NATIONAL AUSTRALIA BANK LTD v LOTORTO [1996] NSWCA 383

NATIONAL AUSTRALIA BANK LTD v LOTORTO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, COLE JJA and HUNTER AJA 4 March 1996 [1996] NSWCA 383

ONUS of proof — discharged.

Cole JA This is an appeal by the National Australia Bank against an award made by Judge Davidson on 14 September 1993 in the Compensation Court.

His Honour found, on the balance of probabilities, that on 11 and 12 June 1991 the respondent suffered an injury to his low back and in consequence, to his right leg arising out of his employment on those dates.

One issue only was raised on appeal; it was whether the applicant had discharged the onus of proof, it being contended by the appellant that the finding of injury arising from his employment was contrary to the weight of the evidence. In that respect five matters were pointed to indicating the unsatisfactory nature of the evidence given by the applicant.

Judge Davidson was acutely conscious of the issue of whether the onus of Proof had been discharged. He found that the applicant had lied in relation to the absence of back problems prior to an asserted injury on 7 June 1990. He found he had been untruthful regarding engaging in weight-lifting prior to that date. Additionally, he found that the applicant's evidence was unsatisfactory regarding when the applicant ceased work after the initial alleged injury on 7 June 1990. Nonetheless, and with those matters to mind, the trial Judge found, "What has tipped the balance finally in the applicant's favour is the probability, on the evidence before me, that something further to an already established back condition did happen as a consequence of the work on 11 and 12 June 1991".

Whatever may have been the cause of the back disability in June 1990 in respect of which compensation was not awarded, the trial Judge accepted that the applicant had a back condition in June 1991 and that it "materially changed its state into one which was of a more serious nature" resulting from work activity on 11 and 12 June 1991. That finding was supported by the doubtful evidence of the applicant and by the evidence of Dr Ng, in particular his notes made of the consultation with the applicant on 12 June 1991. On the probabilities, at the trial the Judge found that the changed back condition in June 1991 was due to his work activities.