McLean v Kalanda Constructions Pty Ltd

[1995] QCA 280

IN THE COURT OF APPEAL	[1995] QCA 280
SUPREME COURT OF QUEENSLAND

Appeal No. 221 of 1994

Brisbane

Before Davies J.A.
McPherson J.A.
Pincus J.A.

[McLean v. Kalanda Constructions P/L.]

BETWEEN

BRIAN PERCY McLEAN

(Plaintiff) Appellant

AND

KALANDA CONSTRUCTIONS PTY LTD

(Defendant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 20th day of June 1995

This is an appeal from a judgment dismissing an action tried in the District Court at Brisbane for damages for personal injuries sustained in the workplace. The incident giving rise to the claim was alleged to have taken place on 2 July 1991 when the plaintiff was employed by the defendant as a steelfixer assisting a carpenter at a camp at the Gordonstone mine site. He was working on the construction of a sewerage pit when he claimed he lost his footing and fell into the pit injuring his back.

Dr Gillett, an orthopaedic specialist, examined the appellant some three years later on 10 June 1994, giving a report of that date in which he recorded the appellant's history. His opinion was that the appellant, who was 49 years of age in July 1991, had a pre-existing degenerative condition of the spine, which had been aggravated by the fall, producing muscular-ligamentous injury and possible disc prolapse at the L4/5 level. In his report Dr Gillett said he considered that the injury had accelerated the onset of the condition from which the plaintiff now suffers causing a permanent partial disability of the body of some 10%.

Judging by the contents of the defendant employer's workers compensation report, it is apparent that from the first the defendant doubted that there had been an incident at work resulting in the injury described by the plaintiff.

In the end, the judge who heard the action rejected the evidence of the plaintiff at the trial, as well as that of a supporting witness, who was the plaintiff's fellow worker and brother-in-law Herbert Aitken, about what had happened on the occasion in question. His Honour said that, generally, but with some reservations, he accepted the defendant's submissions that the plaintiff was "an unreliable and untruthful witness in relation to matters of importance". Earlier he had said that, quite apart from any specific matter raised by counsel for the defendant, he was "not, in relation to essential aspects of his evidence, impressed by the plaintiff as a witness of the truth".

The task of an appellant confronted by credibility findings like that is ordinarily very difficult. However, in this instance the appellant submitted that, in arriving at his conclusion on credibility the trial judge had been influenced by a factor or factors which it was not legitimate for him to take into account. To explain the point relied on, it is necessary to refer in more detail to the plaintiff's evidence about the incident and to the course of the trial, as well as the reasons for judgment, all of which had, it was submitted, contributed to a miscarriage of justice in the case of this plaintiff.

At the trial the plaintiff's account was that, having been involved in the fall on 2 July 1991, he continued, although in pain, to work on site. He also went to a social event involving a strip-tease show at the canteen in the evening of that day. However, after reporting for work on the following day, the pain in his back became so unbearable that he went to see the staff nurse at about 8.00 a.m. He telephoned his wife to tell her that he had a back injury which was "killing me", and asked her to make an appointment for him in Proserpine with a Dr Farlow. He was a medical practitioner whom the appellant had not previously consulted, but whom he selected despite the fact that it involved a painful journey, which took six hours, to Proserpine some 600 km away, instead of attending a doctor in Emerald, which was much closer to the Gordonstone site. After seeing Dr Farlow, the appellant ceased work and has never worked again.

Dr Farlow was one of several medical practitioners consulted by the plaintiff who did not give evidence. The only one called at the trial was Dr Gillett, who had first examined the appellant in 1994. In his own report of 10 June 1994 Dr Gillett referred to having seen Dr Farlow's report, which he described in re-examination as "supportive" of the plaintiff's claim that he had an injury and physical signs. Dr Gillett's assessment was, however, that he could not be "categoric" that the disc prolapse had resulted from the fall episode in July, but he thought it "a reasonable hypothesis". He agreed that his assessment depended on acceptance of the history given by the plaintiff.

The plaintiff's challenge on appeal to the credibility finding was based on the omission of counsel for the defendant at the trial to put to Dr Gillett, for his comment in the course of cross-examination, a matter about which evidence was later given by a Mr Bright. Dr Gillett was interposed after Bright had begun giving his evidence at the trial. He was a fellow worker of the appellant at Gordonstone, who was called by the defendant. At the time of the alleged incident, the plaintiff and Bright were friends, who resided "round the corner" from each other in Proserpine when they were not living away at the Gordonstone mine site during the working week. Bright was able to recall the morning of 3 July 1991, when he met the appellant on his way to see the nurse about his back.

In his evidence Bright said that shortly after the event, the appellant had come to Bright's home in Proserpine. It was within a week or two after the incident on 2 July 1991, while the plaintiff was "on comp". The plaintiff had bought a small fibreglass boat and was looking for an anchor and some rope. Bright located a dumbbell, made out of solid steel and "quite heavy", which could be used as an anchor. The two of them then went fishing off one of the beaches near Proserpine, taking Bright's son with them, and using the dumbbell as an anchor. The boat was a rowboat, and in the course of fishing they moved it from place to place some six to eight times. Bright said the rowing was done mainly by the plaintiff.

Bright was cross-examined about the boat trip, and it was put to him that no such boat trip had taken place. However, the trial judge accepted his evidence that he and the plaintiff had gone on the boat trip approximately one to two weeks after 2 July 1991; and that during the trip the plaintiff had rowed the boat and used the dumbbell as an anchor. His Honour found that this evidence was inconsistent with the plaintiff's having suffered an injury and consequences of the kind alleged as a result of a fall on 2 July 1991; in his reasons he said that this had "further influenced" him "in not having confidence in the plaintiff's evidence that he in fact fell at work that day".

On appeal it was not suggested that the judge was not entitled to accept Bright's evidence concerning the boat trip, or what the plaintiff had done in the course of it. What was submitted was that it was not legitimate to use that evidence as a basis for doubting Dr Gillett's opinion about the connection between the plaintiff's subsequent disc prolapse and his account of having slipped and fallen at work. It was argued that the evidence about the boat trip should not have been relied on by the judge in reaching a conclusion on the matter because the details of it had not been put to Dr Gillett in cross-examination so as to give him the opportunity of commenting on it or reconsidering his opinion. It was also submitted that the judge had, by finding that the evidence about the plaintiff's activities during the boat trip was inconsistent with the account he gave of the incident and its aftermath, become involved in "speculation" about something that should properly have been the subject of expert medical evidence.

As to the first of these matters, reliance was placed on the decision in Allied Pastoral Holdings Pty. Ltd. v. Commissioner of Taxation [1983] 1 N.S.W.L.R. 1, 16-17, in which Hunt J. analysed the decision of the House of Lords in Browne v. Dunn (1894) 6 R.67. It is right to say that the rule in Browne v. Dunn has not been applied in Queensland or perhaps in other jurisdictions with quite the same rigour as in New South Wales. Nevertheless, under the practice followed in this State it remains the rule that, in the words of Hunt J. and for the reasons his Honour gave in his judgment, "it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence".

In the present case, however, that course was followed
at least with respect to the plaintiff himself at the trial.
The plaintiff was the first to give evidence. In

cross-examination he was asked if he had gone fishing with Bright in a boat on an occasion not long after he left the mine site; whether he had been able to row the boat; and whether a dumbbell had been used as an anchor. His initial response to each of these questions was that he could not recall. When it was also put to him that he had dropped the dumbbell over the side and retrieved it as they moved the boat from place to place, he said that that was incorrect.

Then, in answer to a question by his Honour, he said that he had never gone fishing with Bright, adding that he had a boat which was powered by a motor, and that he had "never ever rowed it". Aitken was, it may be added, also asked whether he had gone out in a boat with the plaintiff.

From this one might well be justified in inferring that the plaintiff himself had divined the direction in which the questioning on this point was tending. If the plaintiff was in such pain that he had to cease work on 3 July 1991, and was never able to work again, it seems most improbable that he would have participated in or even contemplated rowing a boat only a week or two after the incident in which he claimed to have suffered the disabling injury to his back. Moreover, after Bright had given his evidence in chief about the boat trip it was put to him in cross-examination that there had been no such occasion. He thereupon repeated in some detail his evidence on the subject. Counsel for the plaintiff then suggested to him that he was confusing it with another occasion when he and the plaintiff had used a rope to pull a boat with some of their children in it through shallow water at the beach. The occasion was denied by Bright; but, as it was put as having occurred after the incident at the mine site, it might be thought also to have suggested a degree of physical activity on the plaintiff's part that was at odds with the condition he claimed to have been suffering from at that time.

This leads into the second of the two matters complained of, which was that, in the absence of medical evidence on the point, his Honour was not justified in finding that the plaintiff could not have rowed the boat or used the dumbbell as an anchor. The question appears, however, to be at least as much within the area of common sense as of medical expertise. The plaintiff's own evidence was that when he left the mine site on 3 July 1991 he was suffering extreme pain, and that he was never able to work again. According to his workers' compensation application dated 15 July 1991, he saw Dr Farlow again on 9 July 1991 because he wanted to try to return to work; but that on 15 July he was "still in a lot of pain as a result of my back injury on 2 July 1991, so I was referred to Dr White". Dr White took x-rays, or arranged to take them, after which he advised the plaintiff that he would never work in the building industry again. The plaintiff's compensation application also recorded that at 15 July 1991 he was having "physio treatment, which doesn't seem to be helping".

It needed no specialist medical expert to explain that a person whose back was in the condition disclosed by that evidence was someone who would not have been fit enough or willing to indulge in rowing a boat and lifting a dumbbell in the manner described by Bright. No doubt it would have been helpful if the matter had been referred to Dr Gillett for his comment; but because of the cross-examination of the plaintiff, his counsel already had fair warning of the nature of the defendant's case in that particular. There was nothing to prevent him from inviting Dr Gillett to comment on the significance of the matters which had been put to the plaintiff in cross-examination; or, if necessary, from asking leave to recall Dr Gillett for that purpose after Bright had completed his evidence. As it is, he had said no more than that it was "a reasonable hypothesis" that the disc prolapse had occurred in the July incident at work.

The truth of the matter seems to be that, when Dr Gillett was interposed during Bright's evidence, the fact that it might be helpful to ask him to comment on the plaintiff's post-traumatic rowing activities was overlooked by everyone. The question had by then been plainly raised with the plaintiff in cross-examination, and at least indirectly with Aitken before Dr Gillett gave his evidence.

Dr Gillett's ability to contribute anything useful on the issue of credibility and liability at the trial was, having regard to the extent of his knowledge of the incident of 2 July 1991, so limited that the oversight could not have affected the outcome in any way. For reasons which have been given, the trial judge was entitled, without the aid of expert evidence, to make use of Bright's evidence about the extent of the plaintiff's physical activities soon after the accident as a factor influencing his assessment of the plaintiff's credibility and, as such, relevant to the issue of liability.

The remaining matter of complaint arises from something that was said by the judge in the course of Bright's evidence. He had given evidence in chief of the occasion when the plaintiff came round to his home to see if there was something he could use as an anchor. Bright described the dumbbell as homemade, of solid steel, and "quite heavy".

He demonstrated its dimensions repeating that it was "quite

heavy". At that point the transcript records:

"HIS HONOUR: Just a moment. Look, I am not even going to try and put that down for the transcript because this is not relevant.

MR HOARE:	It is not really relevant.
HIS HONOUR:	Just come back to the boat trip. Did you go out on the boat with each other?
--- Yes, we did.
I think Mr Hoare wants to ask some things about what was said? ---
MR HOARE:	Not so much about what was said there, Your Honour, but just the boat trip itself generally."

It was submitted on appeal that his Honour's intervention, linked with the concession by counsel for the defendant about lack of relevance, led counsel for the plaintiff to suppose that the weight of the dumbbell was not an issue, with the result that he had not pursued it. At the very least, it was said that the judge had discouraged further inquiry about the weight of the dumbbell, so that the appellant had, contrary to natural justice, been deprived of an opportunity to test the evidence and consequently of a fair trial of the action. For this proposition, the decision in Stead v. State Government Insurance Commission (1906) 161 C.L.R. 141 was relied on.

The case of Stead was rather different from the present. The plaintiff was injured in a motor vehicle accident for which the defendant admitted liability. One of the issues at trial was whether the accident had caused a neurotic condition from which the plaintiff was suffering. A Dr Scanlon gave evidence for the defendant that the accident had not "triggered" that condition. In addressing the trial judge at the close of evidence, counsel for the defendant relied on Dr Scanlon's evidence and made submissions to that effect about the psychiatric evidence as a whole. After some debate with counsel, the trial judge said that, having heard counsel on the matter, and having very recently heard Dr Scanlon, he had "not moved, so far, from my present view that on the balance of probabilities it was the trigger". He then said that counsel should argue the matter on another basis, which he identified. Having heard the judge's intimation on that subject, counsel for the plaintiff did not himself address on the subject of Dr Scanlon's evidence. He was naturally surprised to find that the trial judge had in his reserved judgment accepted and acted on that evidence.

When the appeal reached the High Court, it was held that, although it is not every departure from the rules of natural justice that will entitle the aggrieved party to a new trial, where it affected the entitlement of a party to make submissions on an issue of fact, "especially when the issue was whether a particular witness should be accepted", it was more difficult for an appellate court to conclude that compliance with the requirements of natural justice could have made no difference. All that an appellant needed to show, their Honours said, was that the denial of natural justice had deprived him of the "possibility of a successful outcome". In order to negate that possibility, it would have been necessary in that case for the appellate court below "to find that a properly conducted trial could not possibly have produced a different result" (161 C.L.R. 141, 145-147).

It is, with respect, difficult to see that the decision in Stead is directly relevant in the circumstances of the present trial. Whether or not the dumbbell was a heavy one was plainly not the factor that determined the issue of credit between Bright and the plaintiff over the matter of the boat trip. One of those witnesses said there had been a fishing trip in which the plaintiff had rowed a boat, the other said there had not, or at most suggested that there had been an occasion when they had pulled some of the children in a boat through the water. On that issue, his Honour preferred the evidence of Bright. It would be quite artificial to say that, if there had been further evidence from Bright about the weight of the dumbbell, the trial judge might have disbelieved his evidence about the boat trip.

The Queensland practice in matters of this kind was
discussed in Bennett & Co. v. Connors [1953] St.R.Qd. 14,
24-25 where Philp J. said:

"Unfortunately a loose habit has grown up in our courts in respect of making and having recorded tenders of and objections to evidence. A tender of, or objection to, evidence should be formally made and the grounds thereof expressed specifically enough to be understood by the opponent and the court, and if the court rules unfavourably it is the duty of counsel to make sure that the court records the tender or objection and the specific ground thereof. If no such record is made, the point, although taken before the court, will not be available in an appellate court, and in the appellate court the appellant is, subject to certain exceptions, confined to the grounds of tender or objection taken and recorded in the primary court."

This passage in the judgment of Philp J. was referred to with approval by Stanley J. in King v. Bryant (No. 2) [1956] St.R.Qd. 570, 575, and also by Mack J. in his judgment in that case at 585. The practice is followed elsewhere : see Dainford Ltd. v. Yulora [1984] 1 N.S.W.L.R. 546, 553-554.

As authority for the practice that ought to be followed, Philp J. in Bennett & Co. v. Connors [1953] St.R.Qd. 14, 25, referred to Phipson on Evidence, 8th ed., 673, and Wigmore, 3rd ed., at 313 et seq. The section in Phipson, which dealt with appeals, was not retained in and after the 11th (1970) edition of that text; but, in the form in which it stood in the 8th edition to which Philp J. referred in 1953, it said that if admissible evidence was rejected by the judge, and substantial injustice thereby occasioned, the injured party was entitled to a new trial "provided he formally tendered such evidence to the judge at the trial ...". Among the authorities cited are Whitehouse v. Hemmant (1858) 27 L.J. Ex.295 and Campbell v. Loader (1865) 34 L.J. Ex.50, 51, where Channell B. with the concurrence of Pigott B. said, in relation to an unstamped document produced at trial by the plaintiff to show the terms of a tenancy:

"I do not see upon the Judge's notes that any complaint was made of the rejection so as to entitle the plaintiff to move for a new trial.

There may have been a discussion upon the point, but it was the duty of counsel, after the expression of the Judge's opinion, formally to tender the documents and require a note to be taken of the tender; but as that was not done, the point is of no avail."

The passage in Phipson and the decisions referred to require that evidence be formally tendered before its rejection can be relied on as the basis for a new trial. Nowadays the requirement might perhaps not always need to be so strictly adhered to if the trial judge has already made it plain that the evidence would not under any circumstances be admitted. In Dainford Ltd. v. Yulora [1984] 1 N.S.W.L.R. 546, 553-554, Mahoney J.A. said:

"Whether it is a requirement that when it is obvious that a line of questioning is to be rejected, counsel must put the ultimate matter to the witness directly need not be determined: it will normally be a wise precaution for counsel to do so."

In the present case, it was submitted that counsel at the trial had, by reason of the trial judge's intervention in Bright's examination in chief, been led into thinking that the weight of the dumbbell was not a relevant matter. It did not however deter him from cross-examining Bright about the fishing trip or even about the dumbbell. He asked Bright if the plaintiff had gone to his house to get the dumbbell. Bright's answer repeated that the appellant went there "to look for something that was heavy enough to be able to use as an anchor". No objection was taken to this line of questioning and the judge did not on this occasion intervene to repeat that it was irrelevant. The matter was not pursued in cross-examination beyond that point, except to ask about the incident in which the children were said to have been pulled along in the boat.

If counsel had seriously considered that the judge had ruled that the matter was irrelevant, it is surprising that it was raised at all in cross-examination. The correct course would have been to ask further questions about it with a view to seeing if it was objected to; and, if it was, then to submit that it was relevant to the question of credibility and liability, which it obviously was. If that course had been followed, and the ruling had been unfavourable, it would then have been open to the plaintiff to argue on appeal that "some substantial wrong or miscarriage" had, within the meaning of s.13 of the Supreme Court Act 1874, been occasioned, which was capable of being cured only by ordering a new trial.

The appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 221 of 1994

Brisbane
[McLean v. Kalanda Constructions P/L.]

BETWEEN

BRIAN PERCY McLEAN

(Plaintiff) Appellant

AND

KALANDA CONSTRUCTIONS PTY LTD

(Defendant) Respondent

Davies J.A.
McPherson J.A.

Pincus J.A.

Judgment delivered 20/06/95

Reasons for judgment by the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS	PERSONAL INJURIES - Whether there had been a substantial miscarriage of justice - Whether trial judge was influenced by factors which were not legitimate for him to take into account - Whether trial judge entitled to rely on evidence not put to expert witness in cross-examination - Allied Pastoral Holding Pty. Ltd. v. Commissioner of Taxation [1983] 1 N.S.W.L.R. 1 - Whether appellant had been deprived of an opportunity to test evidence contrary to natural justice - Stead v. State Government Insurance Commission (1906) 161 C.L.R. 141.
Counsel:	I.D.F. Callinan Q.C., with him K. Howe, for the appellant
B.L.P. Hoare for the respondent
Solicitors:	Quinlan Miller & Treston for the appellant Thynne & Macartney for the respondent

Hearing Date: 1 June 1995