Nominal Defendant (Queensland) v Moran

[1995] QCA 438

[1995] QCA 438

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 50 of 1995

Brisbane

[The Nominal Defendant (Qld) v. Moran]

BETWEEN:

THE NOMINAL DEFENDANT (QUEENSLAND)

Appellant

AND:

PETER JOSEPH MORAN

Respondent

Davies J.A.

Williams J.

Mackenzie J.

Judgment delivered 03/10/1995

Joint reasons for judgment by Davies J.A. and Mackenzie J.; separate concurring reasons by Williams J.

THE MOTION IS ALLOWED.  THE JUDGMENT BELOW IS SET ASIDE AND A NEW TRIAL IS ORDERED.  THE RESPONDENT IS TO PAY THE APPELLANT'S COSTS OF THE MOTION.  THE COSTS OF THE FIRST TRIAL ARE TO BE RESERVED TO THE TRIAL JUDGE.

CATCHWORDS:     O.70 r.10 - MOTION FOR LEAVE TO ADDUCE FRESH EVIDENCE AND ORDER FOR A NEW TRIAL; whether the appellant showed no lack of reasonable diligence in discovering the fresh evidence; whether it is reasonably clear that the fresh evidence would have produced an opposite verdict; whether reasonable diligence is to be considered in light of the likelihood of deliberate concealment of the evidence in question; whether a witness' deliberate untruth about an important fact is sufficient to justify the granting of a new trial.

Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134.

Counsel:Mr. R. R. Douglas Q.C., with him Mr. J. Barbeler for the appellant

Mr. P. Keane Q.C., with him Mr. C. White for the respondent

Solicitors:Corrs Chambers Westgarth for the appellant

McInnes Wilson & Jenson, town agents for O'Shea & Dyer, Townsville, for the respondent

Hearing Date:              19 September 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 50 of 1995

Brisbane

Before     Davies J.A.

Williams J.

Mackenzie J.

[The Nominal Defendant (Qld) v. Moran]

BETWEEN:

THE NOMINAL DEFENDANT (QUEENSLAND)

Appellant

AND:

PETER JOSEPH MORAN

Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MACKENZIE J.

Judgment delivered the 3rd day of October 1995

The Nominal Defendant, who is the appellant in an appeal against a judgment for damages for personal injuries arising out of a motor vehicle accident, moved for leave to adduce evidence on appeal and for further or other orders.  The motion was pursuant to O.70 r.10 of the Rules of the Supreme Court which permits this Court to receive further evidence.  Special leave is required upon appeals from final judgments as to matters which occurred before the date of the decision and evidence of such matters may not be admitted except on special grounds.  The matters in respect of which evidence was sought to be adduced were said to have occurred both before and after the date of the decision under appeal.

The further order sought was a new trial.  Although initially Mr. R. R. Douglas Q.C. who appeared for the appellant/applicant submitted that this Court could, after hearing further evidence, give judgment on the basis of the evidence given at trial and that further evidence, that submission was not pursued.

The evidence sought to be adduced was, it was submitted, relevant both to liability and quantum.  It will be necessary to say something about the circumstances of the case and the course of trial in order to understand that submission.

On 10 May 1988 during the evening the respondent was driving his prime-mover and semi-trailer in a northerly direction along the Bruce Highway when it left the highway on a right-hand curve and overturned.  He gave evidence that his vehicle was forced off the road by an unidentified vehicle travelling in the opposite direction.  The appellant conceded at trial that if the respondent's account of what occurred was accepted, due inquiry and search would not have revealed the identity of the other vehicle.

The only evidence that the accident occurred in the way in which the respondent described was that of the respondent himself.  There were no other witnesses either of the accident or of the existence of another vehicle which could have been travelling in the position in which the respondent put it at the time of the accident.  Nor were there any objective signs which were more consistent with the accident having occurred in the way in which the respondent described it than with his having simply left the roadway through tiredness or momentary inattention.

That the accident occurred in the way in which the respondent described it was contested at trial.  There the appellant submitted that, on a number of occasions on which he had the opportunity to do so, the respondent failed to mention the presence of another vehicle causing him to leave the roadway and that, in his Workers' Compensation application he answered some questions in a way inconsistent with the presence of another vehicle.  The appellant also relied on the fact that, as the learned trial Judge ultimately found, the respondent consciously exaggerated some of the symptoms which he said were consequential upon the injuries sustained in the accident.  However there was evidence that the plaintiff gave an account involving an approaching vehicle within a relatively short time after the accident and it was possible to attribute the answers which he gave to the questions in the Workers' Compensation application to confusion as to how they should be answered rather than to a positive assertion that no other vehicle was involved.

In accepting the respondent's version of how the accident occurred the learned trial Judge in his reasons for judgment said:

"My resolution of the question of the plaintiff's veracity has to depend upon my assessment of him as a witness.  As will be apparent later it is impossible to accept some of the complaints which the plaintiff makes as to his condition in the light of other evidence and this must of course give cause for some hesitation in accepting his account as truthful.  The very nature of the claim that he makes in the absence of any supporting evidence calls for a close scrutiny of it and justifies the somewhat sceptical approach to it.

Whilst not entirely free from doubt as to the truth of what the plaintiff says occurred, I conclude that it is likely that the accident did occur in the way he described to the Court."

His Honour's decision to accept the respondent's version of events was plainly not an easy one for him to make.  Had there been other evidence of deliberate falsehoods by the respondent, even though as to matters unrelated to the circumstances of the accident, his Honour may have rejected the respondent's version of those circumstances.

The learned trial Judge found that the plaintiff suffered injuries of his cervical, thoracic and lumbar spines and a rotator cuff injury on the left side.  He concluded that the cervical spine injury was a minor one and that there was no organic basis for any continuing complaints which the plaintiff made in respect of this area.  He thought that the thoracic spine injury resulted in a serious disability which prevented the respondent from being able to perform heavy work.  He thought that the continuing complaints in respect of the lumbar spine had been a consequence of the injury to the thoracic spine.  With respect to exaggeration of his complaints the learned trial Judge concluded as follows:

"Dr. Mullholland's evidence satisfies me also that there is some somatoform disorder, one of the consequences of which is that the plaintiff converts anxiety and depression (from which I am satisfied he suffers) into symptoms and that some of the symptoms in respect of which there is not an organic cause arise in this way.  I am also satisfied that the plaintiff either unconsciously or semi-consciously has sought to present his symptoms in a somewhat more serious light when being examined by doctors for the purpose of litigation.  The dependence which the plaintiff has developed upon opiate drugs may also reinforce his symptoms providing a need to justify the level of drugs which he presently takes.  However the conclusion that the plaintiff also is prepared to consciously exaggerate his complaints particularly of restriction of movement in the cervical spine and also in the lower back is, I think, in the light of the video evidence and some of the other evidence, unavoidable.  This conclusion requires a cautious and conservative approach to the assessment of his complaints insofar as they do not have an organic basis."

As to the respondent's capacity to work, to which the further evidence directly relates, the learned trial Judge concluded as follows:

"The plaintiff is on my assessment of the complaints which I regard as  ascribable to the accident significantly impaired in his activities and so far as his employability is concerned unable to engage in heavy physical work.  He has no trade or other qualifications and has always engaged in work which I think can fairly be described as being of this kind.  I accept that he has a desire to return to work and that he is depressed by his current situation.  Nonetheless the evidence satisfies me that he has a residual earning capacity and he should be able to engage in light work."

In early 1989 the respondent and his wife leased a concrete truck and conducted the business of a sub-contractor carrying concrete from January 1989 until February 1991.  The respondent said that he was no longer able to continue to carry out the tasks associated with this business which were primarily the driving of the truck, the unloading of concrete from the truck by means of chutes from the agitator and the cleaning out of the agitator.  The learned trial Judge accepted that the primary cause of the ultimate failure of this business was the respondent's increasing difficulties in carrying out the work required of him in that job.  The plaintiff swore that he had not worked since February 1991 and his Honour so found.  The respondent also swore that he did not believe that he would be able to resume any form of work having regard to the extent to which neck pain, headache, shoulder pain, mid and lower back pain and referred pain was provoked by activity and posture stress.

The evidence which this Court permitted to be adduced, if accepted, proved that from 1993 to the present time, and possibly also in 1991 and 1992, the respondent worked as a relief driver for one and possibly more sub-contractors to CSR at its Sellars concrete plant in Townsville.  In that capacity he would sometimes drive for two or three consecutive days; on other occasions for a day or part of a day.  The evidence did not prove that he worked continuously for more than two or three days or that he worked each week or even each month; rather that he worked at irregular intervals, from time to time as a relief driver.  Nevertheless, it was submitted by the appellant, this falsified the respondent's evidence that he had not worked since February 1991 and that, in effect, he could not do work of this kind because of pain which would be provoked by activity and posture stress.  It was submitted that, had this deliberate falsehood been proved at the trial, the learned trial Judge would or might have given judgment for the appellant or, if not, would have awarded lower damages than he did.  It was further submitted that the evidence adduced before this Court could not, with reasonable diligence, have been discovered at the time of trial.  And it was submitted for these reasons that this Court should set aside the judgment below and order a new trial.

The prima facie or general principle governing the ordering of a new trial on the basis of fresh evidence was stated by the High Court in Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134 at 141 in the following terms:

"In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v. Holmes and Greater Wollongong Corporation v. Cowan establish that the reconciliation of 'the demands of justice' and the 'policy' that there be an end to litigation at least prima facie (or 'generally') dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict."

The reasons for judgment in that case give some ground for thinking that where, as in this case, there is no present basis for disbelieving the evidence adduced on appeal (and none was suggested) and there is ground for thinking that the matters deposed to were deliberately concealed from the Court and the appellant by the respondent, the prima facie or general rule should be modified.  At the very least what constitutes lack of reasonable diligence for the purpose of the above test must be considered in the light of that likelihood of deliberate concealment.  It is difficult to see how the public interest could be served by refusing an application for a new trial on the ground of lack of reasonable diligence in uncovering evidence which was peculiarly within the knowledge of the respondent to the application and had been deliberately concealed by him from the applicant.  In any event, in this case the evidence before this Court establishes that a great deal of time and effort had been put into inquiries with a view to ascertaining whether the respondent had worked since February 1991 including placing him under surveillance for sustained periods.  It is probably only because of the intermittent nature of the work in which he engaged that his engagement in this work was not discovered during the course of that surveillance.  Having regard to the evidence of inquiries and surveillance which the appellant engaged in prior to trial and what appears, on the evidence so far, to have been deliberate concealment by the respondent of the fact of his engagement in work since February 1991, we are satisfied that there was no lack of reasonable diligence on the appellant's part in obtaining, prior to trial, the evidence which it adduced before this Court.

In Commonwealth Bank of Australia v. Quade the Court had to consider the principle applicable where the relevant evidence was not adduced at trial because of the failure of the Commonwealth Bank to discover relevant documents.  The Court in such case was not prepared to adopt what it described as the stringent rule set out above.  They said:

"It is neither practicable nor desirable to seek to enunciate a general rule which can be mechanically applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict.  The most that can be said is that the answer to that question in such a case must depend upon the appellate court's assessment of what will best serve the interests of justice, 'either particularly in relation to the parties or generally in relation to the administration of justice'.  In determining whether the matter should be tried afresh, it will be necessary for the appellate court to take account of a variety of possible competing factors, including, in addition to general considerations relating to the administration of justice, the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party and the extent of any likelihood that the result would have been different if the order had been complied with and the non-disclosed material had been made available.  While it is not necessary that the appellate court be persuaded in such a case that it is 'almost certain' or 'reasonably clear' that an opposite result would have been produced, the question whether the verdict should be set aside will almost inevitably be answered in the negative if it does not appear that there is at least a real possibility that that would have been so."

It could not be said in the present case that the evidence adduced on appeal, had it been adduced at trial, would have produced an opposite result on liability.  On the other hand there must be a real possibility that it would have.

One difficulty which exists in this case, which was not present in the above case, is that we have not heard the respondent's version of events;  as to whether he was, as appears to be the case, engaged as a relief driver during the period referred to above.  In the above case there was an admitted failure to discover relevant documents.

Because the Court has not heard the respondent's version of the matters deposed to before this Court it may not be sufficient, in the interests of justice, that the appellant should be entitled to a new trial on the issue of liability merely on the basis that there is a real possibility that if the evidence adduced here had been adduced below the opposite result would have been reached.  However we think the likelihood of that result, if this evidence had been adduced, is greater than merely a real possibility.

The learned trial Judge plainly thought that the respondent was consciously exaggerating some of his symptoms.  This no doubt, at least in part, led his Honour to be, as he put it, "not entirely free from doubt as to the truth of what the plaintiff says occurred."  But conscious exaggeration is one thing; a deliberate untruth about a fact - that the respondent had not worked since February 1991 - is quite another.  If, as now seems likely, the respondent was deliberately untruthful about that fact, this would no doubt have an important influence upon his Honour's assessment of the respondent's veracity on the question of liability.  That is sufficient, in our view, in the interests of justice in this case, to justify the grant of a new trial on the issue of liability.

The applicant's case is even stronger on the issue of damages.  Although the learned trial Judge concluded that the respondent was capable of light work, evidence that he had in fact worked as a driver of a concrete truck, albeit intermittently, over some years would probably, in our view, have caused the learned trial Judge to adopt a more optimistic view of his earning capacity and perhaps also to have readjusted his views as to how much of the respondent's complaints was unconscious or semi-conscious exaggeration and how much was conscious exaggeration.

We would therefore allow the motion, set aside the judgment below and order a new trial.  It may be possible, particularly if the new trial is before the learned trial Judge here, to save some of the costs already thrown away by agreement between the parties that some of the oral evidence adduced at this trial be evidence on the new trial.  However we do not think it desirable for this Court to make any orders in that respect.

The appellant should have its costs of this motion.  The costs of the first trial should be reserved to the trial Judge.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 50 of 1995

Brisbane

BeforeDavies JA

Williams J

Mackenzie J

[The Nominal Defendant (Queensland) v. Moran]

BETWEEN:

THE NOMINAL DEFENDANT (QUEENSLAND)

(Defendant)Appellant

AND:

PETER JOSEPH MORAN

(Plaintiff)Respondent

REASONS FOR JUDGMENT - GN WILLIAMS J

Judgment delivered 03/10/1995

I have had the advantage of reading the reasons for judgment prepared by Davies JA and Mackenzie J and I agree with them.  I wish to add but a few observations of my own.

As has been pointed out by Davies JA and Mackenzie J the fresh evidence on which the appellant relies on the application for a new trial satisfies the test derived from cases such as Orr v. Holmes (1948) 76 C.L.R. 632, McCann v. Parsons (1954) 93 C.L.R. 418 and Commonwealth Bank of Australia v. Quade (1991) 178 C.L.R. 134.

In the course of argument reference was also made to McDonald v. McDonald (1965) 113 C.L.R. 529. That decision has been analysed and discussed in the recent decision of this Court in Carter v. Rosedale Sawmill Pty Ltd & Anor (Appeal No 172 of 1995 judgment delivered 3.10.1995), and it is not necessary for present purposes to expand on what was said therein.  Suffice it to say that this case does not give rise to problems of the type in issue in Carter.  Here there is fresh evidence available from persons who did not give evidence at the initial trial and the circumstances are akin to those in McCann v. Parsons.  The fresh evidence from those other witnesses tends to suggest that there was fraud, in the sense of perjury, on the part of the respondent at the trial and in those circumstances one can more readily conclude that the fresh evidence would have produced a contrary result if it had been available at trial.

I agree with the orders proposed.