SUKKAR v DAVIES and ORS [1995] NSWCA 460

SUKKAR v DAVIES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 23 August 1995

[1995] NSWCA 460

WORKERS COMPENSATION — INJURY FINDINGS OF TRIAL JUDGE — NO QUESTION OF PRINCIPLE

The worker who had a disc lesion that ultimately required surgery claimed compensation based on alleged work injuries on 4 and 5 May 1992. He gave conflicting accounts of where and when on 4 May he sustained that injury. The Judge rejected parts of the worker's evidence relating to that injury and found that he had deliberately changed some of his evidence to advance his case. The worker's claim in respect of the first injury therefore failed. The judge also rejected the worker's claim to have suffered further injury on 5 May. He found that the worker's condition referred to in contemporary hospital and medical reports and his later actions were not consistent with a disc lesion at the time. The judge relied "as a final matter" on the absence of corroborative evidence, but there was some such evidence, and he also misread a medical report.

Held: The appellant failed to establish that the trial judge's errors were such as to affect the result of the case. They did not affect the judge's views on the

worker's credibility, or his findings on medical issues. The errors did not occasion a substantial wrong or miscarriage within SCR Pt51 R16(1)(d).

ORDER

Appeal dismissed with costs.

Clarke JA I agree with the orders proposed by Handley JA. Like his Honour I do not consider that it has been shown that the trial judge made any appealable errors.

Meagher JA I agree with Handley JA.

Handley JA This is an appeal by a worker from an award by Neilson CCJ for the uninsured employers and the WorkCover Authority. On 4 May 1992 the worker commenced employment as a courier with Astro Couriers. His application for determination alleged injuries on 4 May "whilst picking up a parcel in the City" and on 5 May while driving on the Great Western Highway near the Penrith turn-off. He claimed to have been totally incapacitated for work since the second injury.