JJ WOODS AND SONS CARRIERS PTY LTD v BARRETT [1996] NSWCA 272

JJ WOODS AND SONS CARRIERS PTY LTD v BARRETT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and BEAZLEY JJA 17 July 1996, 2 December 1996 [1996] NSWCA 272

Workers Compensation — Deterioration in worker's condition — Further claim for compensation — Appeal by employer — Practice and Procedure — Whether point not taken at trial can be taken on appeal — Workers Compensation Act 1987, s71

Worker injures neck and makes claim for compensation — Neck injury leads to frozen shoulder and worker makes further claim for compensation under s71 of the Workers Compensation Act 1987 — Appeal by employer against further award of compensation — Whether worker's claim based "on occupational disease" within terms of s71 of the Workers Compensation Act 1987 — Whether point not taken at trial can be taken on appeal — Held: appeal dismissed: There is nothing in the nature of the matter or in the evidence before the judge to warrant the conclusion that the issue raised on appeal could not have been established by evidence had it been in dispute.

Browne v Dunn (1894) 6 R 67;

Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1;

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418;

Water Board v Moustakas (1988) 180 CLR 491;

Vakauta v Kelly (1989) 167 CLR 568;

Commonwealth v Verwayen (1990) 170 CLR 394; referred to. ORDERS Appeal dismissed with costs.

Mahoney P At the end of the argument in this appeal, the basic facts were not, I think, seriously in dispute. I shall summarise the relevant portions of them as found by the learned trial judge Campbell CJ, Compensation Court.

On 27 September 1992 Mr Raymond Alan Barrett ("the worker") was injured in the course of his employment with the appellant employer JJ Woods and Sons Carriers Pty Ltd. He injured his neck and, possibly, other parts of his body. There was no frank or obvious injury to his left shoulder.