATION — appeal — necessity for point of law — connection between injury at work and severe pain next day leading to operative removal of testis — whether trial judge (Coleman J) had applied correct statutory test to consider whether incapacity "results from" the work incident — held: pure question of fact — no point of law — appeal dismissed. Azzopardi vy Tasman UEB Industries Limited (1985) 4 NSWLR 139, 153 applied — Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844 and Malleys Ltd v Kinkela, unreported, CA, 15 December 1986; (1987) NSWJB 17 referred to. Workers' Compensation Act 1926, s9, s37(4)(a). Compensation Court Act 1984, s32. ORDER Appeal dismissed with costs.

Kirby P This is an appeal from Judge Coleman in the Compensation Court in respect of an award which his Honour entered on 25 February 1986 in favour of the respondent employer. The employer is the respondent to the appeal.

The notice of appeal originally filed did not raise a question of law. Relevantly, that is the only key which will open the door of this Court to a review of the decision made by Judge Coleman.

An amended notice of appeal was filed without objection at the hearing. As presented, the case for the appellant was confined, as necessarily it must be, to the suggestion that Judge Coleman had erred in failing to state the correct test in law for the factual consideration which was presented to him by the case in the Compensation Court. The appellant properly conceded that he could not argue that there was no evidence upon which his Honour could base his decision.

The case concerns an injury to the appellant, then aged 26 years, which he claimed occurred on 8 November 1982 at Moomba. In the course of his employment, he was positioning a spring weighing approximately 100 lbs when he suffered pain in his left groin area. The appellant gave further evidence that he had developed excruciating pain in the area of the groin on getting out of bed the following morning. He was subsequently taken by the Royal Flying Doctor Service to Broken Hill Base Hospital. At about 4:30 p.m. on that day he underwent an operation for the removal of the left testis.