Kallis v Shaftsbury Citizenship Centre

[2000] QCA 95

SUPREME COURT OF QUEENSLAND

CITATION:	Kallis v Shaftsbury Citizenship Centre [2000] QCA 95
PARTIES:	WILLIAM KALLIS (plaintiff/appellant) v SHAFTSBURY CITIZENSHIP CENTRE (defendant/respondent)
FILE NO/S:	Appeal No 4957 of 1999 DC No 964 of 1995
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2000
JUDGES:	Thomas JA, Williams and Wilson JJ Judgment of the Court
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – where incident alleged to have caused injury not proved – whether sufficient basis to reject plaintiff's evidence
COUNSEL:	Mr S Di Carlo for the appellant Mr W A Martin for the respondent
SOLICITORS:	Turner Freeman for the appellant Tutt & Quinlan for the respondent

1. THE COURT:  This is an appeal by an unsuccessful appellant in an action in the District Court seeking damages for personal injury.  The action was dismissed on the basis that the learned trial judge was not satisfied that the incident which the appellant alleged had caused him personal injury had occurred.

1. At the relevant time the appellant was an inmate at the Shaftsbury Citizenship Centre where he was serving a term of imprisonment.  He alleged that on the morning of 22 February 1994 (a Tuesday) he had been operating a small tractor-mower when a part of it struck a tree branch causing it to break and strike a heavy blow to the back of his head and neck. The learned trial judge disbelieved the appellant's evidence and found insufficient support in the remainder of the evidence to justify a finding that such an incident had happened.  His Honour considered the appellant to be a witness on whose evidence he could not place any reliance. 

1. Counsel for the appellant recognised the difficulty he faced in overturning findings of fact based upon matters involving the credibility of witnesses[1].  He submitted however that upon review of the evidence by this court it would conclude that the primary judge had too fragile a base to disbelieve the appellant[2].  There were however a number of matters well capable of justifying his Honour's adverse view of the appellant's credit[3].  The submission might be better framed that there was too much confirmatory evidence supporting the appellant's assertions in relation to the incident to justify a finding that the incident did not happen.

   [1]De Vries v Australian National Railways Commission (1992-1993) 177 CLR 472.

   [2]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306.

   [3]Discussed below at paragraphs 22 to 25.

1. It has therefore been necessary for this court to examine the evidence that was given and the findings which his Honour made with respect to it.

1. The appellant was detained at Maconochie Lodge, Burpengary, which was a low security institution.  At the relevant time it contained only approximately 10 inmates at the lodge and a number of staff including Mr Major (the assistant manager) and Mr Brady (the works manager).  According to the appellant, at mid-morning on Tuesday 22 February 1994 he was told by Mr Brady to drive the mower despite a lack of sufficient guidance or instruction.  After driving it a short distance (60 metres) the appellant stopped near the first tree, adjusted the blades and started to mow around it.  In doing so the steel frame struck a branch overhead.  The branch snapped off and fell directly onto the back of his head rolling down onto his neck and shoulders.  He did not think he was knocked unconscious but was dazed.  He was initially pinned to the steering wheel, but then lifted the branch off.  About eight fellow inmates arrived at the scene.  It took all of them to pick up the branch and carry it away.  Somebody went and contacted Mr Brady who arrived "in due course".  He later amplified this, stating that “Someone went up and got John Brady and then they moved the branch out of the way and John was there”.  The appellant claims that although in some discomfort he continued to perform his duties until the end of the day although he did not actually remember the rest of that day.

1. Over the preceding weeks the appellant had been involved in three separate minor incidents causing personal injury and consequential hospital visits.  These and other complaints including the fact that on various mornings (including 10, 15, 17 and 21 February) he did not walk due to injury were logged.  These early morning entries variously state - "has bad knee – needs medical attention", "did not walk – believes he fractured his patella", "leg problems from whipper snipper, also knee, wants to see doctor", and "did not walk due to sore knee".  Uncharacteristically he did not report the alleged incident of 22 February, and no mention of it appears in the defendant's log until 7.10 pm on Thursday night 24 February.  At that time the appellant was visited by Mr Major who was investigating the appellant's refusal to attend a compulsory Toastmasters activity that evening.  The appellant then showed him a bruise on his neck which he said was caused by the branch of a tree falling on him whilst mowing.  The relevant part of the entry then written into the logbook by Mr Major is as follows:

"… I spoke with Bill and found bruising to the back of his neck caused by the branch of a tree falling on him whilst mowing.  Having seen the limb of the tree it is understandable – my suggestion to Bill is that he must have a medical check in the morning".

1. The appellant was examined the following morning at the Redcliffe Hospital.  The doctor's notes record "No obvious bruising".  Complaints were noted of pain over the last few days in the back of the head and neck and over his eyes.  His account was "hit on the back of the head by a branch".  The history recorded by the nursing staff was "[3 days] ago tree fell on back of head and neck [no loss of consciousness] at time.  Since then headaches, neck and shoulder pains, no other symptoms …".  There was no follow-up at Redcliffe Hospital, and the appellant did not seek medical treatment from his own local doctor when he went home on the following weekend.  He returned to Maconochie Lodge, spent one week on light duties and was released on the following Monday.  He then saw his general practitioner, Dr Comino, who arranged for a scan at the Mater Hospital which revealed no abnormality.  However the appellant continued to complain of a variety of symptoms.  At least seven medical experts were called during the hearing, expressing widely ranging views concerning the extent of his disability and its aetiology.  Among other issues there was a marked conflict concerning whether there had been a soft tissue injury or whether some injury to the T1 vertebra was demonstrated.

1. Some doctors, including Dr Morris, considered that the symptoms were not related to an orthopaedic problem.  The preponderance of the evidence seems to lean against probability of a fracture of T1, although there is considerable evidence recognising its possibility.  The learned trial judge set out the relevant opinions on this question but did not resolve the point or express a preference for any particular view, other than to indicate that he would not be prepared to place much reliance on Dr Tuffley's evidence.

1. It is fair to say that the preponderance of the medical evidence accepts that the appellant had a problem in the area of his neck, but of course this depends to some extent on acceptance of the genuineness of the appellant's complaints.  Some of the medical witnesses accepted that his ability to perform heavy lifting, repetitive bending or overhead work was adversely affected.  The evidence most favourable to the appellant (that of Dr Tomlinson) suggests that the appellant's headaches were secondary to concussion and that the blow to the back of the head (as the appellant described it to him) had caused a hyper-flexion injury causing damage to the first thoracic vertebrae causing continuing problems in the neck.

1. It is enough to note in the present context that there is a body of medical evidence which accepts that the appellant between March 1994 and trial at the end of 1998 manifested problems in and around the neck area, although there was considerable disparity in diagnosis and some doubt was raised as to the genuineness of some of the symptoms alleged.

1. Video tape evidence was called by the defendant in relation to activity of the appellant said to be inconsistent with his claims of restricted ability to work.  Films were taken on 28 August 1996 and 17 July 1998, the latter occasion consisting of two segments, namely between 9.24 am and 9.43 am and then between 11.00 am and a further undisclosed time.  At the end of the first segment the photographer (whose camera was concealed in a briefcase) apparently stopped filming soon after the appellant had appeared to look directly at the area where the camera was.  The appellant had soon thereafter put his hand to his neck and rubbed it with an expression of pain.  Evidence however suggested it to be unlikely that the appellant would have been able to see the concealed camera lens.  Soon after this the appellant left the shop and the photographer stopped filming.  Counsel for the appellant submitted that this is consistent with the appellant's evidence that he had a limited capacity for work and that he needed rest when pain supervened as it commonly did.  By the time another investigator returned to resume filming (one and a quarter hours later) the appellant was back at work.  On each occasion, apart from the demonstration of pain shortly before the appellant left the shop, there was no sign that the appellant avoided neck movements.  He was seen to bend and lift various things including a tin which weighed 11 kilograms, and squatting, holding a telephone between his head and his left shoulder whilst picking up something in his left hand and placing it on a high shelf, then transferring it to his right hand (which was not encumbered by the telephone).  The learned trial judge did not see anything on the video tape which appeared to show any restriction in movement of the neck at any stage.

1. Counsel for the appellant complained that the defendant's solicitor had spliced the two portions of the tape together, and that it was not made clear to the medical witnesses whose opinions were received after viewing the tape that there had been a gap of one and a quarter hours after the occasion when there was a manifestation of pain.  There are several reasons why this complaint should not be regarded as material to the outcome.  Firstly, on a number of occasions counsel for the defendant expressly notified the medical witness of such fact in the course of his questioning.  Secondly the issue to which the taped evidence was directed was the appellant's capacity to perform particular physical actions.  No question of endurance appears to have been raised. And thirdly, the effect of the video evidence does not appear to have been an influential factor in his Honour's reasoning.  His Honour indicated, with respect to what seems to have been one of the focal points of the exercise:

"My own impression of the video is that there is a somewhat theatrical air about the rubbing of the neck and I am left suspecting that the plaintiff either saw the camera or deduced that that person in the shop may have been someone who was checking up on him, and put on an act for that person's benefit.  However, I am not prepared on the basis of my examination of the video to find that the plaintiff did see the camera or deduce its presence".

1. Otherwise his Honour's discussion of the video evidence is concerned with particular physical movements and with observations of the various medical practitioners in relation to them.  The spliced tape was a valid source for such an analysis.  In the end we do not consider the complaint of counsel for the appellant concerning the splicing of the two segments of the second tape demonstrates any relevant disadvantage to the appellant.

1. Evidence was given by Mr Brady that on the day in question he watched the appellant operate the tractor-mower for the first 15 or 20 minutes during which nothing untoward happened.  This directly contradicts the appellant’s evidence which on any view of it has the incident occurring within the first few minutes of his mowing.  About three quarters of an hour later he came back to check that the appellant was operating properly and watched him for another five or ten minutes.  He also returned later in the day and noticed that he was still on the tractor.  There was no conversation or visit such as that alleged by the appellant in the aftermath of the incident.  The following day he noticed through the dining room window that a limb from a ghost gum was lying on the ground.  He thought it had fallen off.  He later looked at it and saw tractor marks around the tree in the area where it had fallen.  He did not notice any unusual damage on the branch.  He examined the tractor and noted that there was no damage on it.  He instructed some inmates to cut up the branch and take it away.  He considered the branch to be about 10 feet long and between three and four inches thick.  He asked the appellant if he had hit the branch and the appellant replied "No it just fell down".  No suggestion was made that it had made contact with either him or the tractor.

1. The log entry for the morning following the alleged incident includes:

"7.00 am Dave Tyson did not walk due to ankle injury, Bill Kallis due to continuing knee trouble".

That entry was made by a staff member, Ivan Wall, whom the parties apparently agreed was too ill to be called as a witness.

1. That afternoon (Wednesday 23 February) the appellant and a group of inmates went on a supervised excursion to Suttons Beach.  The appellant claims that he had refused to go because of pain but that ultimately he was ordered to go and was forced to get on the bus.  He claims that he lay on the floor of the bus and that he refused to leave the coach at the beach or participate in activities including volleyball.  The log entry does not record any unusual event.  It states:

"4.20 pm John Brady and K Harkins have left the centre with seven Smirnoffs for Suttons Beach.  A Smith and D Tyson are still in the centre.
5.50 pm K Harkins back in centre with seven Smirnoffs … all quiet".

1. On the following day (Thursday 24 February) the log notes:

"6.47 am Dave Tyson, Bill Kallis, Jay Dingel unable to walk".

The appellant indicated that he was too ill to work that afternoon.  He declined to participate in the evening Toastmasters function, leading to Mr Major approaching the appellant and making the entry of 7.10 pm earlier noted.  This is the first indication of a complaint concerning the incident upon which the action is founded.

1. Other evidence exists but the above summary contains the major details that are relied upon to support the submission that the learned trial judge palpably misused his advantage and erred in declining to accept that some such incident had occurred on 22 February 1994.

What conclusions can be drawn from these surrounding circumstances?

1. There is evidence that the appellant did suffer some injury to his neck at least by Thursday 24 February, and that a tree branch had fallen at least by early Wednesday morning. The statement to Mr Major on Thursday night is of course a self-serving statement consistent with the occurrence of the incident upon which the appellant sues.  That statement was however made almost two and a half days later.  The observation of the learned trial judge that the entries in the log suggest that ordinarily when the appellant had some medical problem it came to the attention of the supervisors and some note was made seems correct.  His Honour also indicated a reasonable approach to using the log, indicating that:

"I do not regard Exhibit 48 as a form of perfect record keeping by any means; it is obvious from the references that are present, and are not present, in relation to the earlier incidents that not everything finds its way into the book, and I am certainly not approaching the matter on the basis that, if it is not in the book, it did not happen.  But I think that if anything of significance had happened to the plaintiff on Tuesday morning, there would have been entries relating to it in the book well before Thursday evening.  The plaintiff did not say that he kept his problems to himself until then, and on the basis of the assessment that I was able to make of the plaintiff in the witness box he did not strike me as someone who would be keeping quiet about a significant blow to the head.  He had obviously reported the earlier incidents and had been taken to the hospital on earlier occasions when he asked to go".

1. In short a bruise was observed that had subsided by the next day when he was examined at Redcliffe Hospital.  His version alleges that a substantial number of fellow inmates were present at the time and assisted in the immediate aftermath of the relevant incident.  The names of such persons would be readily obtainable.  No evidence was called of enquiry or unavailability of such witnesses.  None of them was called.  This was a matter as to which the onus of proof lay on the appellant.  On analysis there is simply no unequivocal supporting evidence for the appellant's version.

1. To the contrary there is evidence that is to some extent at odds with it.  Of particular significance is the evidence of Mr Brady.  The learned trial judge's impression of Mr Brady was that he was trying to recall accurately what had occurred.  His Honour rightly regarded his evidence as overall being inconsistent with there having been any such incident as the appellant describes.  Furthermore the appellant's attribution on the following morning of leg pain as the reason he would not walk is difficult to reconcile with his account. So too is the uncharacteristic failure to complain in relation to this allegedly major incident having regard to his regular minor complaints and of their due recording.

Creditworthiness of appellant

1. In these circumstances it becomes important to determine whether his Honour erred in refusing to believe the appellant's sworn evidence.  The appellant had a number of prior convictions involving dishonesty.  These were noted by his Honour with the comment:

"In isolation, I would not necessarily attribute a great deal of significance to this factor, but I think it is of some weight adverse to the plaintiff as a witness of credit, and is more significant when seen with the other matters". 

1. This aside there was ample evidence capable of giving his Honour a very poor impression of the appellant's accuracy and veracity.  One of these involves apparently preposterous allegations, persisted in by the appellant, concerning details surrounding his conviction of forging and uttering one of his customer's invoices.  That conviction occurred between the time of his release from Maconochie Lodge and the present trial.  It is sufficient to note that he persisted in plainly untrue allegations of what had transpired in the District Court, including the allegation that his counsel had not said a word on his behalf when in fact it was demonstrated that his counsel had made substantial submissions.  It may be inferred that the appellant wished to disassociate himself from those submissions which had included the statement that the appellant's panel beating business had deteriorated significantly to the point of total collapse before he was released from prison.  Such an assertion of course ran strongly counter to the case that the appellant wished to make on damages.

1. There was also alleged in two of the appellant's statements on loss and damage that "since April 1995 he is unable to even assist in his father's shop".  Eventually this was replaced with the statement "since April 1994 he has assisted in his father's shop on an average of 10 to 12 hours per week".  The appellant also conceded that he had made false statements in an application to the National Bank for a loan conceding that "I might have a few fibs there", in relation to the income he claimed to be entitled to, and on which he forged the signature of his father or mother.  The learned trial judge observed that the appellant must either have lied to the bank or have been lying to him.

1. The learned trial judge also considered that the appellant was feigning confusion and was evasive under cross-examination.  It is unnecessary to refer to other matters such as inconsistency with evidence of other witnesses and inconsistency with earlier statements.  There was an adequate basis upon which his Honour was entitled to reach the view that he could not believe what the plaintiff said. His disbelief was soundly based on objective matters as well as an adverse impression in the court room.

1. Counsel for the appellant referred to a number of matters upon which he submitted that the learned trial judge committed errors.  One was that his Honour placed undue reliance on the logbook.  That however does not seem to be so.  Another is that the alleged discrepancies in versions given by the appellant to various doctors of the incident are relatively trivial and ought not to have been relied on.  There is some validity in this submission, as the differences of description of the tree branch as mentioned by his Honour were not very great.  It is a matter however on which different minds might place different emphasis.  In any event we do not regard his Honour's observations on this point as being a significant or organic part of his reasoning.  Similarly, criticism is possible of the exercise upon which his Honour embarked in relation to considering the angle of the branch and the distance it would have to fall if the appellant were to be injured to the extent he claimed.  That would seem to have been an unpromising and inconclusive exercise.  In context however, it was a minor part of a very thorough and wide-ranging analysis undertaken by his Honour.  The fact that criticism is possible of some of the considerations mentioned by his Honour in such an exercise neither falsifies the major points upon which his Honour based his conclusions, nor taints the exercise as a whole.  Counsel further submitted that his Honour erred in treating the evidence of the appellant as inconsistent with that of the witness Sutcliffe.  The difference between their evidence may be thought to be rather trivial, and hardly to have deserved mention.  His Honour did not expressly describe the difference as an inconsistency, although the fact that he set the statements out in juxtaposition suggests that his Honour may have thought so.  Once again this is hardly indicative of error on the part of the learned trial judge, let alone of error in respect of an influential factor in the judicial exercise. 

1. It was appropriate for counsel for the appellant to draw attention to arguable errors in his Honour's reasons, but on analysis there is no error approaching the dimension which would enable this court to say that his Honour misused his advantage as the trial judge or that any ground has been made out that would permit an appellate court to upset findings based upon the credibility of the witnesses.

1. We have approached this case with some anxiety because it is obviously possible that some such incident as that described by the appellant did occur.  We are also conscious of the disadvantages of prisoners and of the risk of prejudice against persons with criminal records, but consider that counsel's submission that the learned trial judge succumbed to such temptation are gratuitous and without foundation.

1. Unlike the State Rail Authority case[4] to which we were referred, there was ample ground in the present case for disbelief of the appellant.  The real question is whether there was sufficient supporting circumstantial evidence to make it unreasonable for the trial judge to fail to accept that an incident such as that described by the appellant actually occurred.  The present case is undoubtedly one where the trial judge's advantage was considerable.  The best supporting evidence is the confirmation of a bruise and the giving of a version of the incident two days later.  However as the learned trial judge observed, there are plenty of ways of getting a bruise, particularly a slight one.  In the context of actual statements of different disability made during the two days following the alleged incident, and the absence of a relevant complaint when it might reasonably have been expected to have been made, the mere fact that he claimed two days later that such an incident had occurred is not necessarily convincing.  In the end there would need to be some degree of belief on the trial judge's part of the appellant's evidence.  In the absence of such a belief, the other evidence is clearly inadequate.  There is no sufficient reason to set aside the findings of the learned trial judge.

   [4]See footnote 2 above.

1. The appeal should be dismissed with costs to be assessed.