ST LUKE'S PRIVATE HOSPITAL v KEHOE [1995] NSWCA 443

ST LUKE'S PRIVATE HOSPITAL v KEHOE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 13 June 1995, 26 October 1995

[1995] NSWCA 443

WORKERS COMPENSATION — CONFLICTING MEDICAL EVIDENCE WORKER'S EARNINGS — POINT NOT TAKEN IN COURT BELOW

FACTS: An employee of the appellant suffered an injury to her low back when trying to move an obese patient. The worker's contention that she had also suffered a neck injury was not supported by the employer's doctors.

The trial judge made an award under s40 of the Workers Compensation Act 1987, awards in respect of the back and neck injuries under s66 of that Act, and an award under s67.

On appeal, the employer challenged the trial judge's finding of the existence of a neck injury; and contended that the worker's earnings were in excess of $900.00 per week.

HELD:

(1) (By Meagher JA, Mahoney and Clarke JJA agreeing) The trial judge having believed the worker's evidence as to the neck injury, it is no use the employer's doctors saying that the worker could not have hurt her neck. It

follows that insofar as the grounds of appeal attempt to controvert the findings of the trial judge, the appellant must fail.

(2) (By Meagher JA, Mahoney and Clarke JJA agreeing) The point regarding the worker's earnings was never taken below, and therefore cannot be dealt with on appeal.

Mahoney JA I agree with the judgment of Meagher JA. Clarke JA I agree with the judgment of Meagher JA.

Meagher JA This is an employer's appeal against an award made by Duck CCJ in favour of the respondent worker, who was a nurse, in respect of an injury caused by an accident which occurred in the course of the respondent's employment with the appellant. Her back gave way when trying to move an obese patient.

His Honour made an award of $246.20 per week from 14 April 1993 to date and continuing, under s40 of the Act, two other awards under s66 for $22,878 (in respect of the back), and $10,168 (in respect of the neck), and yet another award for $25,000 under s67.