Polidano v Goodchild Abattoirs Pty Ltd - [2000] WADC 335

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: POLIDANO -v- GOODCHILD ABATTOIRS PTY LTD [2000] WADC 335

CORAM: O'SULLIVAN DCJ

HEARD: 14 AUGUST 2000

DELIVERED : 21 DECEMBER 2000

FILE NO/S: CIV 958 of 1999

BETWEEN: JOHN POLIDANO
Plaintiff
AND
GOODCHILD ABATTOIRS PTY LTD
Defendant

Catchwords:

Torts - Negligence - Personal injuries - Employer and employee - Claim dismissed - Matter turns upon its own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr P J Griffin
Defendant: Mr R G Walton

Solicitors:

Plaintiff: Peter J Griffin
Defendant: McAuliffe Schwikkard

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

O'SULLIVAN DCJ: The plaintiff claims to have been injured while working for the defendant at its abattoir at Australind on 29 January 1996. He seeks damages for negligence and breach of statutory duty and both liability and quantum are in issue.
The plaintiff is 42 years of age. He left school at 15 and has no formal qualifications but has worked, mainly on a casual basis, as a labourer, painter, factory hand, farm worker and maintenance man. He started his working life in Coburg, Victoria but after suffering injury in a motor vehicle accident he went on the road, travelling around the country working from time to time in various places. No employment records nor tax returns were tendered and no other evidence was given to show when and where he worked and how much he earned before 1993 and the impression I have is that he led a peripatetic lifestyle for some years, working intermittently.
In 1993 he was in Western Australia and worked for the defendant from 14 January until 25 June of that year earning $5,940.84 gross. He then worked as a labourer for JLV Industries Pty Ltd earning $1,978.73 gross in the year ended 30 June 1994 and $5,653.33 gross in the year ended 30 June 1995. In March 1995 he suffered a foot injury in a motor vehicle accident and did not work again until recommencing with the defendant as a slaughterman/labourer in late December 1995.

The accident

At the time of his injury the plaintiff was using a bolt gun to kill cattle. The gun is known as a "Schermer Stunner" and is cylindrical in shape. It was described in the evidence as being between 20 and 30 centimetres long, 5 centimetres in diameter and weighing about 2½ kilograms. It is percussion operated and upon depression of the trigger a bolt approximately 10 ‑ 12 centimetres in length is fired into the head of the animal. Diagrams of the Stunner and details of it are to be found in exhibit 8 which is a document containing the manufacturers instructions on handling and maintenance.
The plaintiff described the firing procedure in the following terms:
"You either put the bolt gun on the back of his head or the front, just flush up against it and go bang. The bolt goes in and it comes back out and the beef drops."
Animals are slaughtered on the defendant's premises in a pen known as a "knocking box". The gun operator stands on a platform above the box so that his waist is approximately level with the top of the animal's head. He holds the gun over a rail between the platform and the pen and fires. The photograph numbered 6 in exhibit 2 depicts now the gun is held.
On 29 January 1996 the plaintiff was working with another employee, Hayden Harbeck. He was using the gun while Mr Harbeck drove the animals along a race in to the knocking box. According to the plaintiff:
"The bolt gun got stuck in the beef's head and he dropped and jerked me forward. I thought I'd pulled a muscle in my back and I continued and the foreman came out and I was telling him what happened and it happened again and that’s when it really hurt me really bad…"
The plaintiff's fellow employee Mr Harbeck was not called as a witness. The plaintiff did call the foreman, Mr Paul Dawes but he said that he did not see the accident. There were no other eye witnesses.
Mr Dawes was asked and said:
"Whereabouts were you at the time?---I was on the floor at the time, just inside the abattoirs, and I believe it was Hayden came in and told me about the incident.
As a result of that what did you do?---I went outside to see what was going on and John explained to me what happened to him and I had a shot of the bolt gun myself and the bolt gun got stuck in the animal's head, and I think we had about 5 or 10 minutes of smoko left and because we were short of workers that day, I asked John if he could just keep on shooting until smoko, until we could organise a replacement or something.
You say you had a shot of the bolt gun yourself?---Yes. John explained to me what happened.
What did he say to you what had happened?---That he was just shooting the body of beef and the bolt gun got stuck in the animal's head and pulled him downwards over the side of the knocking box and he hurt his back or shoulder. I can't remember exactly what he said then.
Did you say that you had occasion to use the same bolt gun?---Yes.
And what happened?---Exactly the same thing happened to me. The next animal that came up, I shot it with the same bolt gun and got pulled over the side myself.
Can you remember what time of day this was?---Yes, it would have been anywhere between quarter to 9 to 9 o'clock. It was just before smoko and smoko is at 9 o'clock.
What did you say to him about it?---About being pulled over? I asked John if he could continue shooting until smoko for me because we were short of workers and hopefully during the smoko break I would have a word to Prouty and see if we could organise another worker to replace him.
What did Mr Polidano say when you requested him to carry on working?---John agreed to do it for me.
Did Mr Polidano stay for smoko?---Yes, he had smoko, and when we were nearly finished, I went and saw John to see how he was. He said he was still too sore and didn't think he could continue on with the job. So I went and saw John Prout and the stockman at the time, Simon, took over the shooting job."
There are a number of inconsistencies between Mr Dawes' account of the circumstances surrounding he alleged accident and that given by the plaintiff. The plaintiff said that after he hurt his back a second time he did not carry on working and that this was at about smoko time. He said that Mr Dawes:
"… was asking me if I am alright and I was telling him what happened. … I was talking (to) him and I was still shooting the beef to keep it going and it happened again."
Mr Dawes, according to the plaintiff, was present on this second occasion and he said, "It really ached me and I could hardly move."
The plaintiff went onto say that he tried to retrieve the gun and could not and that it was Mr Dawes who pulled the bolt out of the animal's head and that upon him asking the plaintiff if he was alright the plaintiff replied, "No, not this time."
Counsel for the plaintiff made no great attempt to reconcile the differences in the accounts of his client and Mr Dawes and I am left to ponder over them. Mr Dawes, who was described by the plaintiff as a friend of his, said that he was not aware that the plaintiff had hurt his back twice on the morning of 29 January 1996.

Liability

I have already noted that the plaintiff brings a claim in negligence and for breach of statutory duty. The pleaded particulars of each cause of action are identically framed in wide and general terms. Counsel for the plaintiff did not open on any of them but upon being pressed to do so he indicated that the plaintiff's specific complaints were that the defendant had failed to instruct him in the correct procedure to be adopted in operating the bolt gun and to ensure that it had been properly maintained. In the course of the trial the evidence travelled to some extent beyond these matters and I expressed concern about that from time to time but counsel assured me that the plaintiff's case was confined to the complaints he had specified. In closing he again confirmed that that was the position when I put to him the following:
"Your case in negligence is based on two allegations essentially. I just want to understand that I am not missing anything; allegations as to the failure to clean the gun or failure to ensure by an appropriate system that it was cleaned and a failure to properly instruct and warn the plaintiff."

Failure to properly instruct and warn the plaintiff

The plaintiff learned how to use the gun by watching Hayden Harbeck although it seemed to me that his evidence in that regard was guarded. He was asked and said:
"You say Hayden Harbeck showed you this gun? - Yes.
He showed you how to load it and he showed you how to fire it didn't he? - He didn't show me how to fire it because I asked him. I said to him 'what's that?', you know. That’s when he told me it was a bolt gun, you know, and I was watching him and everything, load it and shoot it and everything.
Hayden Harbeck showed you how to use the gun, didn't he? – He didn't actually show me. I was more or less – I was watching him how he's shooting so, I mean, I looked. I could see him and I said 'give us a go'."
The plaintiff argues that he should have been instructed to let go of the gun if the bolt struck in an animal's head so as to avoid being pulled forward and over the rail of the platform as it dropped to the ground. When I asked counsel whether that was the extent of the allegation that there had been a failure by the defendant to properly train the plaintiff, he replied:
"That's right. He wasn't forewarned of the possibility of the bolt sticking in the beef's head."
There is no evidence that the plaintiff was ever instructed that a bolt might stick in an animal's head but it is quite clear that by 29 January 1996 he was well aware of such a possibility. Quite apart from the evidence given by witnesses called by the defendant the plaintiff himself said in examination-in-chief that he had had that experience "three or four times, roughly" and in cross-examination the plaintiff seemed to concede that it had happened more often than that, "a few times a day, you know, a couple of times you know".
When asked whether he ever saw a bolt stick in an animal's head when Hayden Harbeck was using the gun the plaintiff said: "I think it happened a couple of times – no I can't clearly remember exactly no", but earlier in his evidence he said that when a bolt stuck Mr Harbeck would bend down and pull it out of the animal's head.
Mr Dawes said that a bolt would stick in an animal's head between three and six times a day and Mr Prout, the defendant's assistant manager, said that it happened quite often.
At the time of the accident the plaintiff had been working for the defendant for about a month and I am quite satisfied that he saw it happen quite regularly and personally experienced it on a number of occasions.
The plaintiff also made it clear in his evidence that by 29 January 1996 he well knew to let go of the gun if the bolt stuck in the animal's head. He said "it's common sense to let go." And although he denied that Mr Harbeck had ever instructed him to let go in these circumstances he said that he clearly recalled that there was no such instruction "because how can anyone tell you that – I mean its like saying duck if someone's throwing a punch at you … you know. Its common sense isn't it. If someone is throwing a punch at you, you're going to duck."
In my view, this being the state of the evidence, it is quite clear that the plaintiff's complaint that he was not forewarned of the possibility of the bolt sticking in an animal's head and not instructed to let go of the gun in that event gives rise to no claim. The plaintiff well knew that it was common sense to do let go and even if he had not been formerly instructed there was no need to tell him of the possibility that it might be necessary to do so.

Failure to maintain the gun

When the gun is fired the bolt is forced out of the barrel until its shoulders come into contact with rubber buffers. The impact causes the bolt to recoil and in that way to be withdrawn from the animal's head. With repeated firing carbon and other material can build up within the barrel of the gun and this will decrease the efficiency with which the bolt will recoil.
The plaintiff was asked about the state of the bolt gun at the time he suffered his injury and he said:
"Well it got stuck only a few minutes apart really; 10 to 15 minutes apart or something so it wasn't in very good nick. It needed cleaning out. There was probably a lot of carbon in it; clogged it all up. That’s the first time I had it stick twice you know, in that time."
The plaintiff was asked whether he inspected the gun before work started on the day of his accident and he said:
"Well I don’t go pulling them apart or anything because I haven't got the time."
He was then asked in effect whether it followed that he could not have told whether the guns had been maintained and he answered "not until they start getting stuck or not firing properly or backfiring and everything."
In cross-examination the plaintiff was asked and said:
"On this occasion did you know whether the gun was clagged (sic) up or not? – I couldn't tell you, I mean, exactly."
Mr Dawes, who was called outside by Hayden Harbeck when the plaintiff was injured, said that he used the gun himself and again the bolt stuck in an animal's head but he was not prepared to put it down to a lack of maintenance. He was asked and said:
"By your operation of the bolt gun could you tell what was making it stick in the beef's head? - No, I couldn't really tell. Because it wasn't checked in the morning, I wouldn't know if it was because it wasn't cleaned properly or if there was something wrong with it."
Mr Dawes said that one reason why a bolt might stick in an animal's head was that the animal was older. He said:
"Well, if it's a bigger animal sometimes it's got a bit more of a harder skull and there's more chance of the bolt gun actually getting stuck in the animal's head. Majority of time it is all right but it does happen on a regular basis. … The majority of the time they still knock the big animals but there's more of a chance of it getting stuck in them than a younger animal."
Two guns are used in the operation precisely because one tends to become dirty after a while and if it malfunctions another is then available so that it can be put into immediate use and production is not disrupted. At the time of his injury the plaintiff had been operating a gun for some time and it might be expected that it had become dirty from use. Despite this there is no evidence that the plaintiff switched to the other gun and indeed it does not appear to be an issue that was canvassed in the course of the trial.
In my view if the gun he was using did "stick" on the occasion when the plaintiff was injured there is simply no evidence sufficient to justify the conclusion that it stuck because of any lack of maintenance which should have been carried out before the day's work started.
In my opinion it is clear that the plaintiff has not established that the gun he was using was not properly maintained at the time of his alleged accident and it becomes unnecessary in these circumstances to examine in any detail the evidence concerning the system employed by the defendant to ensure that it had been. However I should note that a statement from the defendant's maintenance man was admitted without objection and it shows that the guns were cleaned and maintained before work commenced on the day of the accident.

Other grounds for a finding of liability

Despite these conclusions and the emphatic denials by counsel for the plaintiff that his case was any wider than that put by him it is nevertheless necessary for me to consider whether there are any other grounds disclosed by the evidence for a finding of liability against the defendant.
It seems to me that it is clear that when an animal is killed it drops suddenly and if a bolt sticks in its head it is inevitable that the operator will be pulled forward and over the rail unless he releases his grip upon the gun. Further, even if he knows to let go, it is understandable that he might delay in doing so for a moment and I note that the instruction manual which was tendered in evidence contains a warning against allowing the gun to drop floor in case it should be damaged. And so, if an operator does hold on to the gun and the bolt sticks in an animal's head and the animal drops suddenly it is not hard to see that he might be pulled forward and over the rail with considerable force as the plaintiff himself described. In the light of this the question is whether there is any basis for a finding of negligence against the defendant.
It was not the plaintiff's case that there was some other safer method of slaughtering which should have been adopted. The instruction manual does outline a procedure whereby an animal is held in a brace so that it does not drop to the floor when shot but when this matter was touched upon in the evidence counsel for the defendant objected to it because it was not part of the plaintiff's pleaded case and the argument was not pursued.
When an animal is shot the gun is held vertically above its head in the manner depicted in photograph numbered 6 (exhibit 2). The operator's hand is around the cylinder of the gun and there is no trigger guard or other protrusion from the cylinder upon which the hand can be caught if the gun is wrenched from his grasp. The weight of the beast is obviously considerable and upon it suddenly dropping to the ground the bolt will usually be easily withdrawn. The tendency of the bolt to stick on occasions was known to the plaintiff and in those circumstances he also knew to let go of the gun. In any event the gun would be wrenched from his grasp in a matter of moments. The plaintiff was not inexperienced in the task he was performing and in all the circumstances I am unable to conclude that the defendant unreasonably exposed him to the risk of any injury.

Quantum

It follows that for these reasons, I am of the opinion that the plaintiff's claim should be dismissed. Nevertheless I turn to consider the extent of award he might have had if liability had been established.
A number of medical practitioners who gave evidence seem to accept that the plaintiff did suffer an injury to his lower back as a result of the accident. Mr Anderson certainly did so and said in a report of 3 December 1998 that the plaintiff had sustained "a significant impairment in the lumbar spine at the 20 per cent level." Dr Alan Home put the plaintiff's condition down to having suffered an annular tear of the lumbosacral disc associated with a small disc protrusion or bulge.
However, other medical practitioners maintained a more sceptical view. Mr Wong was uncertain of the source of any pain of which the plaintiff was complaining and did not think that the annular tear could be blamed for it. He thought that the plaintiff's complaint was "probably soft tissue in nature, with functional overlay."
Mr Batalin considered that the plaintiff had a minor disc lesion which, in the absence of any evidence to the contrary, had to be attributed to the accident of 29 January 1996 but he was puzzled by the extent of incapacity claimed by the plaintiff and noted significant discrepancies between findings on direct and indirect examination.
Mr Shaeffer thought that the plaintiff suffered from no more than mild degenerative changes in his spine which were entirely consistent with his age and he found it impossible to explain his longstanding symptoms. In his view the plaintiff was not truly incapacitated at all and he could see no reason why he should be regarded as unable to return to work as a labourer.
Mr Edibam also found that the plaintiff's condition was entirely consistent with his age and he could not find a cause for his complaints. He also noted discrepancies between the complaints and his findings on examination.

The medical practitioners who gave evidence most favourable to the plaintiff (Mr Wong, Mr Anderson and Dr Home) all made the point that their findings that the plaintiff was unable to work as a result of the accident on 29 January 1996 were dependent upon what the plaintiff told them and it is clear in these circumstances that the plaintiff's credibility is central to any assessment of the quantum of his claim.
On the day of the accident the plaintiff's wife picked him up and took him to see his general practitioner Dr Yap who stated in a report dated 24 February 1998 that he prescribed Panadeine Forte and gave him three days off work. However on seeing him again the following day Dr Yap said that the plaintiff told him that he was stiff and sore and felt that he could not work and so he was given another week off. The doctor then saw the plaintiff on a number of occasions in February and March 1996 and eventually recommended a work trial which was unsuccessful. The doctor said:
"He was seen again on 22 March 1996. He was commenced on rehabilitation starting at 2 hours per day. He still had muscle spasms and was only able to flex from the tibia. He was certified as being partially unfit starting on 25 March 1996.
However he returned on the 28th of March 1996 stating that his back was no good. He continued to have pain. His rehabilitation consisted only on (sic) light duties with rubber bands on tickets, however he received pain from prolonged sitting. He was given two weeks off work."
The plaintiff said in evidence that when he went back to work for the defendant he was required to sit on a wooden seat "putting…strings on these tickets" for a period of two hours. He said that he couldn't do it and that his back became "all stiff and aching".
There does not appear to be any record of the plaintiff having been seen again by Dr Yap until 9 August 1996 when he said that the plaintiff told him that he was still unable to work and that the defendant had no jobs available for him in any event. At that time Dr Yap said that he gave the plaintiff another four days off work.
Nicola McManus is an occupational therapist who was engaged by the defendant's insurer to assist the plaintiff in his rehabilitation. She said that she first met him on 22 March 1996 and conducted an assessment of his pre‑injury duties and investigations to identify alternative duties. She also said that she discussed the plaintiff's case with Dr Yap and then put together a "return to work programme" based upon his recommendations.
It seems that in about October 1996 Ms McManus arranged a work trial for the plaintiff with a business called All Seasons Garden Centre and she said that she arranged to pick him up to take him to meet the employer but that when she went to do so he was not at home. Ms McManus said that she arranged another meeting for 1 November 1996 and on this occasion the plaintiff did attend. She was asked and said:
"What happened at the work trial negotiation? Did you introduce him to the employer?---Yes, I introduced him to the employer.
Who was that?---That was Hilary Butler.
What was he wearing?---He was wearing black jeans and what looked to me like motor cycle boots. He had a black holey T‑shirt on and he wore a bandanna.
Did any discussion, in your presence, take place between Mr Polidano and Ms Butler?---Yes it did.
What was the discussion in your presence?---Ms Butler asked if Mr Polidano had ever worked in a gardening area before and he said no that he had been too busy behind the bar and when she enquired what he meant by that he said he was too busy drinking."
The plaintiff was not taken on for a work trial. Ms McManus said that she attempted to contact him after that to discuss matters with him and when she eventually was able to meet with him on 11 December 1996 she told him that his dress and behaviour at the interview had been inappropriate and that unless there was a change in his attitude rehabilitation was unlikely to be successful.
The plaintiff was cross-examined about these matters and denied any failure by him to cooperate. He recalled the interview with Ms Butler and admitted that he was wearing black jeans and a bandanna ("probably because it was a hot day") but denied having on a holey T shirt. He was asked and said:
"Do you agree that wasn't appropriate clothing for a work interview? … Was I going there to work or show them my wardrobe; my working skills, not my dressing skills – and they were a clean pair of jeans and T-shirt.
Didn't Ms McManus say to you on that occasion you were unlikely to obtain employment if you dressed like that, words to that effect? … No.
You said you were not prepared to change your dress or presentation? … No; she never has.
Never said that? … No.
And that she couldn't for the moment help you because of that, because you weren't prepared to change your presentation? … No.
But it's a bit the same as what you say; they say they will telephone you back when you apply for a job? … As I said, they just – the way I look, you know; but Nicky has never said anything like that to me.
Nicky never said that to you at any time? … No."
When it was put to the plaintiff that he had told Ms Butler, that he had said he was "too busy at the bar" his evidence was as follows:
"At the bar? … What bar?
The drinking bar? … The pub? I don't go to pubs. I don't even drink at pubs.
When you were asked to clarify that, you said you meant too busy drinking. You don't remember that? … No. I don't go to pubs."
According to the plaintiff Ms Butler told him at the interview that the work would not be suitable for him because "I would have to pick up bags of dirt and stuff like that because she reckons she's got a sore back and she knows what its like".
Ms McManus denied that there was any conversation to this effect and she was not pressed in cross-examination. In my view her evidence is to be preferred. A specific return to work program had been prepared and a list of duties for which the plaintiff was considered suitable drawn up. That list included such matters as washing pots, pruning roses and sweeping paths. I think it most unlikely that Ms Butler would have made the statement alleged by the plaintiff.
Ms McManus had no further contact with the plaintiff until August 1997 when she arranged a further work trial at the Gull Service Station near Waterloo where he was then living. There was an interview and Ms McManus said:
"Again I felt he was dressed inappropriately. He was wearing a beanie. He had an unbuttoned and untucked shirt and dark glasses and I asked him to actually remove his beanie and actually do up and tuck in his shirt and he said no."
It seems that the employer did nevertheless agree to take the plaintiff on for a work trial and that he was due to start on 20 October 1997 but he did not do so. Ms McManus said that when she contacted Mr Polidano to find out why he had not turned up for work he told her that he had not done so because he had sore feet and she advised him to get a certificate to that effect from his doctor, who was then Dr Buters. Dr Buters wrote a letter dated 13 November 1997 advising Ms McManus that he was not aware that the plaintiff had any problems with his feet and could see no reason why he was unable to attend the work trial.
The plaintiff's evidence about this was as follows:
"Yes, but before that you claimed you couldn't turn up because you had sore feet. Do you remember saying that you had sore feet? … Yeah, when I didn't have my boots at first.
You said that you had sore feet and you couldn't turn up? … I can't remember exactly.
You can't recall. And did not Ms McManus say you would have to obtain a medical certificate if that was the case. Do you remember that? … For what?
For your feet? … I don't know. If that's what she asked, I would have got one.
What she will say is that you told her that you'd attended Dr Buters and got one? … Did I give her one?
The next step was she asked Dr Buters and her evidence will be that Dr Buters knew nothing about your problems with your feet? … Well, if I got a doctor's certificate I would have given that to her.
I will repeat what I said. Her evidence will be, and I put it to you, Dr Buters told her that he knew nothing of problems with your feet … ? … Yeah, I can't even recall anything about this, either.
You can't recall any of this? … No, really. No, I'm saying if she asked me for a doctor's certificate I would have got one.
And he gave a certificate to the effect that you were quite fit to go on with the work trial? … Any doctor's certificates he's given me I've given to her."
The letter from Dr Buters was admitted by consent and remains uncontradicted and unexplained. I do not accept that the plaintiff had any reasonable grounds for failing to attend for work on 20 October 1997.
A further work trial at the Gull Service Station was arranged to commence on 22 December 1997 but when Ms McManus visited the business on 31 December the plaintiff was not there. When Ms McManus met with the plaintiff to ask why he wasn't present she said that he said he believed that 31 December was a public holiday and that he wasn't required to work. The trial did not proceed.
Ms McManus arranged a further work trial in February 1998 and on this occasion set up a meeting between the plaintiff and the proprietor of a business known as McGuire Glass & Aluminium. She said that the plaintiff attended wearing a beanie and sunglasses which he would not take off even inside the office. Again the trial did not proceed.
A further work trial was arranged with a business known as Big Swamp Wild Life Park which was due to commence on 29 September 1998 but the plaintiff did not attend on that date. Ms McManus said that when she spoke to him about it the plaintiff said that he had forgotten and had had to go to Melbourne to visit his sick father. The trial did eventually commence a week or so later and proceeded on an intermittent basis until about January 1999 when work was no longer available for the plaintiff.
The plaintiff's case is I think unsatisfactory in a number of respects. Firstly, as I have already observed the plaintiff's evidence conflicts with that of the foreman Mr Dawes who denies that he was present when the plaintiff was injured. That is puzzling because the plaintiff's specifically testified that he was telling Mr Dawes what had happened when he had killed the preceding animal and "it happened again". Mr Dawes' evidence that he was only aware of the plaintiff hurting his back once on the morning of 29 January 1996 and that he was only told of it by Mr Harbeck and that he spoke to the plaintiff and asked him if he was alright to continue until smoko and that the plaintiff replied that he was is all quite inconsistent with the plaintiff's account and yet no explanation for these differences was given, or it seems to me seriously attempted.
Secondly Hayden Harbeck was not called as a witness and I am left to assume that he cannot be found. Again no explanation for Mr Harbeck's absence was really attempted. It may well be that I should place no great reliance upon this because it is fair to say that counsel for the defendant did not stress the point but the fact remains that the absence of Mr Harbeck who was on the plaintiff's case an eye witness does nothing to dispel any feeling of unease which I have in accepting the plaintiff's account of the incident.
Thirdly the plaintiff's evidence is in conflict of that of Ms McManus whose testimony I prefer. In my opinion in his dealings with Ms McManus the plaintiff demonstrated an unwillingness to make a genuine attempt to get back into the workforce either in a labouring capacity or otherwise.
The plaintiff is now 52 years of age and has, in the opinion of a number of the medical practitioners who testified, a back condition consistent with a person of that age. I am not satisfied on all the evidence that he suffered any significant injury on 29 January 1996. While I have no doubt that he did experience some pain and discomfort on that day possibly consistent with a soft tissue injury I am not satisfied on the balance of probabilities that it was anything more than that and that it did not resolve a considerable time ago. In my opinion the preponderance of medical opinion favours this view and those medical practitioners who take a different one clearly base their opinions upon the subjective complaints of the plaintiff himself. In all the circumstances I am not persuaded on a balance of probabilities that those complaints are genuine.
It follows that for these reasons it is not appropriate to assess quantum and that the plaintiff's claim should be dismissed.