DAMCEVSKA v GAZAL INDUSTRIES PTY LTD [1995] NSWCA 114

DAMCEVSKA v GAZAL INDUSTRIES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and HANDLEY JJA 12 May 1995, 12 May 1995 [1995] NSWCA 114

WORKERS COMPENSATION — FACT — FINDING — APPEAL — NO QUESTION OF PRINCIPLE

The trial judge dismissed a clothing workers' claim for compensation because she was not satisfied that her disabilities were caused by her employment, or any incident in her employment. Held: On appeal. The findings of the trial judge could not be disturbed.

Priestley JA I will ask Mr Justice Handley to give his reasons first.

Handley JA This is an appeal by a worker from the judgment of her Honour Judge O'Toole. The appellant worked in the clothing industry for one after another of the corporate respondents between 1973 and 1987 with interruptions for child bearing, child rearing, and injuries. She worked at a sewing machine using her right foot to help operate it.

On 26 February 1985 she saw Dr Verma with a complaint of right leg pain and was off duty for a week. She then returned to work and continued without any interruption disclosed in the evidence until November 1987. In the meantime however she saw a number of medical practitioners with complaints of pain. She first saw Dr Puri on 27 June 1986 and Dr Marinovic in June 1987 and the latter referred her to an orthopaedic specialist Dr Vial. She ceased working, as she said, because of pain in her right foot and leg early in November 1987. Following further medical attendances she returned to work on 25 November but only remained for one day. She remained off work thereafter being paid compensation until 25 December 1987.

It appears that she has not worked since. In February 1993 she made an application for determination to the Compensation Court which was heard and dismissed by O'Toole CCJ on 25 October that year. Her Honour's concise reasons included a statement that the applicant complained of injuries to her right foot or leg caused by repetitive use of pedals on her sewing machine, of other symptoms in her right and left lower limbs, back, neck and abnormal and distressing sensations in her head.