WILSON v FAIRFIELD CITY COUNCIL [1995] NSWCA 522

WILSON v FAIRFIELD CITY COUNCIL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 8 September 1995, 8 September 1995 [1995] NSWCA 522

WORKERS COMPENSATION, APPEAL AGAINST FINDING OF FACT OF TRIAL JUDGE, EVIDENCE IN SUPPORT OF FINDING.

FACTS: Appellant sought to overturn finding of trial judge for lack of evidence. HELD: (1) To dispute a finding of fact by a trial judge there must be evidence in support of such a submission.

Meagher JA This is an appeal by a worker against an order made by his Honour Judge Egan terminating an award previously made in his favour under s11(1) of the old Act. The appeal is limited to the points of law.

His Honour made a finding that the worker's comparable earnings, that is the earnings he would have made but for the accident, did not exceed his notional earnings, that is the earnings he could have made if he had applied himself to work. After this finding was made there was another finding made that he suffered from a continuing incapacity. The worker gave no evidence. His Honour's findings are findings of fact.

Ican only generate upon the law if it is submitted, as Mr Harris did, that there was no evidence to support that. In my view there was evidence to support that. The worker was skilled in restoring old motor cars, an occupation which, according to another witness, cost the owners of those cars a fortune. This, coupled with the general conditions of industrial life, the condition of specialist fields by the worker's compensation, in my view repels the common evidence submission. I dismiss the appeal with costs.

Priestley JA I agree with Meagher JA.

Clarke JA I also agree. PRIESTLEY JA: The result is the appeal is dismissed with costs.

(1) Appeal dismissed with costs. COUNSEL: Appellant: JM HARRIS Respondent: JA McINTYRE SOLICITORS: Appellant: WHITE BARNES AND MAGUIRE Respondent: MORAY AND AGNEW