BRENNOCK v FYVIT PTY LTD [1997] NSWCA 49

BRENNOCK v FYVIT PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER and BEAZLEY JJA, and SHEPPARD AJA 26 August 1997, 27 October 1997 [1997] NSWCA 49

Workers Compensation — Claim for weekly compensation — Whether injuries caused relevant incapacity — Medical evidence — Whether trial judge misunderstood medical evidence — Determination of post-accident capacity Evidence — Credibility

This appeal arose from a decision of the Compensation Court in which an award had been entered for the respondent on the appellant's claim for weekly compensation.

The appellant was the managing director of the respondent company, which engaged in speculative building work. The appellant performed labouring and administrative work for the company. On 19 May 1990 the appellant fell 4-5 metres from the roof of a construction site, striking his head during the fall. He suffered significant head injuries and whilst hospitalised exhibited symptoms typical of frontal lobe brain damage.

The issue on appeal, on questions of both fact and law, is whether the trial judge erred in finding that the appellant's injuries did not cause relevant incapacity. The central contention was that the trial judge had misunderstood the medical evidence such that the trial miscarried. The appellant also contended that the trial judge's findings of credit adverse to the appellant were consequently flawed and thus did not attract the application of the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167.

Held, allowing the appeal:

1) While a finding based on a witness's credit is, except in limited circumstances, immune from appellate interference, this case fell within the limited circumstances referred to in Abalos because the trial judge misunderstood the medical evidence;

2) The trial judge did not properly understand the medical evidence because she did not determine the appellant's case on the basis that his post-accident work capacity had to be determined by way of comparison with the work performed prior to the accident.