STEWART v MAITLAND AND ANOR [1995] NSWCA 456

STEWART v MAITLAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 1 May 1995, 1 May 1995

[1995] NSWCA 456

WORKERS COMPENSATION — FINDINGS OF FACT OF TRIAL JUDGE FACTS: Appellant challenged trial judge's finding of fact concerning injuries allegedly occurring during employment. HELD: (1) Where a party has the onus of proving a situation and is disbelieved by a trial judge, this is sufficient for a finding of fact.

ORDERS: (1) Appeal dismissed with costs.

Meagher JA In this matter the worker, Mr Vivian Gene Stewart appeals from a determination of Burke CCJ who rejected his application for workers compensation.

Before his Honour the appellant had alleged four injuries allegedly suffered in the respondent's employment. Three of them were frank injuries allegedly occurring on 28 July 1986 and the fourth was a general nature and conditions of his employment between April 1986 and July 1986.

As to the last of those four, that is the general employment between April 1986 and July 1986, which the employer denied, there is simply no evidence of any such injury. As to the earlier three, the happening of each injury was a question of fact, and the onus of proof was on the appellant. His Honour disbelieved the appellant. His Honour's finding in this respect is an extremely strong finding. His Honour said of the appellant these things:

"He has obviously been dishonest in his dealings with a variety of people. He has obviously been, in my view, dishonest in his evidence in Court. I do not accept him as a witness of fact. The totality of the facts proved tends to suggest that he probably did not have the injury."

In those circumstances it is extremely difficult for Mr Callaghan of Senior Counsel, who appeared and said everything that could be said for the appellant, to argue that his Honour was wrong.