O'Brien Glass Industries Pty. Limited v. Bahmad [2001] NSWCA 224

New South Wales Court of Appeal

CITATION : O'Brien Glass Industries Pty. Limited v. Bahmad [2001] NSWCA 224 FILE NUMBER(S) : CA 40710/00 HEARING DATE(S) : 8th June 2001 JUDGMENT DATE : 11 July 2001

PARTIES : O'Brien Glass Industries Pty. Ltd. - appellant Robert Bahmad - respondent JUDGMENT OF : Powell JA at 1; Beazley JA at 2; Hodgson JA at 3

LOWER COURT JURISDICTION : Compensation Court LOWER COURT CC31064/99 FILE NUMBER(S) : LOWER COURT Judge Walker JUDICIAL OFFICER :

COUNSEL : Mr. J.D. Hislop QC with Mr. J.W. Catsanos for appellant Mr. S. Walmsley Sc with Mr. P. Stockley for respondent SOLICITORS : PricewaterhouseCoopers Legal, Sydney for appellant Paul A. Curtis & Co., Sydney for respondent CATCHWORDS : WORKERS COMPENSATION - Appeals - Error of law - Denial of procedural fairness - Finding as to credibility - Whether stereotypes wrongly applied - Whether judge should have signalled need for interpreter. ND CASES CITED: Marelic v. Comcare (1993) 121 ALR 11 DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40710/00 CC 31064/99

POWELL JA BEAZLEY JA HODGSON JA Wednesday 11 July 2001 O'BRIEN GLASS INDUSTRIES PTY. LTD. V. BAHMAD JUDGMENT

1 POWELL JA: I agree with the reasons on Hodgson JA as set out below. 2 BEAZLEY JA: I also agree with the reasons of Hodgson JA as set out below. 3 HODGSON JA: This is an appeal by an employer O'Brien Glass Industries Pty. Limited against an award of workers compensation in favour of a worker Robert Bahmad made by Judge Walker on 10th August 2000.

BACKGROUND 4 The respondent had commenced employment with the appellant as a glazier on 25th June 1998. On 3rd July 1998, he attended with another glazier to repair a broken window high up a steeply pitched iron roof of a church at Newtown. Their extension ladder did not reach from the ground to the window, and it was placed on a steel exhaust duct suspended above the roof of an annex at the side of the church. The other glazier climbed the ladder to repair the window, and the respondent held the ladder while he was doing this, for a period of up to twenty-five minutes. 5 The respondent's claim was that, because of the insecure position of the ladder, in order to ensure that it stayed in place, he had to push with all his force from a braced position, demonstrated (as described by the primary judge) as involving bending the right leg at the knee, holding the left leg straight, leaning forwards bent at the waist with arms straight pushing at shoulder height. The respondent claimed that he felt a sharp pain in his elbows and shoulders during this time. 6 The respondent did not report his claimed injury to the appellant, and did not consult a doctor until some days later. He continued to work for the appellant until 12th August 1998, when his employment was terminated for reasons unconnected with any injury. Since that time, the respondent claimed that he had done some unpaid work and some small paid jobs as a glazier, but that otherwise he had been unemployed. 7 In his application for determination, the respondent claimed that he had suffered "injury to both arms, injury to both shoulders, injury to both elbows, injury to lower back", and he claimed total incapacity for work from 12th August 1998 and continuing. 8 The primary judge made the following findings and awards: I summarise my findings as follows: 1. Arising out of and in the course of his employment with the applicant on 3 July 1998 the applicant sustained the following injuries: (a) Chronic musculo-ligamentous strains to his: (i) back (ii) neck (iii) both arms (b) Bilateral epicondylitis (c) Bilateral carpal tunnel irritation (d) An aggravation of a pre-existing degenerative condition of his cervical and lumbar spines resulting in discal damage at C4/5, C5/6, L4/5 and L5/S1 together with nerve root irritation and referred pain into his head, both arms and both legs.