ALMAET v SADDI [1995] NSWCA 16

ALMAET v SADDI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and SHELLER JJA

3 May 1995, 3 May 1995

[1995] NSWCA 16

WORKERS COMPENSATION FINDING OF FACT OF TRIAL JUDGE

FACTS:

Appellant appealed finding of fact of trial judge.

HELD:

(1) The trial judge having considered the evidence disbelieved the appellant/plaintiff which she was entitled to do and in these circumstances her finding cannot be disturbed.

ORDERS:

(1) Appeal dismissed with costs. Clarke JA I will ask Mr Justice Meagher to give the first judgment.

Meagher JA The appellant was a worker who suffered an accident at work on 2 November 1988, where he was standing on a brick wall, he was passed a piece of plywood, he lost his balance and fell backwards about 2.5 metres. He suffered some injury to his back and to his right hand.

The details of the precise injury he suffered at the time do not really matter because he was paid compensation till 14 July 1990 when it was discontinued. The appellant applied for an award which was heard by her Honour Judge O'Toole. The application was on the basis of partial incapacity after 14 June. Her Honour's conclusion was as follows:

"In the absence of objective evidence of relevant spinal injury after 14 June 1990, I am not persuaded that at relevant times the applicant has been incapacitated."

It is that finding which the appellant seeks to challenge.

After some discussion Mr Elliott who has conducted the case with very great skill, did concede the absence of objective findings as to the appellant's condition on or about 14 June 1990. What he did point to was the existence of some, I must say very slight, medical evidence that would be consistent with the appellant possibly suffering some minor incapacity at that date, but he can go no further than that. On the other hand there is ample evidence which enabled her Honour to come to the conclusion she did.