P AND M QUALITY SMALLGOODS PTY LTD v NORMAN [1996] NSWCA 415

P & M QUALITY SMALLGOODS PTY LTD v NORMAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY JJA and ABADEE AJA 25 November 1996, 25 November 1996

[1996] NSWCA 415

FINDINGS of fact of trial judge sustained — no question of principle.

Cole JA These are worker's compensation proceedings commenced on 10 October 1995. Accordingly, an appeal lies to this court on issues of fact.

The following matters were argued on appeal. First, the appellant contested Bishop CCTs finding that the respondent injured himself at work on 10 May 1993. It was said that as he remained at work that day, he worked the following day until dismissed in consequence of a subsequently dismissed allegation that he was purloining meat from his employer, and because he made no complaint to his local doctor until 12 May 1993 after his dismissal the trial judge should not have accepted his evidence of injury on 10 May 1993. That was said to be reinforced by his failure to call the foreman to whom he said he had reported his injury. Bishop CCJ grounded his finding primarily on his assessment of the respondent as being truthful in relation to his injury coupled with a significant number of visits to Dr Chan commencing on 12 May 1993 and continuing at regular short intervals thereafter.

On established principles there is no basis for this court disturbing that finding of fact. See Devries v Australian National Railways Commission!.

It seems to me that the passage to which Mr Hoeben refers, appearing at 53 of the appeal book that passage being in the evidence of the respondent, does not destroy or defeat the findings of fact made by the trial judge by which this court is bound.

Second, it was argued that Bishop CCJ awarded compensation from 16 June 1993 to 4 April 1995 It was said that there was no proper basis for determining the commencement point. The applicant had been paid compensation on 11 May to 15 May 1993 and his Honour awarded compensation from 16 June. It was contended that his Honour inadequately had regard to the fact that the respondent commenced a lawn mowing business on | July 1993. Accordingly, it was said that there should have been some credit given in the sense that the commencement of the award of compensation should have been deferred for some indeterminate time but later than 16 June 1993.