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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McLean v Kalanda Constructions Pty Ltd

Details

AGLC: McLean v Kalanda Constructions Pty Ltd [1995] QCA 280
Case: [1995] QCA 280
Decision Date: 20/06/1995

CaseChat Overview and Summary

McLean brought an action against Kalanda Constructions Pty Ltd seeking damages for personal injuries sustained during the course of his employment. The case was heard by a judge sitting alone, and the outcome was a dismissal of the plaintiff's claim. The plaintiff sought an appeal to the Court of Appeal, contending that the trial judge had erred in his consideration of the evidence and that a miscarriage of justice had occurred. The Court of Appeal examined the grounds of appeal, focusing on whether the trial judge had been influenced by illegitimate factors and whether he was entitled to rely on evidence that had not been put to the expert witness in cross-examination. The appeal also questioned whether the trial judge had deprived the appellant of an opportunity to test the evidence, contravening the principles of natural justice.

The court addressed the contention that the trial judge had been influenced by factors that were not legitimate for him to consider. The court held that the trial judge was not influenced by any improper factors in his evaluation of the evidence. Furthermore, the court determined that the trial judge was entitled to rely on evidence not put to the expert witness in cross-examination, as the evidence was relevant and admissible. The court also considered the principle from Allied Pastoral Holding Pty. Ltd. v. Commissioner of Taxation that a judge is not restricted to evidence put to an expert witness in cross-examination and can consider other relevant evidence. Regarding the allegation of a deprivation of an opportunity to test evidence, the court found that the trial judge had not contravened the principles of natural justice as articulated in Stead v. State Government Insurance Commission.

The Court of Appeal ultimately dismissed the appeal, affirming the trial judge's decision. The court found that no substantial miscarriage of justice had occurred and that the trial judge had properly considered the evidence. The appeal was dismissed with costs.

Orders