NEWCASTLE MATTER MISERICORDIAE HOSPITAL v MILICA JOSFOVSKI [1990] NSWCA 137

NEWCASTLE MATTER MISERICORDIAE HOSPITAL v MILICA JOSFOVSKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 7 December 1990, 7 December 1990

[1990] NSWCA 137

WORKERS' COMPENSATION — appeal — error of law — exercise of statutory discretion to award compensation for partial incapacity — challenge that there was no evidence to support the facts on which the award of the judge in the Compensation Court (Manser J) was based — worker concedes errors — held: The award must be set aside and the proceedings returned to the Compensation Court to be determined in accordance with law upon facts correctly found. House v The Kina (1936) SS CLR 499, 505 referred to.

Compensation Court Act 1984, s32. Workers' Compensation Act 1926, s11(1).

Kirby P Before the Court is an appeal from an award entered by Judge Manser inthe Compensation Court. The award was formally handed down by Judge Herkes on Judge Manser's behalf on 26 May 1989.

The Court has before it the reasons which support the award, as stated by Judge Manser. Against the award the employer has appealed. The only remaining ground of appeal is that stated in the fifth ground of the notice of appeal. It contends that his Honour was in error in making the assumptions he made as to the overtime component of the respondent worker's pre- and post-injury earnings and hours of overtime worked, as there was no evidence to support such a finding.

The case comes before this Court under s32 of the Compensation Court Act 1984 as it stood before the recent amendment. Accordingly, the appeal to this Court is limited to errors in point of law or errors in the admission or rejection of evidence.

The point of law argued by the appellant is that there was no evidence to support Judge Manser's finding. Belatedly, the Court received the written submissions of the respondent. In those submissions it was conceded - that Judge Manser's calculations were incorrect, being based on an error of fact-finding. As all that followed depended upon the facts as found by his Honour and as a discretion has to be exercised by the Compensation Court in the award of partial compensation based upon facts as found, it was obviously essential that the facts be found correctly in order that the discretion should be correctly exercised according to law. Error on essential fact finding is a classic circumstance permitting an appellate court to disturb the exercise of a statutory discretion. Cf House v The King (1936) 55 CLR 499, 505.