BURKE v DJURISIC t/as ALTONA NURSING [1990] NSWCA 34

BURKE v DJURISIC t/as ALTONA NURSING

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and CLARKE JJA 30 April, 16 May 1990, 8 June 1990

[1990] NSWCA 34

WORKERS COMPENSATION — Appeal from Compensation Court — application to amend after evidence and addresses completed and immediately before judge commenced to give judgment — application to raise new case — refused — no question of principle.

ORDER Appeal is dismissed with costs.

Samuels JA This is an appeal from orders made by Judge O'Toole in the Compensation Court and therefore lies only upon questions of law. The error of law alleged is her Honour's refusal to allow the appellant to amend para 5 of her application for determination so as to include as a cause of injury "the nature and conditions" of her employment with the respondent.

The appellant's application for determination in para 5 asserted the occurrence of a specific injury on 6 August 1984 when the appellant, in the course of performing her nursing duties, lifted a patient who had collapsed in the lounge room of the respondent's nursing home. The appellant claimed workers' compensation from 21 November 1984 and continuing. Her application was filed in April 1985. In December 1986 an amended application was put on, which joined as a second respondent one Michael Rublewski, trading as St Anthony's Nursing Home, and originally claimed compensation against him for a closed period from 17 October 1981 to 19 April 1982. That period was 'opened' because, when the matter came before Judge O'Toole on 4 June 1987, it became apparent that the first respondent intended to assert that the disability for which he was said to be responsible from 19 November 1984, was due to an injury sustained in the course of the appellant's employment by the newly added respondent, Rublewski.