HANNAN v COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MHEAGHER and POWELL JJA 18 November 1994, 18 November 1994 [1994] NSWCA 121 WORKERS COMPENSATION — INCONSISTENT STATEMENT OF PLAINTIFF — FINDING OF TRIAL JUDGE NOT TO BE INTERFERED WITH FACTS: Statement of injury of plaintiff/worker contradicted by plaintiff/worker at trial, also inconsistent with witness testimony and trial judge makes finding not in favour of plaintiff/worker who appeals. HELD: (1) In the light of the evidence which is not supportive of the plaintiff, the trial judge is entitled to make a finding against the plaintiff, which finding cannot be interfered with. Meagher JA The plaintiff, Mrs Hannan, the appellant in the present case, suffered an injury which she alleged took place on 2 June 1988. She was an employee of the Commonwealth in the hospital at Concord. The accident is said to have happened in the following circumstances. She suffered a back injury when lifting a heavy polisher up some stairs at the hospital. Her account at the trial was supported, to some extent, not entirely, by her follow-worker Mrs Beard, but her account was inconsistent with what she told her supervisor, Mrs Killick, shortly after the accident. It is also inconsistent with what she wrote in the report of accident form and it is inconsistent with what Mrs Martschenko, another co-worker, said. In the light of this evidence which is, to say the least, not supportive of the plaintiff, Yeldham J, the trial judge, found that he was unable to believe the plaintiff. That was a course which his Honour was entitled to take. It is also a course with which we are unable to interfere. For those reasons, I would propose the appeal be dismissed with costs. Mahoney JA I agree with what has been said. The court has had the benefit of detailed written submissions and Mr McLoughlin has put what can be put for the plaintiff orally. But, the difficulty I feel is that two of the people directly involved, the plaintiff end Mrs Martschenko, each gave a written account at or about the time of the accident which is inconsistent, on the face of it, with what the plaintiff claims. The plaintiffs claim has been and has been only that the injuries occurred in lifting the polisher. That is what is relied on in the statement of claim. There is no case that lifting of chairs also gave rise to a claim against the Commonwealth, such as is now pressed. It was for the judge, having seen before him Mrs Killick as well as the plaintiff, to decide whose account should be accepted of what took place when the plaintiff filled in the form. His Honour said that he preferred Mrs Killick's testimony to that of the plaintiff when the two were in conflict and in that respect I do not think that, in the sense that we are here concerned with, the two can be reconciled. 2 UNREPORTED JUDGMENTS I understand the anxiety of the plaintiff in relation to this matter and with the members of the court. I have looked carefully at the terms of the judgment and the forms in question. But, in the end, I feel I should come to no other conclusion than that proposed by Meagher JA. I agree with the orders proposed. Powell JA The reasons given by Mahoney JA and Meagher JA agree that no ground for disturbing the judgment directed by Yeldham J has been made out, and I agree with the orders that have been proposed. MAHONEY JA: The order of the court is, therefore, the appeal is dismissed with costs. (1) Appeal dismissed with costs. Counsel for the Appellant: R P McLoughlin Solicitors for the Appellant: Jones Staff & Co Counsel for the Respondent: C C Branson QC/D J Hook Solicitors for the Respondent: Australian Government Solicitor