WELTON v ENITON PTY LTD TRADING AS DIAL-A-DINO'S PIZZA [1991] NSWCA 278

WELTON v ENITON PTY LTD TRADING AS DIAL-A-DINO'S PIZZA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, CLARKE and HANDLEY JJA 14 October 1991, 14 October 1991

[1991] NSWCA 278

COURTS AND JUDGES — judges — statement of reasons for decision — duty to consider all evidence does not include requirement to refer to every piece of evidence led: held: it did not appear that the judge had failed to consider two pieces of medical evidence upon which appellant relied (Mifsud vy Campbell (1990) 21 NSWLR 725 referred to).

Samuels AP In this matter the worker, who is the present appellant, applied for a continuing award of workers compensation asserting that he had incurred injuries in a fall on 16 February 1987. It is not necessary to deal in any detail with the circumstances of the fall save to say that he fell off the back of a truck which he was unloading. The report of injuries form complains of injury to the chest, but the application for determination filed much later than the injury, of course, complains of a constellation of problems including injury to the leg, chest, left arm and shoulder, ribs, neck and back.

The learned trial judge, although apparently forming no adverse view in one sense of the worker's credit, did not accept the essence of his case, which was that the main disability sustained as a result of the fall was an injury to the back, that being, it would seem from the evidence as a whole, a complaint of incapacity stemming from injury to the cervical and thoracic spine. He had, I should perhaps interpolate, an earlier problem of injury to the back which occurred in 1979, and which had been disposed of by settlement before the later injury came before the Compensation Court.

The issue which we are concerned with is whether there was evidence indicating a contemporary complaint of injury to the back or of pain or disability in that area which would have supported the case which the worker sought to make, but which was overlooked or ignored by Judge Burke who heard the application.