EMAIL LTD v STEDMAN [1998] NSWCA 75

EMAIL LTD v STEDMAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY and STEIN JJA 27 March 1998, 29 April 1998 [1998] NSWCA 75

WORKERS COMPENSATION - whether sufficient reasons were given by the trial judge — apprehended bias — failure to ask trial judge to disqualify himself

The worker (respondent) received an injury to his right ankle while working for the appellant. At soccer training, on the night before the injury at work, he experienced a minor problem with his foot. On the Saturday after the injury he participated in a soccer match as goal keeper. The appellant claimed that the respondent sustained fractures to his ankle at training in the week after the accident. The respondent denied this.

The respondent received an award for compensation in the Compensation Court of New South Wales for weekly payments and lump sum payments under s66 and s67 Workers Compensation Act 1987.

On appeal:

(1) that the reasons given by the trial judge were insufficient;

(2) that the trial judge questioned the appellant's witnesses in such a manner as to portray bias or prejudgment of the issue;

(3) that there was no evidence to support the trial judge's finding that there was evidence that the nature of the employment incident was of the kind that could cause the extent of the injury.

Held:

(1) the trial judge gave sufficient reasons for being satisfied that the respondent had established his case.

(2) neither the transcript of the evidence or the tape recordings played to the court reveal any indication of bias or prejudgment. In addition, the failure of the appellant to ask the trial judge to disqualify himself was fundamental in the appellant's claim of apprehended bias.

Vakauta v Kelly (1989) 167 CLR 568 applied.

(3) there was evidence to support the finding that the nature of the injury at work was of the kind that could cause the fracture.