VOUROS v AQUILA STEEL CO LTD [1995] NSWCA 488

VOUROS v AQUILA STEEL CO LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, MEAGHER and SHELLER JJA

10 August 1995, 10 August 1995

[1995] NSWCA 488

Credibility of witness — Evidence of pain in left leg not as claimed — Limited order for weekly compensation on basis of partial incapacity Caution necessary in use of observations of witness in Court in making findings as to credibility

APPEAL FROM COMPENSATION COURT — Finding that applicant is not a creditable witness — Evidence of pain in left leg not as claimed — Limited order for weekly compensation on basis of partial incapacity — Caution necessary in use of observations of witness in Court in making findings as to credibility.

ORDER Appeal dismissed with costs.

Mahoney AP This is an appeal from a decision of her Honour Judge O' Toole in the Compensation Court. The appellant, the worker, was injured on 19 April 1990 in the course of his employment with the respondent/employer. The injuries that he suffered are detailed in the evidence. Stated shortly and relevantly, he suffered a fracture of the left radius, damage to the neck of the left femur and some other incidental injuries to his teeth and to his cervical spine. He was admitted to Bankstown Hospital and was off work for some time.

The essential problem that arises in the present case relates to the claim that he is incapacitated because of the pain that he claims he suffers in his left hip by virtue of the fractures to which I have referred.

The applicant's case at the trial was that he suffered "unbearable" pain in the hip and his evidence was detailed as to what he could not do by reason of that pain and disability. He gave evidence that he could not stand up, in the circumstances referred to in his evidence-in-chief. He said that his left leg "gets numb and is very painful". He detailed his incapacity in respect of walking, he referred to the "terrible pain" and to the effect that that had upon him. It is not necessary for me to refer further to the detail of the case which he sought to make out.