MEWBURN v COWRA SHIRE COUNCIL [1998] NSWCA 140

MEWBURN v COWRA SHIRE COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER JA and FITZGERALD AJA 15 September 1998, 22 October 1998

[1998] NSWCA 140

WORKER'S compensation — conclusions arrived at by trial judge open to him on the evidence — no misapplication or misunderstanding of evidence.

Mason P I agree with Fitzgerald AJA. Sheller JA I agree with Fitzgerald AJA

Fitzgerald AJA The appellant, who was born on 15 December 1946, was employed by the respondent from 1973 to 19 February 1988. During the course of his employment, he suffered three injuries.

In 1980, he fell from the step of a large roller and landed on the ground on his back. He returned to work and his normal duties after one week.

On 21 April 1983, he fell from the back of a truck and injured his right shoulder and back. After six months off work, he returned to his normal duties. During the period when he was off work, he first consulted Dr Mutton, an orthopaedic surgeon, on 14 September 1983.

On 28 July 1987, a scraper which the appellant was driving "lurched sideways" into a ditch, and the appellant was thrown against the side of the cabin and suffered injury to his right shoulder and back. After he was off work for two months, he returned to light duties. He ceased work for the respondent in February 1988, complaining that he couldn't continue the light work available to him, namely holding a "stop-go" sign in connection with road work.

The appellant was paid compensation until 20 June 1988.

Meanwhile, on 6 April 1988, Dr Mutton had fitted the appellant with a lumbosacral support. Whether or not the appellant's basic problem had then been identified, he had a pars interarticularis defect in his 4" lumbar vertebra.

In proceeding No CR10079/1988 (renumbered 7527/1989), the appellant sought further compensation, but his application was dismissed by Senior Commissioner Hopkins on 6 July 1990. In rejecting the appellant's claim at that time, Senior Commissioner Hopkins stated that he did not accept the appellant as a truthful witness, and found that the appellant had not "satisfied the onus of proof that he has an ongoing incapacity as a result of [the] injuries [suffered in the employment of the respondent] beyond the date compensation was paid, being 20 June 1998".