KELLY v BAULDERSTONE HORNIBROOK PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and COLE JJA and ROLFE AJA 19 July 1996, 19 July 1996 [1996] NSWCA 299 UNSUCCESSFUL challenge to finding of fact Cole JA The appellant worker claimed weekly compensation from 8 May 1992 and lump sum benefits and medical expenses pursuant to s60, s66 and s67 of the Workers Compensation Act 1987. The worker claimed that the incapacity was caused by an accident which occurred whilst employed by the respondent on 18 July 1991 when he asserted he was pulling chain from under a load, twisted, lost his balance and fell thus injuring his back. The respondent denied there was any continuing connection beyond 8 May 1992 between then existing disabilities particularly to the back and the events of 18 July 1991. It was said that after 8 May 1992 his back condition was due to injuries and a degenerated back condition which pre-dated 18 July 1991, and that the effects of any aggravation which occurred resulting from the events of 18 July 1991 had ceased by 8 May 1992. In that contention the respondent was supported by the evidence of Dr Cant who expressed that view and was not called for cross- examination. His view thus remains unchallenged and was open to be accepted by the trial judge. Geraghty CCJ accepted that view and thus entered an award for the respondent. That is challenged on this appeal. The learned trial judge found that the appellant had suffered a significant number of injuries to his back. In 1964, aged sixteen, he was involved in a motor vehicle collision. When aged 18 in 1966 he joined the army suffering a back injury when a cargo net collapsed. He served in the army between 1966 and 1969 when, upon discharge, he joined the building industry. In 1975 he was knocked down some stairs by a box of tools and sustained a severe back injury resulting in him being absent from work for about five months. In 1982 whilst engaged by Kearns Constructions he fell from scaffolding sustaining further injury to this back. He received worker's compensation for that injury. In 1984 he fell again aggravating his back. In 1985 he fell over a scaffolding injuring his back, again receiving compensation. In 1987 he commenced worker's compensation proceedings against Kearns Constructions giving evidence that his back was "buggered". He was awarded compensation. In January 1988 he again suffered an aggravation to his back injury. On 7 July 1991 he commenced employment with the respondent and sustained an injury to his back in the incidents which occurred on 18 July 1991. He ceased employment with the respondent on 19 July 1991 and continued to receive worker's compensation until 1992. Cessation of those payments resulted in the bringing of the application under appeal. Whether the back condition from which the appellant suffered on and after 8 May 1992 resulted from the incidents on 18 July 1991, or resulted from the prior back condition in consequence of the series of injuries which he suffered, was a question of fact to be determined by the trial judge. No error in that finding of fact has been established. It was clearly open to the trial judge to reach the view which he did based upon the large number of prior back injuries and the 2 UNREPORTED JUDGMENTS unchallenged evidence of Dr Cant. The fact that there were a series of contrary medical views based, as the trial judge found, upon unsatisfactory histories does not mean that this Court should disturb the trial judge's finding of fact. This is yet another example of an appellant complaining of a trial judge preferring the unchallenged view of one medical expert above the unchallenged view of other medical experts. Whilst a number of grounds of appeal were argued, ultimately they all depend upon a successful challenge to the trial judge's finding of fact. As that challenge fails, the appeal should be dismissed with costs. Meagher JA I agree. Rolfe AJA I agree. The appeal is dismissed with costs. Counsel for the appellant: S Burchett Solicitors for the appellant: Andrews Counsel for the respondent: JD Hislop QC/K O'Grady Solicitors for the respondent: Rishworth Dodd and Co