AWAD v McGUINESS (Trading as LITTLE ANGEL) [1995] NSWCA 33

AWAD v McGUINESS (Trading as LITTLE ANGEL)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 11 May 1995, 11 May 1995

[1995] NSWCA 33

WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE

Clarke JA This is an appeal from a decision of Judge Burke given on 6 December 1993 in which his Honour made an award for the respondent. The appellant who was the worker before Judge Burke has challenged the award almost solely on the basis that his Honour's findings of fact were somewhat elusive but on any view were inconsistent with the great bulk of the evidence.

The case was one in which there was a factual conflict between the appellant and the respondent or it may be the respondent's wife as to events which occurred before the accident which, the appellant said, led to the claim. That evidence was led and a number of medical reports tendered before the late Judge Gibson who unfortunately died before he had an opportunity to give his decision.

For reasons which I find somewhat difficult to understand the parties agreed that Judge Burke should determine the case without seeing the witnesses. This course placed the judge in a difficult position insofar as the appellant's credibility was, as I see it, a material consideration to the determination of the dispute. His Honour Judge Burke thought that the evidence of Mrs McGuiness should be preferred to that of the appellant and having regard to what seems to me to be a clear conflict in the medical evidence concluded that it had not been shown on the probabilities that the appellant had continuing incapacity. Her complaint was one of an injury to her left ankle which continued to trouble her to the date of trial. She was initially treated by Dr Drummond who referred to the fact that the accident happened on 2 November 1988 and he said on 13 December 1988 that he was at a loss to explain the patient's continuing symptoms and he said that he felt that she was exaggerating her pain. Other doctors supported the claims of continuing pain but Judge Burke, having regard to the fact that the initial injury was a sprained ankle, did not feel disposed to accept the complaints of continued disability and found his award accordingly.