DUNN v MARITIME SERVICES BOARD [1998] NSWCA 72

DUNN v MARITIME SERVICES BOARD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, POWELL and STEIN JJA 5 May 1998, 9 June 1998

[1998] NSWCA 72

WORKERS COMPENSATION — further lump sum payment sought — whether an increase in loss of use of limb — credit of applicant — trial judge entitled to reject medical evidence — relevance of rule in Browne v Dunn — whether trial judge failed to draw a Jones v Dunkel inference — procedural fairness

In January 1989, the appellant received a lump sum payment compensating him for 15% permanent loss of efficient use of his right leg as a result of a work-related injury in December 1986.

In 1997, the appellant contended that he had suffered an increased loss of the use of the leg and sought a further lump sum payment in respect of a 30% permanent loss of efficient use.

The evidence comprised that of the appellant, two video films and a number of medical reports. The medical evidence tended to support the appellant's contention, however, the video evidence revealed the appellant engaged in vigorous leisure activities.

The trial judge was unpersuaded that the applicant had suffered any increase in the loss of use of the leg. Central issues of concern to the judge were the credit of the applicant and the extent of his incapacity.

On appeal it was argued:

(1) that there was no medical evidence to support the trial judge's finding that the appellant's disability had not increased;

(2) relying on Browne v Dunn [1893] 6 R67 HL, that there was a failure to cross-examine any medical practitioner as to the content of the films;

(3) that the trial judge misdirected herself in accordance with Jones v Dunkel (1959) 101 CLR 298 in failing to draw an inference that, had the doctors been shown the films, they would still have adhered to their opinions;

and

(4) that the appellant was denied procedural fairness by the use the trial judge made of her observation of his gait as he entered the witness box and by failing to draw her observation to the attention of counsel.