MONIER PGH LTD v KNEVETT [1995] NSWCA 299

MONIER PGH LTD v KNEVETT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and SHELLER JJA 10 August 1995, 21 September 1995

[1995] NSWCA 299 WORKERS COMPENSATION CREDIBILITY BASED FINDING QUANTUM

FACTS: The worker claimed that his back was injured at work on 27 May 1989. At trial the employer alleged that there was no such injury, and that the worker's story was a fabrication. In his judgment the trial judge stated that the question was "whether or not the respondent has convinced me that the applicant has been in cahoots with his brother in particular and that if there is something wrong with his back and that his doctors are correct, then he must have injured it at about the time that he alleges he injured it with the respondent in some other way."

The trial judge found that he believed the worker and made an awards in his favour.

There was no evidence of any further mishaps befalling the worker after 31 December 1989, and the trial judge found that between the time of the injury and October 1991, the worker had an increasing capacity. Nevertheless the trial judge found that the amount that the worker was able to earn diminished from 1989 to 1990.

On appeal the employer appellant argued that the trial judge erred in concluding that the worker was to be believed; that the trial judge misapplied the onus of proof; and that the trial judge had miscalculated the quantum of the awards.

HELD:

(1) (By Meagher JA, Mahoney and Sheller JJA agreeing) The decision on the part of the trial judge to believe the worker was well within his power. The worker's case was fully supported by his brother, and partially supported by other witnesses.

(2) (By Meagher JA, Mahoney and Sheller JJA agreeing) In stating the onus of proof, it is clear that the trial judge believed the worker and did not believe the employer's witnesses insofar as they contradicted the worker. It does not matter whether the trial judge said that the worker had proved his story was genuine or that the employer had not proved it was fabricated.