Farrell v Futuristic Drive Pty Ltd (trading as Eastern Petroleum)
[2011] VCC 1401
•21 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00363
| COLIN FARRELL | Plaintiff |
| v | |
| FUTURISTIC DRIVE PTY LTD | First Defendant |
| (ACN 052 332 224) (trading as EASTERN PETROLEUM) | |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 5 October 2011 |
| DATE OF JUDGMENT: | 21 October 2011 |
| CASE MAY BE CITED AS: | Farrell v Futuristic Drive Pty Ltd (trading as Eastern Petroleum) & WorkSafe Victoria |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1401 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – injury to cervical spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Keogh SC and | Schembri & Co Lawyers |
| Mr N Griffin | ||
| For the Defendants | Mr P B Jens | Herbert Geer Lawyers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries sustained by him in the course of his employment arising out of an incident which occurred on 5 April 2007.
2 There is no issue in this proceeding that the plaintiff was at all material times employed by the first defendant as a truck driver. The plaintiff alleges that on 5 April 2007 at approximately 5.00 am, as he was driving his truck along the Sturt Highway in New South Wales, one of the tyres of the tri-axle trailer which he was towing became flat and that, in the course of changing that tyre later in the morning, he suffered an injury to his cervical spine.
3 The sole issue for my determination in this application relates to whether the plaintiff has established that the incident in which he alleges he was injured in fact occurred.
4 In the course of the proceeding, the plaintiff gave evidence and was cross- examined. Otherwise the parties rely upon affidavits and other documents tendered by them.
The Plaintiff’s Evidence on Affidavit
5 In an affidavit dated 2 September 2009, the plaintiff described the incident in which he was injured in the following terms:
“On or about 5 April 2007 I was delivering diesel and driving my employer’s Scania 1143 Gumboot series 997 model truck which had attached a hockney tri-axle super single tanker along the Sturt Highway, New South Wales.
At approximately 3.00 am in the morning I noticed a noise. I drove the truck to the Bird Cage car park which is a trucking car park adjacent to the Sturt Highway, New South Wales located between Hey [sic] and Darlington Point.
I recall checking the truck and noticed that a one of the super single tyres located on the middle passenger side of the truck was deflated.
I then contacted Emmanuel, my employer by telephone and asked him to arrange for Beaurepaires to send a team to remove the deflated tyre and install the spare tyre.
Emmanuel advised that he was unable to pay Beaurepaires up front in which case they indicated they were not prepared to perform the work.
I then rang another tyre change expert in Deniliquin and asked him to come and change the tyre however, he advised that he was not prepared to do the job unless he was paid up front.
I contacted Emmanuel who said he was not prepared to pay up front and accordingly I was told by Emmanuel that I had to perform the tyre change myself.
I informed Emmanuel that I had insufficient equipment to change the tyre but he nevertheless insisted that he was not prepared to arrange for any third parties to do the job and that l perform the tyre change.
I then proceeded to effect the change of the tyre which weighed approximately 125 kilograms by myself with limited equipment. During the course of my attempt to change the tyre the tyre fell on me causing me to suffer serious neck injuries (‘the incident’).
Shortly after the incident I rang Emmanuel and told him that I had suffered injuries to my neck. After I completed the work, I drove approximately 25 kilometres and delivered the diesel oil.
… .”[1]
[1] PCB 7-8
6 At the commencement of his viva voce evidence, the plaintiff sought leave to amend the description of the circumstances in which the injury which was occasioned to him occurred by substituting for the identity of the truck he was driving, a “Kenworth” truck, and for the time at which he first noticed that the trailer he was towing had developed a flat tyre as “5.00 am”.
7 In a further affidavit sworn by the plaintiff on 1 September 2011, the plaintiff deposed as to the circumstances in which he had sustained his injury in the following terms:
“I am aware of the statements prepared by Emmanuel Kalas and Maria Kaleskopis at pages 184-196 of the Defendant’s Court Book. I believe that certain allegations which they have made are completely wrong.
First, I do agree that I was driving the Kenworth prime mover with the white Marshall trailer on 5 April 2007. I have now checked my log book and I can confirm that I was driving the Kenworth prime mover with registration number UMI 840. As far as I am aware, this truck was owned by Emmanuel and Maria. Accordingly, I made a mistake in my first Affidavit when I stated that I was driving the Scania truck with the hockney tri-axle super single tanker, as this was a truck and trailer combination which I drove at other times for Emmanuel and Maria (‘my employers’). I drove three different trucks for my employers and I used three different trailers which were all interchangeable with the trucks.
I can say with certainty that at the time of my neck injury on 5 April 2007, the white Marshall trailer did have a spare wheel rack with a spare tyre on it. I had been using this trailer on a regular basis since 2006 and I knew it well. I had sold the trailer to my employers during 2006. The spare wheel rack was detachable. It was on the trailer when my employers took it over in 2006 and it stayed on there until some time after the incident on 5 April 2007. The spare wheel rack was removed from the trailer in the weeks following the incident on 5 April 2007. It was removed by the mechanic Kieran O’Brien who worked for my employers. The spare wheel rack was removed because my employers wanted it removed so that they could obtain a lighter tare weight on the trailer to enable them to put extra fuel weight on the trailer. The removal of the spare wheel rack took place at my premises at 1420 Baxter- Tooraddin [sic] Road, Cannons Creek. Kieran O’Brien was employed by my employers to remove the rack from the trailer and he came to my premises. The rack was then put on a trailer and taken back to my employer’s yard on South Gippsland Highway, Cranbourne. The rack was then lifted by a forklift to the mezzanine floor. I understand that the rack was later chained to the wall. In early January 2011 I went to my employer’s ex-yard and I saw that the rack was still there chained to the wall so I took photographs of the rack. Now attached and shown to me and marked with the letters ‘CFI’ are copies of the photographs of the rack which I took in January 2011.
I can also say that my employers are wrong when they say that I could not possibly have changed the tyre on the trailer due to the weight of the trailer. I do not believe that my employers have any experience in driving, handling and maintaining trucks and doing interstate truck runs.
On 5 April 2007 I had a 20 ton jack and a breaker bar with me in the tool box of the truck. I had put this jack in the truck. I would not drive interstate without this type of jack. When using the jack to replace a tyre, you only jack up one axle. Accordingly, this can be done even though the trailer load is heavy. This is what I was doing when I hurt my neck on 5 April 2007.
In relation to paragraph 11 of my initial Affidavit, I can say that I put down the wrong hour at which I noticed the noise from the tyre. My handwritten statement dated 13 April 2007 which the Defendant has put in its Court Book at page 181 is the accurate version of events because it is a statement which I made only weeks after the accident. When I swore my Affidavit in September 2009 it was a long time after the injury and I could not remember the times. As set out in my original statement dated 13 April 2007, I believe that I heard the noise from the tyre at about 5am. At about 6am I had some sleep in the bunk of the truck at the birdcage area at Carrathool, as there was no point trying to contact my employers that early in the morning. I slept for four or five hour. The phone records from 5 April 2007 which are at page 179 of the Defendant’s court book show that I made three phone calls to Emmanuel between 10.34am and 10.51am. I believe that these are the three phone calls which I made regarding my issue with the flat tyre.
After I suffered my neck injury on 5 April 2007, I suffered from ongoing aggravations to my neck injury including when I fell in a sink hole in or about April 2007 while at work for my employers and when I lifted a heavy fuel hose in or about April 2007 while at work for my employers. Both of these incidents affected my neck pain but I believe that the incident on 5 April 2007 was the main cause of my neck problems.”[2]
[2] PCB 24-27
The Further Affidavit Evidence Relied upon by the Plaintiff
8 In an affidavit sworn 7 September 2011, Mr Greg Collier states that on 4 April 2007 at approximately 12.00 am, the plaintiff attended his house and told him he had hurt his neck earlier that morning whilst changing a tyre on his truck. He said that the plaintiff remained at his house overnight and left the next morning between 7.00 and 8.00 am, at which time he appeared to be in a lot of pain. He said that he had advised the plaintiff that he should call a family member to come and drive him home.
9 In an affidavit dated 7 September 2011, Chris Tresize states that early in April 2007 as he was driving along the Newell Highway, he saw the plaintiff standing by his truck on the side of the road. Upon speaking to the plaintiff, Mr Tresize stated that he was told that the plaintiff was having difficulty driving his truck because he had hurt his neck the day before whilst changing a tyre on the truck. He said that because of the plaintiff’s injury, he had offered to drive the plaintiff’s truck back to Melbourne and that he immediately drove the truck to Mark Anderson’s house at Deniliquin where he and the plaintiff remained until approximately 9.00 pm, at which time he drove the plaintiff’s truck to the plaintiff’s house in Cannons Creek. Mr Tresize described the plaintiff as being in obvious distress due to neck pain in the course of the journey from Jerilderie to Melbourne and said that he recalled the plaintiff asking for painkilling medication whilst they were at Mr Anderson’s house.
10 In an affidavit sworn 7 September 2011, Mr Mark Anderson states that the plaintiff, together with Mr Tresize, arrived at his house, where he was told that the plaintiff had hurt his neck the day before, was unable to drive his truck and that Mr Tresize had agreed to drive the plaintiff and his truck back to Melbourne. He said that the plaintiff was at that time complaining of severe neck pain, that Mr Anderson’s wife gave the plaintiff some painkillers and that Mr Tresize and the plaintiff left his house at approximately 9.00 pm to commence the drive to Melbourne.
11 In an affidavit dated 7 September 2011, Frank Ramatanis stated that he had regularly visited a truck depot which he owned and which was leased to the first defendant. He said he was familiar with the Marshall 52445 trailer, that he had observed that the trailer was fitted with a tyre carrier bolted to its undercarriage and that it contained a spare tyre. He said that in his experience a truck driver would be foolhardy to proceed on an interstate trip without having a spare tyre attached to the trailer.
12 In an affidavit dated 1 September 2011, Kieran O’Brien stated that in April or May 2007, he had attended the home of the plaintiff. He had undertaken some mechanical work upon a Marshall trailer which involved the removal of the wheel rack which had been secured to the trailer.
The Affidavit Material Relied Upon by the Defendant
13 Emmanuel Kalas, a director of the first defendant company, in a statement made 26 November 2009, which was adopted by him in an affidavit sworn 16 March 2011, states:
(i)
that on 5 April 2007, the plaintiff was driving a Kenworth 401 prime mover to which was attached a Marshall trailer, and that neither the prime mover nor the trailer carried spare tyres or any equipment to change a tyre;
(ii)
that the plaintiff’s statement that he was injured at 3.00 am was inconsistent with the plaintiff’s logged time of departure from the Mobil depot in Melbourne at 11.30 pm as the driving time between Melbourne and the Bird cage car park, where the plaintiff described he had parked his truck upon noticing a problem with his tyres, involved a driving time of approximately six hours;
(iii) that: “I did not and would never ask Colin or any driver to change a tyre as they don’t have the equipment on the truck to do it and based on this it would be physically impossible to raise the tanker with a full load”.
14 Mr Kalas said that the plaintiff was aware that it was not part of his job to change a tyre and that the plaintiff had never reported to him at any time that he had encountered a problem with a flat tyre.
15 Ms Maria Kaleskopis, a director of the first defendant company, in a statement made on 26 November 2009, agreed with the statement made by Mr Kalas in every relevant respect.
The Plaintiff’s viva voce Evidence
16 In the course of cross-examination, the plaintiff gave evidence which at times was difficult to follow. (See, for example, the cross-examination as to the plaintiff’s work history at Transcript pages 20 through to 26.)
17 My impression of the plaintiff’s evidence in this regard was that the plaintiff was a poor historian but not that he was deliberately prevaricating or dishonest on the issues to which I referred which were dealt with in the above pages of transcript. I make this comment based on the fact that the issues upon which the plaintiff gave confusing answers were hardly contentious and that I could detect no purpose for prevarication or dishonesty as to these issues.
18 The plaintiff said that the insertion of the time of 3.00 am in his initial affidavit occurred as a result of a typing error and that the mistake that he had made in describing the vehicle he was driving at the time of his injury as a Scania and not a Kenworth, arose by reason of the fact that he drove a number of trucks in the course of his employment with the first defendant and that he regularly changed from truck to truck and that he had been mistaken.
19 The Issues as to:
(i) the change in the plaintiff’s description of the vehicle he was driving at the time he was injured; and (ii) the change in the time at which he had first noticed the flat tyre; were the subject of considerable cross-examination.
20 As to the former issue, there appears to be no issue that the plaintiff was, at the time of his alleged accident, driving a Kenworth truck. Given that there was no suggestion that the plaintiff had identified the involvement of a Scania truck because he was aware that the Scania truck somehow advanced the credibility of the false allegation which it is alleged he intended to make by making it more credible, I see no reason not to accept the plaintiff’s evidence that he mistook the vehicle he was driving for the reasons he gave in the course of his evidence at Transcript pages 41 to 43.
21 As to the latter issue, namely the timing of the incident, given that the plaintiff in his statement made on 13 April 2007 described the incident as having occurred at 5.00 am, when considered in context with the fact that there is no suggestion that the plaintiff’s case could in any way be advanced by the change of time (thus providing some motive for the plaintiff to bring the time forward), I accept the plaintiff’s evidence that he first noticed that he had a flat tyre at approximately 5.00 am.
22 These comments should not be taken as an expression that I found all of the plaintiff’s evidence to be persuasive. I do not accept that the plaintiff’s evidence that the change in his affidavit as to the identity of the truck he was driving predated his being advised of the content of the statements of his employers.
23 Further:
[3] T 123 - T 134
(i) The plaintiff’s evidence as to the activities which he had undertaken during the time which elapsed between the two telephone calls made by him to Mr Kalas[3] was challenged, and I found the plaintiff’s attempt to justify the time within which he was capable of completing all of the activities which he catalogued in the course of his evidence as being involved in the process of changing his tyre to be unpersuasive. (i) There are numerous inconsistencies in the plaintiff’s affidavits and that those affidavits, when considered with the plaintiff’s statement of 13 April 2007, make no reference to any delay between the time at which the plaintiff drove his truck into the Bird cage car park and the timing of his injury, is a matter to which the defendant appropriately points as raising a legitimate issue as to whether I should accept the plaintiff’s version of events. 24 The defendant takes issue with the plaintiff’s evidence as to the number of telephone calls which the plaintiff made to his employer; the content of those calls; and the nature of any instructions, if any, given by the plaintiff’s employer to him that he should change the flat tyre.
25 Balanced against the defendant’s position in this regard however is the fact that on 6 April 2007, three telephone conversations are recorded as having taken place between the plaintiff and his employer: at 10.34 am 10.39 am and 10.51 am respectively. In my opinion, the occurrence and timing of these telephone calls is more consistent with the occurrence of an untoward incident than otherwise.
26 Finally, as to the point taken by the defendant that the plaintiff has been inconsistent in the histories which he has provided to a number of medical practitioners upon the timing and consequences of his injury, whilst I take this point into account, I give it only modest weight in circumstances in which the primary reason for the plaintiff’s presentation to those practitioners involved investigation of medical issues and not issues related to causation, with the result that neither the practitioners nor the plaintiff were necessarily alerted to the need to provide or obtain detailed and accurate histories as to the precise timing and occurrence of the events the subject of the claim.
27 The matters to which I have referred above do cause me to apply close scrutiny to the plaintiff’s evidence and to apply caution before accepting that evidence, particularly where there is persuasive evidence to the contrary.
The Persuasiveness of the Affidavit Evidence Relied upon by the Defendants
28 I find the statements made by Mr Kalas and Ms Kaleskopis which are relied upon by the first defendant in challenging the plaintiff’s case as to the happening of his alleged accident to be questionable and not to be persuasive on a number of grounds.
29 Firstly, I prefer the evidence of the plaintiff to that of Mr Kalas as to the ability of a driver to effect the change of truck tyre in circumstances in which a fully loaded tanker trailer requires a wheel to be changed. The plaintiff’s evidence accords with commonsense. Further, the plaintiff’s statement that the fact that the axles fitted to the trailer are independent of each other and that accordingly, the weight to be carried by a jack in the course of a tyre change is minimised (which appears in his affidavit of 1 September 2011), was not challenged by any material in response submitted on behalf of the defendant.
30 A similar comment applies to the detailed description by the plaintiff in his affidavit as to the wheel rack fitted to the trailer, its removal and storage, and the fact that the trailer carried a spare wheel on the date of his injury. I find the failure by the first defendant to file any statement denying the allegations made by the plaintiff in this regard (which in themselves challenge the veracity of the statements made by Mr Kalus and Ms Kaleskopis in their affidavits) to be telling in the plaintiff’s favour upon the issue as to whether the statements by those witnesses should be preferred to those of the plaintiff.
31 Secondly, if it was the case that Mr Kalas:
“… would never ask Colin or any other driver to change a tyre as they don’t have the equipment on the truck to do it and based on this it would be physically impossible to raise a tanker with a full load”; [4]
[4] DCB 185
it follows that Mr Kalus and Ms Kaleskopus must have always held the opinion that it was not possible for the plaintiff to have sustained an injury in the circumstances he alleged. This being so, it would be, in my opinion, extremely unlikely that Mr Kalus and Ms Kaleskopis would have accepted without question the report made by the plaintiff on 13 April 2007 that he injured his neck whilst changing a tyre or that they would have been party to the preparation of a report to the Victorian WorkCover Authority that the plaintiff had been injured carrying out those duties.[5]
[5] See the report at PCB 40
32 For these reasons:
•
I reject that evidence adduced by the first defendant that the changing of one tyre on a trailer would require the capacity to lift the weight constituted by the entire trailer and its load which, at face value, seemed implausible and is further devalued by the defendants’ failure to respond to the plaintiff’s final affidavit. I make the same finding as to the evidence adduced by the first defendant as to the presence upon the trailer of a wheel rack and the availability to the plaintiff of a spare tyre;
•
I reject the defendants’ assertion that the plaintiff could not have suffered injury whilst changing a tyre and I am satisfied that the plaintiff’s duties did potentially involve a requirement to change the tyre in question; that this task was not one which was impossible for him to perform; and that the trailer which he was towing at the time carried a spare tyre which could be employed for that purpose.
Findings
33 Having regard to the fact that there was no witness to the circumstances of the plaintiff’s accident in which the plaintiff suffered his alleged injury, when combined with:
• the inconsistencies to which I have previously referred to by the plaintiff, both in his affidavit and viva voce evidence; • the unpersuasive evidence of the directors of the first defendant in their statements to which I have referred; when deciding whether the plaintiff has established on the balance of probabilities that he did in fact sustain a work-related injury on 5 April 2007, I am of the opinion that the contemporaneous statements made both by the plaintiff and the directors of the first defendant company which relate to the happening of the incident should be given more weight than their subsequent statements and affidavits which were prepared some years later and which all suffer from readily apparent issues of reliability.
34 More importantly, I consider it appropriate to give significant weight to the relatively independent evidence to be found in the affidavits of Mr Collier, Mr Anderson, Mr Tresize, Mr Ramatanis and Mr O’Brien, which evidence is not the subject of challenge by the defendant.
35 When the content of these five affidavits is considered in the context of:
•
the plaintiff’s statement of 13 April 2007, which describes his involvement in an incident on 5 April 2007 in which he discovered he had a flat tyre at approximately 5.00 am and in which he sustained an injury when in the course of fitting a spare tyre he was struck by the tyre and fell backwards,
• the incident report and WorkCover reports signed by the defendants’ directors which take no issue with the likelihood of the plaintiff suffering
injury whilst changing a flat tyre;
•
the support for the plaintiff’s position that he had suffered an injury to his cervical spine at or about the time of his alleged injury by the report of Dr Baksheve[6] which describes the attendance of the plaintiff upon Dr Baksheve on the evening of 7 April 2007 complaining of a recent injury to his neck;
a compelling position with respect to the occurrence of the injury upon which
the plaintiff relies in this application is made out.[6] PCB 77
36 I do not however lose sight of the matters put by the defendants to which I have previously referred.
37 It is clear that in deciding issues of causation, matters of impression are paramount. Superior courts repeatedly point to the fact that the trier of fact is encouraged to take a “robust and pragmatic approach to the proof of causation”.[7] See also the approach taken by the Victorian Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir,[8] in which Tadgell JA commented:
“… The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. … .”
[7] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
[8] [1997] 1 VR 125
38 When consideration is given to the evidence overall, the support for the plaintiff’s case by the unchallenged lay evidence from witnesses who, in my opinion, can be appropriately categorised as being independent of the litigation process, and a description by the plaintiff of the circumstances of his injury in his statement of 13 April 2007, I am satisfied that the plaintiff has established that he did suffer an injury to his cervical spine as a result of the incident the subject of this application.
39 Accordingly, I am of the opinion that the plaintiff is entitled to the leave sought by him.
40 I will hear the parties as to the precise orders which I should make in this matter having regard to my findings and also upon the issue of costs.
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