CHAMAA v STANDARD TELEPHONES AND CABLES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 9 May 1995, 9 May 1995 [1995] NSWCA 71 WORKERS COMPENSATION — APPEAL — QUESTION OF LAW — NO QUESTION OF PRINCIPLE. The trial Judge dismissed applications by a worker for compensation against two separate employers arising from alleged injuries in 1972 and 1973 because she was not satisfied that the worker had been incapacitated as a result of any such injury. On appeal which was limited to questions of law - Held: The appeal did not involve any questions of law and the appeal was dismissed with costs as incompetent. ORDER Appeal dismissed with costs. Handley JA This is an appeal by a worker from a decision of her Honour Judge O'Toole who made the award in favour of the two employer respondents on 17 May, 1994. It is a matter of some surprise to note that the application for determination was lodged in 1987 but the proceedings did not come on for trial in the Compensation Court until May 1994. It is even more remarkable when one appreciates that the injury relied on in the first application for determination was said to have been suffered in 1972 and the injury relied on in the second was said to have been suffered on 28 June, 1973. The appeal to this Court is governed by s32 of the Compensation Court Act 1984 in its original form and is limited to questions of law. Her Honour, in a short judgment, said that she was not certain whether the applicant's employment with STC caused or aggravated any back injury. She made that finding against a background of an earlier finding that the applicant conceded he was an unreliable historian for events going back to 1972, and that it is clear that he had been involved in other accidents apart from those the subject of these proceedings. Her final conclusion was that she was not persuaded that he was incapacitated by injuries sustained in the course of his employment with STC. The second application was based on somewhat firmer ground. There was no dispute that the applicant had been attacked by a dog in the course of his employment while delivering soft drinks for the second respondent and he was paid compensation for a time. However, her Honour was not satisfied that the applicant was incapacitated after payment of compensation ceased on 28 September, 1973. It is clear, therefore, that her Honour's findings were factually based because she was not satisfied that the applicant had discharged the onus which lay upon him of proving in each case that he was incapacitated as a result of some injury received in the course of his employment. A finding against the party bearing the onus of proof because the proofs offered failed to discharge that onus is a finding of fact. No misdirection in point of law was relied upon in support of the appeal. The grounds in the amended notice of 2 UNREPORTED JUDGMENTS appeal themselves eloquently demonstrate that the appeal does not raise any question of law. Ground | was that the learned Judge erred in finding that the applicant worker had not suffered his injuries in the course of and arising in the course of employment with the respondents severally. As I have endeavoured to explain that raises a question of fact. Ground 2 was that the finding was against the weight of evidence. That clearly raises a question of fact. Ground 3 was that her Honour erred in failing to find that by refraining from specific cross-examination of the appellant the respondent must be deemed to have accepted his claims that his injuries incapacitated him from his former employment. Whether or not failure to cross-examine amounts to an admission involves a question of fact depending upon a number of matters such as the credibility or reliability of the evidence which had not been challenged. In my opinion none of the grounds of appeal and, I might add, none of the arguments raised by Mr Knaggs on behalf of the appellant raised any question of law. I would therefore propose that the appeal be dismissed as incompetent with the usual results. Clarke JA I agree. Meagher JA I agree. Clarke JA: The order of the Court is the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: D KNAGGS (SOLICITOR) Solicitors for the appellant: D KNAGGS Counsel for the respondent: R HARRINGTON Solicitors for the respondent: CURWOOD PARTNERS