NEW SOUTH WALES POLICE SERVICE AND ANOR v HUGHES AND ANOR [1997] NSWCA 223

NEW SOUTH WALES POLICE SERVICE v HUGHES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE and BEAZLEY JJA, and SHEPPARD AJA 25 August 1997, 5 December 1997

[1997] NSWCA 223

WORKERS COMPENSATION admission of doctor's report — challenge to trial judge's findings regarding amount of compensation: review of findings: s66, s68A considered. ORDERS appeal and cross-appeal upheld.

Cole JA I have had the advantage of reading in draft the judgment of Sheppard AJA in which the facts and issues on appeal are set forth.

I agree for the reasons given by his Honour that grounds 1, 2 and 3 should be rejected.

I have, however, reached a different view to his Honour in relation to ground 4. That ground was expressed in the notice of appeal in the following terms:

"His Honour failed to give consideration to when any exacerbation of the first respondent's neck symptoms resulting from her employment with the appellant ceased".

Bishop CCJ made a continuing award for compensation. Accordingly it is to be assumed that this specialist judge considered that at the date of the hearing exacerbation of the respondent's underlying neck symptoms resulting from her employment with the Police Service continued. There was clear evidence both from the worker and Dr Garrick that her employment with the Police Service aggravated a pre-existing neck injury. The appellant's submissions accept that. The appellant argued, however, that such aggravation "does not necessarily give rise to either continuing worker's compensation rights or entitlements to lump sum payments for permanent impairment". The submission was that:

"There has to be by the trial judge an investigation as to whether the aggravation etc is of a continuing nature. In that the only specialist medical evidence was of an aggravation or exacerbation of symptoms, it is submitted that it is an error for his Honour to find incapacity or permanent impairment resulting therefrom without having determined the nature and/or extent of that aggravation or exacerbation".