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. Dr Matheson on 27 April 1990 found the appellant fit for manual labour initially and then, presumably, for full duties. We know that Dr Fitzgerald, the radiologist, on 1 November found that his back was normal, and we know that from 7 December 1990 Sir Keith Jones found the appellant fully recovered and fully fit for any work. As if that were not enough, we know that in oral evidence Dr Matheson said that he would revise his report of 27 April and state that there was nothing wrong with the appellant, even as early as 27 April. Although he said he was suffering pain, there was in fact no pain. 2 UNREPORTED JUDGMENTS There was, of course, the evidence of the appellant himself before her Honour to the effect that he did suffer pain and was severely incapacitated after 14 June 1990. However, her Honour entirely disbelieved him and the appellant concedes she was entitled to do so. 5 That being the state of the evidence I can see no ground for challenging her Honour's finding and in my view the appeal should be dismissed with costs Clarke JA I agree. Sheller JA I also agree. 10 Clarke JA: The order of the court will be that the appeal is dismissed with costs. Appeal dismissed with costs. 15 Counsel for the appellant: D ELLIOTT Solicitors for the appellant: ANTHONY MALOUF AND CO Counsel for the respondent: J POULOS QC/J CATSANOS 20 Solicitors for the respondent: VANDERVORDS