HANNAH v ANSETT TRANSPORT INDUSTRIES LTD [1995] NSWCA 190

HANNAH v ANSETT TRANSPORT INDUSTRIES LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA 4 May 1995, 4 May 1995 [1995] NSWCA 190

WORKERS COMPENSATION — EVIDENCE — ONUS PROOF INJURY — WITNESS OF TRUTH

FACTS: Appellant/worker sought to appeal finding of trial judge that inconsistent evidence of worker precluded the making of an award in his favour.

HELD: (1) In circumstances where the evidence of the worker is inconsistent a finding that the worker has not discharged the onus to prove injury cannot be disturbed.

Clarke JA I will ask Meagher JA to give the first judgment.

Meagher JA This is an appeal by a worker against the refusal by his Honour Judge Geraghty to make an award in his favour.

The worker's story was clear, that he was a passenger on an internal vehicle on 5 November 1991 which was caused to jolt forward suddenly and thereby give him a whiplash injury. It is clear on all views that something did happen on 5 November 1991 at work, but what is not clear is what flowed from it.

The onus of proving that some incapacity resulting from that incident was contributed to by that incident lay on the worker and his Honour found that he was not able to discharge it. His Honour I think found that the worker was not a witness of truth. His Honour did not say in terms that he disbelieved the worker or. worse still, that the worker lied, but he did find that the worker's account of what happened was not such as to convince him of its truth.

It would seem that apart from the incident on 5 November 1991, the worker had had the following relevant injuries: he had admittedly some injury to his neck in 1990; on 20 October 1991 he had a neck injury caused by weight-lifting. The gravity of that injury is not entirely clear, although it is apparent from medical notes that it was far from trifling. It may be that at about the same time there was another incident at work which was not reported to his employer. He also had a surfing accident on 13 December 1991 after diving into a strong surf. He also hurt his back in some unexplained way in November 1991 in a scuffle at a nightclub.