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. There was additional support for that view in the evidence of Dr Bodel who found empirical evidence of back injury shortly after 12 June 1991. There was thus evidence to support the trial Judge's findings. The substance of the submission put on appeal was that, because the applicant's evidence was unsatisfactory in the five respects which senior counsel addressed, the Judge ought to have dismissed the application on the basis that he should have found that his account of the cause of the injuries, which were undoubtedly aggravated on 11 and 12 June 1991, should not have been accepted. 2 UNREPORTED JUDGMENTS In my opinion, there was evidence open to the trial Judge to support the findings which he made. It is obvious that the trial Judge was conscious of the issue of onus of proof. There was no material in the judgment to suggest that the proper test in that regard was either misunderstood or misapplied. It is apparent that the trial Judge's finding was dependent, to a substantial degree, on the credibility of the applicant, a matter which he carefully assessed. However, as required by the decision of Devries v Australian National Railways Commission,! nothing has been demonstrated to suggest that His Honour's finding, based upon that assessment of credibility, flows from the misuse of his advantage as the trial Judge, nor misuse of established fact, nor is the finding improbable. There is thus no basis in this court to disturb the trial Judge's finding. It has not been established that the finding was contrary to the preponderance of evidence. In my view, the appeal should be dismissed with costs. Clarke JA I agree. I do wish to emphasise, however, that while the various notices of appeal and the written submissions raised many asserted errors in his Honour's Judgment, the court was expressly informed that the appellant relied only on ground 1 in the amended notice of appeal filed on 8 December 1995 which was the ground to which Cole J has addressed his remarks. I agree with the orders proposed. Hunter AJA I agree with the judgment of Cole J and with the orders proposed. Clarke JA The orders of the court will be that the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: PM Hall QC Solicitors for the appellant: Hunt and Hunt Counsel for the respondent: JJ Steele QC/MN Thompson Solicitors for the respondent: McBride Harle and Martin 1. (1993) 177 CLR 472.