Graham Edwards v David Brown Gear Industries

[2001] NSWCA 83

CITATION:	Graham Edwards v David Brown Gear Industries [2001] NSWCA 83 revised - 23/04/2001
FILE NUMBER(S):	CA 40593/00
HEARING DATE(S):	03/04/01
JUDGMENT DATE:	3 April 2001
PARTIES :	Graham Edwards v David Brown Gear Industries
JUDGMENT OF:	Meagher JA at 1; Beazley JA at 5; Davies AJA at 6

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	12981/96
LOWER COURT JUDICIAL OFFICER :	Davidson J

COUNSEL:	Appellant: Litigant-in-Person Respondent: R Stanton
SOLICITORS:	Appellant: Litigant-in-Person Respondent: Hicksons Wisewoulds Solicitors
CATCHWORDS:	Workers Compensation - injury to left hand - where appeal based on a finding of fact - no appeal to this Court from finding of fact - appeal dismissed.
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40593/00

MEAGHER JA

BEAZLEY JA

DAVIES AJA

Tuesday, 3 April 2001

GRAHAM EDWARDS v DAVID BROWN GEAR INDUSTRIES

JUDGMENT

1   MEAGHER JA: The worker, the appellant, Mr Edwards was employed by the employer respondent, David Brown Gear Industries Limited as a machinist from June 1980 to August 1980 or thereabouts. During this time, approximately on 21 July 1980, he suffered some sort of hand injury in the course of his employment. On 28 July 1980, he apparently suffered some back injury in the course of his employment. As far as the back injury is concerned, he took proceedings in the District Court and they are proceedings under 17197/86. These proceedings were settled in a way which resulted in a judgment in Mr Edwards’ favour in the sum of $3,000. On 19 November 1987, he commenced proceedings against the same employer in the Workers Compensation Court asking for a lump sum for his left arm injury. These were proceedings number 5930/87. They were determined by Commissioner Muirhead who gave an award in favour of the employer, David Brown, which was made by consent. On 30 September 1996, there were further proceedings number 12981/96 against the employer and others in which Mr Edwards sought weekly payments in respect of his arm and a lump sum payment in respect of it also. His Honour Judge Burke made an award in favour of the employer. Judge Burke decided that the District Court judgment prevented any re-litigation of the back problem. He also decided that the award by Commissioner Muirhead precluded any further consideration of any problem to do with the left arm. An appeal from his Honour Judge Burke’s decision came to the Court of Appeal which gave judgment on 29 October 1999. The Court of Appeal decided that the District Court judgment precluded a re-agitation of the back and that Commissioner Muirhead’s award prevented any re-agitation of a lump sum award for the left arm injury. However, by majority it decided that Judge Burke should have but did not examine the question of weekly payments for the left arm. It therefore remitted this aspect to the Compensation Court.

2   The present appellant, Mr Edwards, then brought before his Honour Judge Davidson, two motions. One was to set aside Commissioner Muirhead’s award and the other one was to seek weekly payments in respect of his left arm.

3   His Honour Judge Davidson heard all the evidence which any party wished to bring before him and eventually came to a conclusion adverse to Mr Edwards. It is perfectly unambiguous. What his Honour said was:

“I cannot see any evidence which would support the finding that the applicant, during the period that he was employed by David Brown Gear from 10 June 1980 to 6 August 1980, suffered an injury to his left arm from which any incapacity or permanent loss of efficient use of that arm resulted”.

4   There is no point in the present proceedings of debating the basis on which his Honour came to that conclusion. The only point to be noted is that it is an unambiguous finding of fact, and being a finding of fact it is a finding from which no appeal lies to this Court. That unfortunately means that the appeal from Mr Edwards’ point of view must be dismissed with costs.

5   BEAZLEY JA: I agree with Meagher JA.

6   DAVIES AJA: I also agree with Meagher JA.

7   MEAGHER JA: The order of the Court therefore is the appeal is dismissed with costs.