Kubovic v HMS Management Pty Ltd

The appeal in *Kubovic v HMS Management Pty Ltd* concerned a claim for damages for a work injury. The appellant, Mr Kubovic, alleged that his employer, HMS Management Pty Ltd, failed to provide a safe system of work, leading to his injury. The central dispute revolved around the appellant's conduct and the admissibility and weight of certain evidence, particularly surveillance footage, in assessing his claim.

The Court of Appeal was required to determine whether the primary judge erred in admitting and considering surveillance evidence that was disclosed late in the proceedings. Further, the court had to consider whether the primary judge's assessment of the appellant's medical evidence was affected by an assumption that the appellant was in control of the work environment where the accident occurred, and whether the primary judge's treatment of the surveillance evidence denied the appellant procedural fairness. The court also considered the question of costs in relation to the appeal.

The Court of Appeal dismissed the appeal. It found that the primary judge did not err in admitting the surveillance evidence, as the information regarding the appellant's gym attendance was available before the pre-filing defence was served, and the surveillance evidence itself was disclosed after the trial commenced but before the primary judge made findings. The court held that it was incumbent on the appellant to call his medical experts to give evidence about the impact of the surveillance evidence on their opinions, rather than assuming the primary judge would do so. The court concluded that the primary judge's assessment of the expert medical evidence was not flawed by factual assumptions inconsistent with the surveillance evidence. No order was made as to the costs of the appeal.