Thorsen v Commissioner for Queensland Railways

[1997] QCA 8

[1997] QCA 008

COURT OF APPEAL

DAVIES JA
McPHERSON JA

FRYBERG J

Appeal No 9791 of 1996
THORE THORSEN
v.

THE COMMISSIONER FOR QUEENSLAND RAILWAYS

BRISBANE
..DATE 10/02/97
100297 T15/JAP/20 M/T COA 12/97
McPHERSON JA: This is an application to extend the time
within which to appeal against a judgment given in the
Circuit Court at Maryborough in November 1981. The action
in that Court was an action for damages for personal injury
arising out of an injury sustained by the applicant in the
course of his employment by the respondent Commissioner for
Railways.

The accident occurred on 10 April 1979 and the writ issued in 1981. The trial, as I think I have already said, took place in November 1981 on which occasion the Supreme Court Judge who heard the action gave judgment for the plaintiff, as the applicant then was, for a sum of $29,800 together with costs to be taxed, and a sum by way of interest.

The action was one in which liability was not an issue and there was no doubt that the applicant had, in one way or another, sustained an injury to his back. The question for the Judge to determine essentially involved a forecast as to the likely future course of that injury, and a determination of the issue whether, as was contended by the defendant, the applicant was suffering rather more from neurotic or psychiatric disabilities than from injuries to his back.

On that question the Judge heard evidence from a number of medical witnesses and came to the conclusion that the disability was not physical but neurotic and that, as the Judge expressed it, within two years the applicant should be substantially restored to his pre-accident condition. The applicant led us to a good deal of material which he submits 100297 T15/JAP/20 M/T COA 12/97

suggests that the assessment was mistaken. That, of course, is not enough to bring about the result which he seeks in this case, and I ought therefore to say something about the law applicable to an application of this kind in circumstances in which it is made so long after the event.

The application does not specifically identify the remedy sought as being a new trial of the action; but it is plain both from the nature of the application and from what has been said in support of it that that is the relief sought by the applicant. It is in law the only relief that could assist him. The rules applicable to the granting of new trials are not in doubt. There are many decisions in which that question has been considered. The granting of a new trial is a matter for the discretion of the Court but it proceeds on certain well established principles.

For my part I am content to accept the principles laid down in the decision in Ladd v. Marshall in 1954, and to say that the rules we should apply here are that a new trial will not be granted on the basis of discovery of fresh evidence after trial only if that evidence is shown to be both material and cogent, and also that it was not available at the time of the trial by the use of reasonable diligence.

The new evidence to which the applicant has referred in this case as giving rise to a right to a new trial consists essentially of two matters. First of all, he says that he has now obtained the medical records from the Maryborough Hospital. He has done so by making application under the 100297 T16/FLC14 M/T COA12/97

Freedom of Information Act, and so they have at last come into his possession.

Secondly, he has in his possession a report from Dr Cleminson dated 20 June 1984, which suggests that Dr Cleminson's evidence at the trial may have been given on a mistaken assumption that the applicant was not at that time suffering from any permanent physical injury.

So far as the medical records are concerned, it is quite plain that these would have been available and could have been obtained by the plaintiff or his legal advisers, and that they could therefore have been used for the purpose of the trial but for the fact that, as the applicant complains, his instructions to obtain them were not carried out. The records therefore fall into the category of being evidence that was available to him, and which could have been obtained by due diligence, but for the fact, as he asserts, that his solicitors did not act on his instructions.

Unfortunate though that may be, it does not take the case out of the general principles to which I have adverted. So far as Dr Cleminson's report is concerned it seems to me that it goes no further than to establish that at some time after the date of the trial the applicant was suffering from a chronic pain syndrome which might be traced to a physical source, which suggests that Dr Cleminson might have made a mistake in the assessment he gave in the course of the evidence at trial before the learned Judge.

100297 T16/FLC14 M/T COA12/97

Again, it is most regrettable, if it be the case, that he made a mistake; but it is not unknown for doctors, lawyers and others to make errors. It is not possible for us, consistently with our duty to apply the law, to say that that is evidence that was or was not available at the time of the trial which could have been used in these proceedings. The fact is that so far as Dr Cleminson knew, the position was as he stated it. There is no reason to suppose that he would have deliberately misled the Court about the state of his opinion, and it is therefore simply a case in which the later events may have proved his earlier diagnosis and prognosis to be incorrect.

Even if one puts aside the principles to which I have referred and takes the case as one in which it would be open to this Court to grant a new trial, there are some further and, I think, insurmountable obstacles to the granting of the relief sought. In particular it is to be noted that 15 years have passed since the trial was had, and that 17 years have elapsed since the accident occurred. The task which the Judge had to perform at the trial in 1981 was essentially to assess the plaintiff's physical and psychiatric state and to arrive at an assessment of his future prospects of returning to work.

Difficult as that task would have been at the time it was undertaken in 1981, it would now be quite impossible. There 100297 T16/FLC14 M/T COA12/97

is evidence that one of the principal witnesses, who was a psychiatrist, has now died. Dr Cleminson himself has recently been interviewed, and, although he says he remembers the applicant, he is not surprisingly unable to recall anything about the applicant's condition at the time.

To ask a Judge now to try the action with a view to making findings which, if the applicant is correct, were wrongly made in 1981 is clearly to thrust upon him a task that on any view could not be properly performed. Cases of this general kind always present difficulties in deciding what the future will hold for someone who has been injured, and they do not become easier to determine as time goes by. For those reasons, and because an application for a new trial is one which essentially calls on the Court to exercise its discretion, I am of the view that this application cannot possibly succeed. I would therefore refuse the application to extend time within which to appeal against the judgment under challenge.

I would add only this further remark, that the applicant appears to have been particularly concerned at what he believed was a finding made by the Judge that he, that is the applicant, had been guilty of fraud or some such misconduct in giving his evidence at the trial. There is in the reasons for judgment, which I have studied, no statement to that effect. The most that can be said against the applicant is that he presented to the Judge as a witness (and not only to the Court but, it seems, also to the medical profession) who might have been exaggerating the 100297 T16/FLC14 M/T COA12/97

ailments he was suffering. I say once again that if there has been a miscarriage of justice in this case it is only that a system like the process of trial is unfortunately prone to make mistakes on occasions that I hope are rare; and that it would be impossible for any system to be devised which did not involve the risk of human error of that kind.

I have been impressed with the politeness and care with which the applicant has presented his submissions before us and, so far as I am concerned, he goes from this Court without any kind of reflection on his character or his veracity. Nevertheless it is, I believe, my duty to say that I consider that the application should be dismissed.

DAVIES JA: I agree.

FRYBERG J: I also agree and would add only one other point which shows that perhaps this hearing has not been a total waste of time from the applicant's point of view. Not only has the point been made as the presiding Judge has said that there was no finding that the applicant was a fraud; it is also apparent from reading the judgment of the trial Judge that there was no finding by him accepting what seems to have been some cross-examination put to the applicant that he had threatened to shoot doctors. There is no finding by the Judge that the applicant has ever made such a treat and he should not feel that the Court has in any way approved that allegation.

100297 T16/FLC14 M/T COA12/97

McPHERSON JA: The order will be that the application to extend time within which to appeal is dismissed.

MR STENSON: Your Honour, I do have instructions to ask for costs.

McPHERSON JA: Mr Thorsen, the Commissioner for Railways the respondent in this appeal says you have brought him to this Court and you have failed, and you must pay his costs. What do you say about that? I have to tell you that, again applying the law, it is difficult to think of a reason why we should refuse that order because you have lost this application; you have failed in it and as a general rule a party who succeeds, as the Commissioner has done, is entitled to an order for costs against the party who unnecessarily brought him to Court.

APPLICANT: What is the cost of costs of this trial?

McPHERSON JA: I don't know. I couldn't tell you within----
-

APPLICANT: I have been refused legal aid right from Day 1 and before the trial started in 1981. I have a letter from Mr Hodges, the Director of Legal Aid now, that he was not - it was Barry Smith at the time, but Hodges said that Mr Thorsen is entitled for Legal Aid all the time because he is on an invalid pension. Because of I'm fighting the Government is where the failure has been.

I have - all that I had in finance before, I put to the doctors to try to get pain relief as well as travelling with pain because it was too much for me to handle when I had an appointment in Brisbane. Now, I also think that when Dr James actually said they'd send me back to Dr Jenkins, he told me that, "Now, I can't help you", but in Court he said I would be fit for work after six to 24 months. But also--- --

MR STENSON: Excuse me, Your Honour, could I withdraw that application?

McPHERSON JA: Yes, very well. Your opponent appearing for the Commissioner has decided not to ask for an order that you pay the costs of this hearing. So with that, we will simply dismiss the application that you have made, which will mean that each party - you on your side and he on his side - will bear their own costs. And you will not have to pay his costs.

APPLICANT: Well, to that I will say thank you very much all of you. Thank you very much.

McPHERSON JA: Thank you, Mr Thorsen. I hope you have
better luck in the future.
100297 T17/RB M/T COA12/97

-----