DRAYTON v CROSSROADS MOTORS PTY LTD [1995] NSWCA 132

DRAYTON v CROSSROADS MOTORS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and HANDLEY JJA 5 June 1995, 1 September 1995

[1995] NSWCA 132

Appeal from Compensation Court — Dermatitis contracted by worker on detailing cars — Whether compensation payable under s67 of Workers Compensation Act 1987 — Analysis of operation of s65, s66 and s68 — Meaning of "loss" and "loss of effective use' — Whether loss is "permanent" loss of effective use — Onset of condition varying with contact, with agents and without contact — Onset to continue indefinitely — HELD: Permanent loss of effective use.

ORDERS

Appeal upheld. Short Minutes of Orders to be brought in.

Respondent to pay the costs of the appeal and, if entitled, have a certificate under the Suitors Fund Act.

Mahoney JA The applicant Kim Michelle Drayton was employed by the respondent company on 30 July 1986 as a motor vehicle detailer. Her work involved the cleaning of cars, motors, upholstery and other portions of motor vehicles prior to their presentation for sale. It involved the use of acids, heavy detergents and tyre paints. From this work she developed dermatitis. She claimed weekly compensation upon the basis of partial incapacity and a lump sum payment pursuant to s66 of the Workers Compensation Act 1987.

On 28 March 1994 Johns J awarded her weekly payments of compensation but rejected her claim for an award under s66. The applicant has appealed to this Court against his Honour's refusal to make the s66 award. There is no appeal against the award of weekly compensation payments.

In order to understand what his Honour did and the submissions made on this appeal, it is necessary to refer in some detail to the facts and to his Honour's findings.

The applicant gave detailed evidence as to the development of the dermatitis and her condition at the date of trial. His Honour accepted her evidence "insofar as I find it consistent with the expressions of the opinions of the dermatologists in that the applicant suffers from a contact dermatitis as a consequence of contact with substances in her employment with the respondent". What his Honour there said is to an extent ambiguous. However, I understand what his Honour there said to constitute a finding that the applicant was a credible and honest witness. The contrary was not suggested during the oral argument of the appeal.