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. Whilst senior counsel for the appellant suggested that there was a great preponderance of evidence in favour of the appellant it seems to me that this was a fairly usual case of competing medical evidence and the need for an acceptance of the appellant's evidence before her claim could be upheld. Insofar as his Honour did not accept her evidence it followed almost inevitably that she would lose. In these circumstances I am quite unpersuaded that there is any basis for setting aside his award. I should not, however, fail to mention what occurred at the start of the hearing. Senior counsel for the appellant sought an adjournment and leave to amend the notice of appeal to raise a ground that there was fresh evidence available to the appellant. The nature of the evidence concerned an explanation for the appellant's continuing complaint of pain in the ankle. The essential new material pointed to the fact that the appellant had a back condition which may well have 2 UNREPORTED JUDGMENTS led, through referred pain, to left leg problems. This court declined to grant the adjournment or the application to lead fresh evidence. In so doing it was conscious of an unresolved point as to the jurisdiction of the Court to receive fresh evidence in an appeal from the Compensation Court but more particularly considered that it was appropriate that the fresh evidence be raised in an application for reconsideration under s17 of the Compensation Court Act. It seems to me that the real point in the appeal as it developed was the point relating to the source of such problems as the appellant has in her left ankle and because this Court declined to entertain that matter there was very little left in the appeal. For reasons which I have already given, however, the appeal should be dismissed with costs. Meagher JA I agree. Handley JA I also agree. Clarke JA: The order of the court will be as I have said. Appeal dismissed with costs. Counsel for the appellant: J GLISSAN QC Solicitors for the appellant: GH HEALEY AND CO Counsel for the respondent: PM HALL QC AND M BATTEN Solicitors for the respondent: GADENS RIDGEWAY