KASLIK y LEYLAND MOTOR CORPORATION OF AUSTRALIA LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY JJA and Hope AJA 3 May 1991, 17 May 1991 [1991] NSWCA 165 APPEAL AFTER JURY TRIAL — plaintiff claims damages from employer for injury suffered at work — four factual issues before jury on which there was conflicting evidence — jury finds negligence not established — no flaw in summing up by trial judge — case one where properly instructed jury had to resolve question of liability by reference to credibility of witnesses — no ground shown for interference with verdict. Priestley JA I agree with Hope AJA. Handley JA I agree with Hope AJA. Hope AJA The plaintiff, Mr Imre Kaslik, sued his employer, Leyland Motor Corporation of Australia Limited, to recover damages for the injury to his low back which he claimed he suffered on 29 January 1980 when he was operating a manually powered bending or folding machine in the course of his employment by the defendant. Evidence at the trial was heard over eleven days before Campbell J and a jury, and his Honour summed up on the twelfth day. The jury returned a verdict in favour of the defendant. The plaintiff has appealed, seeking a new trial of his action. The plaintiff and some of his witnesses did not speak English adequately or at all, and gave their evidence through an interpreter. Likewise some of the defendant's witnesses gave their evidence through an interpreter. At the trial, both parties were represented by counsel, and it would appear that the original notice of appeal filed in the proceedings was drawn by a lawyer. Later an amended notice of appeal was filed which appears to have been drawn by someone who was not a lawyer. However, the grounds are not in substance very different from the grounds which were specified in the original notice of appeal. The grounds in the amended notice are: "1. The verdict was against the evidence and the weight of the evidence, that Mr Boris Jelovac gave better evidence than Mrs Vicky Badovinac because she did not have the now (sic) how of the machinery that is why she has written the wrong machinery on the claim form. 2. The verdict was unreasonable and perverse, because their has been a lot of wrong evidence against the plaintiff so that is why the verdict was deliberately going against what was expected or wanted. 3. The jury failed to properly perform the Judicial functions case upon them, because His Honour questioned the Jury further then (sic) was reasonable or necessary. 4. His Honour questioned the Jury further than was reasonable or necessary, that is why the Jury failed to properly perform the judicial functions cast upon them." 2 UNREPORTED JUDGMENTS At the trial, the issue of liability was strongly contested. The plaintiff claimed that he needed and had previously been given assistance when working the bending machine, but had been refused assistance on the day in question. The defendant claimed that the plaintiff had a pre-existing back condition, and that nothing that happened on 29 January 1980 caused any injury to the plaintiff. It alleged that at the relevant time the plaintiff had been working, not at the manually operated bending machine but at a power-operated guillotine, where any injury to his back was quite unlikely. It also denied that it should have provided assistance to the plaintiff even if he had been working at the bending machine and it denied that the plaintiff had asked for and had been refused assistance. In his summing-up, the learned trial judge put these questions to the jury on the liability issue: (a) Was the plaintiff working, as he claimed, at a manually operated bending machine, or at a power operated guillotine? (b) Should the defendant reasonably have foreseen that the plaintiff would require assistance if he was working at the bending machine? (c) Did the plaintiff ask a foreman for assistance in working at the bending machine? (d) Did the injury to the plaintiff's low back result from the defendant's negligence or did it result from some other cause? Evidence was adduced for the plaintiff to support his case in respect of each of these issues, and evidence was adduced by the defendant to refute the plaintiff's claims. Credit was raised in respect of all witnesses, and the primary task which the jury had to perform was to resolve which of the witnesses, or which evidence of the witnesses, they accepted. In other words, the issues going to the defendant's liability depended on questions of credibility. In relation to the first question, that is whether at the time in question the plaintiff was working at the bending machine, the principal evidence relied upon for the plaintiff came from himself, Mr Jelovac, and Dr Jakovic. The witnesses relied upon by the defendant included Mr Carden and Mrs Badovinac, and a statement admitted under s14B of the Evidence Act of Mr Miloshevic, who was working in the defendant's premises at the time, but who was living in Yugoslavia at the time of the trial. The credibility and reliability of each of these witnesses was strongly challenged by opposing counsel. In his first ground of appeal, the plaintiff seeks to establish that the evidence of Mr Jelovac was better than the evidence of Mrs Badovinac. There was material in the evidence of each of these witnesses to support the case of the plaintiff and the defendant respectively, but there was also material which could cast doubt on the reliability of each of them. Thus there was evidence by Mr Jelovac that he had had to go away from where he was working and take "ages on the grinder" or. in other passages, ten or fifteen minutes, at the time when the plaintiff alleges he had his accident. Mr Jelovac did not see the accident but said that he saw two men helping him to leave the work site. Dr Jakovic gave evidence that the plaintiff had told her that "he was working on old machine to bend metal and as he was forcing by hand to bend the metal, he suffered very strong pain in the low back." However, this evidence was given about seven years after the relevant time, and Dr Jakovic agreed there was nothing in her notes about a bending or folding machine. She also agreed that in a letter referring the plaintiff to Dr Hammond she had described the accident in this way: "Lifted a heavy steel for a bus and had a fall after. Since, he had an on and off pain." URMASLIK v LEYLAND MOTOR CORPORATION OF AUSTRALIA LIMITED (Hope AJA) 3 There was likewise a very large number of inconsistencies in the evidence given by the plaintiff. On the other hand, the evidence of Mr Carden and Mrs Badovinac depended essentially on documents signed by them after the occurrence had taken place, and they had little or no recollection of the actual events. As regards Mr Miloshevic, his evidence was entirely documentary; he was not present in Australia and could not be cross-examined. It does not appear what the basis of the jury's decision was, but if it flowed from a conclusion on this issue, in my opinion it was open to them to find either for the plaintiff or for the defendant, and neither finding could be regarded as unreasonable. The same considerations apply to each of the other three issues going to liability. There was evidence to support the plaintiff's case and evidence to support the defendant's case. The witnesses on each of the issues were challenged by the other party, and the jury had to determine what part or parts of their evidence they would accept. As in the case of the first issue, it is not known how the jury found in respect of any of these issues, and they may, of course, have found for the defendant on only one, or on two or three, or on all four of the issues. It is apparent that in respect of any issue which the jury resolved in favour of the defendant, they must have rejected evidence tendered for the plaintiff and accepted evidence tendered for the defendant. I do not think that a conclusion by the jury in favour of the defendant in respect of any of these issues could be regarded as unreasonable. In his second ground of appeal, the plaintiff claims that the verdict was unreasonable and perverse because there had been a lot of "wrong" evidence given against the plaintiff. Here again the question whether the evidence was or was not wrong was entirely a matter for the jury. It was for the jury to decide what part or parts of the evidence they would accept, and any conclusion by the jury on any of the four issues as to liability in favour of the defendant could not be regarded as having been based on wrong evidence. A jury verdict based on conclusions as to credit can be set aside only in very strong or exceptional circumstances, and there are no such circumstances in this case. The learned trial judge summed up to the jury in a way which was entirely proper, and fully explained to the jury the issues and the evidence in respect of the matters which they had to determine. The only point raised at the trial for the plaintiff in respect of the summing up was a minor point in relation to contributory negligence. The learned judge recognised at once that he had been wrong and recalled the jury and redirected them in respect of this matter. His directions in that regard are of course irrelevant in the present appeal. It has not been and could not be suggested that his Honour did not put the plaintiff's case adequately to the jury, or that he had directed them in a way which was unduly favourable to the defendant. There are two grounds of appeal which are expressed to be based on what is alleged to have been the unreasonable or unnecessary questioning of the jury by the learned trial judge. There is no substance of any kind in these grounds. The learned judge appears to have asked three questions of the jury. The first was when he asked the jury whether they could hear the evidence of a witness. The second was when the jury had asked written questions of a witness, the witness had answered them, and his Honour asked the jury whether the questions had been answered. The third was at a luncheon adjournment when his Honour asked the members of the jury whether, during the adjournment, they would like to 4 UNREPORTED JUDGMENTS write out any further questions, and they sought clarification on two matters. These questions by the judge were completely proper, and cannot be a basis for upsetting the verdict. Because of his inability to speak English adequately, the plaintiff's submissions to this Court, both in writing and orally, were made through an interpreter. For the most part they related to the injury which the plaintiff had suffered to his back, to the operations which had been carried out on his back, to the expenses and losses which he had incurred or suffered, and the liability, as he alleged, of the defendant's insurers to pay him which they had stopped doing. During the hearing of the appeal, the plaintiff was given considerable assistance by the Court, and his attention was directed to matters which arose in the appeal and which were more relevant to it than the matters about which he was making submissions. On some occasions he referred the Court to matters which did relate to the grounds of appeal, being mainly matters which went to questions of credibility which had been canvassed at the trial and were the subject of directions by the learned trial judge. In other cases, the plaintiff referred to matters which did not appear in the appeal book or which were inconsistent with evidence there recorded. Many of the complaints put before the Court by the plaintiff went to the jury and trial system rather than to the grounds of his appeal, and whilst his disappointment at the verdict of the jury can be understood, I do not think that any of these complaints were justified, and of course they are not relevant. The case was one where a properly instructed jury had to resolve the question of the defendant's liability on grounds of credibility. It had to decide what evidence it would accept and what evidence it would not accept. It did this, and came to a conclusion in favour of the defendant. In my opinion the appeal must fail and must be dismissed with costs. 1. Appeal dimissed. 2. Appellant to bear respondent's costs. Counsel for the Appellant: I Kaslik in person Counsel for the Respondent: MJ Neil QC / WKL Dodds Solicitors for the Appellant: I Kaslik in person Solicitors for the Respondent: Hunt and Hunt