Jansen, P. v G.K. Sanford Pty Ltd
[1990] FCA 769
•21 DECEMBER 1990
Re: PAUL JANSEN
And: G.K. SANFORD PTY LTD
No. ACT G24 of 1990
FED No. 769
Negligence
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Miles(1), Foster(1) and Von Doussa(1) JJ.
CATCHWORDS
Negligence - onus of proof - alleged fall due to unsafe place and system of work - failure to discharge onus - no new question of principle.
HEARING
CANBERRA
#DATE 21:12:1990
Counsel for the Applicant: B. Maguire QC with G. Richardson
Instructed By: Minter Ellison
Counsel for the Respondent: D. Rofe QC with B. Hull
Instructed By: Wood Fussell
ORDER
The appeal be dismissed.
The applicant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a judgment of Gallop J given in the Supreme Court of the Australian Capital Territory on 16 May 1990. The proceedings before his Honour consisted of a common law claim for damages for injuries and disabilities and consequential losses arising out of an industrial accident. The appellant alleged that he was involved in this accident on 26 June 1985 in circumstances in which the present respondent, his employer, was guilty of negligence.
His Honour found in favour of the respondent. He did not, in the event, need to consider the question of negligence. He was not satisfied that the appellant had established other aspects of his case essential to its success.
The appellant, by his appeal to this Court, seeks that his Honour's judgment in favour of the respondent be set aside and the proceedings be remitted to the Supreme Court for a new trial on all issues. The Notice of Appeal originally contained seven grounds and sought, in addition, that there be judgment entered for the appellant and that the matter be remitted for assessment of damages only. This claim was abandoned at the hearing. Further, the original seven grounds of appeal were not pressed. Instead, three further grounds were sought to be added in circumstances where, it appears, certain of the matters sought to be raised under the previous grounds were subsumed under the new grounds. Leave was granted for the addition of these grounds subject to the subsequent consideration, if necessary, of an application by the respondent for the payment by the appellant of its costs thrown away by reason of the amendments.
The additional grounds, which in the circumstances, were the only grounds argued were as follows:
"8. That the judgment was against the evidence and the weight of evidence.
9. That the learned judge erred in that he never weighed up the plaintiff's case against the defendant's case.
10. That the learned judge erred in that he did not specify which issue it is upon which the plaintiff is found not to have proved his case.
The plaintiff's case was that on or about 26 June 1985 he was carrying out his duties as a van driver/salesman in the employ of the respondent. He was making a delivery at the Monaro Mall in Canberra which involved him in carrying a box of butter out of the back of the truck. Whilst doing so he slipped from the truck and fell to the ground striking the upper part of his back, his arm, and his low back against the back of the truck. He landed on his buttocks on the ground. He said that he was shocked and that he felt pain in the lower part of the right hand side of the back. After sitting for a while he was able to get up and resume his duties. he alleged that he told his employer Mrs Gloria Jarman of the accident on the evening on which it occurred. He also asserted that he told the defendant's manager, Barry Jarman, the same day or the next morning.
The learned primary judge summarised the subsequent history as given by the appellant as follows:
"Not withstanding that he was sore in the lower back the next day and suffering moderate pains in the legs, mainly the right leg, he did not seek any medical assistance at that time and continued with his normal duties until 29 November 1985. He said that from June the pain was moderate, annoying and interfered with his duties. It subsided a bit over the next few months for a couple of weeks and it started slowly to increase. The pain was mainly in the legs and he was not too concerned about the pain in his back. By November he came to the stage where he could not walk and had to use crutches. In cross-examination he said that from the date of the accident until 10 July 1985 the pain reduced. It started to get worse about the third or fourth week after the accident and progressively got worse right up to the time when he attended at the Woden Valley Hospital on 28 November 1985. He started to worry about the pain getting worse during the latter part of July and he went to see Dr Asimus in August."
Dr Asimus was the plaintiff's local practitioner. He also saw other medical practitioners, to whom reference will be made later, over the period referred to. He ultimately attended St. Vincent's Hospital in Sydney where he came under the care of Dr John P. Sheehy, neurosurgeon. On admission to St. Vincent's Hospital he gave no history of any accident, which fact he explained on the basis that he was in "extreme agony" and he wanted to give as quick a version as possible of "what has happened in my past, what they wanted to know and to find out what was going on, what was happening to me". He said he did not want that process to "go on for hours and hours without doing something about it". He did, however, give to Dr Sheehy a history of having fallen at work while unloading a truck and landing heavily on his buttocks, an episode occurring "about four months ago". He also stated that the fall was followed by attacks of back pain intermittently from that time. It appears that the pain from which he was suffering was described as back pain and sciatic pain radiating down the right leg. Dr Sheehy diagnosed damage to the L5/S1 disc. He operated on 6 December 1985 when he recorded the following findings: "at operation, I found the nerve to be really quite tight and swollen but after clearing the medial aspect of the epiphysial joint I was able to deliver a loose fragment of disc material lateral to the nerve root sheath. It was then possible to extract the nerve and clear the remainder of the L5/S1 disc from the right hand side". There was, therefore, undoubted injury to the intervertebral disc at this level at the time of the plaintiff's admission to St. Vincent's Hospital. The plaintiff's case was that this injury was attributable to the fall in respect of which he sued the respondent.
His Honour stated the issue for his determination as follows: "The primary issue at the trial was whether the plaintiff had discharged the onus of proof on the balance of probabilities that he sustained the injury, which admittedly manifested itself on 2 December 1985, on or about 26 June 1985". In other words, the learned primary judge posed for himself the question whether he was satisfied to the required standard that the plaintiff sustained the back injury, in respect of which Dr Sheehy operated, in a fall at work on or about that date.
His Honour, after considerations to which we shall make reference, came to the conclusion that he was not so satisfied. He expressed his ultimate finding as follows: "as the plaintiff has not discharged the onus of proving his case, there will be judgment for the defendant with costs".
His Honour continued by stating: "In the circumstances it is unnecessary to determine the issues of negligence and damages. It is sometimes desirable to assess damages on a provisional basis, for instance where findings of primary fact might give rise to contention as to the ultimate conclusion of negligence or no negligence. This is not such a case, and in my opinion it is not necessary to resolve issues which have not arisen because the plaintiff has failed to establish the cause of his injury".
Although these findings have been criticised as not indicating with sufficient precision the issues upon which the plaintiff failed, we do not consider that, in the whole of the circumstances of the case, this criticism is of any weight. His Honour's findings quite clearly amounted to a determination that, although the plaintiff had a demonstrable injury ascertained on operation in December 1985, he had failed to prove that it had been incurred in the manner that he alleged. The establishment of this was basic to his claim against the respondent. His failure to establish it necessarily meant that claim failed. We are, accordingly, satisfied that ground 10 of the appellant's notice of appeal is not made out.
It is basic to the other two grounds that the appellant establish that this court is not in a significant position of disadvantage to the trial judge in assessing the weight of the evidence. Senior counsel for the appellant did not take the Court to the evidence. He based his submissions upon the material set out in the primary judge's reasons for judgment. In the first place, he submitted that passages in those reasons indicated that the judge did not reject the testimony of the appellant and his witnesses and that he should, accordingly, have found that the appellant did in fact suffer the fall alleged and incurred thereafter painful symptoms in back and leg which continued until Dr Sheehy's diagnosis and consequent operation.
As to the alleged fall from the truck, the only evidence given was that of the appellant. It was not suggested that there were any witnesses to the accident. The witnesses said to provide corroborating testimony, in fact, gave evidence which was admissible only on the basis of the doctrine of recent invention. It is all evidence of accounts given by the plaintiff to these witnesses of a fall productive of painful symptoms. The function of this evidence, therefore, was to bolster the appellant's credit on those topics.
It is therefore necessary to consider what his Honour said as to the credibility of the appellant and also of these witnesses. In respect of the appellant, he said as follows:
"It is not necessary to make a finding which reflects upon the plaintiff's honesty, although, if he was being deliberately dishonest in his case, it would be easier to conclude that he has not discharged the onus. I am not able to find that he was deliberately dishonest. He may simply have rationalised that a fall at work on 26 June 1985 caused his back injury after someone had suggested to him that he could have a compensable claim."
These observations follow upon a detailed analysis of the plaintiff's attendance upon various medical practitioners after his fall and the absence of any history given to them by the appellant of a fall at work. This analysis also includes some instances of rejection of the appellant's evidence where it is in conflict with other evidence. It is also significant that his Honour had in evidence before him, as an exhibit, a medical "chronology" setting out the plaintiff's medical history from January 1978. This shows attendances upon Dr Danta, Dr Lithgow, Dr Asimus, and Dr Chandran, all medical practitioners who attended him after the date of the alleged accident. Entries in the chronology, which the Court has been advised correspond with relevant medical reports, indicate that in 1984/85, prior to the date of the alleged accident, the appellant complained of pains in the legs of unknown origin and also left sided back pain with reference to a history of sciatica. For example, a report from Dr Danta to Dr Asimus of 15 May 1985 refers to the appellant having complained of being "doubled up with back ache and pain radiating down the sides and front of legs to the ankles, pain lasted three days...describes an intermittent jab followed by dull ache". Dr Danta found no neurological abnormality on examination and accepted that the "episode was very similar to his usual symptoms which occur every two months or so but more severe". He expressed the view that "while this may be sciatica I take it his recent back x-rays were normal".
It is necessary to determine the import of what his Honour said about the appellant against this background. We are satisfied that, when this is done, the appeal cannot be approached on the basis that the appellant was accepted by the learned primary judge as a witness upon whom reliance could be placed. It was not necessary for his Honour to find that the appellant was guilty of deliberate dishonesty in his evidence. He was able to find him unreliable and unacceptable, without taking this extreme step. His reference to "rationalisation" is, in our view, clearly indicative of the fact that he regarded the appellant's testimony as unreliable and unsafe to act upon.
Much the same can be said in relation to his Honour's treatment of the plaintiff's witnesses of fact. There was firstly Mrs Jansen who had previously been married to one of the appellant's brothers. She gave evidence of the plaintiff's having spoken to her of an accident "in the first week to the middle of July 1985 and of his complaining of pain in the back and of the doctors not being sure what was wrong with him". His Honour said, in respect of this witness, that he did not form a favourable impression of her as a witness of truth, that she was trying to do her best for the plaintiff and was clearly biased towards his case. He declined to accept her evidence "as proof of an accident having happened on 26 June 1985". The unfavourable impression formed by his Honour was obviously based upon his observations of the witness and the manner in which she gave evidence. In this regard, he was clearly in a position of significant advantage over this Court. There is no satisfactory basis upon which her evidence can be taken to be of assistance to the appellant in this appeal.
Three other witnesses gave evidence for the appellant in like vein. They all asserted that the plaintiff had spoken to them of an accident at work. His Honour comments adversely upon their demeanour and of their apparent partiality towards the appellant. He makes the comment in respect of all of them that he was forced to approach their evidence with a good deal of caution. Once again, obviously, his Honour was in a position of advantage vis-a-vis this Court. The reasonable inference from the manner which his Honour deals with this evidence is that his Honour felt that he could not rely upon it.
His Honour, in his reasons, gave consideration to a considerable body of evidence bearing upon the acceptability of the appellant's version of having suffered the relevant injury in the alleged fall. It is to be noted that the plaintiff first made a claim for worker's compensation on 18 December 1985 when he stated in the claim form that the date of the injury was approximately June 1985. His Honour found that around about the same time, just before Christmas, the appellant had telephoned Mr Jarman who was the manager for the respondent and asked him questions about the truck that he had been driving in 1985. There was some conversation about the alleged injury in which Mr Jarman stated that he had no knowledge of the plaintiff's having suffered such an injury. Both Mr Jarman and Mrs Jarman, who was employed as a clerical assistant, gave evidence that the plaintiff had not made any report of the alleged accident to them before this telephone call. His Honour was in a position to assess the credibility of these witnesses and he obviously accepted them.
In his reasons, his Honour also places considerable weight upon the fact that, on the evidence, the plaintiff had numerous attendances upon medical practitioners after the date of the alleged fall but gave to those practitioners no history of the fall or consequent problems. He refers to the fact that there were eleven occasions during the period from the date of the alleged accident to his admission to St. Vincent's Hospital when he might reasonably have been expected to refer to the facts of the accident when speaking to medical practitioners but in each case failed to do so. In respect of his attendance upon his general practitioner Dr Asimus on 13 August, his Honour specifically found that despite the plaintiff's assertion that he had told the doctor of his falling from the truck and landing on his buttocks he had in fact not said any such thing to the doctor. There is no purpose to be served in setting out again the material which is set out in his Honour's judgment. Suffice it to say that, in our opinion, ample reason is demonstrated for his Honour's failure to be satisfied that the plaintiff had made any claim of accident-caused injury during the period of time in which it could reasonably have been supposed that he would have done so, had the accident occurred in the way he described and with the results that he attributed to it. The doctors to whom he failed to make such claims were doctors who had treated him in the past before the date of the accident and continued to treat him thereafter.
Additionally his Honour obviously gave consideration to the effect of the medical evidence apart from the absence of history of the accident. He sums up the effect of this evidence when he says "There was substantial medical evidence that if the plaintiff suffered a fall on 26 June 1985 which caused a prolapsed disc in his spine, it would have been expected that he would have complained of symptomatology before December 1985". Dr T G Lithgow, who had been treating the plaintiff from October 1983, said in evidence that if he made no complaint about pain in his back to the various doctors that he was seeing between 26 June 1985 and 28 November 1985 he would find that inexplicable. Both he and Dr Sheehy gave evidence, which his Honour accepted, to the effect that it was more likely that the disc prolapse had been occasioned by an incident closer to 28 November 1985 than the alleged date of the fall. Dr Stubbs, who was called on behalf of the respondent was of the view that the prolapse of the intervertebral disc had occurred much closer to the date of diagnosis without any relationship to any accident six months previously.
It does not appear from his Honour's reasons that he failed to give a balanced appraisal to the medical and other evidence. Nor does it appear that his findings were against the weight of evidence. His Honour had the significant advantages already referred to. In these circumstances it would not be proper for this Court to disturb his Honour's findings. The appeal should be dismissed with costs.
0
0
0