Atkinson v Sydney Tower Restaurants Pty Ltd [2001] NSWCC 63

Compensation Court of New South Wales

CITATION : Atkinson v Sydney Tower Restaurants Pty Ltd [2001] NSWCC 63 PARTIES : Narel Atkinson Sydney Tower Restaurants Pty LTd MATTER NUMBER(S) : 39910 of 1999 JUDGMENT OF: Armitage J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 9 May 2001 EX TEMPORE JUDGMENT DATE : 05/09/2001

FOR APPLICANT: Mr T Edwards instructed by Thomas Mitchell Partners LEGAL REPRESENTATIVES: FOR RESPONDENT:Mr B Odling instructed by Abbott Tout Solicitors

JUDGMENT: 1. I find that the applicant's cardiac condition and his medical treatment and hospitalisation resulting from it did not result from injury arising out of or in the course of the applicant's employment with either respondent. That finding is made on the basis of the medical evidence before me which in the case of Dr Hickey, the applicant's treating cardiologist, indicates that Dr Hickey is not able to say on the balance of probabilities that there is any relationship between the cardiac condition and the applicant's work and also on the basis of the evidence, also in report form, of Dr Julian Lee in the respondent's case who indicates that there is quite positively no connection between the applicant's employment and his heart condition. 2. I am firmly of the belief that if that question were litigated on the evidence available to me at the present time, particularly that of Dr Hickey - who is, after all, as the treating physician in the best position to say - that the applicant's claim would have failed, and in those circumstances I am quite prepared - and I regard it as totally appropriate - to make the finding sought. 3. I make orders in accordance with the short minutes of order initialled by me and placed with the papers. Mr T Edwards instructed by Thomas Mitchell Partners appeared for the applicant Mr B Odling instructed by Abbott Tout Solicitors appeared for the respondent