ARDSLEY PTY LIMITED v BUTLER [1988] NSWCA 7

ARDSLEY PTY LIMITED v BUTLER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and MCHUGH JJA 3 February 1988 [1988] NSWCA 7

APPEAL — point not taken at trial — history given to medical expert not proven — no objection at trial to tender of report after applicant had completed his evidence — in appeals from Compensation Court, Court of Appeal will not allow objections to opinions based on unproved history unless point taken at trial.

EVIDENCE — statement as to contents of CT Scan — CT Scan not tendered — no objection to statement — point waived.

WORKERS COMPENSATION — error of law — (1) whether evidence to support finding of total incapacity — (2) failure to prove history and CT Scans — no objection at trial — (3) whether judge entitled to find remission of complaints at time when examined by doctor.

ORDERS Appeal dismissed with costs.

McHugh JA The award the subject of this appeal ordered the appellant/employer to pay compensation to the respondent worker on the basis of total incapacity from 16 February 1985 to 12 July 1985 and thereafter compensation on the basis of notional total incapacity pursuant to the provisions of s11(2) of the Worker's Compensation Act.

The incident which gave rise to the making of the award occurred on 15 December 1984 when the worker, who was employed as a station hand, fell off a motorbike while rounding up cattle. In the Compensation Court Judge Davidson held that as a result he suffered a lower lumbar back injury. The worker was paid compensation until 16 February 1985. Compensation was then cut off. He commenced proceedings in the Compensation Court on 26 March 1985 seeking awards under s9, s11(1) and s11(2) of the Act.

The proceedings commenced before Judge Davidson on 5 February 1986 at Bathurst. On that occasion the worker and Dr Mileshkin and Dr Burgess gave evidence. The proceedings were adjourned to Sydney on 27 March 1986 when the worker again gave evidence, but none of it touched his medical condition. Proceedings resumed again, after an adjournment, in March 1987 when reports by Dr Segelov dated 22 September 1986 and 3 November 1986 were tendered on behalf of the worker and the report of another doctor was tendered on behalf of the appellant employer.