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. The worker was referred that day to the employer's doctor and again there is a record of contusions and abrasions to the right knee and the same history is given of the accident leading to that injury. There was no record of any injury to or treatment of the left knee. There was minimal time lost following this injury and no continuity of symptoms to the left knee, or indeed to the right knee, between that date and 1987. The first recorded complaint of any pain or incapacity to the left knee appears in the report of Dr Iqbal, the worker's own doctor, as having been made 2 UNREPORTED JUDGMENTS to him on 8 January 1987. There were further reports of complaints relating to her left knee on 20 January, 5 February, 9 March and 12 March, all predating the incident on 16 March. In her oral evidence in the Compensation Court concerning the incident on 12 March 1985 the worker said in chief that she slipped and fell on both knees and hands and ''I had bleeding on the knees". She also said that her left knee was the worst. In her cross examination, however, she gave a different account. She said that the right knee only was bleeding and the left knee was blue and swollen. She also said that the right knee was bandaged but that the left knee was not. Judge Burke's finding in relation to this incident was that in his view it was inconceivable that the worker would present to the employer's medical centre following this injury and complain of a right knee problem when it was really the left knee which was the more injured of the two. He concluded that it was unlikely that the applicant sustained any major injury to her left knee, though she may have sustained some minor injuries of little consequence. The applicant also relied, as I have said, on the incident on 16 March 1987. There is no contemporary record of any complaint of injury on that day. The employer's records state that the worker presented with complaints of pain to both knees, particularly when walking up stairs, and complained that her knees were too sore to enable her to do her normal work. The worker was referred to the employer's doctors and again, although a history was taken of pain in both knees aggravated by walking up stairs, there is no record of any injury or accident having been suffered that day. The doctor recorded that the worker had the benefit of an interpreter on that occasion. Mr Stewart, who appeared for the appellant but who did not appear below, has said everything that could possibly be said on her behalf and has placed his principal emphasis on the earlier of the two incidents. As he put it the second incident was the turning point, the straw which broke the camel's back, as it were, rather than being in itself a significant cause of her incapacity. The trial judge noted that the worker gave no account of the second incident to the employer. She had merely complained of symptoms. She saw her own general practitioner, Dr Iqbal, two days later and again no account was recorded of any work injury on the day in question. The judge concluded that it was highly unlikely that any incident of any consequence occurred on 16 March, at least as it was then viewed by the worker. His ultimate conclusion was that these incidents which the worker had in the course of her employment probably had no immediate consequences in relation to any of the medical conditions of which she was then complaining. This Court has not seen and heard the worker give her oral evidence and be cross examined. It is of necessity confined to the printed record. The appellant, having failed to discharge the onus of proof in the Compensation Court, notwithstanding having given oral evidence, faces the normal burden of an appellant in this Court who seeks to displace an adverse finding. In order to do so the appellant must establish an error, and an error of sufficient importance to warrant this Court in setting aside the adverse decision and either substituting a finding to the contrary or, in some cases, returning the matter for a retrial. ORDER In my opinion the appellant has failed to establish any error. She is unable, through her counsel, to point to any evidence of a decisive character which could establish an error or invalidate the trial judge's reasoning. In my opinion, therefore, the appeal fails and should be dismissed with costs. Kirby P I agree. URJ STOJCESKA v AUSTRALIAN IRON and STEEL PTY LTD (Meagher JA) 3 Meagher JA With some reluctance I agree. Mr Stewart has said everything that could be said on behalf of the appellant, for whom it is difficult not to have sympathy, but has not been able to overcome the awesome difficulties faced by counsel in his position of having to demonstrate a clear error. Kirby P. The order of the Court is accordingly that the appeal is dismissed. The appellant must pay the respondent's costs. Counsel for the Appellant: CK Stewart Instructed by: Radin and Associates Counsel for the Respondent: JD Hislop QC / CJ Wynyard Instructed by: Blake Dawson Waldron