EVANS v RIBA FOODS PTY LIMITED [1996] NSWCA 176

EVANS v RIBA FOODS PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER, POWELL and COLE JJA 7 March 1996 [1996] NSWCA 176

WORKERS COMPENSATION — ss 66 and 67 — whether injured during course of employment — causation — incapacitation — credit of witness

Sheller JA. On an application made by the appellant, Lawrence Mervyn Evans, Burke CCJ in the Compensation Court on 25 November 1994 made an award in favour of the respondent, Riba Foods Pty Limited. The appellant's claim was apparently limited, by his counsel, to a closed period and was for lump sums under ss 66 and 67 of the Workers Compensation Act 1987.

His Honour identified four issues. The first was whether the appellant was a worker. On this issue he found in favour of the appellant. The second issue was whether he received an injury, the third, whether he was incapacitated, and the fourth, whether that incapacity resulted from the injury.

His Honour accepted that an event occurred on 24 May 1993, which was the event relied upon by the appellant as causing the injury, but said that he wouldnot be prepared to accept that the event produced any physiological effect that produced any incapacity, and on that basis made the award for the respondent. In the course of his reasons, his Honour said that there was an all-pervading issue of credit.

The appellant appeals on two grounds: first, that the decision was contrary to the evidence and the weight of evidence. The second ground was that his Honour prevented cross examination of witnesses which went to the credit of the appellant. Mr Kearney, who appeared for the appellant, abandoned the second ground of appeal.

The first ground of appeal, as I understood it, was a submission that his Honour did not take into account evidence that the appellant had given about the event of May 1993 and the consequences of it, and failed to take account of medical evidence led on behalf of the appellant in the form of a report of 6 December 1993 from Dr David Roebuck. These submissions can be dealt with quite shortly.