SALAS v BAYTON CLEANING CO PTY LTD [1995] NSWCA 411

SALAS v BAYTON CLEANING CO PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE and MEAGHER JJA and ROLFE AJA 15 August 1995, 15 August 1995 [1995] NSWCA 411

WORKERS COMPENSATION ACT 1987 — CHALLENGE TO TRIAL JUDGE'S ADVERSE FINDING ON CREDIBILITY

Clarke JA This is an appeal by a worker from an award made on 25 August 1993 by Judge Moroney in the worker's favour. In that award his Honour ordered that the worker be paid compensation between 16 September 1991 and 31 January 1992 on the basis of total incapacity and that thereafter he be paid compensation at the rate of $67.82 until 30 June 1992 on the basis of partial incapacity.

In the Notice of Appeal the appellant worker sought an order that he be paid compensation on the basis of total incapacity from 16 September 1991 to date and continuing.

In argument before this Court, Mr McManamey of counsel, who appeared for the appellant, did not seek to support that award. Rather, he submitted that his Honour erred in not making an award on the basis of partial incapacity from | February 1992 and continuing.

The essential challenge to the award is that his Honour made errors, which were apparent in his reasoning process, leading him to form an adverse view on credit. The second step in the argument was that the formation of this adverse view permeated into the Judge's consideration of the evidence of the doctors, which on any view was contradictory, and led his Honour to reject the evidence of Dr Christine Harris in favour of the view of Dr Scarf, who examined the appellant on behalf of the respondent.

It will be apparent from what I have just said that the foundation for the argument was an attack upon his Honour's adverse view on credibility. I will come in a moment to the way that attack was developed, but before I do so I wish to make two points.