TULK GONINAN LIMITED in the interest of AMERICAN HOME INSURANCE COMPANY v TALBOT [1995] NSWCA 475

TULK GONINAN LIMITED in the interest of AMERICAN HOME INSURANCE COMPANY v TALBOT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Kirsy ACJ, MAHONEY AP and CLARKE JA 11 July 1995 [1995] NSWCA 475

WORKERS' COMPENSATION — applicable legislation — whether worker's claims fell under Workers Compensation Act 1987 or Workers' Compensation Act 1926 — claim for lump sum benefits — primary judge (Davidson CCJ) takes into account his assessment of worker's credit — rejects arguments as to importance of later injury — uphold contention that primary injuries caused continuing back trouble — on appeal by the insurer of the employer at the time of the primary injuries to challenge the exculpation of the later — held: (Kirby ACJ; Mahoney AP and Clarke JA concurring): (1) As the judge's conclusion was based in part upon his assessment of the credibility of the worker, the Court of Appeal could only intervene if it were shown that the conclusion conflicted with incontrovertible facts or was otherwise palpably wrong. Abalos v Australian Postal Commission (1990) 177 CLR 167 applied; (2) None of the evidence relied on for the appellant justified such conclusion; (3) Appeal dismissed.

Workers Compensation Act 1926, s16 Workers Compensation Act 1987, ss66, 67

Kirby ACJ. This is an appeal from an award entered by Davidson CCJ in the Compensation Court on 2 February 1993. It has been argued with commendable economy by Mr Hoeben, counsel for the appellant American Home Assurance Company, an insurer under the Workers Compensation Act, 1987.

Parties to a multi party appeal melt away

Gradually various parties who were joined in the appeal have melted away so that the only parties remaining at the end of this busy day of compensation cases are American Home Assurance Company and Norwin Workers" Compensation (NSW) Limited, originally the appellant and the fourth respondent respectively to the appeal. The other respondent which appeared was Mr Alan Talbot (the first respondent) (the worker). He was represented when the appeal was called this morning. However, it having been concluded that the worker could be in no worse position as a result of anything which the Court did in the appeal, counsel for the worker sought leave to withdraw. Hewas excused. It was ordered, without contest, that American Home Assurance Company should pay the worker's case.