McMahon v The Griffin Coal Mining Co Ltd

[1991] HCATrans 308

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P29 of 1991

B e t w e e n -

WILLIAM JOHN McMAHON

Applicant

and

THE GRIFFIN COAL MINING CO LTD

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 24 OCTOBER 1991, AT 11.15 AM

Copyright in the High Court of Australia

McMahon 1 24/10/91

MR c.L. PHILLIPS:  May it please Your Honour, I appear on

behalf of the applicant in this matter.

(instructed by Dwyer Durack)

MR G.T.W. TANNIN:  May it please the Court, I appear for the

respondent. (instructed by the Crown Solicitor for

Western Australia)

MASON CJ: Yes, Mr Phillips.

MR PHILLIPS:	Your Honour, this case involved a claim for personal injuries by a plaintiff who claimed that
in the course of his employment - - -
MASON CJ:	We have read the papers.

MR PHILLIPS: Thank you, Your Honour. He jumped from a

utility at a mine site on to uneven ground injuring

his left knee. On Monday, 24 September 1984 - - -

MASON CJ: As we have read the papers, perhaps you might

endeavour to persuade us why this is a case that

should receive a grant of special leave.

MR PHILLIPS: Yes, Your Honour. The orthopaedic surgeon,

Mr Thompson, said that this was a very painful

injury which subsequent investigations revealed

involved a torn cruciate and a torn medial

ligament.

MASON CJ: But that does not sound like a ground for the

grant of special leave. You have got to come to

grips with the fact that the decision of the court

below is essentially based on findings of fact

which involved the assessment of the credibility

and demeanour of the applicant as a witness. And

except in exceptional circumstances, that is not

regarded as a case which attracts the grant of

special leave. You have got to demonstrate that

there has been a departure from fundamental

principle.

MR PHILLIPS: In my submission, Your Honour, respectfully,

there has been a departure from fundamental

principle and the departure is that the learned

trial judge held that the evidence of several

people failed to prove to him that the left knee

injury did not occur in the badminton game. If he

had asked, "Does the evidence raise a probability

that the injury occurred on the Monday", bearing in

mind that there was no evidence that the left knee

was injured on the Saturday at badminton, he must

have answered "Yes".

It was not then to the point that the

plaintiff had not taken the doctor's evidence

further than it was taken; McDonald's evidence

McMahon 2 24/10/91

further than it was taken;	his wife's evidence
further than it was taken;	his mother's evidence
further than it was taken;	or that he had not
called Betty Watt.

In the light of the evidence led, it was for the defendant to adduce evidence that would make it

more probable that the accident and injury to the

left knee has not occurred on the Monday, because

all of the evidence that was on the point of
whether the knee was injured on the Monday or not,

was in favour of the proposition that it occurred

on the Monday. And the only evidence relied upon,

or the only inference that the judge relied upon,

was that the plaintiff was not to be believed and

there was not a scintilla of evidence to show that

the right leg was more hurt than the plaintiff

said. It was extremely sore; he had to be lifted

to his feet; he had to withdraw from the

tournament; he put ice on it and it subsided over

the next couple of days.

In substance, the plaintiff says, the Full

Court ought to have firstly critically analysed all

of the evidence that was left after separating out

any evidence which could have been tainted by a

silent finding of the trial judge that the

demeanour of the witness left his evidence of no

value. And if the balance of the evidence favoured

a probability that the accident occurred at work,

as the plaintiff claimed, this would resolve the

matter without law. And this is very similar, in

fact, to what happened in Goodwin's case, and, as

there, the High Court said, at page 86:

his Honour was "uneasy about MacRae as a

witness".

MacRae was the only witness for the plaintiff:

MacRae being the only witness to the

accident, his Honour set about an analysis of

the probable causes of the accident so as to

see what light they might cast on MacRae's

evidence.

And, further down the page, on the left-hand side,

at about F:

This approach contains the seeds of the

plaintiff's failure, since the next stage of

the Judge's deliberations requires the

plaintiff to negative two of the three

"hypotheses" which the Judge has just

postulated and the only material available for

negativing them will be that very material

which has already led the Judge to rank each

McMahon 3 24/10/91

of the three explanations as hypothetically
probable.

In the result, the learned Judge imposed an onus of proof upon the plaintiff which was

too high. He stated the onus as follows:

"But the plaintiff carries the onus of

persuading me upon a balance of probabilities

that the accident happened in the way

described and for the reasons given in the

evidence of his witnesses. If there are valid

reasons for taking the view that that evidence

may not be correct, I ought not to be

satisfied to the requisite standard that his

case is made out".

Proof on the balance of probabilities is

not necessarily denied merely because a

plaintiff's account "may not be correct".

In the present case the plaintiff's

difficulties did not end there.

And, my submission is this is a very similar case.

In this case the only one of the three explanations which depended on oral evidence

was that favouring the plaintiff. It, and it

alone, was therefore susceptible to that

erosion of persuasiveness which is entailed in

criticism, on one ground or another, of the

witnesses whose evidence supports it. The
other explanations stood immune from this

process; not, curiously enough, because they

were founded upon more acceptable testimony

but only because they had for their foundation

no testimonial structure at all.

An examination of the facts as found by

the judge reveals no basis upon which either

the second or the third explanation can be

described as probable.

So that is the first contention that the applicant

makes in this case. Secondly, the plaintiff says that the Full Court ought to have approached this

case in the same way that the Court of Appeal did

in the Glannibanta and that, at page 287, was:

Now we feel, as strongly as did the Lords

of the Privy Council in the cases just

referred to, the great weight that is due to

the decision of a judge of first instance

whenever, in a conflict of testimony, the

demeanour and manner of the witnesses who have

been seen and heard by him are, as they were

McMahon 4 24/10/91

in the cases referred to, material elements in the consideration of the truthfulness of their statements. But the parties to the cause are

nevertheless entitled, as well on question of

fact as on questions of law, to demand the

decision of the Court of Appeal, and that

Court cannot excuse itself from the task of

weighing conflicting evidence and drawing its

own inferences and conclusions, though it

should always bear in mind that it has neither

seen nor heard the witnesses, and should make

due allowance in this respect.

In the present case it does not appear

from the judgment, nor is there any reason to

suppose, that the learned judge at all

proceeded upon the manner or demeanour of the

witnesses; on the contrary, it would appear

that his judgment in fact proceeded upon the

inferences which he drew from the evidence
before him, and which we have really the same

means of considering that he had, and with

this further advantage, that we have had his

view of the inferences to be drawn from the

evidence as well as the evidence itself made

the subject of elaborate and able discussion

on both sides.

So, in my submission, that is precisely the
situation here. In every instance of a principle

or conclusion reached by the learned trial judge in

his reasons for decision it is apparent on his face

the reasoning that the learned trial judge used.

And the reasoning in each case is based upon

inference; as he sees it, logical inference.

In this case, the Full Court confirmed the

various inferences of the trial judge and added
certain inferences, all of which inferences, the

plaintiff says, are untenable for the reasons set

out in the draft notice of appeal; and I will deal

with some of these if time permits later. But it

is my submission that the Full Court felt

constrained to exercise what many judges have

termed judicial restraint to, as it were, protect

the trial judge's advantage in assessing the

witnesses.

Underlying the Full Court's decision, I

submit, is an ethos that it ought to avoid critical

analysis of the inferences drawn by the trial judge

because of the special advantage the trial judge
enjoyed in assessing the plaintiff's credibility.

In my submission, this issue deserves the attention of this honourable Court, because inferences drawn

in relation to credibility by the trial judge can

be irrelevant or wrong, rare though that may be.

McMahon 24/10/91

And in Warren v Coombes the High Court dealt with

the principles that must apply where the trial

judge draws inferences from established facts.	And
I need not, I know, go into that basic principle.

However, there are some policy considerations which

are mentioned at page 552 which are extraordinarily

pertinent in this case. It is said, at E, roughly,

it would be, at the bottom of 552:

The fact that judges differ often and markedly

as to what would in particular circumstances

be expected of a reasonable man seems to us in

itself to be a reason why no narrow view

should be taken of the appellate function.

And here, each of the inferences is based on what the trial judge felt a reasonable man could reasonably have been expected to say in the

circumstances in his evidence.

TOOHEY J: Well, you described them as inference,

Mr Phillips, but is that what they are? I mean,

the trial judge found the evidence of the plaintiff

to be such that it was not acceptable. The

evidence of his fellow worker proved not to support

the plaintiff's account of the accident. The

account given by the plaintiff when he returned to

work with Mr Pegg was at variance with his own

description of how the accident occurred. There

had been an incident 48 hours earlier in which he

had sustained an injury to one or other knee. When

you look at the totality of all of that, we are not

really drawing inferences, are we? Or the Full

Court was not drawing inferences; it was simply on

an analysis of the evidence concluding that the

trial judge's finding of fact were entirely

consistent with the evidence.

MR PHILLIPS: Your Honour, in my respectful submission, each

one of the inferences that was cited by the trial

judge in respect of - for example, take the fact

that McDonald gave no evidence; what evidence he

did give was that he saw the man on the back of the

ute; that he would have seen him walking to his

utility in the morning;	and he must have seen him
getting in and out of that ute;	and he must have

seen him getting in and out of the car on the way;

and, again, when he went down to the work site.

And his evidence was he did not notice anything wrong. And yet, Dr Thompson said that this was a

very painful injury and one where the person would

be hobbling. And each of these - the mother to

whom he complained of the right knee pain on the

Saturday night; the wife, she noticed nothing

wrong with his knee on the Monday morning; and

Dr Bril, he said that there was no swelling that he

noted on the Monday and that there was mild

McMahon 6 24/10/91

swelling noted on the Wednesday and he said

specifically - - -

MASON CJ: But Mr Phillips, all this would be relevant if we

were a tribunal of fact, but we are not a tribunal

of fact in hearing this case. And you cannot

escape from the fact that the trial judge

necessarily had regard to the credibility of your

client as a witness. If you look at the top of

page 14 of the application book, the trial judge

says:

There is in observing this plaintiff's

credibility some cloudiness, and I am not

prepared to accept him as a witness of

candour.

So that it is not correct to say that the findings

of fact all depended on inferences drawn without
regard to the credibility of the applicant as a

witness.

MR PHILLIPS: Your Honour, in my respectful submission, if

he found against the plaintiff on demeanour, he

would not say:

There is in observing this plantiff's

credibility some cloudiness -

he would have said, "There was, when I observed

this witness giving his evidence, some cloudiness

in his demeanour." What he says here is - he

refers to various inferences which he has reached

and then he says:

There is in observing this plaintiff's

credibility some cloudiness -

and so it would appear on its face quite clear that

he has reached certain inferences and from those

inferences he has concluded that there is some

cloudiness in the credibility of the plaintiff.

And if you look at the first and most substantial	of the inferences he reached, at page 12A and 18C
of the judgment of the learned trial judge, it loomed very large in his analysis that a man who
has so severely injured his left knee as to tear a
cruciate and medial ligament, precluding him from
ever playing physical sport and causing a 25 per cent loss of the efficient use of his leg, permanently, would tell the doctor at the first consultation that he had hurt the right knee two days previously, even if the only evidence was that his problems with the right knee recurred from time
to time playing sport but resolved with rest, as
the evidence was that they did on this occasion.

McMahon 24/10/91

He further concluded that such a man would

mention the incident involving his right knee to

medical practitioners at subsequent consultations

despite a complete lack of evidence that the
doctors asked about his right leg and evidence that

as the result of a left knee condition he could no

longer play sport which used to trigger the right

knee pain. The inference simply does not follow.

And the learned trial judge concluded that a note

contemporaneously made by the doctor of words

spoken about a previous hurt to the injured limb

three days prior must make the note unreliable if
the patient hurt the limb not in issue two days

prior. Well, that just does not follow. And the
proposition was accepted that evidence can be

disregarded which indicates that a plaintiff's very

painful injury, which would leave him hobbling,

coupled with not only the plaintiff's wife's

evidence but also a co-worker, whom the court found

to be a truthful witness, that no injury was

observed.

The fact that a judge believes a witness Pegg,

who says in his evidence he gained an impression.

And that was his evidence, "Well, it was just an

impression of what the plaintiff said caused the

accident", from unknown words, in response to

unknown words, and in an uncertain time and place

and some years previously, and where the witness

admitted that the words used could have been

referable to something else. He actually admitted

they could have been referring to something else;

that was the impression he had. And to elevate

that impression into a prior inconsistent statement

is just totally unacceptable.

And if a doctor uses the word "guess" in

describing the logic he uses in determining what
flows from precise evidence of his findings, he
found that - well, he made no note of swelling and

he assumed - and it is common sense that if he made

no note of swelling, very serious injury, that

there was no swelling, he made a note two days

later of a mild effusion, if you take those facts

into account and his precise evidence of his

experience of the symptoms, because he said, "It's

my experience that what happens with these people

with cruciate tears and ligament tears is they come

in, they don't have any swelling and two days later

they have swelling".

Now, in that situation, he said, "I guess you

could conclude from that that it happened

immediately on the Monday." And surely that must

be right. We do not need to question that. There

is no guesswork and no suggestion of inaccuracy.

The Full Court, with respect, quoted, not verbatim

McMahon 24/10/91

but Dr Bril as saying, "His notes, if accurate and

if he had to make a guess". He never said in his

evidence, "If my notes are accurate", as to what he

recorded in his contemporaneous notes at the time

he was absolutely precise.

So the inference simply does not follow. And

to take one aspect of of the failure to call Betty

Watt, which is an inference drawn by the Full

Court, even in the face of no evidence that the

plaintiff injured his left leg at badminton, the

obligation was upon the plaintiff to call Betty

Watt. That is what they said, that it was on the

plaintiff to call Betty Watt who would surely have

remembered bandaging his knee five or six years ago

and, indeed, remembered which knee.

I would like to draw to your attention it was

always open to the defendant to serve

interrogatories to find out whether any witness

might support the proposition that the right knee

or the left knee was injured at badminton. It was

for the defendant to come up with this further

evidence. I have mentioned all the evidence which

clearly established a probability that the

plaintiff, in fact, irrespective of the evidence of
the plaintiff himself, that the plaintiff injured

his left leg at work on the Monday.

So the judge made a fundamental error; the

same kind of error that was made in Goodwin's case.

And in addition, the evidence that swelling would

probably occur within 12 hours from Dr Thompson,

yet Dr Bril recorded no swelling on the Monday and

mild swelling on the Wednesday. And that is

inconsistent with the left knee being injured at

badminton on the Saturday.

GAUDRON J: But is not the difficulty with this, this: it

does not matter whether or not the right knee was

injured on the Saturday. The question is: was the

left knee injured on the Monday? It is not for

the - you are reversing the onus of this submission

yourself, are you not?

MR PHILLIPS:  I respectfully submit that I am not because

all of the evidence that I have mentioned to you,

apart from that of the plaintiff, indicates that

the left knee injury was on the Monday, not on the

Saturday.

GAUDRON J: Yes, but it does not have to be "not on the

Saturday", in any real sense. It has to be

established that it was on the Monday.

MR PHILLIPS: Yes, and the evidence establishes, in my

submission, that the probability is that it

McMahon 9 24/10/91

occurred on the Monday. All of the evidence of the wife, of the mother, of Dr Bril, of Dr Thompson, of the witness McDonald is to the effect that it must

have occurred on the Monday.	No evidence indicates
that he injured his left knee on the Saturday.	So

the onus, only then having noted that, can switch

to the defendant and what the trial judge did was

he, the learned trial judge, left the onus upon the

plaintiff, in my respectful submission, to negative

the right knee injury - that the left knee was

injured on the Saturday at badminton. But there

was no evidence that the left knee was injured in

the badminton accident; no evidence whatever.

At page 48A of the application book,

Mr Justice Murray cites in the Hontestroom case,

the principle often cited to ensure that the trial
judge's advantage in viewing the witnesses is
protected. However, in this case, there was no

conflict of evidence between the witnesses on the

central point at issue and it is submitted that if

the Full Court had not given the many inferences

which, in my submission, it is apparent if one

reads the draft appeal notice, the many inferences

that did not follow, if the Full Court had not

shrunk from critically analysing the evidence to

answer the questions set out at page 50 of the

report in the Hontestroom case, Lord Sumner said:

The material questions to my mind are: (1)

Does it appear from the President's judgment

that he made full judicial use of the

opportunity given him by hearing the viva voce

evidence?

Well, did the learned trial judge, in this

instance, take proper account of the evidence given

by Dr Thompson that it was a very painful injury,

that he would have been hobbling and there was

evidence that nobody observed that and that he had

complained of injury to his right - of pain in his

right knee on the Saturday night.

(2) Was there evidence before him, affecting

the relative credibility of the witnesses,

which would make the exercise of his critical

faculties in judging the demeanour of the
witnesses a useful and necessary operation?

But there was no evidence on which there was

conflict.

(3) Is there any glaring improbability about

the story accepted, sufficient in itself to

constitute "a governing fact, which in

relation to others has created a wrong

impression", or any specific misunderstanding

McMahon 10 24/10/91

or disregard of a material fact, or any

"extreme and overwhelming pressure" that has

had the same effect?

In my submission, he has been overwhelmed by

various inferences which are clearly wrong, such as

that that I mentioned, that he thought that the

plaintiff would certainly mention his right knee to

the doctor immediately and thereafter.

There are certain mistakes that are made in

relation to the actual evidence, incidentally, in

the plaintiff's submission and these are set out in

relation to McDonald's evidence, at page 98A of the

application book.

McMahon's evidence was that McDonald

remembered the incident of actually jumping

tell him he would be called as a witness but
McMahon could only say that he "presumed" from the ute when McMahon rang McDonald to him jump.

So the Full Court found that there was a real

inconsistency in the evidence there but it is

apparent from that passage -

McMahon conceded when asked if McDonald saw

him actually jump:  "If he was looking at me,

he may have been, but I was looking at the

ground where I was jumping." Also McMahon

signed a statement signed by McDonald shortly
after the event in which McDonald was recorded
as an eye witness.

At pages 62A and 62B, the Full Court placed the onus squarely on the plaintiff to take his

wife's evidence and his mother's evidence further

but as there was no evidence to support the

contention by the defendant that he injured his

left knee at badminton, the onus, if anything, lay

upon the defendant, in my submission, to take the

matter further.

The other issue of law which ought to concern

this honourable Court is a very important one, in

my submission, and that is the way in which the

Full Court felt bound to treat the trial judge's
finding because, up to date, he said, "There is
some cloudiness in his credibility", but he goes on
to say, "I just find that jumping from the ute is

extraordinary and I can't believe him".

But the Full Court felt bound to treat the

trial judge's finding that the plaintiff's claim

that he jumped was so extraordinary as to be

McMahon 11 24/10/91

unbelievable - that is at pages 53 and 54 - that

the learned trial judge was persuaded by the
17 stone weight of the plaintiff and the
tenderness, if there was some, as it was found by

the trial judge, the tenderness in his knee, to

conclude that he would have chosen a safer

alternative.

Now, as an inference of fact, that is

insupportable because the same weight, 17 stone,

and a tender knee, would render climbing over the

side of the ute backwards a hazardous manoeuvre.

And the matter goes further than that, though, in

law, to find as a fact that a plaintiff/worker is

not to be believed when he says he did what the

evidence established was the modus operandi of

workers generally and where other methods of

alighting clearly carried inherent danger, as the

co-workers testified, is to place an unfair onus

upon the plaintiff.

The trial judge is saying that he would have

expected a reasonable man, in the position of the plaintiff, to devise a safe system of his own out of unsafe working conditions created by the

defendant. I only need to refer, Your Honours, in

name only to the cases of Ferralora and McLean v

Tedman to support the submission that that is just

simply contrary to law and it is my submission that that should give Your Honours cause for concern and should require the attention of this honourable

Court.

Two other matters of law:  Mr Justice Murray,

at page 62C of the application book, takes a very

negative view of the evidence of the plaintiff's

mother that the plaintiff complained, on the

Saturday night, of his painful right knee, the one

injured at Parsons, and he doubts that it was

admissible at all and goes on to say anyway that it

carried very little weight. And Judge Hammond, the

learned trial judge, took the same view at page 13, I think. The Full Court, in my submission, overlooked

the principle that complaints of contemporaneous

physical sensation are often the best evidence

available. Further, they are clearly admissible

evidence of that fact and I refer Your Honours

simply to Cross, at page 1098; Cross on Evidence,

Fourth Australian Edition. You will see at the

bottom of that page, at the very bottom, on the

left-hand side:

Statements made by a workman to his wife of
his sensations at the time, about the pains in

his side or head, or what not - whether the

McMahon 12 24/10/91

statements were made by groans or by actions,

or were verbal statements - would be

admissible to prove those sensations.

So it is clearly admissible and should have been

given full weight in view of the fact that there

was no evidence to support the contrary proposition

that the left knee was injured at badminton.

And, finally, in relation to the law, the

learned trial judge and the Full Court overlooked the rule of evidence that a record at the time of

words spoken can be admitted and considered if it

has relevant in determining the intent of a person

at that time. And I have included Cross on

Evidence, at page 828, in the authorities there.

Thus, the doctor's record that on Monday,

24 September 1984, when he first saw the plaintiff

for his left knee injury, he recorded the

plaintiff's complaint that he had twisted that knee

at work on the previous Friday, 21 September 1984.

Now, that is relevant; it is admissible, because

it shows what this man had in mind. If he had been

intending to fabricate, to completely just
fraudulently and cunningly trick his employer to
obtain compensation, would he have said to the

doctor at that time, "Incidentally, I twisted the

knee on the Friday, the 21st, at work."

Now, that does not prove that he twisted his

knee on the Friday, the 21st, at work but it

renders the evidence of the plaintiff - it can be

deduced from that that this man did not have an

intent of fabricating and that is the finding that

the trial judge is necessarily coming to, that

despite the evidence which leads to a conclusion

that he hurt his left knee on the Monday at work,

that the probability is that he hurt it on the

Saturday and if that were so then, clearly, he was

involved in fabrication and, I submit, so was his

wife, so was his mother. There is no evidence of that whatever. I cannot take the matter any

further, Your Honours.

MASON CJ:  The Court need not trouble you, Mr Tannin.

This proposed appeal involves a challenge to findings of fact made by the trial judge based in

part on an unfavourable assessment of the

credibility and demeanour of the applicant as a

witness. Having made a comprehensive review of the
findings so undertaken, in the light of the

evidence, the Full Court concluded that the trial judge was entitled to take the view he did of the

applicant's evidence. That view was necessarily

fatal to the applicant's case.

McMahon 13 24/10/91

We are not persuaded that there was any error

Accordingly, the case is not appropriate for the grant of special leave and the application is refused.
of principle on the part of the trial judge in
making the findings of fact or on the part of the

MR PHILLIPS:  May it please Your Honour.

MR TANNIN:  If the Court pleases. I would move for an order

that the application be dismissed and I would also

move for an order that the applicant pay the

respondent's costs of this application.

MASON CJ: Yes. What do you have to say, Mr Phillips?

MR PHILLIPS: There is nothing I can say, Your Honour.

MASON CJ:  The application is refused with costs.

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

McMahon 14 24/10/91