PLASTIC PROCESSORS PTY LTD v THOMAS [1995] NSWCA 371

PLASTIC PROCESSORS PTY LTD v THOMAS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY ACJ, MAHONEY and CLARKE JJA 11 July 1995, 11 July 1995

[1995] NSWCA 371

WORKERS' COMPENSATION — incapacity — causation of — back injury whether permanent aggravation by subsequent employment — whether merely temporary aggravation of disc pathology caused by injury with first employer — Judge of Compensation Court (Geraghty CCJ) finds no permanent effects of supervening aggravation with second employer — enters continuing award against first employer — on appeal to the Court of Appeal by first employer — HELD: The interpretation of the facts was open to the primary judge and no error was shown warranting disturbance of his award by the Court of Appeal. PRACTICE AND PROCEDURE — adjournment — Compensation Court — giving closing address counsel for worker applies for adjournment to permit joinder of second employer — application refused by primary judge — application not joined

in or supported by employer before Compensation Court — when award of compensation entered against employer, it relies on appeal upon the failure of the judge to grant the worker an adjournment — the worker makes no complaint — HELD: The Court of Appeal will rarely disturb a decision by a trial judge to grant or withhold an adjournment. See Sydney City Council v Ke Su Investments Pty Ltd (1985) 1 NSWLR 246 (CA); CSA Industries Pty Ltd vy NT Gas Ltd (1990) 24 NSWLR 710 (CA) applied. (2) No injustice was done to the employer by the refusal to the worker of the adjournment having regard to the fact that the employer neither joined in nor supported the application. (3) Appeal upon this ground dismissed.

Workers Compensation Act 1987, s22, s38, s40, s66, s67.

Kirby ACJ The Court is sitting in a series of workers' compensation appeals and this is one of them.