STOJCESKA v AUSTRALIAN IRON and STEEL PTY LTD [1993] NSWCA 257

STOJCESKA v AUSTRALIAN IRON and STEEL PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 26 August 1993 [1993] NSWCA 257

WORKERS' COMPENSATION — injuries at work — whether proved — whether alleged injury caused acknowledged incapacity — trial judge (Burke CCJ) dismisses application — on appeal by way of full hearing.

Held: (Handley JA; Kirby P and Meagher JA concurring): Upon the basis of contemporary ambulance records and other records of complaints, as well as differing accounts given of the circumstances of the alleged injury, the worker had failed to establish the relevant injury - no error shown on part of primary judge - appeal dismissed.

Handley JA This is an appeal by a worker, Ristana Stojceska, from an award made by his Honour Judge Burke for the respondent in proceedings in the Compensation Court.

The case for the applicant before the Compensation Court was that her incapacity for work, associated with pain and weakness and chondromalacia, particularly in her left knee, were the result of injuries she sustained at work on 12 March 1986 and 16 March 1987. There was a history of other minor injuries at work but these were not central to the worker's case before the Compensation Court and have not been pressed on the appeal.

Burke CCJ found that the injuries at work occurred on the days in question and he also found that at the time of the hearing before him in December 1990 the worker was incapacitated for work. The central issue in the Compensation Court was whether the worker had established, on the civil onus, the required nexus between her incapacity and the work injuries relied on. His Honour was not satisfied that the worker had established the required nexus and this led to an award for the respondent.

It is common ground that the appeal to this Court is a full appeal on questions of fact as well as law. The first incident relied upon on the appeal was that which occurred on 12 March 1985. The worker reported this incident on the day it occurred and entries were made in the employer's medical records purporting to summarise the nature of her complaints. The records indicate that the worker reported at about 1.30 pm and that the injury consisted of contusions and abrasions to the right knee. An explanation was also given of how the injury occurred. There was no record of any injury to or treatment of the left knee.