PAVLIS v CLEANA SERVICE PTY LTD [1992] NSWCA 183

PAVLIS v CLEANA SERVICE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, CRIPPS JJA and SAMUELS AJA 28 October 1992, 27 November 1992

[1992] NSWCA 183

In an appeal by an unsuccessful applicant, it was alleged that the judge erred in rejecting the tender of a medical report and in admitting two statements of witnesses tendered pursuant to the provisions of s14B of the Evidence Act 1898. It was also alleged that he erred in having regard to the absence of a medical report from his treating doctor.

Held:

There was no error in rejecting a medical report that had not been served in accordance with the rules and the reason for rejection was made plain. The witnesses were relevantly "not interested". In any event, one was cross examined and there was no miscarriage of justice. The judge did not misapply the law in Jones v Dunkel (1959) 101 CLR 298.

Workers Compensation Act 1987 s135(1)

Workers Compensation Act 1926

Evidence Act 1898

Brown v Petranker (1991) 22 NSWLR 717 Nominal Defendant v Hook (1962) 113 CLR 641

Vocisano v Vocisano (1974) 130 CLR 267

Wentworth v Rogers (No 10) (1987) 8 NSWLR 398

House v King (1936) 55 CLR 499

Handley JA I agree with Cripps JA.

Cripps JA This is an appeal from a decision of Judge Burke on 29 August 1989 dismissing the appellant's claim for workers compensation. An award was entered for the respondent. The appeal is limited to errors of law or to the admission or rejection of evidence.

In his application to the Compensation Court, the appellant alleged he injured his back in August 1986 when in the employ of the respondent and by reason thereof remained incapacitated for work since that time. Judge Burke did not believe him. He did not accept his account of the alleged injury and was not satisfied that his statements concerning his alleged symptoms were true.