IOSIF v S and M MOTORS PTY LTD (In Liquidation) [1996] NSWCA 266

IOSIF v S and M MOTORS PTY LTD (in Liquidation)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL and BEAZLEY JJA 20 May 1996, 18 December 1996

[1996] NSWCA 266

Workers' Compensation — Proceedings for compensation — Award — Appeal — Jurisdiction of Court of Appeal — Application for determination filed prior to October 1989 — No right of appeal on question of fact.

Priestley JA The circumstances of these proceedings are recounted in Powell JA's reasons which I have had the benefit of reading in draft.

With one exception the grounds of appeal as amended seek to overturn factual findings of the trial judge. After consideration of the arguments seeking to support these grounds, it is sufficient for me to say that, despite the earnest efforts of counsel for the appellant to show some mistake in the trial judge's fact finding, I do not see that his Honour made any finding with which this court would be justified in interfering.

The remaining ground of appeal was of reasonable apprehension of bias. I do not think the circumstances of the reconsideration of the matter by Manser J, or his reasons on that reconsideration, which the parties had asked him to undertake, show any basis for such apprehension.

In my opinion the appeals should be dismissed with costs.

Powell JA On 27 March 1979, the Appellant, who appears to have been by trade a motor mechanic and who was, at that time, employed in that capacity by the Respondent, sustained injuries while attempting to remedy some defects in the engine of a motor vehicle upon which he was working. There does not appear at any time to have been any dispute but that, as a result of what occurred, the Appellant sustained burns to the right side of his face and to his right arm and hand but it seems always to have been disputed that, at the time, the Appellant fell heavily on his right shoulder, sustaining the rotator cuff muscle tear which was later diagnosed, and the degenerative changes in the right shoulder, and the cervical, and lumbar, spine which so it seems to be said have flowed from it - later, the Appellant also sought to attribute the degenerative changes to his spine to the "nature and conditions" of his employment, and to "functional overlay".