Chertes v J Thomas & Sons Pty Ltd

[1993] QCA 148

THE COURT OF APPEAL	[1993] QCA 148
SUPREME COURT OF QUEENSLAND

Appeal No. 274 of 1992

Brisbane

Before Mr Justice McPherson

Mr Justice Davies

Mr Justice Shepherdson

[Chertes v. J. Thomas & Sons Pty Ltd]

BETWEEN

VASILE CHERTES Plaintiff

(Appellant)

- and -

J. THOMAS & SONS PTY LTD Defendant

(Respondent)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27/04/1993

This is an appeal by the plaintiff from a judgment given in the Supreme Court dismissing his claim for damages for an injury to his back alleged to have been sustained late in 1986. He was then working as a panel beater in the defendant's motorbody works at Ipswich.

The plaintiff's case at the trial was that his back injury was traceable to an incident in November or December 1986. He claimed that on that occasion he and other employees of the defendant were required to join in manually lifting the damaged body or "shell" of a red Ford Falcon utility off the floor of the defendant's workshop, where it was resting, and on to a trolley, to enable it to be moved into the paint shop in an adjoining building to have some paint removed. According to the account he gave in evidence, the plaintiff was one of a group of some five or six men engaged in the lift. He put both arms under the chassis, and performed the lift starting with his knees and body bent. When the shell had been raised from the floor, the man on the plaintiff's right let go of the shell in order to pull a trolley under it. The plaintiff felt extra pressure on his arms, lower back, and body, but could not let go in case the load fell on to his legs or feet. He maintained his increased share of the load, and as a result sustained a cut on the arm from the shell; it left a scar which was still visible on his arm at the trial.

After a close examination of the evidence, the learned trial judge concluded that it was more likely than not that a lift as described by the plaintiff had not occurred. She dismissed the claim but nevertheless assessed the quantum of the plaintiff's damages at some $280,000.

In her reasons for judgment dismissing the claim the learned judge identified the factors that led her to reject the plaintiff's account of the incident he alleged, of which he was the only person to give evidence. A principal of the business, a Mr Bob Thomas, recalled receiving a damaged red Falcon utility into the workshop. He denied there was ever any lift like that described by the plaintiff. Two fellow employees who were named by the plaintiff as having taken part in the lift also testified at the trial. Alex White said he could not deny that the lift described by the plaintiff could have occurred. Tim Gillam said he was "not sure" it had not happened. However, both said they did not recall such an incident. All three witnesses said that a damaged vehicle body like that would have been placed on drums or stands, and not left sitting on the ground.

Resting it on the ground without wheels would have caused
damage to components on the underside of the vehicle body.
It would also have made it difficult to lift it up again.

The receipt at the workshop of the damaged red Falcon utility was later followed by the arrival of a new Falcon body shell. The delivery invoice for it, dated 10 October 1986, was produced at the trial. The utility had been in a "rollover" accident and externally it was damaged beyond repair. That was why a new shell was obtained. It was a white one and had to be repainted. Usable parts of the old vehicle were removed and transferred to the new shell. When the old shell had been stripped, it was dumped, and for that purpose was taken outside to the yard. There was no reason why it should have been taken to the paint shop.

The arrival at the workshop of the damaged Ford Falcon and the receipt of the new shell were sufficiently uncommon events to be remembered in some detail. According to the recollection of Thomas and of White, this was the only occasion on which a new utility body shell was ever received. The delivery truck was not equipped with a hoist and sling to offload the shell, so Thomas summoned all available able-bodied men to lift the shell off the tray of the truck. About 12 to 15 of them, including the plaintiff, participated. Two or three mounted the back of the truck and the others stayed on the ground. Those on the truck pushed the new shell off the tray and on to some 60 litre drums on which it was to rest in the paint shop. The function of the men standing on the ground was to guide the shell down from the tray of the truck on to drums. Two of the drums were not in the best place to receive the shell, which then had to be juggled to make sure it balanced. This process of adjustment took place at the corner where the plaintiff, one Scott, and another man were holding the shell.

If the plaintiff hurt his back at work in some incident resembling the one he described, it was possible that it was the same incident as that in which the new shell was off-loaded at the workshop. There were some obvious similarities between the two. Moreover, in April or May 1987, before going off on workers' compensation, the plaintiff told Thomas that he had a sore back, which he said he had sustained when the new shell was lifted off the truck. White testified that the plaintiff had said much the same thing to him, pointing out to him (White) the place where it had happened, which was outside the paint shop below a sign with the business name on it.

It may be thought that taken together these circumstances suggested that the plaintiff was mistaken in thinking that he had hurt his back in lifting the red Falcon body off the floor; but instead that he had sustained the injury in the course of helping to lift the new white shell off the delivery truck. The plaintiff, however, was adamant that that was not the case. He denied participating in the lift involving the white shell; he said that a crane was used to take it off the truck. He also denied telling Thomas and White that he had hurt his back on that occasion.

Confronted by evidence like this, it is not at all surprising that the trial judge concluded that the lifting incident described by the plaintiff had not occurred. Late in the trial applications were made to amend the statement of claim by alleging the other lift (involving the new shell) as an alternative cause of the plaintiff's injury, but those applications were refused by the trial judge. The correctness of her Honour's decision refusing leave to amend was challenged on appeal; but, quite apart from problems associated with the limitation period and its expiration, as well as the lateness of the application (cf. Ralph v. Strutton [1969] Qd.R. 348), the amendment directly contradicted the plaintiff's own evidence.

It was therefore not, on any view of it, possible to
treat what the plaintiff and the other witnesses had said as
amounting simply to differing accounts of the same incident.

Plainly what they were describing were quite different

events that must have taken place on separate occasions.
According to the plaintiff's account, a damaged red Falcon
body was lifted from the ground by some five or six men, and
placed on a trolley. According to the other witnesses, a
new white Falcon shell was lifted from a truck by some 12 to
15 men (of whom the plaintiff was one) and placed on some
drums. The date, the subject matter, the nature of the
lift, and the number of participants, were all different.
In respect of the lift described by the plaintiff, there was
evidence of negligence which was not really disputed; in
respect of the lift described by the other witnesses, there
was no clear basis for inferring negligence. When all these
circumstances are considered, it is plainly not possible to
say that the judge was wrong in exercising her discretion as
she did in refusing to allow the amendment sought. It
follows that her decision is not one that can or should be
upset on appeal.

The action is one in which the trial judge has reached a conclusion of fact based both on the impression she formed of the critical witnesses whom she saw and heard at the trial, and the view she took of the probabilities of the matter in contest. On neither basis is the decision here vulnerable to challenge on appeal. The accounts given by the plaintiff and Thomas about the incident alleged to have taken place were completely in conflict. Among those giving evidence, no one else who was said to have been present on the relevant occasion could recall it, and the circumstances described by the plaintiff make it unlikely that it ever took place. As a matter of probability, it may on the evidence have been objectively more likely that the plaintiff had in fact been injured in the course of lifting the shell off the truck than by the means he himself described; but in the face of his own express denials, it would scarcely have been open to her Honour to make any findings to that effect even if the state of the pleadings had permitted it.

When a judge at trial decides an issue of fact according to whether a particular witness is or is not believed on a critical matter, it has always been difficult to reverse that decision on appeal. It was said that the present case was exceptional in that, in failing to find that the injury had occurred as the plaintiff had said it did, the judge had misused the advantages that accrued to her from conducting the trial. It is, however, not possible to sustain such a submission in the face of the objective probabilities as we see them to be. There is nothing at all to suggest that her Honour squandered any of the acknowledged advantages she enjoyed as the trial judge.

It was submitted that her Honour may have formed an unfavourable view of the plaintiff as a witness because of the unusually vigorous manner in which the defence case was conducted. In the course of cross-examination a number of discreditable matters were put to the plaintiff. He rejected them as false, and in the end no evidence was called to substantiate them. This meant that the imputations made against the plaintiff had to be considered as quite without weight. It is, however, possible that the tactic of putting these questions to him has left the plaintiff with an unjustified, but not wholly unnatural, suspicion that in some unidentifiable way those matters must have counted against him in the result. If that is what he suspects it serves as a salutary reminder of the virtues of strict adherence to the Bar's ethical rules governing cross-examination of witnesses concerning matters suggesting misconduct; but we are satisfied that the outcome of these proceedings has not been affected.

In the end, however, it is clear that it was nothing like that that led to the failure of the plaintiff's case at trial. His claim was defeated not because of any hidden prejudice against him; nor because of any deficiencies in his grasp of English; but simply because the account he gave of the circumstances in which he said he sustained his injury is, on all the evidence before the trial judge and this Court, an improbable account of what caused the injury.

It follows that the appellant can gain no assistance on appeal from showing that at the trial he successfully weathered the imputations against his credit that were made against him in the course of cross-examination.

In our opinion there is no foundation in anything advanced in support of the appeal that enables it to be sustained. It must be dismissed. A cross-appeal was instituted, but we were told in anticipation only of the possibility that a new trial as to liability might be ordered, in which event a new trial as to damages was also sought. In view of the fate of the appeal, the cross-appeal will also be dismissed. The appellant should be ordered to pay the respondent's costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 274 of 1992

Brisbane
[Chertes v. J. Thomas & Sons Pty Ltd]

BETWEEN

VASILE CHERTES Plaintiff

(Appellant)

- and -

J. THOMAS & SONS PTY LTD Defendant

(Respondent)

Mr Justice McPherson
Mr Justice Davies

Mr Justice Shepherdson

Judgment delivered 27/04/93

Reasons for judgment by the Court

APPEAL AND CROSS-APPEAL DISMISSED. APPELLANT TO PAY

RESPONDENT'S COSTS.

CATCHWORDS	MASTER - SERVANT - Liability - negligence - Amendment of statement of claim - credibility of witness - Conflicting testimony - Whether cross-examination prejudicial
Counsel:	Mr Samios for the appellant plaintiff Mr C. Hampson Q.C., with him Miss M. Wilson

Solicitors: McCullough Robertson t/a for Walker Pender,

Ipswich, for the appellant plaintiff

Quinlan Miller & Treston for the respondent

defendant

Hearing Date: 2 April 1993