Walsh v Visionstream Pty. Limited

[2004] NSWCA 104

CITATION:	Walsh v. Visionstream Pty. Limited [2004] NSWCA 104
HEARING DATE(S):	16 March 2004
JUDGMENT DATE:	2 April 2004
JUDGMENT OF:	Beazley JA at 1; Young CJ in Eq at 25; Barrett J at 29
DECISION:	Appeal dismissed with costs
CATCHWORDS:	ERROR OF LAW - Error of fact - No evidence to sustain factual finding of trial judge - Distinction between primary and ultimate findings of fact - Wrong primary finding of fact not an error of law - Section 32 of Compensation Court Act 1984 - Power of court to review decisions flawed in point of law only
LEGISLATION CITED:	Compensation Court Act 1984 Workers Compensation Act 1987
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Bruce v Cole (1998) 45 NSWLR 163 Hill v Green (1999) 48 NSWLR 161 R v District Court of the Metropolitan District Holden at Sydney: ex parte White (1966) 116 CLR 644 Waterford v The Commonwealth (1987) 163 CLR 54
PARTIES :	Martin Walsh (Appellant) Visionstream Pty. Limited (Respondent)
FILE NUMBER(S):	CA 41232/02
COUNSEL:	R. Goodridge (Appellant) H. Shore SC (Respondent)
SOLICITORS:	Firths - The Compensation Lawyers (Appellant) Bartier Perry

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	WC51212/01
LOWER COURT JUDICIAL OFFICER :	Burke ACCJ

CA 41232/02
WC 51212/01

BEAZLEY JA
YOUNG CJ IN EQ
BARRETT J

2 April 2004

WALSH v. VISIONSTREAM PTY. LIMITED

Facts

The appellant performed strenuous physical work for a period of 12-13 years before commencing employment with the respondent which also involved strenuous and heavy physical work. During his period of employment with the respondent, the appellant had eight periods of time away from work due to back pain, some of which related to specific work incidents. The appellant sought compensation for injuries sustained on two occasions. The trial judge rejected the appellant’s claim on the grounds that since on one of the two occasions complained of the appellant was only off work for three days, it could not have substantially contributed to his injury and that it was more likely that the appellant’s back pain was the result of the type of work in which he had been engaged over the preceding twenty years.

The appellant appealed on the ground that the trial judge erred in law because there was no evidence upon which his Honour could have found that he was off work for three days following one of the two incidents for which compensation was sought. Instead, the evidence indicated that the appellant had been off work for two-three weeks.

HELD per Beazley JA (Young CJ in Eq and Barrett J agreeing):

(i) There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 per Brennan J.

(ii) A distinction must be drawn between primary findings of fact and the ultimate finding of fact. In relation to the former, there is no error of law with respect to a wrong…