TUFEVSKA v STATE RAIL AUTHORITY OF NEW SOUTH WALES [1995] NSWCA 474

TUFEVSKA vy STATE RAIL AUTHORITY OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and SHELLER JJA 11 August 1995, 8 September 1995

[1995] NSWCA 474

PERSONAL INJURIES — TRANSPORT AUTHORITIES ACT 1980 — FACTUAL ERROR — RETRIAL

PERSONAL INJURIES — TRANSPORT AUTHORITIES ACT 1980 — FACTUAL ERROR — RETRIAL — worker claims compensation pursuant to Schedule 5 of the Transport Authorities Act 1980 — issue before trial judge whether undoubted incapacity of worker caused by work injury or home injury — trial dismisses worker's claim — trial judge's reasoning based on assumption that worker ceased work from the time of the home injury. Held: no basis for holding that the home injury happened while the worker was still working for the employer — trial judge got wrong a fact which was material to his reaching factual conclusion adverse to the worker — but for mistake different result possible — new trial necessary.

ORDERS

1. Appeal upheld.

2. Orders made by trial judge set aside.

3. Case remitted to the Compensation Court for a new trial. 4. Respondent to pay appellant's costs of appeal.

Priestley JA This is an appeal against a decision given by his Honour Judge Burke in the Compensation Court on 9 November 1990 dismissing the application of a worker for compensation.

The worker's claim depended on the provisions of Schedule 5 of the Transport Authorities Act 1980.

Judge Burke in his reasons noted mat on the facts of the case problems under Schedule 5 could have arisen, but that the way the parties presented the case did not raise those problems. He said that the whole case had been argued as one involving a decision as to the nexus of the worker's incapacity to the event alleged to have been its cause.

It is therefore possible to state very simply and without referring to the provisions of Schedule 5 the factual issue which was presented to his Honour and which he decided adversely to the worker.