BORAL BRICKS NSW PTY LTD v HAGEL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MAHONEY and MEAGHER JJA 13 June 1990, 13 June 1990 [1990] NSWCA 26 MASTER AND SERVANT — ONUS OF PROOF — CAUSATION — QUESTION OF FACT — NO ERROR OF PRINCIPLE Clarke JA This is an appeal by the defendant from a judgment given by Newton DCJ on 28 September 1988 in which he found a verdict for the plaintiff. Although the notice of appeal challenges the verdict on liability and the verdict on damages, the argument and submissions before us have been limited to the issue of liability. The plaintiff's case at the trial was that he received a fracture of his right scaphoid bone during the course of his employment with the defendant on Monday 24 September 1979 at about 10.00 am. The defendant denied that he had been involved in any incident on that day but, in addition, denied that even accepting that he had been involved in an incident, a fracture of the scaphoid bone resulted. It seems to have been accepted at the trial, and certainly has not been contested here, that if the incident occurred in the manner suggested by the plaintiff and caused his fractured scaphoid, then the plaintiff would be entitled to a verdict. The argument below and discussion here has all focused on the two questions whether the plaintiff has satisfied the onus of showing that he received an injury at work and that a fracture of the scaphoid bone Was then occasioned. It is, I think, unnecessary to go into great detail as to the machinery which was involved in the accident. It is sufficient to note that it was a dehacking machine by which layers of bricks were lifted from a conveyor tray, the dehacker was hydraulically operated and the lifting mechanism was constituted by eight pairs of vertically mounted metal fingers or grippers which were 40 mm by 12 mm. As I understand the operation the gripper head with its fingers would descend on to the tray and close on the bricks to be lifted and then ascend again with the bricks held between the fingers. The machine was normally automatically operated but there were facilities on the control panel which were situated about five metres away from the gripper mechanism for the operation to be carried out manually, in the sense that individual buttons could be used to lower or raise the gripper head. On the occasion in question the plaintiff was involved in the operation of this machine. During the stages prior to the bricks being lifted they were situated on their edge; sometimes a brick would fall over and if that occurred the gripper mechanism was unable to lift the required stack of bricks. In order to facilitate the lifting process, it would be necessary for the operator to place the fallen brick back on its edge. According to the plaintiff, on 24 September he noticed there was a fallen brick amongst the stack. Accordingly he turned the machine off, or at least turned the automatic operation off. He then lifted the fingers by pressing the button which affected this operation in the manual phase. 2 UNREPORTED JUDGMENTS He said that he then went across to the gripper head and commenced to raise the brick into its correct position. While he was doing this the fingers of the gripper head were lowered and, in effect, crushed portion of his right hand between the brick and one of the fingers. He indicated that the area where he was struck by the finger was between the thumb and the forefinger of his right hand in the general area which is sometimes described as the dorsal interosseous. At about the time this happened he noticed that another employee, Mr Cragnolini, was at the control panel and his case was that Mr Cragnolini had mistakenly pressed the button which led to the fingers being lowered. The defence denied that the incident occurred or, as I have previously said, that if it did occur, it caused the fracture of the scaphoid. In the appeal counsel for the defendant had raised three distinct challenges to the judgment in favour of the plaintiff. In the first place he submits that the probabilities strongly favoured the defendant's version and his Honour erred in coming to the conclusion that the plaintiff had satisfied the onus of showing that the accident happened as he alleged and caused the fracture of the scaphoid bone. Secondly, he argued that his Honour had misdirected himself on the onus of proof. Thirdly, he complained that his Honour had erroneously placed weight on an exhibit tendered during the trial, which was a file from the Department of Industrial Relations concerning the alleged incident. It is convenient to deal initially with the first ground of attack which requires some discussion of the evidence. The plaintiff himself gave evidence in support of his case. In that evidence he broadly deposed to the facts which I have summarised above. He said that whilst he was trying to straighten the brick, one of the fingers descended and caught his right hand in the area between his thumb and forefinger between the finger and the brick. He said that he reported the accident and subsequently went to see his local doctor, Dr Genua, who eventually referred him to Dr Ireland. The plaintiff's evidence was corroborated to an extent by a witness named Oliver. Oliver was not shown to have been biased in any particular way, nor was there a significant attack either on his credibility or his account of what he saw on 24 September. We were told that the reason that there was no attack upon his version was that counsel for the defendant had been unable to confer with Mr Cragnolini who had not been seen in relation to this accident. It may very well be that Mr Cragnolini had not been seen, nor any statement taken from him and the Court has proceeded on that basis. Notwithstanding, there is no material in Cragnolini's evidence which would, in my opinion, have justified an attack on Mr Oliver's credibility, although it may be that there could have been some further cross-examination on his account of events on the day in question. In any event Mr Oliver said that he saw the plaintiff in the area of the gripper heads and when he heard him call out as though in pain. Initially he said this: "Well, all I can remember is fixing the bricks, Marcel up fixing bricks on one side of the machine and I did hear him yell out and the machine was on his hand". He was then asked if there was anyone else nearby and he said, "Only the leading hand" whom he later identified as Mr Cragnolini, who was standing at the panel at the time. Once Oliver heard the noise he went across to the plaintiff and at that stage he remembered that the plaintiffs hand was hurt and that to the best of his recollection the grippers or fingers were in the "up" position. URJ BORAL BRICKS NSW PTY LTD v HAGEL (Clarke JA) 3 During his cross-examination he demonstrated some concern about the degree of his own recollection and it seems to me that the better view, on the whole of his evidence, is that he was not sure that he ever saw the gripper finger in contract with the plaintiff's hand. On the other hand it seems to me also to be clear that he did hear a noise, that he saw the plaintiff in the vicinity of the gripper fingers and that he observed that the plaintiff had a sore or hurt hand. On that basis his evidence seems to me to provide a deal of comfort to the plaintiff. Although he did not see the accident happen he certainly provides a clear indication that an incident occurred, during which the plaintiff, at least, suffered some injury, be it slight or great. There was, however, other evidence which tended to support the fact that an event happened. There was a report of injury book and in that book was an entry signed by a Mr Gibson, who was not called to give evidence, indicating that on 24 September 1979 the plaintiff had his right hand caught under a gripper on the head of the dehacker. We have been asked to discount this statement completely upon the basis that it is obviously merely a repetition of a complaint made by the plaintiff. It may be true to say that it reflects the plaintiff's complaint. On the other hand there may have been an element of investigation proceeding the recording of the entry and the signing by Mr Gibson. In the unexplained absence of Mr Gibson there seems to be no good reason to infer one or other possibility. But whichever way one looks at it, it stands as a. contemporaneous record in the books of the defendant recording that an incident did occur. The next matter to which I would draw attention is the report of Dr Genua whom, it will be recalled, the plaintiff visited on the day in question. That doctor said in his report that he first: saw Mr Hagel on 24 September 1979 when he gave a history of a crush injury to his right hand. X-rays confirmed a fractured scaphoid. That report stands as powerful proof of the occurrence of a recent fracture of the plaintiff's scaphoid. It also gives a history which, as it seems to me, is consistent with the plaintiff's version of the accident and which may be thought surprising if the evidence called by the defendant was to be accepted. The doctor did not question the consistency between the type of injury and the type of accident. I would add to that comment a reference to the report of Dr Ireland, the specialist to whom the plaintiff was referred, which was made on 24 October 1979. Dr Ireland noted that the plaintiff complained that a hydraulically operated fork came down on his right hand, cuttiny it and making it painful, and that X-rays had shown a fracture of the waist of the scaphoid bone. The history in the report seems very much in line with that given to Dr Genua and, like the other report, does not raise any question of inconsistency between accident and injury. Finally there is to be noted material which was before his Honour and which was contained in the file of the Department of Industrial Relations which was tendered in the plaintiff's case. In that file it appeared that the formal notice of accident which was dated 8 October 1979, described the cause of the accident as "accidental switching on of machine by operator". There was also a full statement concerning the manner in which the accident occurred, which was furnished by a person named John Alibone. That report of accident is, relatively speaking, consistent with the plaintiffs version and ends by saying: 4 UNREPORTED JUDGMENTS "The leading hand, Mark Cragnolini, went to switch off the bander and in doing so accidentally switched the stacker switch from manual to auto and whereby it started, causing Hagel's injuries." Counsel for the defendant submitted that the Court should deal with those two statements in the same manner in which he suggested the court should deal with the report of injury entry. However, it is somewhat more difficult to adopt that approach on this occasion because the words I have recorded from the statement of Mr Alibone seem to me to be far more consistent with an investigation having been carried out than as merely recording a complaint or statement given by the plaintiff. For instance Mr Alibone says that Cragnolini went to switch off the bander and in doing so accidentally switched the stacker switch to auto. No doubt this information could have come from the plaintiff, although it is difficult to know where he got it from. More likely it is, in my view, that it came from Cragnolini himself. In any event, the statement stands as material which was tendered to the court, which is consistent with the plaintiff's version and which, inferentially at least, came from an officer of the company who had made some type of investigation. Again the defendant saw fit not to call Mr Alibone and in those circumstances I do not think it appropriate to draw the inference which his counsel asks the court to draw. Rather I would draw the other inference. On this view the statement provides evidence supportive of the plaintiffs case. So far there would appear to be no reason why his Honour was not entitled to find a verdict for the plaintiff, particularly as the defendant did not call any evidence, apart from medical evidence, on the issue of liability. But the defendant says, in support of the submission that no incident happened. that there were two important factors to keep well in mind. In the first place he had shown that the plaintiff was not only an unreliable and untrustworthy witness but was a man capable of deceit and fraud when such action suited him. The submission is a powerful one and finds support in his Honour's judgment, particularly in that passage where his Honour said that it has been quite clearly demonstrated that the plaintiff is a person perfectly capable of deceit and fraud when it suits him. Thus, says the defendant, one cannot accept the plaintiff's version in the absence of powerful corroboration. That is not the sole matter upon which the defendant relies in his assertion that the plaintiff has not shown the accident happened at all. He points to the evidence of Cragnolini which emerged as a consequence of his Honour's calling the witness at the eleventh hour. It is unnecessary to detail the reasons why Cragnolini was not called before. Sufficient to say that his Honour thought it desirable that he be called when his whereabouts had been discovered, and his Honour permitted both sides to cross-examine the witness. In the ultimate the witness said very little, or that is the way I see it. He made it quite plain that he did not remember the incident at all and he gave other evidence which led counsel for the defendant to submit that he had not even been on duty at the time of the incident. However, having regard to the whole of his evidence I do not think that any other interpretation should be placed on it, other than he did not recall the incident. As far as he was concerned it may have happened. URJ BORAL BRICKS NSW PTY LTD v HAGEL (Clarke JA) 5 The material on which it was said he was not on duty at the time in question provided scant support for the submission. What was relied upon was an entry in the report of injury form made on 13 September at 5.00 am and signed by Mr Cragnolini. Accordingly, Cragnolini said he had been on the night shift on 13 September and thus, counsel submitted, it should be inferred he was still on the night shift on 24 September. I do not know how it is suggested that this inference should be drawn. It certainly does not follow as a matter of course and, given that the defendant could simply have proved, thought its own books, whether Cragnolini was on duty at that time, I do not think this inference should be drawn. Having regard to the evidence called on behalf of the plaintiff and having given consideration to those two matters to which our attention was drawn by the defendant, I see no reason to conclude that his Honour erred when he decided that the incident of which the plaintiff complained had, in fact, occurred. But that is not the end of the matter. The only significant injury of which the plaintiff complains was the fracture of the scaphoid bone. The defendant submitted that even though an incident may have happened it did not cause, or it would be wrong to conclude that the plaintiff had established that it caused, the fracture of the scaphoid. The submission is not without substance. It finds some quite powerful support in the evidence of a number of medical experts. First, there was the evidence of Dr Ireland who, it will be remembered, was the treating specialist. Dr Ireland thought that it is more likely that a man would break a scaphoid by a falling from a motor bike than by having a compression force imposed. The reference to a fall from a motor bike had particular significance in this case by reason of the plaintiffs interest in motor cross cycle riding. It was the defendant's suggestion that the plaintiff had probably been involved in a race on Sunday 23 September, had fallen from his bike and, fractured his scaphoid. In making that suggestion, the defendant was not assuming any onus and was, in fact, asserting its right to defend upon the basis that the plaintiff had not discharged his onus. The import of the suggestion was that here was a rational and more probable explanation for the fracture of the scaphoid and this was supported, so the submission went, by Dr Ireland. The difficulty is that there was no evidence that the plaintiff had a fall from a bicycle on the Sunday or any relevant time and the plaintiff stoutly denied any such suggestion. Whilst, therefore, Dr Ireland's evidence would stand as support for a causal nexus between the injury and a fall from a motor bike rather than exposure to a compression force, it seems to me that his statement does not go any further than that. In other words, he says that if there were two competing possibilities he would opt for the fall off the motor bike. The defendant's evidence, however, went much further. Drs Miller, Scarf and Olsen, all basing on a history of compression or crush fracture, said that in their opinion a fracture of the scaphoid would not result. I do not think it is an advantage to go into the detail of their evidence. On the contrary I have put it at its highest. I have omitted reference to such qualifications as, for instance, Dr Scarf's assumption that the hand was in a flat pronated position. Acting upon the basis that these doctors assumed that the man was lifting a brick when his hand was crushed they concluded that a fracture of the scaphoid would not have resulted. Weighing all that evidence, counsel for the defendant 6 UNREPORTED JUDGMENTS submits that the court could not have been satisfied, on the balance of probabilities, that the fracture of the scaphoid occurred in the manner suggested by the plaintiffs case. However, although there Was powerful evidence in support of the defence position, it was not uncontradicted. Dr Conrad, a specialist who had examined the plaintiff, gave oral evidence, the import of which was that if there was a definite fracture of the scaphoid following an incident of the type described by the plaintiff, then it was very probable that the finger or gripper inflicted the injury. He put forward two hypotheses as to how the injury might have occurred: "Tf the finger descended on the dorsum of the scaphoid fossae, then it is quite possible that the edge or corner of the finger may have fractured the scaphoid; alternatively, as a natural. reaction to the injury he may have acutely dorsi flexed and twisted his wrist which may have alternatively also have fractured the scaphoid." He was cross-examined but, so far as I can see, did not depart from that view. The trial judge was placed in a somewhat difficult position. He had evidence before him that there had been no incident in which a fracture of the scaphoid could have been occasioned prior to about 10.00 am on 24 September. He then had the descriptions of the accident, which he accepted occurred, followed by the undoubted fact that the plaintiff suffered a fracture of the scaphoid. Against this he had the evidence from the experts to whom I referred, saying that the incident could not cause a fracture of the scaphoid. What was required was a balancing exercise in which, in the absence of evidence of other injury, it was obviously important to place emphasis on the sequence of proven events. Having regard to Dr Conrad's forceful disagreement with the evidence of the other experts and the sequence of events which his Honour found proved and which I believe his Honour was entitled to find proved, I do not think it could be said that it was erroneous to find in favour of the plaintiff. It seems to me that it was necessary for his Honour carefully to weigh the factors on both sides and pay particular regard to the proven facts in the light of his particular view of the plaintiff's credibility. However, in the absence of any evidence that there had been any other event which may have caused a fracture of the scaphoid, his Honour was left, in the ultimate, with a situation in which there had been a proven incident followed immediately by a known injury. In those circumstances I am of the view that his Honour correctly concluded that despite the force of the defendant's evidence the plaintiff had discharged the onus of proof. I turn therefore to the second complaint, which was that his Honour had misdirected himself on the onus of proof. what was said in this instance was that his Honour had reversed the onus of proof when he had pointed out that there was no evidence that any event other than this had occurred which might have caused the fracture of the scaphoid. It was said that his Honour was, in effect, placing an onus on the defendant to establish the occurrence of another event and that, in doing this, error occurred. I would agree that it would be erroneous to reverse the onus and put any onus on the defendant on the issue of negligence. The onus lay at all times fairly and squarely on the plaintiff. He had to show, more probably than not, the injury occurred as a result of the defendant's negligence. Having said that, I would reject the submission, because it involves, in my view a misconstruction of his Honour's statement. All I think his Honour was doing was pointing out that in the absence of any evidence that any other URJ BORAL BRICKS NSW PTY LTD v HAGEL (Meagher JA) 7 untoward event occurred which might have been responsible for the present state of affairs, he had to act upon the premise that there had been an incident followed by the fracture and that was a material consideration in balancing the totality of the evidence in the case. I would therefore reject the submission. 5 Finally, counsel for the defendant submitted that his Honour erred in placing weight on the evidence of the Department of Industrial Relations reports as those documents originated on the say so of the plaintiff. Ihave already indicated that I do not see any reason to draw any inference that the statements made by other persons in the employ of the defendant originated 10 or originated solely on the say so of the plaintiff and I would reject the submission on that ground alone. However, I am also of the opinion that once the documents went into evidence, it was incumbent on his Honour to evaluate their weight or the weight of statements in the documents and I can see no error on the construction which his Honour placed on the statement of Mr Alibone. 15 For those reasons, I would dismiss the appeal with costs. Mahoney JA I agree. Meagher JA I also agree. 20 The order of the Court therefore is the appeal be dismissed with costs. Counsel for the Appellant: S J Motbey Solicitors for the Appellant: Brian Manning Dodd Richworth, Dodd and 25 Menczel Counsel for the Respondent: R Grace Solicitors for the Respondent: G H Healy and Co