BABIC v ESSO AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, CLARKE and SHELLER JJA 23 November 1993, 23 November 1993 [1993] NSWCA 16 Appeal — Trial Judge does not accept plaintiff's evidence — Decision based on credibility — Whether case one in which appellate court may interfere — No question of principle involved. Powell JA This is an appeal from a judgment delivered, and orders made, by Newman J. on 30 May 1991, when His Honour dismissed, with costs, the proceedings which the Plaintiff ("Mr Babic'') had brought against his employer ("Esso"), seeking to recover damages in respect of an injury which he claimed to have suffered as a result of what was alleged to have been Esso's negligence. At the time of his alleged injury in July 1984 Mr Babic - a native of Yugoslavia, who was born in 1941, and who had come to this country in 1968 - was, as he had for the better part of the previous ten years been, employed by Esso as a petrol tanker driver, his task being to deliver bulk petroleum products to service stations either owned, or supplied, by Esso. It would seem that, at all material times, Mr Babic was employed on what was described as the night shift, which shift would appear to have commenced at about 5.30 in the afternoon of each day, and concluded at about 1.15 in the early morning of the following day. It was Mr Babic's case that, on 31 July 1984, at about 6.00 pm, he arrived at a service Station in Earlwood where he was to deliver petrol. It is a measure of some of the confusion and inconsistencies which attended Mr Babic's case, first, that, in the original statement of claim which was filed, on his behalf, in October 1985, the service station in question was said to be located in Homer Street, Earlwood, while, in the amended and re-amended statements of claim filed, on his behalf, in 1990, the service station was said to be located at Wardell Road and Permanent Avenue, Earlwood, a distance of about one and a half kilometres away; and second, that, at a very early stage of his evidence in chief at the hearing (see Appeal Book p37), Mr Babic identified as a photograph of the service station, a photograph (see Appeal Book p50) which seems to depict neither service station, but, rather, depicts yet another service station situated at Mitchell Road, Alexandria. I interpolate, here, that, whether or not the matter was the subject of evidence at the trial, it does not appear to have been disputed that, at the relevant time, all three service stations were owned by, or operated by employees of, Esso, for, unless it were so, the particulars of negligence which formed the basis of Mr Babic's case at the trial would not seem to have had any purpose. Be that as it may, it was Mr Babic's case at the trial that, when he arrived at whichever service station it was, which service station was, at the time, unattended, he went through the various steps necessary to enable him to pump the petrol, which he was to deliver, from his tanker into the underground tanks at the service station. These steps required Mr Babic, first, to lift a lid, or hatch, which was flush with the driveway of the service station, thereby exposing a 2 UNREPORTED JUDGMENTS steel, or metal, filler box; next, to remove from the feed pipe to the underground pump a form of cover; next, to attach to the flange of that feed pipe a spring loaded device known as a "Titefill Visiglass" elbow; and finally, to attach to the elbow the hose which led from his tanker. These steps having been completed, Mr Babic then activated the pump and the appropriate quantity of petrol was delivered into the underground tank. Once the delivery was completed, Mr Babic then began to uncouple his equipment from the feed pipe to the underground tank. In the ordinary course, the removal of the elbow from the flange of the feed pipe involved only the depressing of the two spring loaded levers which were located on the side of the elbow near its base - which levers, when engaged with the flange of the feed pipe, held the elbow in place so that the petrol might be delivered to the underground tank - and, when that had been done, lifting the elbow free from the feed pipe. However, Mr Babic would have it that, on this occasion, the elbow remained stuck, and that it was only after he had found a metal bar, with which he then belaboured the elbow, that he managed to free it. Mr Babic would also have it that, in the course of his attempts to free the elbow, he injured his lower back - he complains of pain in the area of L5/S1. Mr Babic's complaint that he sustained some form of injury at some stage during the later afternoon draws support from a number of documents to which Mr DB Milne QC, who appears with Mr LT Grey, for him, has drawn our attention. They include a Medical Treatment Report (Exhibit "O (part)"), apparently made out on the following day, in which report the first aid attendant at the depot recorded: "Employee states he experienced severe pain in his lower back while lifting visy-board adaptor stuck on filler point." and in which Report Mr Babic's Supervisor noted: ".... Visy Glass Adaptor stuck on Fill Points.... hurt back while trying to remove Visy Glass Adaptor. " A further document, to a not dissimilar effect, is a Workers' Compensation Report, apparently filled out in September 1984, on which is recorded what is said to have been Mr Babic's statement: "When I was trying to pull the fitting from the fill point No. 3 I noticed that it was stuck and this caused me to injure my back." The notations of the officers in charge which appear later on the Form are: "Accident could have been prevented if driver would have positioned himself better." and "We have discussed the cause of this accident with Peter Babic and impressed the importance of proper working techniques." 'Yet another document to which our attention has been drawn is a Workers' Compensation Report (Appeal Book at 346), filled in in July 1985, in which there is recorded as the description of the accident: "Employee injured back while trying to pull fitting from fill point." the nature of the injury being described as "sprained back". It would appear that, at first, Mr Babic sought, and was given, no medical treatment, and that he continued to work, albeit, as he says, that he suffered pain while carrying out his duties. In September 1984, however, apparently while having his annual check-up by Esso's company doctor, Mr Babic complained of pain. Thereafter, on the advice of the company doctor, Mr Babic consulted his general practitioner, who then referred him to Dr. Drummond, an orthopaedic surgeon, for treatment. URJ BABIC v ESSO AUSTRALIA LTD (Powell JA) 3 Although it would seem that Mr Babic saw Dr. Drummond, who thought his symptoms were suggestive of a lumbar disc lesion without a prolapse, and who seems, at times, to have prescribed physiotherapy and hydrotherapy, x-rays, and, later, a CT scan, failed to confirm Dr. Drummond's tentative diagnosis, and, for the most part, Mr Babic continued to work without time off. Despite this, these proceedings were commenced in October 1985. In the original statement of claim which was then filed on behalf of Mr Babic, a variety of particulars of negligence was assigned; however, no claim was then made that the cause of the elbow sticking was to be found in dirt, or other material, which had been allowed to accumulate in the filler box on, or near, the flange on the feed pipe. Before passing on, I pause to record, here, that, in April 1986, at a time when Mr Babic had procured the issue by Dr. Drummond of a medical certificate (Exhibit "10") certifying him unfit, because of "lumbar disc lesion", for work for some three weeks, investigators retained on behalf of Esso filmed him, on several days, engaging in activities which Esso's medical experts (see Appeal Book at 247-8, 277-8) regarded as inconsistent with impairment of the function of his lumbar spine, and which Dr. Drummond at the trial (see Appeal Book at 156; cp. 158) seemed to regard as indicating that Mr Babic was then fit for work. As best as one can judge it, the first occasion on which the existence of dirt, or other accumulated material, in the filler box was mentioned to anybody seems to have been in about 1989, immediately prior to the preparation of a report (Exhibit "F') made by a consulting engineer, Mr Boris Osman, in which report Mr Osman, when recording Mr Babic's version of the accident, refers to dirt or other foreign material "(mating) with the coupling flange assembly" (Appeal Book at 288). The value of that report otherwise may be doubted, since it would appear (Appeal Book at 283) that the site inspection which Mr Osman carried out was at the premises at Homer Street, Earlwood which, it was ultimately accepted, was not the relevant address. In 1990 there was filed the amended statement of claim in which there were included among the particulars of negligence upon which Mr Babic relied the following: "(i) Failing to ensure that customer service stations were equipped with feed pipes and filling flanges of a design which could not be fouled by accumulated dirt or waste. (j) Failing to ensure that the feed pipes and filling flanges at customer service stations were properly maintained and kept clean of accumulated dirt or waste." As I read the transcript of the hearing before His Honour, it was on the basis of those particulars, and none other, that Mr Babic then sought to found his claim in negligence. It would appear that, at some time prior to the hearing before His Honour, the matter had been referred for arbitration, the arbitration being undertaken by Mr A.J. Leslie Q.C. Although the result of that arbitration is irrelevant to the fate of this appeal, it is to be noted that, during the hearing before Mr Leslie, Mr Babic, for the most part, was able to give his evidence without the assistance of an interpreter. Despite this, when Mr Babic came to give his evidence at the trial before His Honour, Mr Grey sought to have that evidence given through an interpreter, a course to which Mr JE Maconachie QC, who then appeared, as he does today, with Mrs. MA Gilmour, for Esso, objected. However, after Mr Grey had informed His Honour that, although Mr Babic could carry on a conversation in 4 UNREPORTED JUDGMENTS English, the case was one in which Mr Babic's comprehension of the questions asked of him, and the accuracy of his answers, was of importance, His Honour acceded to the course proposed. This notwithstanding, it seems clear enough that His Honour was later to form the impression - for which the Transcript provides support - that Mr Babic had a far better understanding of what was being said, and of what was happening, during the hearing than he would have wished His Honour to believe. An example of this is to be found at a point where His Honour had directed the interpreter to inform Mr Babic that his failure adequately to answer questions was not assisting his case. The Transcript (Appeal Book at 49) records: "WITNESS: Q. As much as I can understand, I answer them. MACONACHIE: Q. You had no doubt at all what his Honour has just said. It was written all over your face. A. I understand some questions. There are some I don't. Those that I understand I answer. Q. You understood precisely what His Honour just said, did you not? A. True, but I have nothing to hide. " As will be apparent from what I have earlier recorded, the only person able to give evidence as to the circumstances in which he came to sustain the injury of which he complained was Mr Babic himself. So, too, will it be apparent that, for the most part, the determination of the nature and extent of any injury which Mr Babic may have suffered depended on his evidence. This being so, it is hardly surprising that, during the course of the hearing before His Honour, a vigorous, and sustained, attack was made upon Mr Babic's credibility as a witness. It is hardly surprising, then, that when he came to deliver his Judgment His Honour recorded (Appeal Book at 354): "\.. in this case, the credibility of the plaintiff is a vital issue for decision. " His Honour concluded his Judgment as follows: "Tn assessing the credibility of the plaintiff I have to look at the evidence given in the case as a whole. Having carried out that exercise, and in particular, having regard to the matters of early absence of any reference to me key allegation of fact, the unsatisfactory manner in which the plaintiff has at least on one significant occasion sought to mislead his treating doctor, I am forced to the conclusion that the plaintiff's credibility is such that I cannot accept his account of what occurred on the evening of 31 May 1984. This is not to say that I do not accept that some injury did happen to him then, but I am not persuaded, on a balance of probabilities, that it happened to him as he alleged it did - that is as a result of the device he was seeking to remove becoming jammed because of the presence of dirt. Accordingly, the plaintiff has failed to establish that his injury arose as a result of breach of duty by the defendant. It follows that there will be a judgment for the defendant plus costs." While accepting the limitations to which this Court, in the light of the principles discussed in Abalos v Australian Postal Commission ((1990) 171 CLR 167) is subject, Mr Milne, who, if I may say so, has said everything which could be said in support of the appeal, has submitted that His Honour fell into error in two respects, they being: 1. that His Honour's assessment of Mr Babic's credibility was based upon wrong conclusions of fact; and URJ BABIC v ESSO AUSTRALIA LTD (Sheller JA) 5 2. that there was no logical connection between the matters which affected His Honour's assessment of Mr Babic's credibility and the circumstances in which Mr Babic sustained his injury. In elaboration of the first of these submissions Mr Milne drew attention to the following: 1. His Honour's assertion that it was not until 1990 when Mr Babic first referred to dirt or other material in the filler box; 2. His Honour's assertion that there was ample evidence that Mr Babic could speak fluent English; and 3. what was suggested to be His Honour's misapprehension as to the effect of Dr. Drummond's evidence in relation to what was said to be revealed by the film taken in April 1986. While it is true that Mr Milne has been able to draw our attention to what I regard as minor errors of fact in relation to these matters, it seems to me that the main thrust of what His Honour has said remains. Thus, the only error which His Honour has made in relation to Mr Babic's delay in mentioning dirt in the filler box is that, as I have earlier noted, the first mention of dirt appears to have been made in August 19839, that is, five years after the alleged accident, rather than, as His Honour noted, in the amended statement of claim, five years after the commencement of the proceedings. So, too, although it is true that the particular answer to which His Honour has referred in his Judgment Appeal Book at 354) hardly qualifies as a shining example of colloquial English, the point remains that although Mr Babic appeared to be far more fluent in English than he wished His Honour to believe, he appeared to His Honour to have taken refuge in an interpreter in order to have time to think of the answer which would best enable him to parry the cross-examination. Finally it is to be observed that although, in the course of his re-examination Dr. Drummond appeared to qualify the answer, given in the course of cross-examination, to which His Honour referred in his Judgment, the incontrovertible facts remain, first, that the film depicts Mr Babic carrying out tasks of which he claimed at the time to be incapable; and, second, that, at the very time when he was prevailing upon his treating doctor to certify him unfit for work, he was clearly fit to undertake a far greater variety of activities than he had led Dr. Drummond to believe. So far as the second of Mr Milne's submissions is concerned, I would but say that, in a case in which Mr Babic's credibility as a witness was critical to his success, or failure, and in which His Honour felt unable to treat him as a witness of truth, it was inevitable that there should be a verdict for Esso. For these reasons I would propose that the appeal be dismissed with costs. Clarke JA I agree. Sheller JA I agree. Clarke JA: The orders of the court will be that the appeal is dismissed with costs. Counsel for the Appellant: DB Milne QC with LT Grey Instructed by: McClellands Counsel for the Respondent: JE Maconachie QC with MA Gilmour 6 UNREPORTED JUDGMENTS Instructed by: Barker Gosling