BRIDGE v HYMIX QUARRIES PTY LIMITED [1995] NSWCA 59

BRIDGE v HYMIX QUARRIES PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 1 May 1995

[1995] NSWCA 59 WORKERS COMPENSATION — Appeal acceptance of evidence by trial judge

Sheller JA""injury occupation on the basis of his presentation. on that day. When I saw him he appeared to be in severe distress and in significant pain.

I indeed do have serious doubts as to his veracity which is why I sent in the alternative report recommending surveillance in an attempt to elucidate the problem.'

It was argued that Dr Bornstein was not ruling out the possibility of incapacity. On the day in question, the appellant was in severe distress and in significant pain. With the greatest respect I find myself unable to read this report in this way. Dr Bornstein was clearly expressing serious doubts about whether the appellant was indeed suffering the distress and pain he claimed and, on that basis, made the recommendation that he did.

In my opinion her Honour's conclusion is not inconsistent with an appropriate view of the medical evidence. It is to be observed that included in the medical evidence was a report of Dr Limbers of 25 May 1994 in which he stated that the appellant should be fit for his normal duties and that orthopaedic treatment had nothing to offer him.

Mr Quickenden turned to the evidence of the appellant's wife. That evidence is quite short and I have carefully read it. It is not precise. It is true that asked whether the appellant had complained to her about his back she replied — all the time. It seems to me that in so far as this evidence is inconsistent with the view ultimately arrived at by her Honour, her Honour rejected it and I am not persuaded that in doing so, bearing in mind the clear evidence upon which she relied, she was wrong to do so.