RUBERTO v HESONNE PTY LTD [1995] NSWCA 399

RUBERTO v HESONNE PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 1 May 1995 [1995] NSWCA 399

WORKERS COMPENSATION ACT APPEAL — MISCARRIAGE OF JUSTICE RETRIAL ORDERED

Clarke JA The appellant, Franco Ruberto, commenced proceedings in 1992 in the compensation court seeking an award for weekly compensation and other payments. He alleged he had suffered an injury to his back and his legs as a result of what is quaintly described as "the nature and conditions of his employment" with the respondent between March 1990 and June 1991.

It is fairly clear from his evidence in chief and later references in medical reports that his complaint was directed to the on-set of back symptoms following heavy lifting at work in May 1991. The respondent denied that there had been any work involvement in any incapacity suffered by the appellant and his claim was for heard by her Honour Judge O'Toole on the 11 th February 1993.

The hearing continued on a number of days until 10th March 1993 when her Honour delivered an extempore judgment in favour of the respondent.

There are a number of grounds of appeal in the notice filed by the appellant but the Court has limited discussion to a ground that, in broad terms, a miscarriage of justice has occurred. The Court did this because it appeared, prima facie, to be the most solidly based ground of appeal.

In her judgment her Honour was, I think it is fair to say, critical of the appellant's evidence. She described it as reconstruction and surmise. She thought he had not independent recollection of events which were crucial to his claim. She said he was argumentative and that his terminology and concessions made during his cross examination "permit proper inference that the applicant (that is the appellant) did not complain of a frank injury until some time after he ceased employment with the respondent".