Queensland and Northern Territory Pastoral Pty Ltd v Murray

IN THE COURT OF APPEAL 99.362
SUPREME COURT OF QUEENSLAND

Appeal No 3625 of 1999

Townsville
[Qld & NT Pastoral P/L v Murray]
BETWEEN:
QUEENSLAND AND NORTHERN TERRITORY
PASTORAL PTY LTD (ACN 008 435 185)

(Defendant) Appellant

AND:
BRYAN ALLAN MURRAY

(Plaintiff) Respondent
Pincus JA
Thomas JA
Jones J

Judgment delivered 31 August 1999.
Joint reasons for judgment of Thomas JA and Jones J, separate reasons of Pincus JA concurring as to the order made.
APPEAL DISMISSED WITH COSTS.

CATCHWORDS: TORTS - NEGLIGENCE - GENERAL MATTERS - whether
primary findings of fact of primary judge should be set aside.
Devries v Australian National Railways Commission (1993) 177
CLR 472 applied
State Rail Authority of New South Wales v Earthline
Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 considered
Counsel: Mr DOJ North QC for the appellant.
Mr DB Fraser QC, with him Mr ME Pope, for the respondent.

Solicitors:

Boulton Cleary & Kern for the appellant. Dempseys Solicitors for the respondent.
Hearing Date: 27 July 1999.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 3625 of 1999

Townsville

Before Pincus JA
Thomas JA
Jones J
[Qld & NT Pastoral P/L v Murray]
BETWEEN:
QUEENSLAND & NORTHERN TERRITORY
PASTORAL PTY LTD (ACN 008 435 185)

(Defendant) Appellant

AND:
BRYAN ALLAN MURRAY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS JA

Judgment delivered 31 August 1999

I have read the joint reasons of Thomas JA and Jones J and agree with them so far as the
question of liability is concerned.
As to quantum, the primary judge found, having viewed the videos to which reference is
made in the joint reasons of Thomas JA and Jones J, that the respondent exaggerated his
complaints; I agree. The primary judge, despite his conclusion from the video evidence, arrived
at an assessment well in excess of $400,000, including $200,000 for future economic loss. To my
mind the video evidence was suggestive of a considerably lower level of disability than was sworn
to on the plaintiff's side. The difference is, as it appears to me, between moderate and gross
disability, the former being not inconsistent with the video evidence and the latter entirely inconsistent
with that evidence.
It is no part of the duty of a judge dealing with such a case as this to punish such a person
as the respondent, by awarding even lower damages than the evidence properly analysed would
justify. In the present case, however, I have found it somewhat surprising that the respondent
received an award at the level assessed, despite what appear to me to have been deliberate
attempts to deceive. There was nothing to suggest that the video evidence gave a misleading picture
of the extent of the respondent's disability and in those circumstances that video evidence
constituted, in my view, the best indication of that extent.
Despite the reservations I have expressed, I have been unable to reach a conclusion that
the primary judge's assessment should be disturbed. His Honour had the advantage of seeing and
hearing the respondent and other witnesses on the question of quantum and it does not appear to
me possible to adopt the view that the judge's award, which appears to me to be generous, was
beyond the bounds of a proper exercise of what is in essence a discretionary judgment.
Subject to these observations I agree substantially with the joint reasons of Thomas JA and
Jones J with respect to the question of quantum.
I also agree that the appeal should be dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No 3625 of 1999

Townsville

Before Pincus JA
Thomas JA
Jones J
[Qld & NT Pastoral P/L v Murray]
BETWEEN:
QUEENSLAND AND NORTHERN TERRITORY
PASTORAL PTY LTD (ACN 008 435 185)

(Defendant) Appellant

AND:
BRYAN ALLAN MURRAY

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - THOMAS JA AND JONES J

Judgment delivered 31 August 1999

This is an appeal against an award of damages in favour of the respondent for $409,157.27.
The respondent alleged that he suffered an injury to his neck in an incident during his employment
at Barkly Downs on 10 January 1996. The appellant, his employer, brings this appeal against the
finding against it of liability and also against the quantum of damages that was assessed.
Liability

2	The main issue is whether the respondent was injured at all during the alleged incident to which he had referred in his statement of claim. There is no doubt that the respondent had been

instructed to perform certain repair work on a bore truck and that he performed work on the truck
on the day in question. He was assisted in this task by a fellow employee named Thomas. But,
according to the respondent, Mr Thomas left the area before the injury occurred.

It was common ground that some work needed to be done on the truck’s springs. The
respondent gave evidence that after he had re-assembled the springs as a unit, he tried to fix the unit
in place underneath the vehicle. The weight of the unit exceeded 60 kilograms. It jammed as he
tried to place it in position. He applied considerable force to try to rectify this whilst he was in a
lying position and he felt a sharp pain in his neck and down his right arm.
According to Mr Thomas, he was present with the respondent throughout the whole of the
work except for a short absence, and he drove the vehicle away when it was finished. On Mr
Thomas’ account nothing untoward happened on that occasion.
The learned trial judge accepted the respondent’s evidence to the extent that the incident
described by him did occur, that he complained to his employer about it, and that arrangements
were promptly made for him to obtain medical treatment in Mt Isa. This quickly led to his
hospitalisation, initially in Mt Isa, and later in Townsville.
Counsel for the appellant submits that it was not reasonably open to the learned trial judge
to reject Mr Thomas’ evidence. In many respects the respondent was shown to have made serious
exaggerations and to have been prepared to be untruthful to advance his case for damages. The
learned trial judge’s findings recognised that the plaintiff had been manipulative and untruthful on a
number of issues. The ultimate submission for the appellant is that there is a manifest inconsistency
in the rejection of the respondent’s honesty on those issues and in the acceptance of his evidence on this particular issue, particularly when the acceptance of the plaintiff involves the rejection of the
witness Thomas. The basis of refusal to accept Mr Thomas was said to be "too fragile a base"[1].
[1] Phrase used by Gaudron, Gummow and Hayne JJ in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 321.
However, in this case a number of factors suggest that it was open to the learned trial judge
to reject some parts of the respondent's evidence and to accept others. In the first place there is
no doubt that the respondent suffered his disc prolapse at or about the date in question. He had
been fairly regularly employed up to this time. Mr Thomas noted no particular disability during the
period that he and the respondent were engaged on this particular task, although he had on other
occasions noted that the respondent showed a certain stiffness in back movements that involved
turning. No other incident or cause of the respondent's acknowledged neck injury is known,
although, of course, there is no onus upon the appellant to demonstrate such a matter. The starting
point however is that the respondent did suffer a serious injury to his neck at about this time.
There are also a number of points which would justify the learned trial judge in entertaining
some doubt as to the accuracy of Mr Thomas’ evidence. One of these was a conflict between Mr
Thomas and Mr Galley (the man in charge of the respondent and his activities) on the question
whether the springs were broken or merely strained, and whether the job in question was an urgent
one. Contrary to Mr Thomas’ evidence, both the appellant and Mr Galley said that the springs
were broken and that their replacement was a long overdue job. Further, the defence admitted that there were four broken springs. More importantly, the relevant workers’ compensation claim form
was filled out by Mr Galley, and, according to him, before doing so he had discussed the
circumstances of the claim both with Mr Thomas and the respondent. In the portion where the
employer is requested to state briefly how the accident occurred, the following appears: "occurred
while incorrectly lifting and fitting spring to truck." A further comment was however added: "some
question remains over validity of this 'accident' as the employee had previously mentioned he was
receiving physiotherapy for a complaint". The evidence shows that some weeks previously the
respondent had received a massage in Mt Isa from a Mr Laffin for a sore lower back. This seems
to have been for a minor problem in a different area of the body. The notation carries no hint of
uncertainty as to whether any incident had occurred. Mr Thomas denied having spoken to Mr
Galley prior to the completion of the form. If Mr Galley's evidence to the contrary is accepted on
this, as it apparently was by the learned trial judge, it would tend to suggest that Mr Thomas did not
then convey a denial of the occurrence of the incident to Mr Galley as he did in his eventual
evidence.
It may also be noted that Mr Thomas was not approached for a statement by the appellant’s
legal representatives until April 1997, that is to say 16 months after the event.
In our view, it was open to the learned trial judge to accept that such an incident had
occurred and to decline to act upon the evidence to the contrary from Mr Thomas. This is not a
case where concern arises at the level that can be perceived in the State Rail Authority case.
There are certainly grounds for concern over the general veracity of the respondent and if he was
prepared to tell lies in order to obtain extra damages there are grounds to fear that he would equally
be prepared to lie in order to obtain damages at all. However, the learned trial judge was alive to
such issues, eventually concluding:
"Whilst … I have considerable reservations as to the veracity of some of the claims the plaintiff makes in relation to the symptoms he suffers, I am satisfied that his account of what occurred at the time he was injured is correct."
It is not possible to hold that the learned trial judge erred in a way which would justify this appeal
court setting aside primary findings of fact of the primary tribunal (see Devries v Australian
National Railways Commission[2]). It is not shown that his Honour erred in failing to accept the
evidence of Mr Thomas that no such incident occurred.
[2] (1993) 177 CLR 472.
It is conceded that if such an incident occurred, the evidence justified the findings of
negligence against the employer and that there was no contributory negligence on the part of the
respondent. Accordingly, no error is shown which would justify setting aside the learned trial
judge’s finding of liability against the appellant.
Quantum
In this area, two issues arose for determination by the learned trial judge:

(a) the vulnerability of the respondent’s cervical spine prior to January 1996 and the
prospect that the respondent would have been forced to cease work prior to the
normal retirement age;
(b) the extent to which the symptoms of which the respondent complained were
genuine.

The respondent’s condition required several serious operative interventions. The first was a cervical discectomy and interbody fusion performed by Dr Guazzo on 31 January 1996. The second was a rhizolysis by posterior facetectomy performed by Dr Rossato, a neurosurgeon. There
was some improvement of symptoms after these procedures but before long they reappeared. The
respondent continued to complain of serious pain in his neck, shoulder and arm and a loss of
sensation in the arm. He has not returned to work.
The respondent presented his case as having had no previous problems with his cervical
spine. However, the appellant produced records from the Victorian Health Service which showed
that in 1987 and 1988 the respondent had received treatment for complaints of a stiff neck, pain
and paraesthesia and a frozen right shoulder. Furthermore, it was shown that the respondent had
been involved in a motor vehicle accident in 1984 and that the Cairns Base Hospital records
revealed that he had complained of a sore cervical spine and back as a consequence. When these
matters were put to the respondent, he said that he had forgotten about them. He stated however
that on neither occasion had he suffered ongoing symptoms and he had subsequently been able to
go back to quite heavy work. The learned trial judge noted that overall the respondent’s
employment record was quite good. A deal of evidence was given, some of it from former
employers (including Mr Ginn and Mr Bean), tending to confirm that he had engaged in relatively
heavy work without any obvious physical disability subsequent to these incidents, and in particular
in the period leading up to the incident in question. His Honour found that there must have been
degenerative changes in his neck at the relevant time but that the evidence as a whole did not
persuade him that the respondent was suffering from any significant symptoms in his upper spine at
the time of the 1996 incident.
His Honour then considered the different views expressed by different expert witnesses as to the extent to which symptoms would probably have manifested themselves at some stage in the respondent's life, even if the present incident had not occurred. As not infrequently is the case on
such an issue, the opinions widely diverged. The evidence included an initial opinion from Dr
Macfarlane that:
"He did have degenerative disc disease pre-accident in his neck, but this was asymptomatic and under normal circumstances if the accident of 10 January 1996 had not occurred would have been unlikely to cause any problems".
However Dr Macfarlane later changed his opinion, stating that:
"It is likely that the pre-existing disc disease in Mr Murray's neck and the osteophyte would have incapacitated him in any event. The actual amount of incapacity is unknown, but it would have been expected that he would have had pain and loss of movement in his neck and possibly right arm maybe by his mid to late 40's. However it must be said that x-ray changes do not necessarily correlate with clinical findings and it is well known that people can have abnormalities in the neck and be quite asymptomatic".
Another specialist, Dr Low expressed the opinion that a heavy fall could have produced a
disc lesion with consequences similar to those produced by the work incident.
The learned trial judge noted the differences of views expressed by various specialists. He
found as a fact that the respondent was not suffering from any significant symptoms at the time of
the incident but that because of degeneration in his cervical spine he was vulnerable to the
development of problems. His Honour seems to have been influenced by Dr Rossato's evidence
which, whilst conceding that ordinary day to day activities might provoke such a disc lesion, pointed
out that most people with such conditions are able to complete a long working life of physical work
without serious disc problems.
His Honour in the end concluded that “It is appropriate to apply a discount for the risk that
as the plaintiff got older he may have developed symptoms which limited his capacity to work. It
is not, in my view, appropriate to approach the assessment of damages as though this was
probable.”
The learned trial judge then turned his attention to the degree to which, and the issues upon
which, the respondent had significantly exaggerated his symptoms. His Honour’s ultimate
conclusion was that “The plaintiff has exaggerated his complaints. I think that he is capable of using
his right arm to a greater extent than he has at times claimed. I think that he greatly overstated his
situation in the affidavit in support of the application for a speedy trial.” His Honour also accepted
that some exaggeration had been proved by video evidence supplied to the court, at the same time
indicating his preparedness to accept that there was some fluctuation in the level of the respondent’s
symptoms and that on some occasions they were worse than others.
Since reserving our decision the members of this Court have examined an abridged video
exhibit presented by counsel for the appellant containing what was said to be the most significant
portions of the considerable video evidence that was tendered below. In our view there is nothing
in the videos to suggest that the respondent has any capacity to perform labouring work or to lift
more than minor items. Any contribution from his right hand or arm to his movements in the videos
was very minor. The videos give no suggestion that the respondent was leading other than a
miserable existence. Whilst they serve to demonstrate that the respondent was untruthful in a
number of respects (particularly before and after his visit to Townsville), they fail to suggest any
significant physical capability on his part. It may also be noted that Dr Low, whose view on this
point was accepted by the learned trial judge, was also of the view that despite the video evidence
the respondent was suffering from serious physical limitations.
We do not consider that it is possible to set aside any of the above findings made by his Honour as not being open on the evidence, or as infringing the limits open to a trial judge in interpreting evidence upon which a wide range of opinion is possible.
The main issue which arises in this part of the appeal is whether proper discount and
abatement of damages was made by the learned trial judge having regard to these factors. His
Honour referred to the respondent’s limited education and considered him an unsuitable candidate
for re-training. Nonetheless, he did not regard the respondent as totally unemployable (although
one witness considered that there was no residual earning capacity whatsoever). His Honour
considered that any residual capacity of the respondent was “quite modest”.
The respondent also claimed to have a loss of control of his legs which gave way on him
from time to time, but in the absence of medical evidence linking this to his neck condition, his
Honour thought it appropriate to disregard this for the purposes of the assessment of damages.
The components which were principally attacked in the submissions of the appellant were:

(a) damages for pain and suffering ($60,000), which the appellant submitted should be
reduced by $10,000, and
(b) damages for future economic loss ($200,000) which the appellant submitted should
be reduced by $50,000.
(c) Other components as to which it was submitted insufficient discounting was
allowed.

The damages for future economic loss were roughly equivalent to an allowance of $300 per week
for a period of 19 years (ie until age 60). That might be considered a relatively conservative
assessment for a man dependent upon physical work whose income earning capacity had been
substantially destroyed. It represents approximately a one-third discount by his Honour to reflect
the effect of the respondent’s exaggeration of symptoms, the prospect of similar or at least substantial disability intervening in any event, and the small residual earning capacity of the
respondent.

Whilst some suspicion may properly be entertained as to the bona fides of the respondent
and whilst it would have been possible for a considerably greater discount to have been allowed,
particularly by reason of similar problems intervening in any event, we cannot say that the learned
trial judge erred in allowing $60,000 damages for pain and suffering or $200,000 for future
economic loss, or that his Honour was bound to apply a greater discount than one third because
of the factors to which reference has been made. This Court examined the videos, but has not had
the advantage of seeing or hearing the respondent and the other witnesses. It cannot be said that
the assessment lies beyond the range of a sound exercise of discretion and we are not prepared to
hold that the damages awarded were manifestly excessive.

The appeal should be dismissed with costs.

CATCHWORDS:	TORTS - NEGLIGENCE - GENERAL MATTERS - whether primary findings of fact of primary judge should be set aside.
Devries v Australian National Railways Commission (1993) 177 CLR 472 applied State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 considered
Counsel:	Mr DOJ North QC for the appellant. Mr DB Fraser QC, with him Mr ME Pope, for the respondent.
Solicitors:	Boulton Cleary & Kern for the appellant. Dempseys Solicitors for the respondent.
Hearing Date:	27 July 1999.

[1999] QCA 362

31/08/1999