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. It was then submitted that the video had been wrongly admitted into evidence. There is no indication from the material before us that any objection to its admission was taken at the trial. The most that can be said is that, after the oralevidence was complete, immediately before the tender of the video was noted, there is a reference in the transcript to 'discussions.' We were told from the bar table that that reference was to a discussion about the admissibility of the video. The video had been put to the appellant in the course of his cross examination and he identified himself as the person shown in it. In all the circumstances I am not satisfied that an objection was appropriately taken and that, even if it had been, it should have succeeded. We were then referred to a passage in her Honour's judgment in which she observed that between the bar table and the witness box on three occasions the applicant adopted various gaits. It was said that this was a factor determinative in her Honour's mind of her ultimate conclusion. It was further submitted that the use of the word 'adopted' suggested a conclusion that the gaits were contrived. I am not satisfied that this is so. Again I think it is no more than a passing 2 UNREPORTED JUDGMENTS observation that her Honour made during the course of her judgment I do not regard it as significant in terms of the conclusion which she ultimately came to. Finally it was submitted that it was not squarely put to the appellant that the evidence he had given was not truthful. I am satisfied from the cross examination that it was made plain to the appellant that his account of his incapacity during the period after the payments ceased was a live issue and his evidence about it was challenged. I would reject this as an appropriate ground of appeal. For all these reasons in my opinion the appeal should be dismissed with costs. Clarke JA. I agree. Meagher JA. I also agree. Clarke JA. The order of the Court will be the appeal is dismissed with costs. Orders accordingly. Counsel for the appellant: R E Quickenden Solicitors for the appellant: Davis and Associates Counsel for the respondent: S S Campbell Solicitors for the respondent: Curwood and Partners