Devries v Australian National Railways Commission [1993] HCA 78

High Court of Australia Brennan, Deane, Dawson, Gaudron and McHugh JJ. Devries v Australian National Railways Commission [1993] HCA 78

ORDER Appeal allowed with costs. Set aside the order of the Full Court of the Supreme Court of South Australia and in lieu thereof order that, in respect of grounds 1-4 of the supplementary notice of appeal dated 20 August 1991, the appeal to that Court be dismissed with costs. Remit the matter to the Full Court of the Supreme Court of South Australia to consider grounds 5-8 of the supplementary notice of appeal dated 20 August 1991, and the notice of cross-appeal dated 8 July 1991.

Cur. adv. vult.

The following written judgments were delivered:—

1993, May 6 Brennan, Gaudron and McHugh JJ.

The question in this appeal is whether the Full Court of the Supreme Court of South Australia erred in setting aside a finding of a trial judge that the plaintiff had been injured as the result of the defendants' negligence in circumstances where the trial judge had accepted the plaintiff's evidence as to how the injury occurred.

The trial judge found that, on 23 January 1985, the plaintiff sustained injury while using a tie tamper on a railway line near Gawler Railway Station. He was employed by the first defendant but his services had been made available to the second defendant by the first defendant. The learned judge found that the tie tamper, which is a pneumatic drill with a specially designed bit, became jammed under a railway sleeper. In attempting to free the tie tamper, the plaintiff had to exert "a good deal of pressure". The learned judge expressly accepted the plaintiff's account "given in evidence as to this particular incident". His Honour said that, in doing so, he was fully conscious of the fact that the plaintiff's evidence was inconsistent with statements of the incident or accident contained in reports filled in by the plaintiff on 24 January 1985. However, his Honour accepted the plaintiff's evidence as a truthful and reliable account of what had occurred. The learned judge found that the inconsistencies were the result of the confusion of the plaintiff caused by pain at the time when he filled in the reports and by his inability "to express himself in written English properly". It should be noted that on the morning that the plaintiff filled in the reports — which had been brought to him in hospital by his son — the treating doctor thought that the plaintiff was in too much pain to take a detailed history of the incident from him.