RENNEX v COUNCIL OF THE CITY OF WOLLONGONG [1995] NSWCA 390

RENNEX v COUNCIL OF THE CITY OF WOLLONGONG SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and ROLFE AJA 16 August, 5 September 1995

[1995] NSWCA 390

FACTS: The appellant worker received injuries to his low back on 16 May 1983, 16 March 1984 and 21 October 1985 in the course of his employment as a plant operator with the respondent, the Council of the City of Wollongong. Payments of compensation ceased in December 1985. The worker's services were terminated from 7 May 1986. He brought proceedings in the Compensation Court seeking compensation on the basis of partial incapacity which was deemed, pursuant to s11(2) of the Workers Compensation Act 1926, to be total.

The trial judge found that the worker had failed to establish the incapacity which was alleged. In his judgment the trial judge found that the injury of 1983 "contributed either by way of causation or by way of a material aggravation of a condition which existed before the 16th May 1983 to the ongoing symptomatology the applicant suffered from 16 May 1983 even up to this present date." The other injuries were, in the view of the trial judge, productive only of temporary aggravation and were not causes of any symptomatology after 6 December 1985.

The trial judge said that he was constrained, despite the appropriateness of restriction imposed on the worker by a medical certificate, to conclude that the worker had suffered no loss of capacity for work.

HELD:

(1) (By Clarke JA, Rolfe AJA agreeing) The trial judge was in error in believing that Pickersgill, or any case to similar effect, required him to hold that the predisposition to back strain could not legally be regarded as constituting partial incapacity.

Arnotts Snack Products Pty Ltd v Yacob (1983) 155 CLR 171; Ball v William Hunt & Sons Ltd [1912] AC 49; Lovett Building Co Pty Ltd v Burns (1992) 29 NSWLR 475; Pickersgill v Freightbases Pty Ltd [1983] 2 NSWLR 117; and Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452, considered.