SHAW as Executrix of the Estate of the late EDWARD COLCLOUGH v ROTHMANS OF PALL MALL AUSTRALIA LTD [1997] NSWCA 281

SHAW as Executrix of the Estate of the late EDWARD COLCLOUGH v ROTHMANS OF PALL MALL AUSTRALIA LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 10 February 1997, 14 March 1997 [1997] NSWCA 281

WORKERS COMPENSATION — liability causation — total incapacity — whether causal connection between injury received during period when required by employer to smoke and later incapacity — Workers Compensation Act 1926 PRACTICE — applications — evidence — whether fresh evidence admissible — Supreme Court Act 1970 s75A (7)-(9) — principles to be applied

An application for weekly compensation was brought by the executrix of a deceased worker's estate, alleging total incapacity from the date of ceasing work to the date of death. The worker, who was employed by the respondent from September 1959 to September 1972, died in 1982 from emphysema. The trial Judge considered whether the emphysema was employment related, and if so, whether it produced incapacity for work, and made an award in favour of the respondent employer.

The point of the appeal was whether there was evidence sufficient to require a finding of a causal connection between the injury, received while the deceased worker was a sales representative for the respondent employer from 1959 to 1961 when he was required to smoke, and his incapacity in 1977. He was a moderate to heavy smoker throughout his life, having begun the habit in the 1940s, and he probably suffered some degree of emphysema before 1958. He was also a moderately heavy drinker before his time of employment with the respondent, and his drinking increased during this time. The appellant claimed the trial Judge erred in holding that the evidence did not enable him to determine that any incapacity was due to the deterioration of the deceased's emphysema, or that there was no evidence which could lead him to a view on the question of such incapacity as may have been caused by the deterioration of his emphysema.