Pollard v Bull's Transport Pty Ltd No. DCCIV-01-1412

POLLARD V BULL’S TRANSPORT PTY LTD
[2003] SADC 62
Judge Burley
Civil

The plaintiff claims damages for personal injury which he says he sustained during the course of his employment on 31 May 1996. It is common ground that on that day the plaintiff was the employee of the third party. He was engaged in the performance of loading work in respect of a semi-trailer motor vehicle (the pantechnicon) owned and operated by the defendant. The vehicle was situated at a freight yard at 160 Churchill Road, Cavan, which was owned and operated by the third party.
At the commencement of the trial it was announced that the third party claim between the defendant and the third party had been settled and the trial proceeded as between the plaintiff and the defendant only.
It was not disputed that on 31 May 1996 the plaintiff was, in the course of his employment with the third party, engaged in work at the premises at Cavan which included the loading of pallets containing goods on the pantechnicon. The pallets were delivered by a forklift vehicle to the rear of the pantechnicon. The plaintiff would then, by means of a trolley jack, move the laden pallets into position on the tray of the vehicle. The plaintiff said that during the course of carrying out this work the rear wheels of the trolley jack became caught in a hole in the floor of the pantechnicon and that when he tried to manoeuvre the wheels out of the hole he experienced pain in the lower back. It was in that way that the plaintiff alleges that he sustained personal injury on the day in question.
The plaintiff alleges that the injury was sustained as a result of the negligence of the defendant. The plaintiff asserted in the statement of claim that the defendant was under a duty to take all reasonable precautions for the safety of the plaintiff whilst he was carrying out work on the pantechnicon. It is further alleged that the defendant was under a duty not to expose the plaintiff to the risk of injury and to provide and maintain a safe place of work. At trial, the plaintiff’s case in negligence against the defendant was concentrated on the assertion that the defendant supplied a vehicle which had a hole in the floor of the pantechnicon, the presence of which rendered it an unsafe area to work.
Although the incident on 31 May 1996 occurred during the course of the plaintiff’s employment with the third party, the claim in negligence is against a company which was not the employer of the plaintiff at the time of the incident and thereby the plaintiff’s claim does not come within those provisions in the Workers Rehabilitation and Compensation Act 1986 which preclude an employee from bringing a negligence claim against an employer.
I turn to a consideration of the plaintiff’s evidence. The following narrative consists of my findings to the extent that no material disputes of fact exist. Where factual disputes which are material have arisen, I will deal with those during the course of the narrative.
The plaintiff was born on 18 October 1959. On the day of the incident he was 36 years of age. He is now 43 years of age. He left school at age 15. He has undertaken various types of work since then, most of which was of an unskilled physical nature.
In about 1981, when working as a packer at the East End Market, the plaintiff slipped while carrying a box of vegetables. As he did so he felt a pain in his lower back. He was off work for about 10 to 12 months and received workers compensation payments in respect of that injury. He then gained employment in the security industry. He said that he had undertaken a programme of exercises recommended by a physiotherapist which enabled him to resume normal duties.
In the mid-1980’s he obtained employment with a sand and metal merchant. The work involved the loading of trucks and the filling of bags with a concrete mix. This was very heavy work. The plaintiff sustained a further back injury during the course of that employment. The plaintiff fell from a hopper a distance of about 10 to 12 feet as a result of which he injured his back again. He said in evidence that he thought that he had hit his head on the ground when he fell. He said that he lost consciousness and did not thereafter have a detailed recollection of what had happened. He was unable to return to work for several months after that incident.
The plaintiff recovered from the 1981 injury to the extent that he was able to play competitive football at an amateur level. After the second injury to his back in 1985 he was able to play indoor cricket.
In about 1987 the plaintiff obtained work again in the security industry. He said that, by then, as a result of keeping up his exercise routine at a gymnasium, he was able to resume normal everyday work.
The plaintiff worked in the security industry for three to four years. It is not clear what employment he had immediately prior to becoming an employee of the third party, but he gave evidence about working for a company called Cosko Developments in 1993 when he sustained an injury to his knee as a result of losing his balance on a ladder. He had some time off work. He underwent an arthroscopy which he said enabled him to regain normal use of his knee.
The plaintiff became an employee of the third party in about 1994. He was employed on the loading of trucks at the depot at Cavan. Most of this work, at least in the early days of his employment, was by way of manual labour, although he did, as he gained more experience and skill, operate forklift trucks in the task of loading. Goods to be transported interstate would be packed onto semi-trailers. The two main interstate hauliers whose vehicles were loaded at the depot were a company called Gilbert’s Transport and the defendant, Bull’s Transport. The plaintiff said that, of the trailers that he loaded in the two years prior to the incident, those owned by Gilbert’s Transport were always in very good order whereas the trailers belonging to the defendant were often in less than perfect condition. He said in particular that many of the defendant’s trailers had holes in the wooden floor of the trailers. That was denied by the defendant.
One of the devices used to load the semi-trailers was a trolley jack. It is a lifting device consisting of two metal prongs which fitted into a wooden pallet on to which goods were packed. By means of operating the handle of the trolley jack, the pallet could be lifted and wheeled across the floor of the semi-trailer. There are two wheels on either side of the operating handle and the metal prongs have rollers fitted to them. Once loaded with a pallet of goods, the operator of the trolley jack would then either push or pull the trolley jack across the wooden floor of the semi-trailer so that the pallet was manoeuvred into position. The hydraulic jack which formed part of the trolley jack would then be released and the pallet with its load would settle on the floor of the semi-trailer.
The plaintiff described the incident that occurred on 31 May 1996. The facts are in dispute. He was using a trolley jack in the course of loading the pantechnicon belonging to the defendant. The method of loading consisted of the operator of a forklift truck lowering a pallet of goods on to the floor of the rear of the semi-trailer which was then picked up by the plaintiff using a trolley jack. The plaintiff used the trolley jack to manoeuvre the pallet of goods over the floor of the pantechnicon. Depending upon the weight of the load, the forklift truck would place up to three pallets, one on top of the other, on the rear of the pantechnicon. The plaintiff was asked (T41/16):
“QDid something happen whilst you were manoeuvring one of the pallets with a load on the 31st May ’96.
AYes, I - the fork had put in a couple of pallets, a base pallet, and another one on top and yelled out ‘that’s it’ which is for me ‘that’s for that load’ which gave me the all clear to pull that back towards the front of the pan [pantechnicon]. As I was pulling it back, the rear wheel got stuck in the hole in the floor that I hadn’t previously seen.
QDid you do anything as a result of the wheel getting stuck.
AI yanked on the trolley jack to try and free it and that’s when I felt some pretty bad pain.
QWere you manoeuvring one pallet or a pallet with another one on top.
AIt was a pallet with another one on top.
QDo you now recall what was loaded on the bottom pallet.
AI’m pretty sure it was a coil, steel coil.
QDo you recall what was loaded on the pallet, on top.
AOnly some boxes.
QWas there any lighting in the van at the time.
ANo.
QWas it daytime or night-time when you were loading the pantechnicon when the incident happened.
ANight-time.
QHad you seen the hole in the floor before the wheels of the trolley jack got caught.
ANo.
QDid you make any observations of the floor after the trolley jack got caught.
AI had a quick glance and made the decision that I probably would be able to free it.
QWhen you had the quick glance, what did you see.
AI saw a hole in the floor with one of the two twin wheels stuck down in the hole and I suppose I, you know, thought I could get it out.
QWas there any lighting nearby.
AThere was warehouse lighting outside the rear of the van there (INDICATES) where you see its light, where those pallets are stacked there.”
The plaintiff said that when he attempted to pull the trolley jack out of the hole he “immediately felt some pretty excruciating pain” (T42/26) in his lower back. He said that he knew that he was in trouble. He was then asked (T42/28):
“QHad you earlier in the shift experienced any symptoms in your back.
AI don’t know what you mean by symptoms but I had been loading a curtain sider, a rail curtain sider which is actually laid on the ground and you load it from the ground and I was - we were just finishing it off, the crates and everything was on it and what you do is just putting in little parcels on that just to top, to top load it. I did lift a box and twist with the box to put it on and I got a twinge in my back. I put it no more than a twinge because I kept working after a couple of minutes.
QHow much earlier was it that you felt that twinge in your back.
AA few hours.
QWhat did you do after you experienced those symptoms whilst pulling the trolley jack.
AI made my way to the front or the back of the pan which is the exit and yelled out to the forklift driver that I injured my back and that the pallet was still stuck in the floor, the trolley jack was still stuck on the floor with the goods on it.”
He next said (T43/16):
“I made my way to the rear of the pan and got off the truck, advised the forklift driver that I injured myself and I was told to go and sit down and rest and see how it went.”
The plaintiff said that while resting he became more distressed as the pain became more intense. He said that he was told to go home. The plaintiff said that he drove home from the depot at Cavan to his home at Noarlunga Downs. He said that it was difficult driving home and he had to stop on a few occasions.
The 31st May 1996 was a Friday. The plaintiff said that he spent most of the weekend in bed. On the Monday morning he advised his employer that he was going to see his general practitioner. He was informed that he should see Dr Skiffington, a general practitioner whom I understand was retained by Workcover.
It appears that the plaintiff saw Dr Skiffington on Tuesday, 4 June 1996. She was not called to give evidence but her clinical notes were tendered by consent as Exhibit P27. They are as follows:
“Hurt back last Friday evening 31/5/96 - lifting heavy boxes into unit. Felt pain in low back, dropped boxes. Kept working. Later was in unit pulling pallets - further pain. Hasn’t been at work last 2/7. Has R/sided low back pain. No leg pain. No P/H of back injury. Using heat.
O/E Tender L4-5 R/para spinal area mainly; mild central spine tenderness. Pain on flexion.”
There followed other notes referring to back strain possibly involving a disc.
Physiotherapy treatment was recommended. Dr Skiffington also issued a medical certificate referring to a clinical diagnosis of lumbar strain caused by “lifting boxes on to unit”. She certified that the plaintiff would be incapacitated until 6 June 1996 when the plaintiff would be re-assessed. The medical certificate is Exhibit D12.
Dr Skiffington issued a further medical certificate on 6 June 1996 covering the period from that day to 10 June 1996 in which she described the incident causing the injury as involving “lifting boxes on to unit”. The medical certificate is Exhibit D13.
Both medical certificates were provided by the plaintiff to his employer.
On 11 June 1996 the plaintiff completed a form entitled “Notice of Work Related Injury”. It is Exhibit D11. In the form, he described the injury sustained by him as back strain to the lower back. He stated that the injury occurred in the “loading area” on 31 May 1996 at about 6.00 pm. He has referred in the form to having stopped work at about 6.00 pm “but then continued until about 10.00 pm when pain increased”.
The form contained the question “What were you doing at the time?” The plaintiff wrote in response: “loading freight into a unit lifting a heavy box on twisting felt pain in lower back”.
In response to the question “What exactly caused the injury or disease?” the plaintiff wrote “lifting”.
When the evidence consisting of Dr Skiffington’s notes, the two medical certificates and the notice of injury is considered independently of the evidence given by the plaintiff at trial, it is apparent that the plaintiff attributed the cause of the lower back injury sustained by him on 31 May 1996 to the incident of lifting a heavy box and twisting his body as opposed to the subsequent incident involving pulling the trolley jack. It is obvious that he referred to both incidents when recounting what happened to Dr Skiffington and when filling out the notice of injury form. It is equally obvious that he regarded the first incident, which occurred at about 6.00 pm and involved lifting a heavy box and twisting his body, as the cause of his injury. The second incident on that day, involving the use of the trolley jack, was treated by him as secondary. In particular, although he informed Dr Skiffington that the second incident involved “pulling pallets”, he only referred in the notice of injury form to experiencing an increase in back pain at about 10.00 pm.
This is to be contrasted with his evidence at trial where he said that the injury to his back occurred when he was attempting to pull the trolley jack out of a hole in the floor. He said that he “immediately felt some pretty excruciating pain” in his lower back. As to the earlier incident involving the lifting of a box and twisting, he said: “I got a twinge in my back”.
If the evidence of the plaintiff given at trial is considered without reference to the clinical notes of Dr Skiffington, the medical certificate and the notice of injury, it is clear that the plaintiff considers that the major incident when injury was sustained was the second incident at about 10.00 pm whilst the plaintiff was using the trolley jack.
There is a clear conflict between what the plaintiff said at trial and the documentary evidence as to when the injury to the plaintiff’s lower back was sustained on 31 May 1996. It is necessary to resolve this conflict because the first incident, which occurred at about 6.00 pm, did not involve any act of negligence that could be attributed to the defendant, whereas the second incident occurred in circumstances where, according to the plaintiff, the defendant was negligent in providing a pantechnicon which had a hole in the floor.
The plaintiff was cross-examined about what he said to Dr Skiffington and his completion of the notice of injury form (T72 et seq). It was put to him that he did not tell Dr Skiffington anything about the problem with his back arising from the use of the trolley jack. The plaintiff said in evidence that he did so inform her. It was put to him that he told Dr Skiffington that he later experienced further pain while pulling pallets. The plaintiff responded that he told Dr Skiffington “the full story”. In particular, he said he told her about the trolley wheel being caught.
When asked about reporting the incident to his employer, he said that he made two reports, the first of which occurred after he had seen Dr Skiffington. He thought it was the Tuesday following the incident that he filled out a report regarding the trolley jack. He said in addition that “at some other stage over the next three or four days [he] was asked to fill in a report about the first incident with the boxes ...”.
As I understand the plaintiff’s evidence, he was asked to fill out another form in relation to the lifting incident which had occurred at about 6.00 pm. He was asked in cross-examination why he did not put both incidents in the one form. He said (T74/8):
“AWell, the first incident, as I had explained, was a twinge. It wasn’t enough to make me stop working and go home. It was a twinge which I believe we all get at some stage when we are lifting something or doing something. I didn’t think that was significant.
QLet me suggest this to you; that on the 19th [sic] June 1996 you completed a notice of Workcover related injury complaining of back strain to your lower back which occurred in the loading area on 31st May 1996 at, approximately, 6 o’clock.
AYes, what date was that dated sorry?
Q11th June, that’s when you filled out the form.
AYes, that seems to be the second one I filled out several days after.
QAnd I think as part of that form you wrote after the time when the incident occurred ‘Approximately 6 o’clock but then continued until about 10 pm when pain increased’; isn’t that right.
AI think that must be tied in with the other incident because I haven’t seen a copy of the other report you see.
QI suggest to you that’s because there isn’t one.
AThat’s not correct, I remember filling one in.”
The form, D11, was then put to the plaintiff and was subsequently admitted as an exhibit. It is necessary to mention at this stage that the Workcover file had been produced to the Court pursuant to a subpoena and that it was common ground that no second Notice of Work Related Injury was found in the file (T250-251).
It was submitted by Mr Howard, counsel for the defendant, that if the plaintiff injured his back on 31 May 1996, I should find that the injury occurred when he was lifting boxes as part of the loading operation at about 6.00 pm on 31 May 1996. Mr Cole, counsel for the plaintiff, submitted that I should not make such a finding because to do so would be to find that the plaintiff had concocted the story relating to the second incident on 31 May 1996 relating to the use of the trolley jack at about 10.00 pm. I do not consider that that necessarily follows. I am prepared to accept that there were two incidents on 31 May 1996 when the plaintiff experienced lower back pain during the course of his employment. The first occurred at about 6.00 pm and the second occurred at about 10.00 pm. The first incident clearly involved the lifting of a heavy box and twisting his body as the box was being lifted. The second occurred when the plaintiff was using a trolley jack to move goods from one part of the pantechnicon to another. This is consistent with what he told Dr Skiffington and included in the notice of injury. The question arises not so much whether the plaintiff has concocted a story in relation to whether or not the second incident occurred; rather, it is a matter of determining whether the second incident occurred as alleged by the plaintiff in his evidence.

According to the plaintiff, the following occurred on 31 May 1996:
·having experienced a “twinge” of lower back pain at about 6.00 pm, he was loading the pantechnicon at about 10.00 pm.
·the forklift operator delivered two pallets, one on top of the other, to the back of the pantechnicon.
·he inserted the prongs of the trolley jack into the bottom pallet and lifted the load with the hydraulic jack.
·when he was pulling the trolley jack, the rear wheels became stuck in a hole in the floor of the pantechnicon.
·he attempted to free the wheels of the trolley jack by pulling on the operating handle and in doing so, he experienced “pretty excruciating” pain in the lower back.
·he was unable to resume work after this incident.
The pleadings and the evidence of the plaintiff are such that, if the plaintiff’s case is to succeed, there must be a finding that the second incident caused injury to his lower back. If it did, it would then be necessary to determine whether the injury was caused by the negligence of the defendant, and if it was, to assess damages.
The approach that I take to the conflict between the plaintiff’s evidence at trial and the documentary evidence is, firstly, to proceed with caution on the question of whether or not I accept the plaintiff’s evidence that the second incident was the occasion when lower back injury occurred.
In considering the evidence and counsel’s respective submissions, I have sought an explanation as to the differences between the documentary evidence and what the plaintiff said at trial in relation to the time at which he sustained the injury to his back on 31 May 1996. Based on Dr Skiffington’s notes, and making all due allowance for the fact that when medical practitioners take histories from patients, they do not necessarily have an appreciation of the legal significance of what the patient may tell them as to how a particular incident occurred, it seems to me, and I so find, that the plaintiff told Dr Skiffington within a few days of the occurrence of the injury and on the first occasion that he sought medical treatment in relation to that injury, that he experienced pain when lifting a heavy box and twisting his body and that there was a re-occurrence of pain later in the day when he was using a trolley jack. In making that finding, I rely also upon the notice of injury form filled out by the plaintiff where he again stated that injury occurred at the time that he was lifting the heavy box rather than at the time of the second incident. I find it inconceivable that if, at about 10.00 pm, whilst using a trolley jack he experienced excruciating pain, as opposed to a mere twinge at about 6.00 pm on the relevant day when lifting a box, he would not have informed the medical practitioner and set out in the notice of injury form, that the injury was sustained at the later incident.
I do not accept the plaintiff’s evidence that he in fact filled out a second notice of injury form. Had he done so, the probabilities are that such a form would have found its way on to the Workcover file. It is common ground that no such second form was found on the Workcover file.
I find that when the plaintiff gave the history recorded in Dr Skiffington’s notes and filled out the notice of injury form, he was telling the truth. I find that on 31 May 1996 at about 6.00 pm the plaintiff experienced lower back pain when lifting a heavy box and twisting his body during the course of his employment with the third party. Further, I find that he rested for a matter of five minutes or so and then resumed his work. I find that the pain experienced by him was greater than a mere twinge of pain. The plaintiff, having rested for a short period, resumed his work which he was able to continue with until about 10.00 pm on that day when the second incident occurred.
As to the second incident I find that the plaintiff, while pulling a trolley jack along the floor of the pantechnicon, experienced further lower back pain. However, I do not accept the plaintiff’s evidence that he then suffered pain of the severity that he deposed to in evidence, nor do I accept that the pain occurred while he was attempting to extricate the trolley wheels from a hole in the floor. I have considerable doubt about the truthfulness of the plaintiff’s evidence in this regard because of the disparities between his evidence at trial and what I have found he told both Dr Skiffington and his employer shortly after the incident. Those doubts have not been alleviated by the plaintiff’s statement to Mr Fry, an orthopaedic surgeon, that the trolley wheels had been caught in a “ditch”. (I accept Mr Fry’s evidence at trial (as opposed to what he said in his report dated 14 May 2002), that “ditch” was the word used by the plaintiff.)
It follows from these findings that the plaintiff has failed to establish, on the balance of probabilities, that he sustained injury as pleaded in the particulars of claim and as deposed to by him in evidence.
Apart from a failure to prove negligence against the defendant, he has failed to prove that the second incident caused the relevant injury. In this regard I have also taken into account the medical evidence to which I now turn.
As to the significance of the first and second occurrences of pain, it is necessary to look at the plaintiff’s medical history. Prior to 1996, the plaintiff had for much of his working life been involved in heavy labouring work. He had also been involved from time to time in the security industry where he was not required to undertake heavy manual work. He was involved in two work accidents in respect of which he suffered injury to his lower back, the first being in 1981 and the second being in 1985. Each of these incidents caused injury to his lower back and required his absence from work for several months after the injury was sustained.
Mr Fry was called by the plaintiff. His view was that it was most unwise for the plaintiff to have continued with heavy manual labour after 1985 given the plaintiff’s history of a degenerative condition in, and injury to, the lower back prior to that time. He was of the view that further injury to the plaintiff’s lower back as a result of engaging in heavy manual work could have occurred at any time. I accept his opinions in this regard.
It is apparent that prior to 31 May 1996 the condition of the plaintiff’s lower back was such that, if the plaintiff engaged in heavy manual labour, he was likely to cause further injury to his lower back. In arriving at that conclusion I have taken into account the evidence of Mr Fry who dealt directly with the point and was firm in his opinion. Mr Fry’s reports were tendered (Exhibit P21) and he gave evidence at the trial. I have, in addition, taken into account the evidence of Mr Ormandy through his report (Exhibit P14) and his evidence at trial.
It is also apparent from the correspondence between Dr Fraser and the plaintiff’s general practitioner, Dr Hambour, which covered the period from 1981 to 1985, that the plaintiff suffered from a degenerative condition, namely spondylolisthesis at the L5/S1 and L4/L5 levels. It was principally this condition that rendered the plaintiff vulnerable to the onset of further injury, particularly if he worked at heavy manual labour.
It is in the context of the plaintiff’s degenerative condition and past injuries to his lower back that I have additionally approached the question of how the injury occurred on 31 May 1996. It is clear from the medical evidence that the lower back injury could have occurred as a result of the first incident which happened at about 6.00 pm on 31 May 1996, or it could have been the second incident which occurred at about 10.00 pm on that day. In addition it could have been a combination of both incidents which caused the further injury to the plaintiff’s lower back such that thereafter he has been unable to engage in heavy manual work.
To some extent the medical specialists who gave evidence attributed the onset of injury to the second incident because that was consistent with the history given to them by the plaintiff. Insofar as Mr Fry is concerned this is evident from the following questions and answers (T146/1):
“QI think you have concluded that it appeared that the incident pulling the trolley jack was more important as a contributor than the first incident lifting the box.
AWell, I’m merely reporting what he - reporting secondly his impression aren’t I? He said that and I therefore draw the conclusion post [hoc propter hoc]. But that doesn’t mean to say that either of them were insignificant; the first one may well have been part of the small annular tear and the second one made it bigger and more painful too.
QFrom an orthopaedic view and diagnostic point of view, it was a significant history that he was able to carry on after the twinge carrying the box.
AThat’s true.
QAnd not able to carry on after hurting himself pulling the trolley jack.
AThat’s true.”
On the same topic in cross-examination, Mr Fry was asked (T154/1):
“QJust going to your report of May 2002 for one moment longer, is it fair to say that you’re unable to apportion the responsibility of the two incidents of May ‘96.
AYes, I don’t think there is any way anybody could. I mean, when it comes down to responsibility for him being in the state that he is now, you’ve got a whole line-up of factors. It’s like a shopping list. He has got a double abnormal pathology in his back that goes back yonks. It’s been stirred up in the past. That undoubtedly had a weakening effect on it. Age has had a developmental effect of the nastiness of the whole caboodle in that place over the years. Then he has these two. How much shall we give one? How much shall we give the other? Turn your eyes and turn to you, I think, your Honour, because there is no other way of doing it. There is no accurate way of doing it. It’s a totally subjective business. All you can enumerate are the possible factors but how much part they played in the whole scheme of things, I don’t know. I don’t think anybody can.”
The first passage from the evidence of Mr Fry, during examination-in-chief, deals with his acceptance of the history given by the plaintiff that the first incident on 31 May 1996 only produced a twinge of pain whereas the second incident produced considerable pain such that he was unable to continue work. It follows, that if the plaintiff’s history had been that the first incident was the one which produced excruciating pain and the second incident consisted only of a re-occurrence of low back pain, the medical view would be that, based on that history, the first incident was the primary cause of further injury to the lower back of the plaintiff. Whilst I accept that it is significant that the plaintiff was able to continue work after a short break after the first incident, that is not a determinative factor as to whether the first or the second incident on 31 May 1996 was principally responsible for the further injury to the plaintiff’s lower back. This is apparent from the second passage quoted from Mr Fry’s evidence, the effect of which is that he was unable to say which of the two incidents was the more significant.
The uncertainty surrounding this aspect of the plaintiff’s claim, namely whether he has established on the balance of probabilities that the second incident, for which he asserts the defendant is responsible, was the cause of further injury to his lower back such that he has been since that incident significantly incapacitated, is increased by the conflict between the documentary evidence and the plaintiff’s evidence at trial as to which incident was responsible for the further injury. Dr Skiffington’s notes, the medical certificates and the notice of injury form, when taken together, strongly indicate that the plaintiff regarded the first incident as the more significant, but his evidence at trial is to the contrary.
It seems to me that it is not possible to determine how the lower back injury occurred on 31 May 1996 without reference to the true history given by the plaintiff. Consequently, if the plaintiff is to succeed in establishing on the balance of probabilities that it was the second incident that caused the further injury (a finding which is vital to his case because the first incident on 31 May 1996 could not be said to be an incident for which the defendant was responsible) I must accept as accurate and reliable his evidence that it was the second incident which was the more significant of the two from which could be drawn the inference that it was the principal cause of the further injury.
Having considered the plaintiff’s evidence in this regard and having compared it with the documentary evidence recording what he told Dr Skiffington and his employer about how the injury occurred, I do not consider that the plaintiff’s evidence at trial that the second incident was the more significant can be relied upon. I infer from the documentary evidence referred to that he informed both Dr Skiffington and his employer that the first incident caused the further injury to his lower back and that when he so informed them, he was telling the truth. What he has said in evidence at trial cannot be reconciled with his earlier statements and as such should not be accepted by me as truthful and reliable evidence.
In light of the above findings, the medical evidence by itself does not enable me to make a finding as to which of the two incidents was the more significant and the evidence of the plaintiff does not breach the resultant gap.
For these reasons, I have concluded that the plaintiff has failed to establish on the balance of probabilities that the second incident caused further injury to his lower back to the extent that he has been rendered unable to engage in heavy manual work. Such a finding necessarily means that the plaintiff cannot succeed in his claim against the defendant.
I have considered provisionally assessing damages, but, in this case, it is not clear what different findings of fact as to injury and causation may be made. The assessment of damages would very much depend on such findings. Consequently, I do not think it is appropriate to set out one of a number of possible assessments.
For the above reasons, the plaintiff’s claim against the defendant will be dismissed.

[2003] SADC 62

2 May 2003