Morphett, D. v Commonwealth of Australia

[1986] FCA 654

Re: DALLAS MORPHETT
And: COMMONWEALTH OF AUSTRALIA
No. ACT G87 of 1985
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Miles J.
Jackson J.

CATCHWORDS

Negligence - action for damages for personal injury - happening of accident and injury not disputed - conflict of evidence as to location and details of accident - leave to amend Statement of Claim refused - plaintiff failed to prove case at trial because plaintiff's evidence as to location and details of accident disbelieved - defendant's evidence showing negligence but different location and details of accident preferred - whether necessary to amend pleadings - whether judgment should be given in favour of appellant - whether negligence and contributory negligence - whether new trial limited to the issue of damages should be ordered.

HEARING

CANBERRA

#DATE 14:8:1986

Counsel for the Appellant: Mr P. Sheils Q.C. with Mr P. Dodson

Solicitors for the Appellant: Messrs. Pamela Coward & Associates

Counsel for the Respondent: Mr B. Maguire Q.C. with Mr R.E. Williams

Solicitor for the Respondent: Australian Government Solicitor

ORDER

The appeal be allowed.

The judgment of the Supreme Court of the Australian Capital Territory be set aside.

There be a new trial, limited to the issue of damages.

The respondent pay to the appellant his costs of the appeal and of the trial.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant appeals from a judgment of the Supreme Court of the Australian Capital Territory which dismissed his action against the respondent for damages for personal injury sustained by him on 26 June 1978 in the course of his employment by the respondent as a plant operator. On that day the appellant was operating a backhoe for the purpose of filling drainage trenches which had been dug for the purpose of laying drainage pipes. The work was being carried out in Cowper Street, Ainslie at a part where Cowper Street runs in a north-south direction. The main drain had been placed under the nature strip in a position parallel and close to the eastern kerb of Cowper Street. Further drainage pipes had been placed in lateral trenches dug at right angles to the main drain and extending towards the houses on the eastern side of Cowper Street.

1. It is not disputed by the parties that the incident giving rise to the injury occurred when the rear wheels of the backhoe suddenly sank into the ground causing the backhoe to s thereby throwing the appellant, who was standing, against the back of the seat of the backhoe. As a result, the appellant injured his back and in consequence had to be lifted from the backhoe and taken to hospital.

2. Since it was treated as being of some importance at the trial, it is convenient to set out the terms of the Statement of Claim, insofar as material for present purposes. They were:-
   
   

"1. The plaintiff was at all material times employed by the defendant as a Plant Operator.

2. In or about June 1978 the plaintiff was in accordance with his duties as required by the defendant operating a back hoe to fill a trench with crushed metal rock. The plaintiff drove the said hoe to collect the said metal rock from where it had been deposited by a servant or agent of the defendant for the plaintiff to collect. When the plaintiff drove to collect the said rock the ground gave way and the said hoe dropped approximately one foot whereby the plaintiff suffered and will continue to suffer, loss and damage.

....

3. The said injuries, loss and damage were occasioned to the plaintiff by the negligence of the defendant by its servants or agents.

PARTICULARS OF NEGLIGENCE

(i) Failure to warn the plaintiff that the area over which he was required to drive his hoe was soggy and would not support the said hoe.

(ii) Depositing material which the plaintiff had to pick up in a place which was not fit and/or safe and/or suitable to do so.

(iii) Causing or requiring the plaintiff to drive his machine on unsafe soil.

(iv) Failure to provide the plaintiff with a safe place of work.

(v) Failure to provide the plaintiff with a safe system of work.

(vi) Failure to provide the plaintiff with safe and/or competent and/or suitable fellow employees with whom to work. "

1. Particulars of the allegations contained in paragraph 2 of the Statement of Claim were given, including a particular that the location of the accident was:-
   
   

"On the nature strip in front of 32 and 34 Cowper Street, Ainslie in the Australian Capital Territory."

1. It is accepted by both parties that that should be treated as being an allegation that the accident happened on the nature strip on the eastern side of Cowper Street.

2. By its Defence the respondent admitted the employment and admitted that on that day the appellant in accordance with his duties was required to operate a backhoe to fill a trench with crushed rock, but otherwise denied the allegations of fact alleged in the Statement of Claim. The respondent alleged also that the injuries suffered by the appellant were caused or contributed to by the negligence of the appellant.

3. At the hearing, the evidence given by the appellant showed that the accident happened on the nature strip on the western side of Cowper Street. Evidence given by witnesses called by the respondent showed that the accident happened on the nature strip on the eastern side of Cowper Street. The essential facts as to what happened after the accident were not disputed. At the close of the evidence and submissions on behalf of the parties, a question arose as to whether the appellant should amend his Statement of Claim to allege that the accident had happened as described in the evidence called on behalf of the respondent. The respondent opposed the granting of leave to amend the Statement of Claim, but said that if leave were granted, no further evidence would be called and no further submissions would be made. No adjournment was sought. The trial Judge refused to grant the appellant leave to amend the Statement of Claim.

4. In his reasons for judgment, the learned trial Judge held that if the accident had occurred on the western side of Cowper Street in the manner described by the appellant in his evidence, he was satisfied that the appellant had made out a case of negligence against the respondent. He went on to say, however, that he preferred and accepted the evidence given by the witnesses called by the respondent but on those facts also a case had been made that the injuries to the appellant had been caused by the negligence of the respondent. He also found that on those facts the appellant had not been guilty of contributory negligence.

5. His Honour held accordingly, that since he had refused leave to the appellant to amend his Statement of Claim, the appellant had not made out a case and therefore dismissed the claim. He also said that he thought the appellant's "damages would have amounted to no more than $2000 on account of that injury". The appellant appeals from that judgment and the respondent has given notice of contention that the trial Judge was in error in finding that the respondent was negligent on the case it established and that His Honour was in error in holding that the appellant was not guilty of contributory negligence.

6. It must be remembered that the claim by the appellant was a claim based on negligence. In broad terms that means that the appellant was claiming that the respondent was in breach of its duties to exercise reasonable care with respect to the safety of the appellant. In a case where it was not disputed that an incident had occurred in which the appellant had suffered an injury which required the attendance of an ambulance and the removal of the appellant from his backhoe by the persons operating the ambulance, it seems strange that the appellant failed to prove a case because the appellant's evidence was disbelieved as to where the accident occurred, while at the same time the respondent says the accident occurred in a manner found to involve negligence, but at a slightly different place. This was not a case where it was necessary to amend pleadings since the existing Statement of Claim, albeit inelegantly, alleged that breach of duty, and the particulars were appropriate to the finding of the trial Judge that the accident happened on the eastern side of Cowper Street. The case was simply one where there was some conflict of evidence but on all the evidence the trial Judge found that the respondent was in breach of its duty to the appellant and that the appellant was not guilty of contributory negligence. On those findings, a judgment should have been given in favour of the appellant.

7. At the hearing of the appeal, counsel for the respondent did not dispute that if the accident had occurred on the western side of Cowper Street, the respondent was guilty of negligence. Counsel did contend, however, that the evidence did not support the finding made by the trial Judge that if the accident happened on the eastern side of Cowper Street, the respondent was guilty of negligence. The main evidence on this point was given by John Edmonds, the person in charge of operations at the time the accident had occurred. He said that the appellant had just tipped some crushed metal into one of the lateral trenches when the front wheels slipped into that trench. The appellant had a certain degree of trouble when reversing the backhoe to extricate the front wheels from that trench. In doing that, the appellant reversed the backhoe over another lateral trench some nine feet to the rear of the tractor. This trench had been filled, probably on the previous day, and it was difficult to see because of the fact that the earth was covering the whole of the area. The back wheels of the backhoe sank into this trench creating a big jerk on the machine and as a result the appellant was thrown against the backrest of the seat and hurt himself and was unable to get out of the backhoe. There had been no warning given to the appellant of the existence of the second trench and the fact that the filling had not compacted. In those circumstances, it cannot be said that the learned trial Judge was in error in making the findings that he did that the respondent was negligent on the case established by the witnesses called by the respondent. On the same evidence, it cannot be said that the trial Judge was in error in finding that the appellant was not guilty of contributory negligence.

8. Accordingly, the appeal must be allowed, the remaining question being that of the form of the order to be made.

9. Counsel for the appellant contended that the Court should order that the appeal be allowed, that the judgment of the Supreme Court be set aside and that a new trial should be ordered but limited to the issue of damages: see ss. 28(1)(c) and 30(2)(a) of the Federal Court of Australia Act 1976. Counsel for the respondent contended that if the appeal was allowed, the Court should enter judgment in favour of the appellant in the sum of $2000 to which the trial Judge had referred.

10. In this case, there is no doubt that difficult questions arise in determining the amount of damages to which the appellant is entitled. There are conflicting medical opinions as well as conflicts of fact on which those opinions are based. In his reasons for judgment, the learned trial Judge analysed the evidence of a number of expert medical witnesses but in so doing he made no reference to the evidence of Dr. Gytis Danta, a specialist neurologist carrying on practice at the Royal Canberra Hospital, whose evidence is most favourable to the appellant. Further, the learned trial Judge does not explain how he came to the conclusion that the appellant's "damages would have amounted to no more than $2000 on account of" the injury he suffered on 26 June 1978.

11. In all the circumstances it would not be appropriate that this Court should give judgment in favour of the appellant in the sum of $2000. A new trial, limited to the issue of damages, should be ordered.