CLUTHA LTD v RISBY [1996] NSWCA 106

CLUTHA LTD v RISBY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE JJA and HUNTER AJA 4 March, 26 March 1996

[1996] NSWCA 106

Workers compensation — Whether relationship between injury and tumour — conflicting expert medical evidence — reasons for judgment — trial judge to sufficiently expose reasons for decision.

In 1991, whilst working for the appellant (Clutha Ltd), the respondent (Vincent Risby) suffered an injury to his groin. He wa& able to return to work after treatment, but some months later the discomfort recurred. A lump was discovered in his groin which, after surgical removal, was found to be a rare form of cancer known as sarcoma. The worker then made a claim under the Worker's Compensation Act 1987 on the basis that the tumour was caused by the groin injury in 1991. Moroney CCJ was satisfied that the relationship between the tumour and the injury propounded by the worker's expert existed and thus upheld the claim.

The employer appealed on the basis that on the evidence it was not open to the trial judge to make an affirmative finding on the probabilities that the sarcoma was attributable to the injury, and that the trial judge should have concluded the worker had failed to make out its case. It was also submitted that the trial judge had not given adequate reasons for his conclusion. The Court upheld the appeal but declined to decide the case as on a rehearing.

Held:

(1) A judge is bound to expose his or her reasoning process in sufficient detail to enable a losing party to understand why they lost. Where there were diametrically opposed views given by two eminent specialists, his Honour was bound to explain why he preferred the views of one specialist over the other: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

(2) In circumstances where an eminent specialist has given an affirmative opinion, not diminished in any way in cross-examination, supporting a claim by a worker for compensation, the trial judge is not bound to reach a contrary conclusion. There was evidence capable of supporting the worker's case and it could not be said as a matter of law that the claim must fail.