NATIONAL TEXTILES LIMITED v ZIKOS [1990] NSWCA 133

NATIONAL TEXTILES LIMITED v ZIKOS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, MEAGHER and HANDLEY JJA 23 October 1990, 23 October 1990

[1990] NSWCA 133 WORKERS COMPENSATION — no point of law and no point of principle.

Appeal dismissed with costs.

Samuels AP With one exception, this seems to me to be another brave attempt tomanufacture points of law where none exist in order to mount an appeal to this Court from the Compensation Court. There will be a day not far off when questions of fact, as I understand the amendment to the Act, will be raised in this Court on appeal, the prospect of which no doubt all of us will look forward to with the greatest enthusiasm.

In this case there is undoubtedly one point of law and perhaps I might deal with that first of all. Mr Shore, who supported his brief with great ingenuity and persistence, submits that the learned judge erred in admitting a Medical Board certificate which, though it has statutory force for the purposes of s16, was of no relevance to the question of incapacity before the learned judge, Judge Burke.

Mr Shore, who appeared in the Compensation Court, objected to the tender. The judge admitted it and refers to it in the course of his reasons. To my mind he refers to it, however, in a way which suggests that he regards it, at least in part, as supporting a view of the evidence which the judge himself was not disposed to accept. Judge Burke says that the totality of the evidence would suggest that any organic problem is limited probably to the lower forearm, wrist and hand area. The medical certificate, however, also speaks of a loss of use of the right leg, which appears to be an area which the learned judge did not regard as affected by the consequences of the injury he found.

In my opinion, if one assumes that the document was wrongly admitted because it was not relevant, I cannot see that any substantial wrong or miscarriage was thereby occasioned and I would not intervene for that reason.