ALCAN AUSTRALIA LTD v EKER and ANOR [1998] NSWCA 9

ALCAN AUSTRALIA LTD v EKER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, COLE and STEIN JJA 24 March 1998

[1998] NSWCA 9

Handley JA A number of grounds of appeal were taken by the appellant in its challenge to the award of Geraghty CCJ of 14 August 1996. A number of those grounds have not been pressed and Mr Wardell having seen a document extracted by the Court from the Compensation Court file has withdrawn ground three.

The only remaining ground is ground one in which the appellant challenged the Judge's findings of fact which lead to his conclusion that the worker's incapacity at the date of trial was the result of a back injury at work in August 1988. Mr Wardell frankly conceded that the appellant had difficulties in supporting this ground of appeal.

Since the hearing in this case began before 1 February 1996, the appeal is competent on grounds both of fact and law and is therefore competent for the appellant to challenge the Judge's finding of the existence of a causal nexus. Nevertheless, there are well understood limits on this Court's capacity to interfere with findings of fact in which credit is involved.

The trial Judge accepted the evidence of the worker and it was supported by a substantial body of medical evidence. There was of course evidence the other way, but this merely created the occasion for the Judge's finding and provides no reason for this Court to come to a different conclusion. The probabilities also support the Judge's finding. In these circumstances ground one in the notice of appeal should be rejected.

There are no other grounds which are now pressed and in those circumstances the Court will order that the appeal be dismissed with costs.

Cole JA I agree. Stein JA I also agree.

Handley JA: The order of the Court is that the appeal is dismissed with costs.