LEGGATT and ANOR v COLLEY and ORS [1996] NSWCA 321

LEGGATT and ANOR v COLLEY and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY and POWELL JJA, and WADDELL AJA 17 April 1996, 17 April 1996

[1996] NSWCA 321

Workers compensation — Compensation Court — challenge to factual findings made by trial judge

First respondent applies for compensation from two separate employers - Compensation Court makes awards against earlier employers - application dismissed against later employer - on appeal first employer challenges trial judge's factual findings - submission by appellant that case not within the Abalos and Devries category - Held: trial judge's approach to the facts of the case not unacceptable - case clearly in the Abalos and Devries category, considered frequently and recently and there is no way in which the appeal could

succeed in respect of the trial judge's approach to the facts. ORDERS Appeal dismissed with costs.

Priestly JA Although this appeal was well presented by appellants' counsel it nevertheless, in my opinion, fails. It raised a purely factual question as the one issue in the appeal. In summarising the facts I draw upon the convenient narrative filed by the appellants.

The first respondent was a worker who applied for compensation against two separate employers. His Honour Judge Burke of the Compensation Court made awards in the first respondent's favour against the appellants, who were the earlier employers, and dismissed his application against the second respondent, the later employers.

The only appeal is that of the first employers. They carried on business as shearing contractors and employed the first respondent as a wool pressing and shed hand between 1977 and 1983 and between October 1986 and October 1988.

Towards the end of the day's work on Wednesday 27 May 1987 the first respondent suffered an injury to the low back while helping with the manhandling of a bale of wool. The first respondent didn't work on the following Thursday and Friday because no work was available. He did his normal work the following Monday. He continued to work for the appellants until October 1988. In this period he undertook shearing and crutching work to the extent of at least one "shed" per month.