Devries & Anor v Australian National Railways Commission and The State Transport Authority

[1992] HCATrans 254

...

.

1!'

-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1992

B e t w e e n -

PETER JOHAN DEVRIES and VIVIAN

ALMA DEVRIES

Appellants

and

AUSTRALIAN NATIONAL RAILWAYS
COMMISSION and THE STATE

TRANSPORT AUTHORITY

Respondents

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 1 SEPTEMBER 1992, AT 10.43 AM

Copyright in the High Court of Australia

Devries(2) 1 1/9/92

MR T.A. GRAY, OC:  May it please the Court, I appear with my

learned friend, MR R.A. CAMERON, for the

appellants. (instructed by Adams Kandelaars)

MR K.R. McCARTHY, QC:  May it please the Court, I appear

with my learned friend, MR R. SOULIO, for the

respondent. (instructed by Ross & McCarthy)

MR GRAY:  Can I pass to the Court our outline of argument?

BRENNAN J:  Those are very full notes. You will no doubt

bear that in mind as you are addressing us.

MR GRAY:  If the Court pleases, the notes are full and it

has been done in an attempt to condense the written evidence to a manageable form. I do not propose to

go to the evidence much at all.

If the Court pleases, just to introduce the

circumstances of the incident, could I take the
Court to book V of the appeal books and, in

particular, the judgment of the trial judge

Justice Legoe at page 963. At that page His Honour

conveniently sets out the plaintiff worker's

evidence in regard to the incident when the

plaintiff said:

"While we were going like a bat out of hell to

beat the trains, my tie tamper got stuck and

the train was pulling into the station and I

am trying to undo my tie tamper, wriggling,

jerking, carrying on. As it came out,

something horrible went wrong with my back.	I
got a terrible sharp pain and that was it

after that.	I was in trouble.	My back seemed
to be gone."

If the Court pleases, His Honour the trial judge,

at page 975 line 25 through to 976 line 5, accepted

that account of the incident, and he did so being

fully aware of what were suggested to be

inconsistent statements made in a work injury claim

form following the incident. And at page 980

line 13 to line 20, when dealing with contributory

negligence, His Honour repeated his finding as to

the injury and the way in which it arose in a

convenient form, starting with the sentence:

However, I find that the injury did arise out of the use of what was an insufficiently

welded or poorly welded tie tamper which must

have got stuck in the mud or material

underneath the sleeper, which caused the

plaintiff to have to use greater force than

would otherwise be necessary with a smoother

Devries(2) 2 1/9/92

bladed piece of equipment, which led to .the

back injury.

Now, that evidence and those findings, of course,

involved a question of the acceptance of the

plaintiff as to credit, and the plaintiff's credit

and that account is a central issue in the case.

Just to introduce a little of the background to the incident, might I describe certain matters
to the Court. The plaintiff was a longstanding

employee of the railways and he had been promoted

through various grades to a ganger, and the

particular incident involved the repair of a

railway track and it was a well established routine

that was being undertaken. The piece of equipment

being used, the tie tamper, also was a well

established piece of equipment and there are

photographs in the envelope at the back of Volume V

of the tie tamper. It was a jackhammer or

pneumatic drill type of equipment with a head or a

tip designed to compact ballast beneath the railway

line. It is reasonably heavy equipment. The area

in question was prone to be muddy when wet and when

the mud dried it was dried mud that formed a crust

and it hardened like concrete, and it was through

that type of material that the plaintiff was

working at the time.

The nature of the equipment, if the Court

pleases, was that it was subject to heavy wear and

they require repair, and the method of repairing

the tips was to weld the tips, but rather than

smoothing off the tip following welding they were

left in a rough form, and His Honour found, on the

clear evidence, that the tie tampers had welds or

protuberances sticking out from the surface of the

tip, and the problem that arose was when the tie

tamper was engaged and came to be disengaged it

would sometimes stick, and one of the causes of the

sticking were these protuberances or welds on the

tie tamper. And the evidence was, and His Honour	found, that there was a simple expedient
inexpensive way of solving that problem and it was
to smooth off the tips at a cost of about $70 to
$80 for a tie tamper.

Now, the problem of sticking and trouble to

remove a tie tamper was not unknown and it had been

a subject of complaint to the employer, not only by

the plaintiff but by other workers, and there was

clear evidence of that, but the problem had not

been attended to by the employer.

The plaintiff found himself working on a

railway track where trains passed about every half

an hour, and as a train passed the equipment had to

Devries(2) 3 1/9/92

be removed to avoid the risk of damage to it, and

so if a train was approaching the tie tamper would

have to be removed, the train passed, and then back

to the job. And as the plaintiff worked on the

line between Adelaide and Gawler he became aware of

a train at the Gawler station on the other track,

that is the track from Gawler to Adelaide, and that

then led to his manoeuvres to get the tie tamper up

before the train came, so the removal - there was
some sense of urgency about it. And, again,

His Honour made findings on that and there was

evidence clearly to support it.

So, in that sense the case presents really as

quite a simple one. There was expert evidence
called from a mechanical engineer, Mr Maddern, and

an occupational health expert, a Dr Mills, who

explained to His Honour very clearly the forces

involved and the risk involved, and the

foreseeability or the predictability of trouble in

the event of sticking and a need to remove the

equipment with a train approaching. All of that,

with respect, is quite straightforward and in the

outline of argument those relevant facts have been

summarized in a series of subparagraphs and there

has been reference, not to all evidence, but

reference to evidence that supports every finding

from the plaintiff, the corroborative witness, and

then His Honour's finding. And, in a sense, that

outline does little justice to the trial judge's

very full findings and treatment of those matters.

Now, the plaintiff's evidence was that the

incident occurred about mid-morning, - about
10.30 - on 23 January 1985, and he, as Your Honours

have seen in the evidence, described the immediate

problem he was in. And there was evidence from a

fellow worker, Pittaway, called by the defendant,
the respondent to this appeal, and Pittaway
corroborated, not the incident - he did not speak

of the incident because he did not see that - but

ability to get about his work. And so there was	he spoke of this marked change in the plaintiff's
clear evidence - corroborative evidence - of
observations of the plaintiff and his inability to
do the task from Pittaway mid-morning.

The corroboration did not stop there. At

lunchtime the plaintiff's evidence was that he was

too sore to sit down and had to stand up; Pittaway

confirmed that. In the afternoon, he stayed at

work and did not do his normal duties but did very

light tasks; Pittaway confirmed that. At knock off

time the gang had two vehicles, a bus and a truck,

and it was the plaintiff's job to drive the truck

back to the depot, that fell to a senior person in

the gang. He could not drive the truck back on

Devries(2) 1/9/92

this occasion, he said. Pittaway confirmed the

plaintiff did not drive the truck back as he

normally did, in fact he drove it back.

When he got back to the work depot normally he

would make his way home. He said he could not do it and his wife gave evidence that she received a

call saying her husband was in trouble to come and

get him and she did, and she described, in quite a

vivid way, his changed condition than before when he left for work that morning. He was then taken to a clinic that evening and he was seen by a

Dr Lo. Now, in the Full Court reasons, the

intermediate court reasons, the point is made that

Dr Lo was not called and that is quite true, but

the content of his note was admitted into evidence

without objection, and Dr Lo's note recorded that	on examination there was severe muscular spasm
evident, and the note referred to an incident of a
complaint about back pain. jackhammer with an arrow in the note leading to the

There was a consistency in the account given

in a general way that evening, but more

particularly there was corroboration of injury

through the detection of muscle spasm in the back.

BRENNAN J: Where is Dr Lo's note?

MR GRAY:  That, if the Court pleases, is in Volume III at

page 582, lines 14 to 21. It was during the

evidence of a Dr Colombo, another doctor who saw the plaintiff, that reference was made to a note

and His Honour, at line 15:

Whose note is this.

And the answer:

The gentleman who made these notes is a Dr Lo,

I recognise the writing.	He is one of the
doctors there now. Entry on 23 January 1985,

works with jackhammer arrowgoing to or causing

or leading to back pain. On examination

severe muscular (lumbar) spasm, for digesic

and review in the morning.

Now, if the Court pleases, one of our complaints

about the intermediate Court of Appeal is that it

referred to Dr Lo not being called in a critical

way but, of course, the substance of Dr Lo's

contemporaneous note was in evidence before the

trial judge and not objected to. Plainly, it would

be a business record, we say, in any event within

the South Australian statutes.

Devries(2) 1/9/92

The corroboration did not stop there, if the

Court pleases. The wife gave evidence of the

troubled night the plaintiff had and corroborated

his account. And the following morning she took

him to see a general surgeon, Mr Ravindran, and he

saw Mr Ravindran on 24 January. Mr Ravindran gave

evidence in his reports that were tendered, and

there was a very perfunctory reference to the

history of the incident, and Dr Ravindran's sworn

evidence was that the man was in too much pain to

attempt to take a history about the incident, and

he did not do so; he was concerned with treatment

rather than the detail of the incident. But

Dr Ravindran did observe on clinical examination

the severe muscle spasms continuing.

Then, further, there was support for the

plaintiff from the experts as to the injury being

consistent with the incident as he described

it -

DEANE J: But does not Dr La's note suggest that your client

had given an explanation of it being caused by a

jackhammer?

MR GRAY:  Yes, working with the jackhammer, that is the tie

tamper.

DEANE J: It is a jackhammer, is it?

MR GRAY:	Yes.
DEANE J:	I did not appreciate that.
MR GRAY:	No, if the Court would look at the envelope at the

back of Volume v, Your Honour Justice Deane will

see a series of photographs of the equipment in

question. Photograph No. 2 is, perhaps, a

particularly apposite one to show the equipment,

and it is pneumatically driven - - -

DAWSON J: That answers my query.
MR GRAY:	- - - and it is colloquially described by some as

a jackhammer, but in fact its technical name is a tie tamper but it works in the same way. So that

the note is referring to that piece of equipment

that the plaintiff was using.

Now, the first major ground of appeal is that

the intermediate court misapplied the principles in

regard to reviewing a decision of the trial judge

resting heavily on credibility, and that matter is

set out in No. 3 on pages 6 and 7 of the outline of

argument.

Devries(2) 6 1/9/92

DEANE J:  Mr Gray, while you have got me with the photos,

can I take you to No. 5? You can see there there

is a ledge on the top side and there is a ledge

further down on the right side. Which is the ledge

that the complaint is about?

MR GRAY:  They are both are, yes.

DEANE J: They are both are? I see.

MR GRAY:  The matter was not so specific to identify exactly

what caused the catching. The evidence was that

these roughly welded tie tamper tips caused

sticking. There had been complaints about them,

the problem had not been addressed, the tie tamper

stuck on this occasion.

DEANE J: But the head goes in far enough for the top side

to be in the clay material and get stuck?

MR GRAY: Yes, it does.

DAWSON J:	It looks as if what was meant to be a blade has been blunted by welding something over it, is that
correct?
MR GRAY:	Yes, that is so, and it goes into a mixture of a

clay muddy soil and metal. They are bits of gravel

and hard substances that make the ballast, and one

has that crust that forms, one has a muddy soil

then dries, it is that type of crust that was being

worked into but there is metal in there and bits of

stone - the underside of the rail, for example.

There is a countless number of objects on which it

can catch or stick, and His Honour's finding in

that regard was very clear, and he found there was a want of care; that here was a risk plainly known

.to the employer, inexpensively attended to, that

was not addressed and then, on the expert evidence

occurred. led, entirely consistent with the injury that

On the question of credibility and demeanor

the trial judge not only had the advantage of
seeing and hearing the witness but he saw and heard
the witness over four days and the witness
undergoing the most extensive and thorough of
cross-examinations. So it was a case where

His Honour had had the occasion for a long observation of the witness, and he comments on

that. His Honour made specific findings as to
truth and credit of the witness in the passages

that are addressed in the outline of argument.

They are express findings and carefully made

findings.

Devries(2) 7 1/9/92

Much was said about the prior statements. Could I identify those to the Court? They are easily found in the Full Court's reasons, Volume V,

first at page 1020 lines 25 to 30. This is a claim

form, it is exhibit P3, it is in the book, but the

essential words are set out in the reasons of the

intermediate court.

"I was working with the tie tamper on 22.1.85.

When I was getting sarp (sic) pains in my'n

(sic) back (lower part) on the 23.1.85.	The
pain was worse and hard to walk."

And over the page on the same occasion on a

separate form P4, there appeared:

"I was working with the tie tampers.	When I
was getting sharp pain in my'n (sic)	back.
Back pain becoming worse on 23.1.85.	Hard to
walk."

Now, the circumstances were, if the Court pleases,

in the making of that statement is that the

plaintiff was at hospital on 24 January, the day

after the incident, and his son came with the forms

for him to sign, forms that allowed the workers

compensation process to start. And his evidence

was that he is not good with English, and I will

take the Court to that passage, and further he was

in extensive pain at the time, and that

notwithstanding what was written on those forms, it

was not the true account of the incident.

The learned trial judge heard that evidence,

heard that explanation, and brought to account the

prior statements and explanation and weighed that
with all the other evidence in the case, and
decided that he accepted the plaintiff's sworn

testimony.

Now, if the Court pleases, we say that

His Honour, in that regard, acted impeccably.

His Honour's approach was copybook. The Appeal and treated them as though they were conclusive

against the plaintiff on the question of veracity

and reliability and, in doing so, we say, the

intermediate court fell into error.

I will come back to that particular

proposition in a moment. Can I just, perhaps,

finish a submission regarding credibility and

demeanor. The intermediate Court of Appeal

addressed that matter and the legal test at

page 1022 line 15:

Devries(2) 1/9/92

The way in which a court of appeal should approach a finding of fact made by a trial

judge are to be found in the judgment of Kirby

A.C.J. in Galea v Galea .•... The appellants

counsel also made reference to Brunskill's -

case. Now, the test enunciated in Galea was what

we would describe as being the glaringly improbable

test, that before the appellate court is going to

reverse a trial judge when matters of credit have

been assessed, the account or the finding must be

glaringly improbable. Now, that is not what the

intermediate court did here, the court here did not
make any finding that the plaintiff's account or
the judge's findings were glaringly improbable,
they found on the balance of probabilities. So

having enunciated that test, we say that a gloss

was applied to it and a lower standard was called

for. The Full Court's reasons, in that regard, are

perhaps summarized at page 1024. Justice Mohr, in

delivering the principal set of reasons:

In my opinion the inconsistencies between

established facts and the respondent's

evidence were so great that grave doubts were

thrown on his sworn testimony at the trial. So much so that he did not establish on the

balance of probabilities that the incident

deposed to happened.

McHUGH J: What were the established facts - the plaintiff's

statements in the documents?

MR GRAY: Apparently. That is the only matter that the

court alludes to, there are those two statements,

there is an answer to interrogatories, there is

what the Full Court treats as recent invention - namely, the plaintiff's first account consistent
with his evidence being three-and-a-half years

after the event - matters of that nature.	I will
come to analyse those shortly, if I might.

DAWSON J: Was it contested that he suffered an injury as

opposed to the manner in which he suffered injury?

MR GRAY:  Yes, the respondent's case was that it was an

ongoing back strain problem, using heavy work,

having a backache, a back strain. As I understand

it there was not a contest that there was something

wrong with his back - - -

DAWSON J: What caused it was the - - -

MR GRAY:  What caused it was the primary question. The

plaintiff's evidence was that at the end of a heavy

day's work there would be discomfort, but what

happened on this day was quite different. So, our

Devries(2) 9 1/9/92

first proposition is that the court, in identifying

Galea, were identifying the glaringly improbable

test and then failed to apply that test; rather

they applied a test on the probabilities.

Rather than His Honour's findings, the trial

judge findings, being glaringly improbable, we say

they were the opposite. They indicated a common

sense state of affairs corroborated by quite a

substantial body of evidence, both the fellow

worker at the scene and also the experts.

There was another worker at the scene, a

fettler, Brown, who was not called and the

intermediate court of appeal makes reference to

that. Brown was opened by the respondent as a

witness in the case but not presented. So, we say

that no adverse conclusion can be drawn against the

plaintiff because of that.

Justice Matheson, in his short concurring

reasons, does identify another test also coming
from Galea's case. In Galea's case Acting

Chief Justice Kirby had spoken of where a trial judge has failed to take into account

contemporaneous correspondence which repeatedly

states matters wholly at odds with the conclusions

reached, the Appeal Court has a basis for

interfering. What we say is that Justice Matheson

identified the wholly at odds test, if one could

call it that, but he overlooked the critical

qualification that Acting Chief Justice Kirby had

placed on it, namely, where a trial judge had

failed to take into account those matters. Here,
the trial judge, Justice Legoe, had expressly taken

into account not only the statements but the

circumstances in which they were made.

Justice Matheson appears to have overlooked that

and, again, has put a gloss on the test.

DAWSON J: What was the purpose of putting in the forms in

relation to previous claims?

MR GRAY:  It was suggested that that was relevant to the

plaintiff's ability to make a statement about a

work injury.

DAWSON J:	Who put them in?
MR GRAY:	The defendant put in the earlier statements about

earlier incidents.

DAWSON J:  I do not follow your reply to me then: the

purpose was to show his inability to make

statements?

MR GRAY:  No, to show his ability

Devries(2) 10 1/9/92

DAWSON J:	I see.
MR GRAY:	- - - to make, give a report about an incident in a clear way, and the inference being then that the
reports, in regard to this incident, were clear
accounts of the incident being given by the
plaintiff, whereas the plaintiff was saying, HI
didn't get it right.  My English isn't good and I
was in pain at the time - - -

DAWSON J: Where is the report in this case in the judgment?

MR GRAY:  It is in the Full Court reasons at 1020 at the

foot, lines 25 to 30, and that is an extract from

the first of the reports in regard to this

incident, and over the page at 1021 is the second

of the reports - - -

DAWSON J: What is said to be inaccurate about those?

MR GRAY:  It is suggested that they speak, as I understand

it, of an incident occurring on 22 January, the day

before, and they do not identify a specific

incident.

BRENNAN J: The event took place on the 22nd instead of

23 January which was the date that the plaintiff

alleged.

MR GRAY:  Yes, it is suggested that the contemporaneous

report referred to an earlier day rather than the

day he complained of.

DAWSON J:  It does not mention the train coming?

MR GRAY:  No, those types of details are not there. There

is a level of inconsistency about it - it is not

completely inconsistent, it speaks of back injury

at work, but there is a level of inconsistency -

and His Honour identified that and then looked at

the circumstances of the statement. If the Court pleases, if I can move directly
to that. Can I just identify to the Court what we

say are the correct legal principles. The first
case that we invite attention to - they are all

criminal cases, but perhaps points of evidence come

to be debated frequently - there is Reg v Jackson,

_it is a Queensland case, (1964) QR 26. I

understand there has been a book of cases provided, it is behind the fourth tab. The two passages I am about to read from have both been approved by this

Court in Driscoll's case . . The question arose about

the significance of a prior inconsistent statement

of a witness.

Devries(2) 11 1/9/92

DAWSON J: That is not a question of law. It is not a

matter for the reports, surely, Mr Gray, it is a

question of fact in every particular case.

MR GRAY:  That is our point and we say that is what those

cases stand for, but the Full Court rather treated

the fact of inconsistent statements as being in

some way conclusive against the plaintiff and that

is our complaint, that in doing so they were, in

effect, putting too great a weight on these

so-called prior inconsistent statements.

DAWSON J: The inconsistent statements are the ones we just

looked at?

MR GRAY: Yes. Perhaps it might be convenient if I just	take the Court to some brief passages where the
plaintiff actually dealt with these prior
statements and the circumstances in which he said
they were made. If the Court can go to Volume II, page 212 line 25. There has been a
cross-examination about the suggested inconsistency
and Mr Devries said this:

Yes, that could be so, yes. I wish I was more

educated then in these things and probably

would think of those things. As you can see

from the writing, I am not the greatest

educated guy in the world.	I can normally get
away with the English with that.	If I was an

educated guy, I would have written different

things like that.	I am not that type of
person.	I am terrible sorry to say about it.
I am sorry I am not that sort of person.	I am

terrible sorry if I left the things out like

what you stated.

And there the cross-examiner was putting what he

said were the deficiencies in this work injury

account. And over the page at page 213 line 6:

Do you say it's because of your lack of

understanding of English that you did not put

that in. Is that what you are saying.

A. I am terribly sorry to say so, yes. I

don't lie. This is most of my writing has

been like that.

And then a little further down the page it deals

with the question of pain, at line 16:

I am not offering it, I am telling the truth.

That is the truth. I saw it myself and was in

hospital and that is the way when I was in the

severe pain when I wrote the thing out. That

is the way I exactly put it down, the quickest

Devries(2) 12 1/9/92

way possible, and I put it. I am not offering

nothing. That is exactly the way I felt when

I filled it out, the form out. I am terrible

sorry that is the way it is.

BRENNAN J:  Mr Gray, this form was filled out on the 24th,

is that right?

MR GRAY: Yes.

BRENNAN J: That is the day on which Dr Ravindran examined

him?

MR GRAY: Yes.

BRENNAN J: What time did Dr Ravindran see him and find that

he could not take a history from him in comparison

with the time at which this form was filled out?

MR GRAY:  Both took place in the morning, as I understand,

on the evidence.	It is not entirely clear on the
evidence as to the precise times.	I will just have
that searched for.

That was the plaintiff's explanation and there

is quite a long passage there where he is

questioned about it, and we say there is a degree

of confusion, it is obvious, and His Honour

accepted that.

BRENNAN J: The judge found the confusion was due largely to

the pain, did he not?

MR GRAY:  Yes.

BRENNAN J: And that is why I was asking you the questions

to discover what evidence there was to support that

interpretation.

MR GRAY: Yes, I will just have that checked. It is the

precise reference. But Dr Ravindran's consultation

was on that, the 24th. The evidence in regard to

the son coming in was at volume I, pages 52 and 53.

But, if the Court pleases, our simple point is that

there was an evidentiary basis on which the judge

could act and did act. It was open to him to do

that and that is unchallengeable by appeal.

Dr Ravindran's evidence, in regard to the time

of his examination was at page 538 through to 540,

and he did not identify a particular hour of the

day, he was not asked by either party. The

plaintiff said that he saw Dr Ravindran about half

an hour after he arrived in the morning, and that

is at page 207.

Devries(2) 13 1/9/92

If I might just summarize our complaint in

regard to that aspect of the matter, the learned

trial judge dealt with the suggested prior
inconsistent statements, addressed them

specifically, brought them to account, found an

explanation for the inconsistencies that were said

to be there and accepted the plaintiff's sworn

evidence before him. We say that demonstrates no

error, rather an accord with the proper approach.

The Full Court, by contrast, the intermediate Court

of Appeal, did not address the question of the
circumstances in which the statements were made.

It simply did not address it.

If the Court pleases, can I move then to our remaining complaints in respect of the Court of

Appeal judgment. In their reasons - and if the

Court would go to volume V and, on this occasion,

to page 1021. We say that the effect of what the

court's reasons were, it follows that the account

of the plaintiff was one of recent invention, it

was mentioned until about three and a half years

after the incident and they proceeded to allow the

appeal on that basis. In doing so they fell into

error. At 1021, the passage starts:

Dr Lo who saw the respondent at the Europa

Clinic on the evening of 23rd January was not

called.

True, but no reference is made to the fact that the content of his note was admitted into evidence without objection.

Dr Ravindran, the general surgeon, who saw the

respondent at the hospital on the morning of

the 24th January said in evidence that he did

not take a detailed history from the
respondent -

he went on to say "because the man was not fit to

but in his report of the 25th February 1986 he

speaks of the history given and says:

"He complained of pain in his lower lumbar

spine of two days duration. He worked for
Australian National Railways and was using a

jack hammer for a whole day and felt pain in

his back."

He repeats this history in a further report

dated 26th January 1987.

take a history from", page 977 -

The first mention of an incident as

described in evidence by the respondent is in

Devries(2) 14 1/9/92

a report of Mr Cohan, a specialist surgeon who
examined the respondent on behalf of his

solicitors on 19th July 1988.

That version is then set out.

What the court overlooked was that a

Mr Schaeffer, a neuro-surgeon, had examined the

plaintiff on behalf of the employer on

10 February '86. If the Court goes to page 815, in

book V, the Court will find that report, and at the

foot of the page the relevant history is

identified.

If the Court pleases, might I then draw the

contrast. The Full Court's reasoning is we are
dealing with a man who first saw Dr Lo who was not
called, who then saw Dr Ravindran who did not take

a detailed history but took a history and who then

presented to Mr Cohen, three and a half years

later, with the first time a story consistent with

his evidence and they proceeded to bring that to

account against the plaintiff.

The true facts were that a complaint

consistent had been given to Dr Lo on the evening

in question. Dr Ravindran had not taken a history

because the plaintiff was unable to give one at the

time he examined him. Mr Schaeffer, the examining

surgeon for the employer, took a history consistent

on 10 February '86, just on a year after the	incident and that history was then confirmed two
and a half years later by Mr Cohen.

DEANE J:  Does not that really put it a bit highly in that I

follow complete the force of what you say about the

last.paragraph of Dr Schaeffer's first page but,

putting that to one side, the point that the

Full Court is making is the distinction between

complaint about injury caused by use of jackhammer
during the day and complaint about a specific

incident. If you put aside Dr Schaeffer, is not

what they say about Dr Lo and Dr Ravindran fair

enough?

MR GRAY:  Neither specifically confirmed the incident but

there is an explanation for that that the court

does not address.

DEANE J:  I follow what you say about the explanation but I

have trouble seeing much force in your criticism of

what the Full Court says at page 1021 about Dr Lo

and Dr Ravindran.

MR GRAY:  If the Court pleases, I do not wish to put it too

high. I am content to leave it on Mr Schaeffer.

Plainly, the court overlooked a critical piece of

Devries(2) 15 1/9/92

evidence in regard to the suggestion of recent

invention though it does appear to overlook Dr Lo's

note and they made the point he was not called. the court.

If the Court pleases, the next point is

perhaps a small one but I do just mention it

briefly. There was an interrogatory and answer

that the Full Court thought was counted against the

plaintiff and the interrogatory and answer appears

at the top of page 1022. We would say that the answer is equivocal and, in fact, the plaintiff

gave an explanation about it as to what he meant by

his answer. The question was:

What period of time elapsed between your first

commencing to operate the equipment at the

time the first injury occurred and the

occurrence of the said injury?

A. The injury occurred over several hours

prior to lunch while using the said equipment.

The confusion is over the word "over". Does that

mean during the course of that several hour period

or does it mean more than several hours before

lunch? The plaintiff gave an explanation in

evidence about that. It is picked up in the

references in the precis and he said that he used

the word "over" meaning it took place before

several hours prior to lunch. The Full Court

construed the answer the other way of saying that

it meant - apparently suggested it took place

during that period of several hours, over the

duration of several hours. A classic case of an

ambiguous answer, the plaintiff gave an explanation

and, apparently, the trial judge accepted it.

If the Court pleases, in their reasons, the

Full Court find that on the probabilities the

plaintiff had not made out his case but they do not

ever, at any stage, analyse the detailed

circumstances: they do not seek to weigh or assess

the corroborative evidence that the trial judge

addressed: they simply seem to proceed on the basis

there is a prior inconsistent statement, that leads

to a conclusion of unreliability of his evidence,
therefore he fails. We say that that approach is

wrong.

The other matters I will leave simply for the

precise except to say this, that there were two

incidents and two claims that were heard together,
two separate causes of action. The trial judge

found for the plaintiff on both: both were the

subject of appeal. The Full Court, in their

Devries(2) 16 1/9/92

reasons, decided and addressed only the first

incident and, having done that, concluded there

should be a retrial at large on the second incident

and that was a matter that was addressed at the

time of special leave.

Between the time of the Full Court decision

and the special leave application being heard, an

admission was received in regard to liability in

regard to the second incident, that thus he has

made that part of the appellate process moot. But

we say that there is error demonstrable on the face

of these reasons and that the Full Court overturned

and directed a retrial in regard to the second

incident without any reasons at all. But that

point has been rendered moot by the admission of

liability that has now come.

DAWSON J: But the damages were assessed together for the

first and second accident?

MR GRAY:	Yes, the damages were assessed together.
DAWSON J:	So would there need to be another assessment of

damages in relation to the second accident?

MR GRAY:  If the Court pleases-~, the damages are the subject

of an appeal and cross appeal and we would say if

the Court agrees with our submissions it would

remit the matter to an intermediate Court of Appeal

to decide the appeals on damages. There is

outstanding an appeal and cross appeal on damages

that have not been dealt with.

DAWSON J:  I am not sure that I follow. Can you separate

the damages awarded in relation to the first and

second accident?

MR GRAY:  No, the damages were addressed globally.

His Honour found liability fully established for

both incidents but it became one assessment of

damages.

DAWSON J: So there would have to be a reassessment of

damages if the Full Court were right?

MR GRAY:  If this Court rejected the appeal that we make

there would have to be a reassessment of damages.

DAWSON J: But otherwise there would not, it would just be a

question of quantum.

MR GRAY: That is so, yes. But, if the Court pleases, if

the court directed a retrial in regard to the

second incident as to liability as well, they
simply sent the whole matter back for a retrial.

That was their order.

Devries(2) 17 1/9/92

BRENNAN J:  Is what you are saying is the Full Court made an

error in that respect but it is an error that does

not have much to concern you with at this stage now that you have got an admission of liability but the

matter could not be sent back to the Full Court to

deal with damages if the present order of the Full
Court for a setting aside the first finding of

negligence stands?

MR GRAY: That is so, if the Court pleases. Then the proper

order would be - the Court would dismiss this

appeal but otherwise it would have to be remitted

back to the trial judge to assess damages in regard

to the second incident.

DEANE J: Except it is not quite clear that the Full Court

did what you say they did, is it? At page 1024, I

would have thought there is a lot to be said for

the view that Justice Mohr probably used the wrong

words in meaning to say there had to be a retrial

of assessment of damages.

MR GRAY: Unfortunately, because he used those words, there

was an order drawn up by the court and it has an

effect. But the point he rendered moot, in a

sense, because of the concession now of liability

in regard to the s~cond incident.	We thought we
should draw that to the Court's attention.	It was

agitated at special leave and we accept the point

is moot. It does indicate, If Your Honour pleases,

we say though, another error on the part of the

Full Court but not germane to the current appeal.

May it please the Court.

BRENNAN J: Thank you, Mr Gray. Yes, Mr McCarthy.

MR McCARTHY:  If the Court pleases. I hand up a summary of

.an outline of submissions that are to be made on

behalf of the respondent.

BRENNAN J:	I think we have that.
MR McCARTHY:	We may have beaten the gun and I apologize if

I should not have. Can I put my learned friend's

last comments in context, that, if the Court

pleases, the plaintiffs brought proceedings against

the defendants in respect of two injuries. The

learned trial judge found against the defendant in

respect of both of them and found no contributory
negligence in relation to either.

The current respondent appealed in respect of

both judgments. It was recognized early that if,
indeed, judgment ought not to have been entered in

favour of the plaintiff - the current appellant -

in respect of the first injury, then the matter

would have to go back for assessment of damages in

Devries(2) 18 1/9/92

relation to the second, and a decision would have

to be made in relation to contributory negligence in relation to either the first or the second and

the Full Court did not deal with those questions at

all.

That defect, if I can call it such, was cured

by an admission of liability in respect of the

second. But the appeal in relation to the first

injury is still extant in relation to the question

as to whether or not it was the defendant's

negligence which caused the injury alleged to have

occurred on 23 January 1985. The whole point of

the plaintiff's case was that there was one

particular incident in the tie tamping which was

caused by the defendant's negligence.

My learned friend has taken the Court through

the book of photographs in the envelope in the rear

of book v. I think perhaps the Court ought to

realize just exactly what this particular gang was

doing all the time; tie tamping may not mean very

much. But, indeed, when trains run over lines

which are held up by ballast sometimes the ballast

sinks into the surrounding earth and the lines get

a dip in them. So what has to be done is for the

sleepers, with a line attached, to be lifted up and

the ballast re-aligned, as it were, so that the

line can then be straightened out in the horizontal

plane. And that is the process of tie tamping.

At some stage during the trial and in the

evidence there is reference to sighting up the

line. What one of the members of the gang has to

do, of course, is to get down and have a look along

the line to see whether or not there is a dip in

it. There is some discussion in the evidence as to

what the plaintiff was doing after he stopped his

actual work tie tamping on 23 January.

Before I really commence my submissions, let

me make this point quite clear, that indeed the

statements made by the plaintiff in the exhibits P3

and P4 were indeed evidence called by and put in by

the plaintiff himself. It is not a question of
inconsistent statements of a witness; it is a
question of the plaintiff's own evidence himself,
put in by the plaintiff.

If I might refer also at this stage to exhibit PS, which appears at page 745 in book IV,

again a document put in by the plaintiff as part of his case. These exhibits were put in, if the Court pleases, at pages 51 and 52 of the transcript.

Exhibit PS is yet another workers' compensation

document. The South Australian Workers

Compensation Act, at that time, required an

Devries(2) 19 1/9/92

assertion of injury to be made by a worker, and

compensation would follow that unless that

assertion was challenged by the employer. You will

see that that notice of assertion was signed by the

appellant, again, on 24 January 1985 and alleged an

injury on 22 January 1985.

So that the plaintiff's own evidence, in his

own hand, comes from exhibits P3, 4 and 5 and if I

might take the Court to those. P3 appears at 742

and there, in his own hand, in answer to

question 13 is a full description of the accident

which caused the injury. Exhibit P4 is on the

following page, 743, was put in by the plaintiff at

page 52, and the plaintiff's answer in his own hand

there, 5.c:

22.1.85, I whas working with the tie tamppers

when I whas getting sarp pain in my'n back &

on 23.1.85 back pain became worse. Hard to

walke.

The plaintiff's evidence as to what actually occurred was in relation to a specific incident,

that referred to by my learned friend in his

opening, and the evidence of that is in book I,

pages 34 to 36. The passage quoted by my learned

friend is on page 34, lines 20 to 27.	I refer the
Court also to page 35, lines 12 to 16:

I thought any minute, let the train come.	As
I got it out with all my strength I got a
tremendous pain right from my lower back.

Line 29 -

I put the tie tamper down and it was pretty

painful. The train came through and I said to

one of the men, I forget which man, 'I am in

trouble. I can't go on no more.'

Q. Could you tell us what you did for the

rest of the morning.

A. I sat down till lunchtime along the line

trunk -

The "line trunk", if the Court pleases, was explained to be a wooden box or railing which goes

alongside the line which takes the cables and

whatever for signalling and point changing devices,

so that it is basically a bench raised off the

ground. He says there -

trunking, a foot and a half from the ground.

The men carried out the full job of what we lifted.

Devries(2) 20 1/9/92

Then, if I can take the Court to his further

explanation that this discrete incident which he

was alleging caused by what His Honour found to be

allowing him to use a blade on the tie tamper,

which was not as good as it should have been, at

page 197 line 26, and then I refer in particular to

line 32:

The man on the other side of the sleeper, what

was he doing at the time that you were trying

to pull it out.

A.	Tamping.
Q.	He could see you trying to pull it out.
A.	Yes.
Q.	He was continuing to tamp, was he.
A.	Yes.

Then at pages 200 and 201 - and I am afraid that

splits into book II.	I take .it up at line 30, on
page 200:

I swore, I can't say what I said ••...

Yes, I remember what I said •••..

I said to one of me workers there, I said 'The

f'ing bloody thing, I think I done my f'ing

back in'.

And at page 201, lines 21 to 36, he speaks about

his activities after he had thrown it down. At

page 202, lines 25 to 28, he says he went and sat

down.

My learned friend has already referred to

Dr Lo's note as read by his partner or the man from

Court pleases, we say is neutral and it certainly	the same clinic but, of course, that note, if the
does not speak of a discrete incident. But,
indeed, the plaintiff spoke of two days of
problems, immediately, to Dr Ravindran. I ask the
Court to look at Dr Ravindran's report, P14, on
page 762 in book IV, in the second paragraph:

He complained of pain in his lower lumbar

spine of two day's duration. He worked for jack hammer for a whole day and felt pain in

his back.

That, of course, is entirely consistent with his

own evidence in P3, 4 and 5, particularly when PS

Devries(2) 21 1/9/92

is read with it because, of course, there he

complains of an injury on the 22nd, and he tells

Dr Ravindran of the pain from the 22nd and the 23rd and there is no suggestion of any discrete

incident.

BRENNAN J: But if there was pain on the 22nd, after using

the jackhammer for a day, that really does not say

anything as to whether or not a particular incident

occurred on the 23rd. And then, we have evidence

that on the 23rd he was unable to sit down at

lunch-time and did not drive the truck back at

night and so forth. Then he sees Dr Lo that

afternoon. Next morning he sees Dr Ravindran. But

if I understand it correctly from page 744, the

next morning at 6.45 am he reported injury to the

D-F Metro Rail, which I presume is the district foreman of Metropolitan Rail, is that right?

MR McCARTHY:  I think so, Your Honour, yes, some official in

Metro Rail.

BRENNAN J:  I mean, something had happened to produce an

incapacity for work on the morning of the 24th.

There is no doubt about that, is there?

MR McCARTHY:  Yes, he had had pain for two days and it got

worse from using the jackhammer, but no discrete incident and no suggestion on that, if the Court

pleases, of negligence on the part of the

defendant.

McHUGH J:  Mr McCarthy, the statement of claim was not issued until 1988. Is there any explanation why he

would have invented a false story in the account

that he gave to Dr Schaeffer in early 1986? I

mean, it might tell heavily against him if you

found that this story of the incident did not

appear anywhere until after the common law action

had commenced, but two years before any common law

action was commenced, you find an account given to

a doctor employed on behalf of your client which is

perfectly consistent with his evidence.

MR McCARTHY:  That may well be so, Your Honour, but it is

totally inconsistent with what he told Dr Ravindran

on 24 January and totally inconsistent with his own

evidence as to what happened on - - -

McHUGH J:  I am not sure that it is totally inconsistent,

but I think a better description is that it omits

things.

MR McCARTHY:  I am sorry, Your Honour, I did not catch that.

McHUGH J: It omits. His early accounts are not full.

Devries(2) 22 1/9/92

MR McCARTHY:  I wonder, if the Court pleases, if I might

analyse that because my submission will be that,

indeed, it is shown on the evidence and on evidence

that His Honour accepted not to be what actually

happened.

McHUGH J:	You are talking about Pittaway's evidence?
MR McCARTHY:	I am, yes, and indeed his own evidence and Dr Ravindran's evidence in some respects are
vitally different. That may, and, indeed, my
submission is I do not have to show it but that
evidence, in my submission, would well and truly
answer Your Honour Justice McHugh's question of me.

Perhaps I can take the Court to Dr Ravindran's

evidence at page 539 which is in book III. Again,

I point out, this is the evidence that the

plaintiff himself called and this is Dr Ravindran

in examination in-chief. At the top of the page:

At that time, according to your report, the plaintiff complained of pain in his lower

lumbar spine of two days' duration.

A. That's right.

Then he has referred to the notes at the Salisbury

Private Hospital, and at line 31 he is asked -

In preparing your report -

and that is the one that speaks of pain of two

days' duration -

I largely used my own findings in preparing my

report.

Q. But in addition, did you have regard to

other material in the notes.

A. Yes.

The plaintiff, at 209 line 21, acknowledged that he knew he had to be truthful in preparing P3 and P4

and, obviously, PS would help. The answer to

interrogatory, exhibit D10, at page 955, to which

my learned friend has already referred, in my

submission, is quite critical and the answer is
consistent with the plaintiff's original - the

appellant's original version is set out in P3, 4

ands. At page 956, in book V:

The injury occurred over several hours prior to lunch while using the said equipment.

Devries(2) 23 1/9/92

That is not speaking of a discrete injury about

which he gave evidence.

DEANE J: What was the date of the answer to interrogatory,

Mr McCarthy?

MR McCARTHY:  I asked my learned junior for that, and I am

afraid, Your Honour, I cannot answer that question.

DEANE J: It would presumably be well after

Dr Schaeffer - - -

MR McCARTHY:  Yes, the statement of claim was filed in 1988

as I understand it, so it must be well and truly

after 1988.

DEANE J: Once you draw the line at Dr Schaeffer, it is hard

to get much out of what came subsequently, is it

not, because there you have - - -

MR McCARTHY: With respect, I do not accept Your Honour's

proposition. I mean, if the plaintiff is not

telling the truth to Mr Schaeffer - after all, the

interrogatory was on oath.

DEANE J: Yes, except we have at page 815 to 816 - I should

ask this as a question. As I read what is in that

paragraph - - -

MR McCARTHY:  Which paragraph, Your Honour, the

interrogatory?

DEANE J: Page 815 to 816 - it accords completely with the

appellant's evidence at the trial.

MR McCARTHY: Well, no, Your Honour, not entirely, because

at the top of page 816 he says:

However he kept going.	He sat down at
lunch-time.

Indeed, that is contrary to the plaintiff's

evidence.

DEANE J:  I should have asked you in different form. It is

completely consistent with the overall picture, is

it not, using the jackhammer over a period, an

incident with it getting stuck, and so on?

MR McCARTHY: Again, with respect, no, Your Honour. At the

bottom of page 815 -

it was a very urgent job. The jack-hammer

evidently got stuck under some sleepers and he

had to jerk it out with some force. As he did

this he experienced a sudden pain in his back.

Devries(2) 24 1/9/92

That latter part is consistent with the evidence he

gave in court, but what is not consistent with the

evidence he gave in court was the fact that it was

an urgent job, and it is also not consistent that

he kept going:

He sat down at lunch-time.

The plaintiff's evidence was that he did not do any

more. He sat down immediately after swearing and

making it known to his workmates that this discrete

incident about which he now complains occurred.

DEANE J: I am missing something. As I read it, it says:

However he kept going. He sat down at

lunch-time. The pain was extreme. During

that afternoon it was quite unbearable.

MR McCARTHY: Yes, but the incident is alleged to have

occurred between 10 am and 10.30 am. So that we

have a couple of hours to lunch, and he is saying

there that he kept going.

BRENNAN J: What time do they have lunch in that gang?

MR McCARTHY:  I think the evidence was midday. I will have

that checked, Your Honour, but I think in the

evidence it was midday.

BRENNAN J:  It would be a pretty bourgeois sort of a lunch

for a gang to be having it at half past twelve,

would it not?

MR McCARTHY: Well, perhaps I will come back to that rather

than waste time now. I wonder if I might take the

Court to the plaintiff's cross-examination in respect of that interrogatory, pages 246 to 248.

Probably the most important passage is at page 248

line 5:

A. Several hours prior to lunch I meant.	To
me, when I read the question right, what I

meant with my answer was that I done several

hours before lunch.

BRENNAN J:  Mr McCarthy, all of these arguments which you

are addressing to us, no doubt, were addressed to

the trial judge, and the problem was that the trial

judge found contrary to your submissions that an

incident occurred. Your proposition, I take it,

was that on the evidence it was improbable - - -

MR McCARTHY: Glaringly improbable.

BRENNAN J:  - - - glaringly improbable that an incident

occurred. Now, when it came to the appeal, the

Devries(2) 25 1/9/92

Full Court found in your favour that the trial judge should not properly have found that an

incident occurred.

MR McCARTHY:  Yes, Your Honour.

BRENNAN J: And is that because simply there was no evidence

of the incident apparent in the statements,

exhibits P.3 to P.5?

MR McCARTHY:  No, for the other reasons, and I suppose - and

I appreciate that I have spent too long so

far - but I did want to come to paragraph 5 of my

outline to indicate the other areas. You see,

His Honour the learned trial judge accepted the lie to much of the evidence given by the

plaintiff himself. And I hasten to add that the

finding in relation to the credibility of the

plaintiff, His Honour spoke of "the evidence in

this court", and that is at page 966 of the appeal

book.

His Honour is there making a distinction

between his evidence in the court and what he had

said to other people, and in particular his own evidence as to what he said in relation to what

happened in P.3, 4 and 5.

Now, I will not weary the Court by going to

the actual evidence referred to in paragraph 5, but the plaintiff said that another tie tamper operator

was working on the opposite side. The men were

adjacent when he was struggling to remove it. He

threw it down, and I have already taken the Court
to that, and swore concerning his back injury. And

most importantly, that he did not do any work at

~11 after the injury, and I ask the Court to look

at those passages of the evidence set out. He also

gave evidence that he told his co-workers what had

happened.

The witness, Pittaway, whom His Honour

accepted and said by and large supported the

plaintiff's evidence, of course, did not. And he

said - and I will not weary the Court with going to

the evidence that is noted there - there were four

in the gang on this ·day. On the previous day my

recollection is that there were more, and I think

it was .six or perhaps as many as seven. They were

working close together, and Pittaway himself said
that he was not aware of any specific incident which caused the complaint, and in particular,

Pittaway's evidence which, in my submission,

contradicts the plaintiff's evidence, is at

page 650 which is in book IV, starting at line 13:

Devries(2) 26 1/9/92

Q. When did you first notice on that second

day -

that is, the 23rd -

that Mr Devries was not his normal self, in

other words he was labouring under some -

A. Would have been half an hour before that, I was watching him quite closely.

Q. Before lunch.

A. No, I took over about 10.30 and I noticed him around about 10 o'clock, that he was

getting slow in his movements and he had

difficulties, so I just kept an eye on

him ••... He was sighting up then ..... but he had

great difficulties getting down and I felt it

was my duty to take over from him because he

was in pain.

BRENNAN J:  I see that at page 639 it says:

Q. Immediately prior to you asking him that, what he he been doing?

A. Just come off the tie tampers.

So he had been on the tie tampers; he comes off

the tie tampers and immediately afterwards he is

asked by Pittaway, "What is wrong?"

MR McCARTHY:  No, half an hour later, he said.

BRENNAN J: Well, I am looking at 639 line 32.

MR McCARTHY:  He saw him at 10.30 sighting at line 26. That

is when he asked him if he was feeling all right

because he was moving around slowly.	Now, of
course, I see what Your Honour means, but that is

made clear at page 650 that it is half an hour.

McHUGH J:  But are you really making legitimate use of what

the trial judge said at 966 about Mr Pittaway, and

which is referred to in paragraph 5, because at

page 976 the trial judge explained what he meant at
page 966, and there is no inconsistency? Is there

any specific finding where the trial judge said he

prefers Pittaway to the plaintiff?

MR McCARTHY:  No, he said he accepted Pittaway's evidence.

He made no adverse finding at all about Pittaway.

McHUGH J: And the Full Court placed no reliance on

Pittaway's evidence in setting aside the verdict, did they?

Devries(2) 27 1/9/92

MR McCARTHY: Well, they did not say so, Your Honour. Of

course, it was put to them, but I will come to the

Full Court later. I mention only the plaintiff's

inconsistency in relation to pain for two days

running, and I give the evidence reference to that;

and Pittaway's evidence confirming pain on the day

before, the 22nd.	I give the reference to that
which, of course, confirms P.3, 4 and 5.	And

contrary to my learned friend's assertion that the

plaintiff had had pain at the end of a hard day's

work, the plaintiff's evidence at page 284 was that

he had no trouble with his back during 1984.	I
give the reference to that at page 284.	I make the

comment in paragraph 8 that the wife's evidence

does not corroborate the plaintiff's account. It

merely confirms that he was in trouble when she

picked him up.

I wonder if I might take the Court very

briefly through exhibit D.12 which is in volume IV,
starting at page 717. These are the matters that

that the plaintiff does not understand English very well. I just give a few examples: first of all at

the Full Court took much notice of in relation to

pages 725 and 730. His spelling is not all that

good. He certainly can make himself clear and give

a consistent explanation of what has happened.

Page 731 - - -

DAWSON J: The space left to give a full description of the

accident is not very much. He filled them up on

each occasion. When there is no more space left it

is very hard to put something in.

MR McCARTHY: Well, he doubled up in a few places. If you

go back to page 730 he has gone a bit further. At

·732 he has gone a bit further; 733 - - -

DAWSON J: But on 743, which is the relevant one, he has

filled in about as much as he can.

MR McCARTHY:  Yes, and he does not speak of any incident,

but 742, if Your Honour pleases, he has more space

and he has filled that up. But it is so specific:

I was working ••••. on 22.1.85 when I was

getting sharp pains ••..• on the 23.1.85 the

pain was worse and hard to walk.

There is no suggestion of an incident.

DEANE J: Possibly more significant from your point of view

is S.a. rather than S.c. on page 743.

MR McCARTHY:  The 22nd - well, that is the same, of course,

as P.5, if Your Honour pleases.

Devries(2) 28 1/9/92

DEANE J: But where does all this lead? I mean, if you go

to page 1021, which is critical to Justice Moore's

judgment, you get him saying:

Dr Lo who saw the respondent •...• was not

called.	Dr Ravindran •..•• did not take
detailed -

evidence. Then the first mention of the incident

as described is after solicitors have been brought

in, that is, 19 July 1988. Well now, it is now

quite apparent that there is a critical mistake

there in that a year before that - - -

MCHUGH J:	Two and a half, I think.
MR McCARTHY:	Two.

DEANE J: - - - two years before that, whatever it is when

he saw Dr Schaeffer, he has given a consistent

account which completely undermines the process of

the Full Court's reasoning on page 1021.

MR McCARTHY: With respect, Your Honour, there is no mention

of the fact that solicitors had been instructed.

The only mention there is -

on behalf of his solicitors -

but Mr Schaeffer saw him in 1986. That is still

two years after the incident.

McHUGH J: Well, 10 February 1986.

MR McCARTHY:	I am sorry, one year.
McHUGH J:	It was even before Dr Ravindran made his report,

was it not? Dr Ravindran made his report on

25 February.

MR McCARTHY:  But Mr Ravindran saw him on the 24th.

McHUGH J: Yes, 24 January.

DEANE J: But if you read Dr Ravindran's evidence he was not

at all surprised when the specific incident was put

to him. He said, "Yes, in effect, that could well

have happened because of the way I was getting

information. "

MR McCARTHY:  If the Court pleases, obviously the patient

was well enough to give some information. Is it

not strange that he did not give the right

information? He speaks of pain of two days'

duration, where his own evidence is that he did not

have any pain on the 22nd.

Devries(2) 29 1/9/92

DEANE J: But we have to look at what the evidence is. If

you look at page 540, there the whole of the

detailed complaint is put to Dr Ravindran and he is

asked:

Is that detailed history consistent with your

observations of him when you first saw him at

the Salisbury Private Hospital?

Yes, when I saw him he was in considerable pain, and therefore, I did not go into detail

as you have in that statement about actually

what happened.

Well now, in the face of that evidence, if you introduce Dr Schaeffer, the Full Court's process of

reasoning, on the face of it, is flawed. I am not

saying that is the end of it, but I am asking you

where does that lead us to?

MR McCARTHY:  I do not, with respect, accept Your Honour's

proposition that the Full Court reasoning is flawed
because, in my submission, it matters not whether

he made up this story one year after or three years

after.

DEANE J: But Mr McCarthy, with respect, you are not facing

up to the point I was trying to direct your

attention to, and that is, there is a vast

difference in this case between saying, "He did not

complain of an incident until", what was it, "1988

when his solicitors sent him to a doctor", and the

factual situation, "that he complained of it in

terms that correspond with his present complaint

12 months after where there is no suggestion of

solicitors involved."

MR McCARTHY:  I accept what Your Honour says, but

Your Honour puts emphasis on the fact that he was

sent by his solicitors to Cohen. That is, with

respect, not the point, by whom he was sent.

DEANE J:  I am not putting emphasis on that. I am pointing

out that that is what the Full Court said.

MR McCARTHY: Well, that is a description of Mr Cohen, not

so much the fact that he was sent by solicitors.

My learned junior points out, and it is important,

if the Court would look at page 762 in volume IV,

that indeed Mr Ravindran's report was obtained

after the solicitors had been instructed. The

letter was written on 21 January 1986, and that is

before Mr Schaeffer.

BRENNAN J: Dr Schaeffer was the defendant's doctor, was he

not?

Devries(2) 30 1/9/92

MR McCARTHY:  Mr Schaeffer examined on behalf of the respondent, yes, Your Honour.

BRENNAN J: But the proposition reduced to its bare terms is

that the Full Court says the first mention of an

incident was described by Mr Cohen. The fact is

that the first mention of the incident in the

evidence is by Dr Schaeffer.

MR McCARTHY:  I cannot get away from that, but I say that it

is still - - -

BRENNAN J: That is right. Well now, the Full Court placed

some reliance upon the fact that the first was to

Mr Cohen. If they were wrong in that, what does

that say about the cogency of the Full Court's

argument?

MR McCARTHY: Well, in my submission, it makes absolutely no difference at all, because the first mention was to

Schaeffer, but that is still over a year after the

alleged incident, and it is after solicitors had

been instructed. And there is no satisfactory

explanation for the clear, concise and detailed

explanation of the plaintiff's inability to work

given by the plaintiff on 24 January.

BRENNAN J: Now, we have P.3 to P.5; we have Pittaway's

evidence. Is there any other inconsistency with

the evidence of the plaintiff upon which you rely?

MR McCARTHY:  The interrogatory?

BRENNAN J: The interrogatory.

MR McCARTHY: Yes, Your Honour.

BRENNAN J: Those are the three factors?

MR McCARTHY: Yes.

BRENNAN J: And, in your submission, I take it, the trial

judge was not entitled in the light of those

factors to discount them, and to find,

notwithstanding them, that the plaintiff was

telling the truth.

MR McCARTHY:  My submission to this Court is exactly the

same as my submission to the Full Court: whilst the

learned trial judge's decision was not on the

evidence, it was in the face of the evidence. And

in the face of that evidence that I have drawn the

Court's attention to, the learned trial judge could

not, ought not to have accepted this most unusual

story as to a discrete incident having occurred,

and that the finding of His Honour the learned

trial judge was a finding which was glaringly

Devries(2) 31 1/9/92

improbable. It was in the face of the evidence.

In my submission, that is exactly what an appeal

court is for. An appeal court has a duty to

review the evidence, has a duty to hear the appeal,

and cannot be simply bound to accept a finding of a

pains to point that out. learned trial judge, and this Court has been at

BRENNAN J: Are there any particular authorities that you

wish to draw our attention to?

MR McCARTHY:	I wanted to discuss the decision of the Acting Chief Justice in New South Wales in Galea. It is
in my book of authorities. The Court has that at
His Honour stated the obvious at line C: page 4 of my book, page 266 of the judgment.

Nevertheless legislation providing for appeals
permits and requires this Court to consider

the fact-finding of a trial judge in a case such as the present.

And then His Honour discusses and, in my

submission, correctly discusses the law as laid

down by this Court from page 266G to page 267D.	In
my submission, His Honour the Acting Chief Justice
there has accurately stated the law.

If I can go to the decisions of this Court,

first of all Brunskill's case, (1985) 59 ALJR 842

at page 844, which is at page 35 of my book of

authorities. I draw the Court's attention to

column 1, the very last paragraph:

The question that then arises is whether

the decision of the learned trial judge can be

seen to be clearly wrong on grounds which do

not depend merely on credibility; for

example, on the ground that the evidence which

was accepted was inconsistent with established

facts or was glaringly improbable.

In my submission, the evidence of Pittaway was

accepted, and I have referred the Court to that;

D10, the interrogatories; D12, the clear

statements made by the plaintiff in relation to

previous injuries was accepted as also was P3, 4

and 5 by the learned trial judge. When I say

accepted, they were facts established, I meant to

say. And in the light of that evidence, those

facts which were established, in my submission,

His Honour's finding of some discrete injury was a

finding which was glaringly improbable. If the Court pleases, I distinguish a balanced case in

Jones v Hyde on the grounds set out on page 4 of my summary.

Devries(2) 32 1/9/92

They are the submissions I wish to make

unless there is anything further the Court wishes

to hear from me.

BRENNAN J: Thank you, Mr McCarthy. Yes, Mr Gray.

MR GRAY:  Just two matters in reply, if the Court pleases.

We say that in a trial of this nature in the ordinary course of things one would find differences between witnesses on matters, and the

role of a trial judge is to weigh all those

differences and come to a conclusion. That is what

particular references and draw a piece of evidence	this judge did, and so finding my friend to go to
is not to the point. It is a question of weighing
the entire evidence.

For example, Pittaway: the Court will see in

our precis, when we deal with the facts we identify

Pittaway as a corroborating witness in respect of many of the critical findings of fact, and the

references are there. It does not follow because

there might be some sentences in Pittaway's

evidence that are contrary to the plaintiff's
evidence that the two cannot, in regard to the

essential matters in the case, stand together.

That is what the trial judge found. That is our

first point in reply. There is nothing at all

wrong with that, and we, in fact, draw on Pittaway

as an important witness to support the plaintiff.

DEANE J: But, Mr Gray, can I take you to page 743, which is

P.4 that has been referred to. What would you say if, looking at the documentary evidence, one was of

the view that the conclusion was inevitable that
there had been a period of pain commencing on 22 January and leading up to when your client

stopped work on 23 January? That is in conflict

with the effect of the appellant's oral evidence,

though is a little bit uncertain at the critical
passages.	On that hypothesis, where would you say

it led in this case?

MR GRAY:  We say that it does not lead to the appeal being

dismissed. To the contrary, His Honour the trial

judge dealt with this very matter at page 974,

lines 20 to 25 because of course, this was a matter

put to His Honour the trial judge. His Honour is

dealing at page 974 with the question of the

plaintiff's credit and his said to be prior

inconsistent statements. At line 10 he finds the

plaintiff to be a witness of truth. He then deals

with the explanation for the inconsistencies, and

then at line 20 he says, continuing on:

I am satisfied that he included the

22nd January on the basis he experienced some

Devries(2) 33 4/9/92

pain then. There is some support from

Mr Pittaway, that the plaintiff made

complaints about back pain on 22nd January.

But I am equally satisfied the pain on the

22nd was normal at the end of the hard day.	I
am satisfied that the real incident when his
back was very much affected and when he was
substantially in pain occurred on
23rd January.

Now, the plaintiff's evidence was that he was

could not recollect it years later at trial.

unable at trial to recollect then pain on the 22nd. was he

heavy nature of the work was gone into in some

detail. His Honour made that finding which we say,

with respect, answers the point raised.

It is interesting to note at page 743 that

although the date is different, the 10.30 am
corroborates the plaintiff's account of an incident

occurring mid-morning. Block 5.a. refers to

22 January certainly, but the time 10.30 am, we

say, should not pass without comment. He is

describing something happening at a time. But it

was not the case that there were not

inconsistencies in this material. The answer was

that it was explained in circumstances of these

statements being filled out in circumstances when

he was in pain, and that was directly corroborated.

Therefore, the court would not, with respect, read

that type of material critically against the

plaintiff as His Honour did not when explained.

If the Court pleases, there are other matters

my learned friend put. He said, for example,

that - - -

DEANE J:  I do not want to take undue time, but if you go to

page 742, what he wrote at the time in 13 is simply

inconsistent with the view that he was only
referring to some pain in his back after a hard

day's work with the jackhammer.

MR GRAY:  Yes, he does speak about the sharp pain being on

the 23rd though. He says in the second sentence:

I whas working with the tie tempper on

22.1.85. When I whas getting sarp pains in

my'n back (lower part) on the 23.1.85.

DEANE J: Well, we have read it differently.· I see the

force of the full stop after 23.1.85. I had read

the first two lines as the 22nd and the next line

as the 23rd.

Devries(2) 34 1/9/92

MR GRAY:  We would suggest a different construction, if

Your Honour pleases.

BRENNAN J:  I might say that Justice Deane's construction

seems to be fully borne out by 743, question 5.c.

MR GRAY:  But again, we repeat, if the Court pleases, we say

that the learned trial judge proceeded on the basis
that there were inconsistencies and he found an

explanation for them. The plaintiff gave evidence

and said that at the time he was in pain, it was

not complete, and his account was fully tested and

the judge accepted the explanation. And we say

that accords entirely with the authorities,

Jackson's case and the other authorities.	It is
not a matter which is a ground for appeal.

If the Court pleases, my learned friend made

submissions, for example, that there was no

evidence of urgency. He suggested there was an

inconsistency with the Schaeffer report; Schaeffer containing a history of urgency, my learned friend

page 962. There was evidence to support that, and

says there is no urgency. To the contrary,

that is referred to in our outline of argument.

It is not surprising after a trial of the

length of this trial over a relatively simple
incident that there would not be differences in

regard to detail. The trial judge was faced with the task of distilling all of that, assessing the witnesses and.coming to conclusions, and did so in

circumstances where we say he could not be reversed

on appeal. He made no error.

BRENNAN J:  Mr Gray, if you were to succeed in this appeal,

you would seek an order that the appeal be allowed

and the order of the Full Court quashed?

MR GRAY: Yes.

BRENNAN J: What do you say about any consequential order

after that?

MR GRAY:  If the Court pleases, we would obviously be - - -

BRENNAN J: With respect to the damages.

MR GRAY:  Yes, we say, if the Court pleases, that the matter

should be referred back to a differently

constituted intermediate court of appeal to deal

with the appeal and cross appeal on damages.

DEANE J:  Why differently constituted?

Devries(2) 35 1/9/92

MR GRAY:  Because that court made findings adverse to the

plaintiff's credit. That would impact then on the

question of damages. In the scheme of things it

would be difficult for that court to erase from

their minds the adverse view they formed as to

credit. But in that regard we would simply put

that submission.

BRENNAN J:  I imagine in that event the question of costs

would be easy to answer.

MR GRAY: Yes.

BRENNAN J: If, however, you were to fail, you would then

seek an order, I take it, that the matter be

returned to the trial judge for the assessment of

damages, or do you wish to have a variation of the

Full Court's order?

MR GRAY:  If the Court pleases, we say that if we were to

fail on this appeal, the matter would go back to

the trial judge. He would then be faced with the

task of dissecting the costs of the trial.

BRENNAN J: Well, first of all, what is he to do? Under

what order is he to act? If the appeal is

dismissed the Full Court's order remains.

MR GRAY:  Yes, the Court is quite correct. The. matter

should be remitted to the Full Court for directions

to the trial judge as to the conduct in regard to the second incident, liability now being admitted after the intermediate court appeal.

BRENNAN J:  Why is that not something that can be put to the

trial judge when he rehears the matter in

accordance with the Full Court's order?

MR GRAY:  Yes, we are content with that. I think there

might be costs questions arising in regard to the

Full Court appeal.

DEANE J: But in terms of the order, why would we not simply

set aside the order of the Full Court and make an

order that the matter be remitted to a trial judge

to assess damages in relation to the incident in

which liability is admitted?

MR GRAY:  Yes, we would be content with such an order.

DAWSON J: What order did the Full Court make?

MR GRAY:  The order of the Full Court was to remit the

matter for retrial at large, taking account of the

second incident, its liability and damages.

Devries(2) 36 1/9/92

BRENNAN J: Mr Gray, if an order were made in the terms

which Justice Deane put to you, what are the

consequences, in your submission, as to costs?

MR GRAY:  If the Court pleases, that part of the Full Court

hearing which dealt with the papers and the

argument that dealt with the second incident,

should be my client's costs, otherwise we would

lose the costs of that appeal. The question of the

costs of the trial should be remitted to the trial

judge to decide because only he can dissect out the

proper order for costs of the trial.

BRENNAN J: And the costs in this Court?

MR GRAY:  If the Court pleases, we say that if we were to

lose the appeal there should be some allowance in

respect of my client's position because we have

been forced to come this far to overcome the
problems regarding the second incident. So, for

example, if special leave was necessary, and we are
contending for an order from this Court that

differs from the Full Court, so there would be

either no order as to costs or an appropriate

proportion of costs being allowed.	If the Court
pleases.

BRENNAN J: Mr McCarthy, have you any submissions to make as

to the form of order and the orders as to costs in

relation to - - -

MR McCARTHY:  If the Court pleases, did you limit that to costs, Your Honour?

BRENNAN J: No, the form of the order and the order as to

costs.

MR McCARTHY:  If the appeal fails, if the Court pleases, my

submission is the matter should be simply referred back to the trial judge for assessment in relation

to the second injury.

BRENNAN J: With any order varying the order of the Full

Court?

MR McCARTHY: Well, as I understood it, this Court will make

an order that the Full Court should have made, and

that would be the variation in the order.

DAWSON J: Well, you say for assessment, but the Full Court

sent it back for trial.

MR McCARTHY:  Well, vary the order of the Full Court by

referring the matter back to make the Full Court's

order, a reference back to the trial judge for

assessment of damages in relation to the second

incident.

Devries(2) 37 1/9/92

BRENNAN J: And what consequence in relation to costs should

such an order bear?

MR McCARTHY:  The respondent should have costs of the appeal

without deduction, and the costs of the hearing

before the trial judge should be left in his

discretion.

BRENNAN J: And the Full Court costs?

MR McCARTHY:  The Full Court costs should stay as they are.

The only difference is that to, as it were, clean the matter up, the defendant - there are too many appellants and respondents - made the admission of

liability and thus, in effect, abandoned its ground

of appeal in relation to contribution in relation

to the second injury.

BRENNAN J: If the appeal is allowed, I take it costs follow

the event.

MR McCARTHY: Costs must follow the event, yes, Your Honour.

BRENNAN J: You have nothing to say in reply to that, I take

it, Mr Gray.

MR GRAY:  No, Your Honour.

BRENNAN J: The Court will consider its decision.

AT 12.43 PM THE MATTER WAS ADJOURNED SINE DIE

Devries(2) 38 1/9/92