NATIONAL STARCH and CHEMICAL PTY LTD v NELSON [1998] NSWCA 155

NATIONAL STARCH and CHEMICAL PTY LTD v NELSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and FITZGERALD AJA 17 September 1998, 17 September 1998

[1998] NSWCA 155

Appeal and new trial — miscarriage of justice — reliance by judge on material to which the parties had no access

Mason P This is an unfortunate matter where there has to be fresh hearing. The respondent applied for the determination of a claim for compensation. In the amended application, claims were made inter alia for lump sum compensation under s66 of the Act in respect of different classes of impairment.

The matter was heard by his Honour Judge Walker who reserved judgment overnight. An award was made in which the sums awarded by way of compensation pursuant to s66 were higher than, or at least as high as, the percentages claimed by the worker in his amended application.

The appellant complains about this but I do not think that this in itself involves any miscarriage. His Honour, in his judgment at (AB 22), made it plain that in making his assessment of the amounts payable under s66 he did not rely exclusively on the medical evidence. He took into account all of the evidence before him, particularly that of the applicant and the consultant from the worker's health clinic whose evidence had been recounted. I cannot therefore see that there was any error merely in finding percentages higher than that recorded in the medical evidence of the doctors who were called.

But there is a more fundamental problem. On two occasions in his judgment his Honour referred to evidence of a Dr Vote. Dr Vote was not called as a witness, no report was tendered and we were informed that he had not seen the worker. He is a specialist orthopaedic surgeon.

It is clear on a reading of the judgment that his Honour had regard to the evidence, or his belief that there was evidence, from Dr Vote. On one occasion he mentioned his evidence but preferred that of Dr Wilding. But on another occasion, at the top of p21 of the appeal book, he cited the report of Dr Vote amongst others, as a step in his reasoning leading to the conclusion that the worker was totally incapacitated for work. It may be also that he had Dr Vote's medical evidence in mind in arriving at the final determination of the amounts payable under s66.