VELESKI v MARITIME CONTAINER SERVICES PTY LTD [1995] NSWCA 485

VELESKI v MARITIME CONTAINER SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 8 May 1995, 30 May 1995

[1995] NSWCA 485

WORKERS COMPENSATION

FACTS: The appellant worker claimed in the NSW Compensation Court against the respondent employer under the Workers Compensation Act 1987 in respect of disabilities sustained in the course of his employment. The worker originally claimed that these disabilities were the result of a back injury sustained on 27 February 1989. He later amended his claim to allege that the general nature and conditions of his work played a part in his impairment and incapacity. In addition, he claimed an incurable loss of his mental powers, which he alleged arose from the taunting of the worker by his employees and fellow workers. Between the time of his alleged injury and the date of the first hearing, the worker was seen and treated by a number of psychiatrists.

The trial judge found that the worker had no physical incapacity as a consequence of injury of 27 February 1989; that there was a complete absence of any complaint by the worker to the psychiatrists of taunting; and that the taunts suffered by the worker did not cause his mental condition.

Senior counsel for the appellant worker argued that the trial judge had found that a minor problem persisted from the back injury, which on psychiatric evidence was said to have led to the worker's mental problems. Counsel for the appellant also argued that the trial judge had erroneously applied a criminal standard of proof when determining whether the taunts suffered by the worker contributed to his psychotic condition. Further, it was argued by the appellant that the trial judge's finding on the cause of the mental problems could not be reached without expert medical opinion as to what inferences can be drawn from the appellant's failure to complain promptly of the taunts suffered at work.