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. In my opinion this submissions fails. His Honour had full regard to the work capacity of the respondent and took that into account in determining the compensation award of $175 per week. There was adequate evidence to support that finding. The third point argued related to interest. The trial judge awarded interest from 16 June 1993. The argument was that in accordance with the decision of this court in St Vincent's Private Hospital v Meagher and Ors? interest was payable 1. (1993) 177 CLR 472 at 479. 2. (unreported), Court of Appeal, 1 May 1996. 2 UNREPORTED JUDGMENTS only from the date on which the claim for compensation was duly made. It was said that the claim for compensation was not duly made until 15 February 1995. The factual circumstances relating to the making of the claim were as follows: the worker claimed to be injured on 10 May 1993. On 13 May 1993 he lodged with the insurer a claim form claiming compensation in respect of that injury. Subsequently on 29 September 1993 he lodged an application for determination which did not make specific reference to the injury of 10 May 1993 but referred to injury suffered on a prior occasion. There was a further amended application filed on 15 October 1993 which account did not make specific reference to the injury of 10 May 1993 but referred to injury on a prior occasion. There was yet a further amended application for determination which was filed on 15 February 1995 which did make specific reference to the injury of 10 May 1993. The argument was that notwithstanding the lodging of the claim on 13 May the filing of initial application and an amended application constituted an abandonment or non-maintenance of that claim until it was, as it were, revived or advanced for the first time when the further amended application for determination was filed on 15 February 1995. In my opinion that submission fails. It is, to my mind, clear that the claim was made when the document was lodged with the insurer on 13 May 1993. I see no reason to read into that statement in $113(2)(a) the words "and maintained" after the word "made". In those circumstances interest should be payable from 16 June 1993 because prior to that date moneys were paid by the insurer in respect of compensation claimed up to 15 June 1993. In those circumstances, in my opinion, the appeal should be dismissed with costs. Beazley JA I agree. Abadee AJA I agree. Cole JA: The orders will be as I have indicated. Appeal dismissed with costs. Counsel for the appellant: CRR Hoeben SC Solicitors for the appellant: Hickson Lakeman and Holcombe Counsel for the respondent: MJ Joseph SC/A Monaghan Solicitors for the respondent: Mathews Folbigg