| 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…
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- AGLC
- McLean v Kalanda Constructions Pty Ltd [1995] QCA 280
- Case
- [1995] QCA 280
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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