GSF AUSTRALIA PTY LTD v ZLATA MISIC [1999] NSWCA 171

New South Wales Court of Appeal CITATION : GSF AUSTRALIA PTY LTD v ZLATA MISIC [1999] NSWCA 171 revised - 22/06/99 FILE NUMBER(S) : CA 40805/97 HEARING DATE(S) : 12 April 1999 JUDGMENT DATE : 12 April 1999

PARTIES : GSF AUSTRALIA PTY LTD v ZLATA MISIC JUDGMENT OF : Mason P at 1; Handley JA at 28; Stein JA at 29

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 19274/96 LOWER COURT JUDICIAL OFFICER : Davidson CCJ

COUNSEL : C E O'Connor QC/VJJ Webster (Appellant) S J Stanton/A Atic (Respondent) SOLICITORS : Bruce & Stewart (Appellant) Borak & Co (Respondent) CATCHWORDS : Injury at work - Appeal from challenge in Compensation Court to factual and credibility findings of Commissioner - Error of fact or law - Denial of procedural fairness DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40805/97 MASON P HANDLEY JA STEIN JA

Monday 12 April 1999

GSF AUSTRALIA PTY LTD v ZLATA MISIC

JUDGMENT

1 MASON P: The respondent slipped and fell at work on 6 September 1995. She has not since been in paid employment. Compensation was paid on a voluntary basis until 21 June 1996. Proceedings were brought in the Compensation Court for weekly payments from 21 June 1996, lump sum compensation under s 66 and 67 of the Workers Compensation Act 1987, s 60 payments, interest and costs. 2 The application was heard by Commissioner Hunt on 7 July 1997. The evidence before the Commissioner consisted of the oral evidence of the respondent, medical reports and certificates, photographs of the respondent's back and financial and earnings records. No doctor was called to give evidence on either side. There was a conflict in the medical evidence as to the nature of the injury, whether there was any permanent loss as a result thereof and whether any incapacity for work continued after 21 June 1996. 3 The appellant's case evidenced by its medical reports and the cross-examination of the respondent was that the respondent greatly exaggerated her symptoms. The appellant contended that there was back strain and no more and that the respondent had recovered by June 1996. 4 It was common ground that the absence of objective clinical signs of the injury did not preclude the making of an award as sought for this type of claim, but it was equally clear that credibility loomed large. 5 The Commissioner concluded that the respondent had suffered a five per cent permanent impairment of the back. He made an order under s 66 for the payment of a lump sum in respect of that loss. He also awarded the respondent s 60 expenses, costs and interest. He otherwise did not accept the respondent's claims. The key finding referable to the back was expressed in these terms. "On the medical evidence before me, there is no doubt that there was injury on 6 September 1995. Several attempts to diagnose the injury have failed to produce anything objectively. However, I am prepared to accept that there was some musculoligamentous injury to the low back. I assess a permanent impairment of five per cent."