SYDNEY ELECTRICITY v MOURSELLAS [1994] NSWCA 301

SYDNEY ELECTRICITY v MOURSELLAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY AP, SHELLER and COLE JJA 1 September 1994, 1 September 1994

[1994] NSWCA 301

WORKERS COMPENSATION: aggravation pre-existing condition; finding of Commissioner on issues of fact or credibility; no incontrovertible evidence to the contrary of finding

In 1981 the respondent was injured in a motor vehicle accident as a result of which he suffered injury to his right dominant arm. In 1985 he commenced work with the appellant and in 1990 applied for compensation for aggravation or acceleration of an existing arthritic disease in his right wrist and arm. The application was heard by a Commissioner who made an award in favour of the worker against the appellant. On the appellant's application for review under s36 of the Compensation Court Act the award was confirmed.

The appellant appealed under s32 of the Compensation Court Act on two bases; first, that the respondent's credibility had been so undermined in cross examination and by comparison with the histories recorded by his doctors that his evidence of aggravation should not have been accepted and, second, that the medical evidence accepted by the Commissioner and the Judge on review was undermined by the inaccuracies of the histories

upon which it was based.

Held:

(i) (On credibility). It has been repeatedly stated in the High Court that if a decision of fact is made after having seen a witness give evidence orally and is based upon an acceptance of the credibility of that witness, in the absence of incontrovertible evidence to the contrary, the Court cannot intervene with a finding so based.

(ii) (On medical reports). The doctors' reports tendered on behalf of the respondent were admitted without objection and no doctor was required to attend for cross examination. It was open to the Commissioner and the Court on review to act on the opinions therein expressed.