WHITTAKER v FLYNN and ANOR (T/as FLYNN'S SILK STORE) [1995] NSWCA 513

WHITTAKER v FLYNN (T/as FLYNN'S SILK STORE)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY,CLARKE and SHELLER JJA 9 August 1995, 22 August 1995

[1995] NSWCA 513

WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE

FACTS

The appellant sought an award for partial incapacity but her claim was rejected. Although the judge found that the appellant was still partially incapacity, the judge found that she had not suffered any economic loss from that incapacity. The appellant had worked at Fair Dinkum Bargains after her services had been terminated with the respondent at a higher rate of remuneration. The appellant does not challenge any of the trial judge's findings of fact.

Held (per Clarke JA; Mahoney and Sheller JJA agreeing)

In my opinion the acceptance of his Honour's factual findings is, in the light of the evidence, fatal to the appeal. His Honour's finding that the appellant could still earn in the vicinity of what she was earning at Fair Dinkum Bargains was a conclusion well open to his Honour and the appellant was unable to show that there was any basis upon which this Court could interfere with it.

ORDERS Appeal is dismissed with costs.

Mahoney AP The facts are stated in the judgment of Clarke JA which I have had the advantage of reading.

Mr Poulos QC, for the appellant worker, accepted that the findings of fact made by the trial judge were correct except his conclusion that "she could still earn in the vicinity of what she was earning at Fair Dinkum Bargains". His submission as to facts has been that, although the findings of fact are correct, his Honour did not make all of the findings of fact which he should have made.

Upon this basis, I am of opinion that the appeal should be dismissed.

The worker suffered an injury on 2 February 1989 and thereafter she remained relevantly incapacitated for work. His Honour so found and, I think, her partial incapacity has not been contested by Mr Deakin QC, for the respondent employer.