MARINOVIC v STOESKA [1993] NSWCA 173

MARINOVIC v STOESKA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and SHELLER JJA 13 May 1993, 1 July 1993 [1993] NSWCA 173

WORKERS' COMPENSATION — partial incapacity — repetitive strain injury to typist's hands — symptoms get worse after commencement of 1987 Act — transitional provisions — application of correct statutory regime — trial judge holds that 1926 Act applies — on appeal by employers

JUDGES — reasons — duty to state — adequacy of — application of transitional provisions of Workers Compensation Act 1987 — determination of applicable regime for determining weekly payments of compensation — whether incapacity resulted both from injury received before and after commencement of 1987 Act — judge holds 1926 Act applies

WORDS and PHRASES — "results from".

Held: (by the Court):

(1) On the face of his reasons, the trial judge had erred in the application of an incorrect statutory criterion for the determination of the applicable legislative regime;

(2) To the extent that such error was not shown, the judge erred in failing to provide adequate reasons for his decision to disclose his choice of one regime for another apparently applicable.

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA) applied; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (CA) distinguished.

Held:

(1) On the face of the reasons the judge had failed to apply the correct statutory criterion and thus erred in law;

(2) Alternatively, he had failed adequately to expose the reasons for his decision and this was an error of law.

Workers' Compensation Act 1926, s11. Workers Compensation Act 1987, s3, s4, s281, s282, Schedule 6, Pt4, CL1, CLA(1), and CL4(3).

Kirby P, Clarke and Sheller JJA Before the Court is an appeal from the Compensation Court of New South Wales constituted by Thompson CCJ. The issue is whether that court erred in law in failing to address itself to the applicable statutory question before it and/or in failing to provide reasons, as required by law, for the award which it entered.