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

[1992] HCATrans 82

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A35 of 1991

B e t w e e n -

PETER JOHAN DEVRIES and VIVIAN

ALMA DEVRIES

Applicants

and

AUSTRALIAN NATIONAL RAILWAYS
COMMISSION and THE STATE

TRANSPORT AUTHORITY

Respondents

Application for special leave

to appeal

BRENNAN J

TOOHEY J

Devries 1 13/3/92

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 13 MARCH 1991, AT 12.02 PM

Copyright in the High Court of Australia

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

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

applicants. (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

respondents. (instructed by Ross & McCarthy)

BRENNAN J: Yes. Mr Gray.

MR GRAY:  May it please the Court, the applicant claimed

damages in respect of two separate incidents in the

first applicant's employment, the second applicant

being the wife and having a claim for loss of

consortium. Both incidents took place in the same

employment in the year 1985. They were quite

separate in terms of fact. There were some common
areas of injury that led to both matters being
heard in the one trial and it was the plaintiff's

case below that if liability were found in regard

to both incidents, there should be one assessment

of damages.

TOOHEY J:  Mr Gray, I am aware from the papers of the

concession later made regarding the second

incident, but the order of the Full Court, sending

the second incident back for retrial, is a little

hard to follow, or tie in with the reasons for

judgment. Do you understand that to be an order

that it go back for the assessment of damages only?

MR GRAY:  No, the order was for a retrial of all matters.

That is the order as drawn up.	We say things went
badly astray at the appellate level.	A number of

unusual things happened and that is one of them.

TOOHEY J: But the judgment of the Full Court does not touch

the second incident.

MR GRAY:  No, and that is one of our complaints. A motive

for what happened is set out, but there are no
reasons, and we say that the Full Court have gone
badly astray in their dealing with this matter

generally and that is but one example.

TOOHEY J: Yes, I suppose on one view of the reasons it is

possible to say that, having rejected the present applicant's case in regard to the first accident,

and damages having been assessed on a global basis,

that in any event the matter had to go back for

assessment in respect of the second accident. But

that, of course, carries with it the implication
that the finding of liability in regard to the

second accident was not disturbed on appeal.

Devries 2 13/3/92

MR GRAY:  Indeed, and the difficulty is the order for costs

that were made were inconsistent with just a

referral back of damages, because the plaintiff

respondent below had the total order for costs in

its favour from the trial vacated. So it lost the

costs in regard to the second incident, which was
fully debated at trial, and in lieu of that order
it then suffered an order to pay half the

employer's costs. If liability on the second

incident was not being interfered with, then the
cost of that issued had to remain the plaintiff's
costs throughout.

Secondly, on the appeal, if the appeal, in fact, dismissed the appeal in regard to the second

incident liability made by the employer, then the

applicant was entitled to those costs and there

would not be an order for costs, as there has been,

of the entire costs of the appeal, against the

plaintiff worker.

TOOHEY J:  Was any attempt made to find out from the Full

Court what its intention was in relation to the

word "retrial"?

MR GRAY:  No, I understand that there has been no inquiry

made. The order is for a retrial rather than the

matter going back for a reassessment of damages.

TOOHEY J: Yes, I appreciate that.

BRENNAN J:  Mr Gray, is it right that there was but one

action brought in respect of both incidents, or

were there two actions with an order being made

that they be heard together?

MR GRAY:  The former, if the Court pleases. The South

Australian rules specifically allow for the former, but they remain as independent causes of action.

If the Court pleases, we say on any view, in

particular demonstrated by the orders for costs,

that the Full Court has ordered a retrial

effectively on the question of liability, and

hence - perhaps I can speculate as to the reasons

why - the admission now in regard to that matter,

because no reasons were given at all in regard to

the reversing of the trial judge in that respect.

If the Court pleases, with liability being

admitted in regard to the second incident, or not

being in issue, we say it was quite appropriate for

the Full Court itself, because all the evidence was

before the court and damages were the subject of an

appeal by both parties, to assess the damages

itself rather than have the cost of a reassessment.

Alternatively, the order would be a remittal to the

Devries 3 13/3/92

trial judge to assess damages in regard to the

second incident only.

BRENNAN J:  We will hear what Mr McCarthy has to say,

Mr Gray.

MR GRAY:  If the Court pleases. We would still seek to

pursue the matter in regard to the first incident

where there is a separate application for special

leave.

BRENNAN J: Yes, we understand that. Mr McCarthy?

MR McCARTHY:  If the Court pleases, my recollection of what

occurred - and it is confirmed by the judgment of

Mr Justice Mohr at page 58 of the application

book - the matter was discussed early in the

hearing. At line 10 His Honour says:

As became apparent during the hearing of

the appeal a finding adverse to the respondent

with respect to the first alleged incident

would mean that the appeal would have to be

allowed and the matter referred for retrial

concerning the second incident as the learned

trial Judge assessed damages in one sum

attributable without apportionment to both

injuries.

TOOHEY J: But all that means, Mr McCarthy, is that even if

the appeal were dismissed in relation to the second

incident, the second incident would still have to

be the subject of an independent assessment,

because there had not hitherto been one.

MR McCARTHY:  Yes.

TOOHEY J: But you are not saying anything that different to

what Mr Gray said, are you?

MR McCARTHY:  No. If the Court pleases, other than at that

stage the matter was not discussed, in my

recollection. The question of liability was argued

in respect of the second incident not in respect of

liability of the defendant to the plaintiff but

only the question of contributory negligence, and

it would appear that because of the decision

referred to by Mr Justice Mohr on page 58, that

having decided to allow the appeal in relation to

the first incident, then the order that it made

followed, that matter having been discussed early

at the hearing of the appeal.

TOOHEY J:  But why did it follow? I do not understand why

it followed. I mean, if the Full Court had said

nothing about the finding or the non-finding of

contributory negligence by the trial judge in

Devries 4 13/3/92

respect of the second incident, on what basis could

it go back to the trial judge? What was he

expected to do when it came back to him?

MR McCARTHY:  I am not sure that I understand Your Honour

Justice Toohey's question. Obviously, if the

question of liability for the first incident was

upheld on appeal, then there was no assessment that

could be made and therefore there had to be a

reassessment.

TOOHEY J:  I understand that, there had to be a reassessment

in respect of a second incident, but I thought you
were suggesting that the question of contributory

negligence played some part in the order for

retrial?

MR McCARTHY:  No, I am saying, in effect, that that was

argued, but the Full Court, having taken that view
as expressed by His Honour Mr Justice Mohr on

page 58, did not then go into the question of

contributory negligence and did not seem to

consider it, from the reasons.

TOOHEY J: Well, is it your understanding of the order that,

notwithstanding the use of the word "retrial", the

matter was to go back only to allow the trial judge

to assess damages in respect of the second

incident?

MR McCARTHY:  I cannot say that that is my understanding, if

Your Honour pleases, because the order says

"retrial".

BRENNAN J: Well, we seem to - - -

MR McCARTHY:  But I say this, that indeed the whole point is

now hypothetical in view of the admission of

liability.

BRENNAN J: Well, that leaves still the question of the

first incident, and what do you say about that?

MR McCARTHY:  Does the Court want to hear my submissions on

the special leave point?

BRENNAN J: Yes.

If the Court pleases, the question involved is

purely and simply a question of fact, and our

submission is that that being so, it is not really

a proper special leave application.

The Full Court considered all the evidence in

relation to the first incident and, indeed, the

second affidavit filed by my learned friend's

instructing solicitor, which exhibits the full

Devries 13/3/92

submissions made by the applicant to the Full

Court, indicates that indeed, all the facts were

put before the Full Court.

TOOHEY J: But that is the rub, is it not, Mr McCarthy? The

judgment delivered by Mr Justice Mohr places

emphasis on the fact that the first mention of any

incident as opposed to simply an occurrence of back

pain was in a report by the specialist surgeon who

examined the present applicant in July 1988. But

the affidavit that has been filed in relation to

this application says, "No, there was a report back

in 1986 which - - -

MR McCARTHY: That is still a year after the event.

TOOHEY J: Yes, but it is curious that that was not referred

to. I mean, the statement by Mr Justice Mohr is

unequivocal, is it not, that the first mention of

an incident was in the report in July 1988.

MR McCARTHY:  Yes, that appears at page 64, line 17.

TOOHEY J: Well, is that right or wrong?

MR McCARTHY:  But in my submission, that makes absolutely no

difference at all.

TOOHEY J: Well, could I just ask you is that statement in

the judgment right or wrong?

MR McCARTHY:  No, the second affidavit filed is correct, and

indeed, the story such as is set out in that

affidavit was given to the examining surgeon,

Mr Schaeffer.

BRENNAN J:  Mr McCarthy, what warrant did the Full Court

have for interfering with the findings of the trial

judge? What principle justified the Full Court in

intervening in this case consistently with the view

that has been constantly expressed by this Court in Brunskill and other cases?

MR McCARTHY: Well, could I then take the Court to Brunskill

and, indeed, the decision of the Court of Appeal in

New South Wales in Galea's case. If I go first to

Brunskill, if the Court pleases, and it is at

page 25 of my book of authorities, the first column

and the last paragraph below G:

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.

Devries 6 13/3/92

Now, the evidence which was accepted, of

course, would be two or the three statements made

by the plaintiff, referred to by His Honour

Mr Justice Mohr, starting at page 63 about line 24:

The report of what is alleged to have

happened on the occasion in January 1985 is
dated 24th Jan 1985 -

that is one day after the 23rd, the second day of

the incident alleged. And he quotes:

"I was working with the tie tamper on

22.1.85.	When I was getting sharp pains in my
back (lower part) on the 23.1.85.	The pain
was worse and hard to walk."

Later in the same document he d4escribed

the events of 22nd and 23rd January 1985 in

slightly different words, again in his own

handwriting:-

"I was working with the tie tampers.

When I was getting sharp pain in	my back, back
pain becoming worse on 23.1.85.	Hard to
walk."

He told Dr Ravindran, who saw him on the morning of

24 January, or:

"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."

Now, that is just totally inconsistent with the

evidence that he gave at the trial.

BRENNAN J:  What is inconsistent with it, Mr McCarthy?

Where is the inconsistency?

MR McCARTHY:  His evidence at the trial was that he had an

incident caused a sudden sharp pain and prevented

him from continuing to work.

BRENNAN J: Yes. It does not say that he did not have any

pain on the 22nd, does it?

MR McCARTHY:  No, it does not.

BRENNAN J: Well, where is the inconsistency?

MR McCARTHY:	But indeed that was the evidence, but we are not dealing with the evidence in this application.
Devries	13/3/92

BRENNAN J: Well, I thought that was what we were dealing

with.

MR McCARTHY: Well, I cannot take the Court to the

transcript of evidence, but the respondent was

totally unable to explain the inconsistency between

his evidence and his statements to Mr Ravindran and
his written claim relating to the incident, and I

ought to refer the Court also to His Honour

Mr Justice Mohr's judgment, at the bottom of

page 64 and the top of page 65, in relation to the

applicant's answer to iterrogatories. In fact they

were sworn on 7 April 1989 and he was asked:

Q. 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?

His answer there, in April 1989 was:

A. The injury occurred over several hours

prior to lunch while using the said equipment.

Now, that is totally at odds with His Honour's

finding and with the evidence that the applicant

gave at the trial.

McHUGH J: But the trial judge saw the witness and accepted

his account.

MR McCARTHY:  But the answer to that, of course, if the

Court pleases, is that indeed that was not a

finding really on the evidence, it was a finding in

the face of the evidence, and if I can take the

Court to Galea's case and refer, generally, to what

the learned President said from pages 265 to 267,

that is pages 3 to 5 in my book of authorities, but

if I can read simply this passage at page 267,

line 4:

But such a conclusion will rarely be drawn by	the appellate court unless it follows clearly
from the inferences to be derived from
incontrovertible facts: Brunskill and
Jones V Hyde. Thus, where a trial judge has
apparently failed to take into account
contemporaneous correspondence.

This is a contemporaneous report of what happened.

McHUGH J: But the trial judge did take it into account, he

had an explanation for it.

MR McCARTHY: If I can continue:

Devries 13/3/92

which repeatedly states matters that are
wholly at odds with the conclusions reached,

the latter will not be immune from appellate

review simply because the judge has expressed

the conclusion as being based upon an
assessment of the credibility of the relevant

witnesses. If a contrary conclusion

necessarily flows from incontrovertible facts,

the appellate court will be authorised to shoulder the responsibility of reaching a conclusion different from the trial judge.

BRENNAN J:  Do you say this was a case when the contrary

conclusion necessarily flowed from incontrovertible

facts?

MR McCARTHY:  I do. The incontrovertible facts, in my

submission, were these, namely, that the applicant,

on the day after he left work, gave a wholly

different version of what happened than the version

that he gave in court.

BRENNAN J: That is the basis of your case?

MR McCARTHY: That is right.

BRENNAN J: Yes, and your case, as I understand it, is that

the Full Court was entitled to intervene because

here were statements made, more or less,

contemporaneously, that were inconsistent with the

sworn evidence given at the trial, and that the

Full Court was justified to interfere on that

account, even though there were other pieces of

evidence, apart from the plaintiff's evidence,

which supported the case that he made at the trial.

MR McCARTHY: If the Court pleases, I dispute the fact that

there was any evidence which supported the case

that he made at the trial.

BRENNAN J:  What about his fellow workman's evidence?

MR McCARTHY:  Hiw fellow workman's evidence was indeed to

the contrary, that he made no complaint at all of

any incident. It was later in the day that he
complained of a sore back, but he made no complaint

of an incident and his fellow worker was working

with him, indeed, on the other side of the sleeper,

and said, in fact, that there was no incident.

BRENNAN J:  Was there evidence that he was unable to sit

down at lunchtime and had to be driven home instead

of driving the car home in the evening?

MR McCARTHY:  Yes.

Devries 9 13/3/92

TOOHEY J:  Was there any evidence that a train was

approaching at the time? Because the plaintiff's
claim was that his tie tamper had got jammed and

there was a train coming from the Gawler station,

he had to pull this drill out and in doing so

injured himself. Was there any evidence that a

train was around at the time?

MR McCARTHY:  There was no independent evidence to support

that. Of course, that was the plaintiff's

evidence, so there was that evidence.

TOOHEY J: Well, I really meant evidence other than that of

the plaintiff.

MR McCARTHY:  No, there was no confirmation of that

evidence.

BRENNAN J: Yes. Is there anything else, Mr McCarthy?

MR McCARTHY:  No, if the Court pleases.

BRENNAN J: Special leave will be granted in this case.

AT 12.24 PM THE MATTER WAS ADJOURNED SINE DIE

Devries 10 13/3/92