ASANOVIC v SYDNEY WATER CORPORATION LTD [1995] NSWCA 24

ASANOVIC v SYDNEY WATER CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY CLARKE and HANDLEY JJA 12 May 1995, 26 May 1995 [1995] NSWCA 24

WORKERS COMPENSATION ACT — APPEAL — NO QUESTION OF PRINCIPLE FACTS The appellant made a claim in respect of injuries to his back, left leg, right leg and penis on 27 November 1990. The appellant also claimed medical expenses occasioned as a result of the injuries. The substantial dispute in the proceedings revolved around the question whether or not the appellant did receive injury to his low back, legs and his sexual organ on 27 November 1990. The judge found that the appellant was not a credible witness. He accordingly concluded that he could not accept the appellant's claim that he had sustained an injury on the morning of 27 November 1990 in the circumstances alleged by him and thus found an award for the respondent.

Held (per Clarke JA; Priestley and Handley JJA concurring)

It cannot be said that the evidence of the witnesses accepted by his Honour was glaringly improbable or inconsistent with facts incontrovertibly established or that the trial judge had failed to use or had palpably misused his advantage:

Devries v Australian National Railways Commission (1993) 172 CLR 472, at 479.

His Honour was correct in the import which he attached to the appellant's statement. I am not persuaded that any error has pervaded his Honour's judgment nor do I think that any of the exceptions referred in Devries apply to enable this Court to reverse his Honour's finding.

Priestley JA I agree with Clarke JA.

Clarke JA The appellant, Zija Asanovic, brought proceedings in the Compensation Court seeking lump sums for permanent impairment of the back and pain and suffering in relation to injuries which he alleged occurred on 7 May 1986. He made a further claim in respect of injuries to his back, left leg, right leg and penis on 27 November 1990. The appellant also claimed medical expenses occasioned as a result of both injuries. The case was heard by Judge Davidson who observed, at the start of his judgment, that the case itself was conducted on the appellant's behalf solely upon the basis of the injury of 27 November 1990. I will, therefore, confine my attention to that claim. The substantial dispute in the proceedings revolved around the question whether or not the appellant did receive injury to his low back, legs and his sexual organ on 27 November 1990.