BELLAMY v SBS ENTERPRISING PTY LTD Trading as DARBY'S PIE BAR AND OVEN DOOR [1993] NSWCA 22

BELLAMY v SBS ENTERPRISING PTY LTD Trading as DARBY'S PIE BAR AND OVEN DOOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CRIPPS JJA 8 July 1993, 12 August 1993

[1993] NSWCA 22

WORKERS' COMPENSATION — injury — incapacity — primary judge (Moroney CCJ) rejects worker's claim — appeal — whether judge overlooked evidence of local medical practitioner's records containing report of history given at court — held: (Dismissing the appeal) (per Kirby P): The objective evidence of injury and incapacity was not such as to permit the Court of Appeal to disturb the decision of the trial judge based, as it was, in part on his impressions of the worker's credit; (per Cripps JA, Mahoney JA concurring): The trial judge, who had to assess credibility, did not accept the worker's history and that history contained inconsistent versions of the injury and complaints of incapacity justifying the conclusion which the judge reached.

Kirby P In the Compensation Court, Moroney CCJ dismissed the claim of Mrs Annette Bellamy (the appellant). He did so on the basis that he was not able, on the probabilities, to decide affirmatively that the worker had injured herself as alleged or that she was incapacitated as a result from a work injury as claimed.

It is important to note that his Honour did not actually record that he disbelieved the worker. There is a distinction between positive disbelief and being in a state of doubt such that the party, with the obligation affirmatively to prove his or her case, fails to convince the judge of the matters alleged. A lack of conviction upon a matter is not the same as a conviction that the matter has been disproved.

The problems which the appellant faced in this appeal were the inconsistent histories she had given; the lack of history of injury on some occasions; the basically constitutional nature of her underlying pathology which could sufficiently explain her continuing symptoms; and, above all, the fact that her own account did not carry the day for her before the judge. She bore the onus of proving her claim. The judge held that she had failed to discharge that onus. He had various advantages which this Court does not enjoy - including that conventionally described by the law of seeing the witnesses give their evidence.