KOREL v COMMERCIAL INDUSTRIES PTY LTD [1995] NSWCA 248

KOREL v COMMERCIAL INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 4 May 1995, 18 May 1995

[1995] NSWCA 248

WORKERS' COMPENSATION — APPEAL — POINT OF LAW- REASONS FOR DECISION — Soulemezis v Dudley (Holdings) Pty Ltd (1987) 1 NSWLR 247 and James N Kirby Pty Ltd v Kalinic (Court of Appeal, 1 July 1994, unreported) APPLIED. WORKERS' COMPENSATION — ERROR OF FACT — NON-APPEALABLE

FACTS

The worker lost his case for compensation and submitted that the trial judge, Gibson J, did not give adequate reasons or, alternatively, that his Honour made factual errors.

Held (per Clarke JA; Meagher and Sheller JJA concurring)

The trial judge gave adequate reasons as his Honour had explained what he was doing - rejecting the application - and why he was doing that - because he did not accept the worker's account of the incident. Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 and James N Kirby Pty Ltd v Kalinic (Court of Appeal, 1 July 1994, unreported) applied.

The Workers Compensation Act 1987 lays down a regime in which this Court has no jurisdiction to correct factual errors made by a trial judge. Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 applied.

Clarke JA This is an appeal by a worker who lost his compensation case. He contends that the trial judge, Gibson J, did not give adequate reasons, or alternatively that his Honour made factual errors. Insofar as the appeal is limited to questions of law he has sought to argue that on the facts only one result could have followed.

The appellant commenced working for the respondent in May 1989. He had previously sustained a back injury in January 1987 while working for another employer. This was a serious condition and led to surgery on 14 December 1987. He was off work for nearly twelve months after that operation and had been back in the workforce for about six months when he commenced working with the respondent. On 16 June 1989 he was working in a supervisory capacity for the respondent on a project known as Skygardens in Castlereagh Street, Sydney. On that morning he received a radio message from his superior, Mr Lorentz, asking him to move some heavy electrical cable. He was not particularly happy about being requested to perform this task and he suggested that Peter Karakatsianis (known throughout the case as Peter Kara) either help him or do the job instead of him. Lorentz denied his request and told him to get on with the job. He asserts that while he was performing this task he sustained an injury to his back. He says that shortly after the injury he reported its occurrence to Kara who was unable to recollect any such report.