STATE RAIL AUTHORITY OF NEW SOUTH WALES v THORPE [1998] NSWCA 216

STATE RAIL AUTHORITY OF NEW SOUTH WALES v THORPE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and COLE JJA 23 March 1998, 23 March 1998

[1998] NSWCA 216

WORKERS' COMPENSATION — INJURY — CAUSATION — NO QUESTION OF PRINCIPLE

Handley JA This is an appeal by the State Rail Authority from a decision of Burke CCJ who made a continuing award against it on the basis of the worker's total incapacity.

The worker was employed as a fettler and on 21 July 1995 when cleaning the back of a railway truck, he slipped and fell heavily on his back. He was paid compensation until October 1996 when payments were terminated. This provoked the worker's application to the Compensation Court.

The facts surrounding the original injury and the worker's present incapacity for work were not in dispute. What was in dispute in the proceedings was the causal nexus between the fall at work on 21 July 1995 and the worker's continuing incapacity after October 1996.

The employer argued, on the basis of some medical evidence, that the worker's incapacity was due to an organic condition unrelated to his work described as an inflammatory demyelinating lesion in his spine.

There was a substantial body of medical evidence in report form before the Judge which he described as "a little bit confusing" which was intended to be an understatement. He approached the case by looking in the first instance at the objective facts and, as he said, from a lay point of view the inference from these was fairly striking:

"One would tend, if a layman, to infer that he did something to his back and legs, probably indirectly, in the fall, and he has continued to suffer the consequences of that incident".

The Judge found support for that view in some of the medical evidence and said that the probabilities were that the worker, when he had his fall in 1995, did cause himself some low back injury. He then considered the evidence, principally from Dr Hughes, about the alternative hypothesis based on an organic condition in the worker's spine.