GEBERT v STATE TRANSIT AUTHORITY OF NSW [1996] NSWCA 205

GEBERT v STATE TRANSIT AUTHORITY OF NSW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, HANDLEY and BEAZLEY JJA 16 July 1996, 16 July 1996

[1996] NSWCA 205

WORKERS' COMPENSATION — nature and condition of employment — aggravation of injury

PROCEDURE — procedural fairness — relevant cross-examination: Browne v Dunn (1894) 6 R 67

The appellant, a bus driver, suffered an injury to his left leg at work on 13 December 1986 entitling him to compensation. The appellant returned to work and after a few years was promoted to inspector. He alleged that while in that position the repeated climbing on to and descending from buses aggravated the injury to his left knee and caused an injury to his right knee. The trial judge was not persuaded that the nature and condition of the worker's employment had caused an injury to the right knee or aggravated the injury to the left knee. The appellant contended that the trial judge had misdirected herself by referring to disease of gradual onset rather than the exacerbation of a pre-existing degenerative condition or trauma-affected knee. He further contended that contrary to the rule in Browne v Dunn (1894) 6 R 67, the appellant had not been cross-examined to impeach the credibility of his account of the condition of his knees.

HELD, dismissing the appeal: (1) The trial judge had not misdirected herself on the issues to be determined; (2) There was no procedural unfairness of the kind encapsulated in the so-called rule in Browne v Dunn (1894) 6 R 67; (3) The decision of the trial judge could not be disturbed.

Mahoney P Ex tempore I will ask Handley JA to give the first judgment.

Handley JA This is an appeal from awards made by O'Toole CCJ on the ground that her Honour's awards were inadequate.

The appellant worked for many years for the State Transit Authority of New South Wales or its statutory predecessors, initially as a bus driver and then, after March 1990, as an inspector. He sustained a frank injury at work on 13 December 1986 which affected his left leg. There is no doubt that the appellant is entitled to compensation for that injury and no question directly turns on that issue.