RIVAROLA v SUNBEAM CORPORATION LTD [1992] NSWCA 210

RIVAROLA v SUNBEAM CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER JJA and KIRBY P 2 September 1992, 2 September 1992

[1992] NSWCA 210

EVIDENCE — missing witness — worker's compensation claim — injury disputed — failure by worker to call wife and daughter to confirm consequences of disputed injury — failure to call fellow worker — failure to call a contractor who worked at worker's home in week following alleged injury — failure to call local medical practitioner or masseur consulted by worker — reliance solely on testimony of worker not accepted by judge — hearing adjourned during trial — opportunity to call relevant evidence and failure to do so. HELD: (Meagher JA; Kirby P and Sheller JA concurring): The conclusion of the Compensation Court Judge (Egan CCJ) rejecting the claim was fully open in the evidence and could not be disturbed in an appeal limited to a point of law.

Jones v Dunkel (1959) 101 CLR 298 applied Graves v United States 150 US 118 (1893) (USSC) referred to. WORKERS' COMPENSATION - appeal - point of law - stringency of - challenge to

conclusions by trial judge on facts. HELD: No point of law.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) applied. Compensation Court Act 1984, s32. Workers' Compensation Act 1926.

Meagher JA This is an appeal from a decision in the Compensation Court given by his Honour Judge Egan in relation to an accident which is alleged to have occurred on 7 October 1988.

Mr Rivarola said, in regard to this accident, that he was driven away from work when he was in perfect health by a friend of his, Mr Cabrera, who dropped him at a kerbside close to his residence, but when he alighted from the car he slipped and fell, thereby injuring his right hip. He was then taken home by his daughter whom he had arranged to meet close to that position.