Farrell v Queensland Newspapers Pty Ltd

[1998] QCA 18

IN THE COURT OF APPEAL	[1998] QCA 018
SUPREME COURT OF QUEENSLAND

Appeal No. 5616 of 1997.

Brisbane

[Farrell v. Qld Newspapers P/L]

BETWEEN:

WAYNE LAWRENCE FARRELL

(Plaintiff) Appellant

AND:

QUEENSLAND NEWSPAPERS PTY LTD
A.C.N. 009 661 778

(Defendant) Respondent

___________________________________________________________________

Pincus J.A. Davies J.A. Byrne J.

___________________________________________________________________________

Judgment delivered 27 February 1998

Judgment of the Court

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS
___________________________________________________________________________

CATCHWORDS: Civil - personal injuries - appellant employee of respondent - where appellant unable to convince primary judge that he remembered sustaining injury on a particular occasion - where documents threw doubt on appellant’s version of how injury occurred - whether medical evidence consistent with appellant’s version of how injury occurred.

Counsel:	Mr P R Dutney Q.C. with him Mr S Di Carlo for the appellant. Mr P A Keane Q.C. with him Mr R A I Myers for the respondent
Solicitors:	Baker Johnson Lawyers for the appellant Thynne and McCartney for the respondent
Hearing date:	20 February 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 5616 of 1997.

Brisbane

Before Pincus J.A. Davies J.A. Byrne J.

[Farrell v. Qld Newspapers P/L]

BETWEEN:

WAYNE LAWRENCE FARRELL

(Plaintiff) Appellant

AND:

QUEENSLAND NEWSPAPERS PTY LTD
A.C.N. 009 661 778

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 27 February 1998

This is an appeal from a judgment of the Supreme Court dismissing a claim for damages for

personal injuries. The appellant gave evidence that, while working as an employee of the respondent,

he was required to move a very heavy steel trolley stacked with newspapers. The statement of claim

said:

"The [appellant] was required to position himself at the front end of the said stacked steel trolley in order to pull same whilst his fellow employee was required to push the said stacked steel table from the rear."

The appellant set out to prove that during this process he suffered a serious injury, mainly to his cervical

spine. The judge assessed damages, while dismissing the claim, at about $400,000.

The appellant lost his case because he was unable to convince the primary judge, who regarded

him as an unreliable witness, that he remembered sustaining injury on a particular occasion, or that he

was injured while pulling a table. The appellant was able to adduce only his own evidence to prove that

he was injured as alleged; no-one was called to say they saw this happen. And there were some

documents which were written shortly after the relevant date which tended to throw doubt on his

version.

The appellant’s case was that he was injured during a night shift which began at 4 pm on Friday

21 February 1992. The respondent employer’s record of accidents and illnesses relating to the

appellant did not record any accident as having happened during that shift, but showed that on 22

February 1992 at 8.30 pm there was a complaint of tense muscles and right neck pain for the past day,

and on that same date a note, "strained neck from lifting" (emphasis added). The allegation in the case

was not that there was an injury suffered by lifting, but that the appellant was hurt when pulling a trolley.

Apart from the record just referred to, three other roughly contemporaneous documents all told

against acceptance of the appellant’s account of having suffered an injury while pulling a trolley; and

there was no document supporting that version. First, an application for worker’s compensation

contained a statement which the appellant admitted having written in answer to the question: "What

were you actually doing when the injury was sustained". The answer was: "Sacking (sic) papers on

pelletts (sic). Pulling loaded tables. Pulling machines. Driving forklift". The next question and answer

were: "How did the injury occur?", "As above". The appellant said in effect that he misunderstood the

former question, thinking it required him to say what he was doing throughout the whole shift, but the answer given is more consistent with the judge’s conclusion than the appellant’s case. It gives rise to

the suspicion that by the end of the shift, after performing various activities the appellant was sore, but

that he was not able to attribute this to any specific cause.

Next, according to a report of a Dr Whish, the appellant came to him on 24 February 1992 -

2 or 3 days after the supposed pulling injury - "complaining of right sided neck pain for 3 days after

lifting at work". This account is consistent with the record made by the respondent on 22 February.

Lastly, two days later, the appellant went to see a physiotherapist who wrote that the appellant

attended complaining of pain "which had come on suddenly after lifting at work". It was not until nearly

two years later that, for the first time, the complaint is recorded as having been of an injury sustained

while pulling a table. Mr Dutney Q.C. who led Mr Di Carlo for the appellant argued that pulling the

table might have been described, or understood, as lifting, or that in some other way this series of

records mentioning a lifting injury could have come into existence, although there was no lifting injury.

That is so, but the primary judge had to deal in probabilities and the documents must, rationally, have

made the appellant’s claimed recollection difficult to accept. Of course, if an injury were sustained while

lifting the appellant would have had to show that the lifting occurred in such circumstances as to fasten

liability on to the respondent.

We have mentioned that the judge expressed a general view adverse to the appellant’s reliability

and a number of circumstances combine to support that conclusion. One is that the appellant gave

evidence that when he was pulling the table and suffered injury a man called Gray was with him, but

shortly after that the appellant said that he could not remember whether he was there by himself or not. But there is no need to discuss the judge’s view about the appellant’s reliability, because Mr Dutney

does not ask us to disagree with it. His principal point, and the only substantial ground upon which the

judge’s conclusion was attacked, was that the medical evidence pointed to the appellant’s neck injury

having been caused by pulling a table. A physician, Dr Myers, was asked by the judge whether pulling

was more likely to have caused the injury than lifting. Dr Myers replied that it was not so much the

weight that was lifted as the forces transmitted to the restraining membrane of the intervertebral disc.

He said that if the injury happened while lifting heavy newspapers one would have expected the

appellant to hear a "click" (as the appellant said he did) and feel a pain at that time. But Dr Myers could

not say whether the injury would be more likely to be caused by lifting heavy weights or pulling heavy

objects. A Dr Low, described as a specialist in occupational medicine, was asked a question about

whether pulling a trolley would be more likely to injure the neck as opposed to some other part of the

body; Dr Low’s answer implied, without expressly saying, that a neck injury was more likely. He also

said, at another point in his evidence, that the disc injury was of a kind which could be caused by

"something very minor". Dr Pentis was asked whether the injury was equally consistent with lifting heavy

objects as opposed to pulling heavy objects and he said it could be either, but usually one would find

some form of "rotary" insult applied to cause it. This was not pursued further, to enable a conclusion

to be drawn whether such an insult could have been sustained by certain modes of pulling or certain

modes of lifting. Dr Tomlinson, a neurosurgeon, said in effect that pulling in the circumstances of which

the appellant complained could have caused the appellant’s injury. Taking the medical evidence as a

whole it throws little light on the question whether the injury was sustained by pulling rather than lifting.
Mr Dutney made a number of other criticisms of the judge’s reasoning, one of which was that

his Honour adopted a mistaken view on the question whether more rather than fewer people ordinarily

helped in pulling the laden tables. That appears to be of little consequence, for the initial hurdle, which

the plaintiff failed to pass over was to satisfy the judge that the injury was sustained while pulling a table.

What the judge was left with was that the appellant had a neck injury which may have been, but was

not necessarily, caused by some specific remembered incident.

It is unnecessary to refer to authority for the view that this Court will not ordinarily upset a

finding, or a refusal to make a desired finding, based on the judge’s view of the reliability of a particular

witness. The appellant’s task in such a case is all the harder where, as here, all the contemporaneous

documents tend to support rather than throw doubt on the view the primary judge has adopted. It is

our opinion that no ground has been shown on which we could properly reverse the judge’s conclusion

and find that the appellant was injured in the way he described in evidence.

The appeal must be dismissed with costs.