Ronkovich v Eveans

[1999] QCA 412

99.412

COURT OF APPEAL

DAVIES JA AMBROSE J CULLINANE J

Appeal No 9305 of 1998

BRENDAN PETER RONKOVICH	Appellant (Plaintiff)
and
PETER G EVEANS, ROSA IRIS EVEANS,
JANOS JOZSIF ZSOLCZAY and
IRIS MAUDE ZSOLCZAY	Respondents (Defendants)
BRISBANE ..DATE 24/09/99

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DAVIES JA: This is an appeal from a judgment dismissing
an action for damages for personal injury alleged to have
been caused to the appellant during the course of his
employment with the respondents, as was alleged in the
plaint, on
24 October 1990. The allegation in the appellant's
pleading of a spinal injury on or about that date does not
accord, however, with his evidence at the trial or with
the evidence of others.

On the evidence which the learned trial Judge accepted, the appellant commenced work as a farm labourer for the respondents on 18 October 1990 - that was a Thursday, and

worked that day and the following day. He returned to work on Monday, 22 October, but did not attend work on either the 23rd or 24th. He returned again on 25 October

and worked that day and the next when he left permanently.

There is no reason to doubt His Honour's findings in that respect, based as they were on a report prepared by the respondent Mr Eveans for the Workers' Compensation Board and diary entries of the other respondent Mr Zsolczay. And nor were those findings contested by Mr Geraghty in his able and thorough argument to this Court.

The appellant, in his pleading, also alleged that his spinal injury was caused by prolonged persistent and repetitive bent posture and prolonged persistent and repetitive load handling, caused in turn by four different kinds of work; bending over in cramped conditions to pull

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out weeds from soil around crops; persistent and
repetitive bending over in cramped conditions to pick
crops from the soil; persistent and repetitive use of a
sledge hammer to drive wooden stakes into the ground; and
lifting bundles of wooden stakes on and off a tractor.

But again his evidence at trial was materially different from this. At trial his case was that excessive or inappropriate use of a 3.5 kilogram sledge hammer to drive many wooden stakes into hard subsoil of cultivated capsicum patches was the cause of the onset of his symptoms. It does not appear that this was alleged as a cause of his symptoms at any date prior to 1997. It first appears to have emerged as a possible cause in a report in 1997 and then, as I have mentioned, as one of a number of causes in the pleading.

Over a substantial period of time the appellant put forward a number of different and in some cases inconsistent versions of how he suffered his injury. It is not surprising the learned trial Judge disbelieved his evidence and Mr Geraghty does not rely on his evidence for the purpose of this appeal.

His Honour described the evidence as unreliable and as often not so much actual recall as guesswork, exaggeration and the product of attempts at advancing his interests. His Honour was therefore not prepared to accept him as a witness of truth and he was not prepared to accept that the sledge hammering of stakes on 25 and 26 october was

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the cause of his disability. There is no reason to doubt
His Honour's findings on credit and as I have said Mr
Geraghty does not contest otherwise.

The difficulties for the appellant then are two; causation and breach of duty of care. The problem with causation, in my view, is the various versions of the appellant as to what caused his back pain and any subsequent disability. It may well be, as originally contended in his pleading, that it was a combination of the various kinds of work, including the sledge hammering, which caused his disability.

He had a pre-existing back weakness which was unknown to him. This may well have been exacerbated by the general nature of the labouring work which he performed. But

because the appellant could not be believed and had
advanced explanations for his condition which were
inconsistent with having been caused by the sledge
hammering work, it was impossible, his Honour thought, to
say that the sledge hammering work which he relied on by
the time of trial was the cause of his disability.

Mr Geraghty for the appellant submitted that this could be inferred from the evidence of others. In particular he took us to the evidence which he submitted showed that the appellant had performed sledge hammering work over a period of six hours on 25 October, and that on that day he went off work complaining of symptoms.

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240999 T11-12/Rb28 M/T COA237/99 that the evidence does not suggest that he performed sledge hammering work over the whole of the six hours on that day. More importantly, however, the evidence which emanates from the appellant himself appears to indicate that it was some other cause than the sledge hammering. That is some other cause of his disability. For example on 25 October he attended a Dr Craddock and he said to Dr Craddock that the disability of which he complained on that day was brought on by having to lift heavy weights at work.

Again in a statement which he made only a short time after the accident on 30 January the following year, a statement in which he appears to be mistaken as to dates, but

leaving aside the date upon which he says this occurred, he says that he was working, lifting agricultural pipes. They were coated with plastic and soil and he had to walk

along reefing the tubes out from under the soil. He said
he was bent over the whole time while he was doing this
and therefore placing a lot of strain on his back. He
said he spent about four hours in the morning putting up
these pipes.

He began to experience pain in his back and his right thigh had become numb. He reported the problem and left work to consult Dr Craig. He said that prior to this incident he had had no problem with his back, that he had had problems with his ankle but not his back. So it was clear that he was attributing whatever symptoms he had

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suffered to work other than the sledge hammering work,
namely work which had been done in lifting pipes.

In those circumstances it seems to me that his Honour was correct in being unable to be satisfied that the cause of the back condition which he undoubtedly subsequently

suffered was the sledge hammering work which he did
perform on 25 October and possibly also on 26 October.

The other problem, in my view, was equally difficult for the appellant. From the respondent's point of view the appellant presented to them as an able-bodied 20 year old man experienced in manual labour, and there is nothing to suggest that any of the work which he was required to do, including the sledge hammering work, was work which a reasonable employer would not ask an able-bodied labourer to perform.

Again Mr Geraghty attempted to take us to calculations as to the quantity of that work, but there is no factual basis for that. There was no evidence upon which any inference could be drawn as to how much sledge hammering work the appellant did on either 25 or 26 October. The reference to six hours work on 25 October cannot, in my view, on any evidentiary basis, be taken to be a reference to six hours non-stop sledge hammering work on that day.

Accordingly I agree with the learned trial Judge that the appellant failed to prove both causation and that the respondents failed to observe the appropriate standard of

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care, and I would dismiss the appeal.

AMBROSE J: I agree.

CULLINANE J: I also agree.

...

DAVIES JA: The appeal is dismissed with costs.

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