LES POWELL ELECTRICAL CONTRACTING PTY LTD v POWELL [1996] NSWCA 323

LES POWELL ELECTRICAL CONTRACTING PTY LTD vy POWELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and COLE JJA 16 April 1996, 16 April 1996 [1996] NSWCA 323

WORKERS Compensation Act 1987 — s4 — failure to discharge onus of proof — no question of principle.

Cole JA This appeal raises no question of principle. The only issue is whether Armitage CCJ was entitled, on the evidence before him, to conclude that the respondent had suffered injury in accordance with s4 Workers Compensation Act 1987 to his right knee and thus entitled to make the award he did pursuant to s66 in respect of that knee injury.

It was common ground at the hearing that the respondent had degenerative osteo arthritis in his right knee. The question was, as s4 dictates, whether he had suffered injury in that: "Arising out of or in the course of (his) employment (he had suffered) aggravation, acceleration exacerbation or deterioration of any

disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration."

Armitage CCJ found that he had, accepting his understanding of the views of Doctors Laird, Plowman and Harrington. Regarding the right knee, Dr Ploughman reported:

[1] "1. Osteoarthritis of the right knee. It is degenerative in origin but one cannot exclude the nature of his employment as a contributing factor. It does not cause him much trouble."! That expression of view alone does not satisfy the onus upon the respondent.? Doctor Laird was asked by the respondent's solicitors by letter the following questions:

[2] "1. Is it more probable than not that the patient's work as an electrical contractor, which work involved a great deal of crawling around and kneeling in ceilings, climbing ladders, heavy lifting and carrying and mending, has caused or aggravated the condition in his left and right knees? [3] 2. Is it more probable than not that such aggravating effects are continuing?'"'3