FELTHAM v ST VINCENT'S PUBLIC HOSPITAL [1993] NSWCA 95

FELTHAM v ST VINCENT'S PUBLIC HOSPITAL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and SHELLER JJA 8 June 1993 and 31 August 1993, 1 October 1993 [1993] NSWCA 95

EVIDENCE — estoppel — previous determination of issue between parties — worker injured at work claims compensation — determination of Compensation Court as to injury, necessity of surgery and continuing incapacity — subsequent damages claim — whether employer estopped from denying matters found in Compensation Court — held: The trial judge erred in declining to give the worker leave to file a reply relying upon the estoppel.

JUDGES — bias — fair procedure — excessive interference — allegation that trial judge interfered excessively in questioning of witnesses on issue that should have been determined by estoppel — whether ground for retrial — held: Whether or not there was excessive interference a retrial should not be granted. (By the Court): Because the trial judge was right to find that there was no negligence; (By Sheller JA): Additionally, because counsel for the appellant did not record his objection in a timely way to the alleged excessive interference and any miscarriage did not affect the outcome of the trial.

NEGLIGENCE — employer's liability — injury to worker in use of compactus — movement of compactus against worker's hand — no previous such injuries — no previous complaints — judge excludes movement of compactus as caused by a lack of cleanliness — held: The judge was right to dismiss the claim of negligence as no want of care on the part of the employer was shown.

Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159 (CA) and Egri v DRG Australia Ltd (1988) 19 NSWLR 600 (CA) applied. Workers' Compensation Act 1926.

Kirby P This appeal raises two questions arising from the dismissal by Holland AJ of a claim for damages for personal injuries, brought by Ms Sharon Feltham (the appellant) against St Vincent's Public Hospital (the respondent).