WOOD v COAL AND ALLIED OPERATIONS PTY LTD [1995] NSWCA 525

WOOD v COAL AND ALLIED OPERATIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA

11 September 1995, 21 September 1995

[1995] NSWCA 525

WORKERS COMPENSATION — application of Stead vy State Government Insurance Commission (1986) 161 CLR 141.

Priestley JA I agree with Cole JA. Sheller JA I agree with Cole JA.

Cole JA The appellant Robert Wood claimed workers compensation by application dated 26 October 1992 for disabilities said to prevent him performing overtime, though not from working as a fire patrol officer. The injuries said to cause the incapacity were particularised as having occurred on various dates between February 1981 and January 1992. The application stated the nature of injury as: "Severe injury to the upper back, lower back and legs and left hip. Anxiety and depression."

However, that was not the manner in which the case was fought. The case made by the applicant was that he suffered incapacity by virtue of a physical disability which was said to be injury to his thoracic back. That is clear from the submissions recorded at pages 6 and 7 of the transcript of addresses on 31 March 1993. There the appellant/applicants counsel said:

"T am really referring to the thoracic situation which the applicant perceived to be symptomatic and the most severe."

He went on to note the lesser complaints relating to the low back and hip and suggested that by not relating a disability to those two asserted conditions, in respect of which there was some objective support, the credit of the applicant was established or improved. The applicant's counsel then said:

"T am not saying he gets over the threshold because of that medical support per se."

It is in my view clear that the case was fought on whether or not such incapacity as the applicant could establish flowed from a work related thoracic injury.