NECAKOVSKA v RUNDLES PTY LTD [1996] NSWCA 386

NECAKOVSKA v RUNDLES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and BEAZLEY JJA 15 July 1996, 19 December 1996

[1996] NSWCA 386

WORKERS COMPENSATION — Compensable injury — Injury arising out of or in the course of employment- Omissions in medical evidence — Trial judge's drawing of adverse inferences against applicant — Misapplication of principles in Jones v Dunkel.

The appellant machinist injured her back on 27 April 1994 while pulling her chair closer to her machine. On 20 June 1994, she suffered sudden, incapacitating back pain, for which she was admitted to hospital. In July 1994, she underwent surgery to remove a sequestrated disc. O'Toole CCJ awarded the appellant compensation in respect of two brief periods. Her Honour found, on the basis of discrepancies between the appellant's and other evidence, and the absence of certain medical evidence, that it was unlikely that the appellant had a prolapsed or sequestrated disc as a result of the chair pulling incident on 27 April 1994. Her Honour also found that there must have been some supervening event or events on or prior to 20 June 1994 which caused the incapacity which led to the surgery.

The appellant submitted that the trial judge erred in law in two respects: first, in requiring that the incident complained of was the sole cause of the appellant's injury.

Secondly that the finding that there must have been some supervening event which caused the incapacity was against the evidence.

HELD:

(1) The appellant's case was not confined to the incident on 27 April 1994 was the sole cause of her injury, nor was her entitlement to compensation dependent on her having to prove that it was the sole cause of her injury.

(2) The trial judge erred in misapplying the principles in Jones v Dunkel in circumstances where there was nothing in the medical evidence adduced by the respondent or in any other part of its case which called for contradiction by the appellant in the sense required for the application of the principles in Jones v Dunkel. Jones v Dunkel (1959) 101 CLR 298 explained.