ROAD AND TRAFFIC AUTHORITY v STEPHENSEN and ORS [1995] NSWCA 391

ROAD AND TRAFFIC AUTHORITY v STEPHENSEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SHELLER and POWELL JJA 13 September 1995, 11 October 1995

[1995] NSWCA 391

WORKERS' COMPENSATION — incapacity — lead poisoning — painters removing lead paint from Sydney Harbour Bridge — unfit to return to that work — held: Finding of incapacity upheld — no error in assignment of burden of proof.

JUDGES — reasons — adequacy of — held: Adequate.

WORKERS' COMPENSATION — incapacity — nature and condition of work — lead intoxication from work removing lead paint from Sydney Harbour Bridge — employer provides "space suit" to prevent exposure to lead — primary Judge (Moroney CCJ) preferred medical evidence that workers had been exposed to lead and must never be exposed to lead again — whether judge effectively reversed onus of proof — whether judge gave adequate reasons — whether evidence sustained conclusion of incapacity — whether workers obliged to rely on s12A of the Workers' Compensation Act 1926 or s47 of the Workers Compensation Act 1987 — held: (Sheller JA; Kirby P and Powell JA concurring); (1) The workers suffered a physical incapacity for actually doing their pre-injury work removing lead paint and, having been subjected to lead poisoning, they were not fit to do that work and, hence, incapacitated in the relevant sense; (2) The workers were not obliged to rely on s12A of the 1926 Act, or s47 of the 1987 Act; (3) The primary judge did not reverse the onus of proof; and (4) The reasons given for the judge's conclusion were adequate in law; (5) Appeal dismissed. Thompson v Armstrong and Royce Pty Ltd (1950) 81 CLR 585; Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 consd.

Workers' Compensation Act 1926, s12A Workers Compensation Act 1987, s47 ORDERS Appeal dismissed with costs.