MINKARA v PIRELLI CABLES AUSTRALIA LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMON LAW DIVISION MASON P, PRIESTLEY and BEAZLEY JJA 20 November 1998, 23 December 1998 [1998] NSWCA 145 Negligence — proof of — workplace injury — plaintiff's version of accident not accepted — alternative versions of accident properly rejected — principle in Jones v Dunkel not applicable — no error demonstrated in reasoning of trial judge Mason P The appellant suffered injury on 30 October 1979 in his employment with the respondent. He later obtained an award of workers' compensation, apparently by consent (cf AB 23). Nine years after the injury he commenced proceedings for damages which came to trial in 1996. McInerney J entered a verdict for the defendant because he was not satisfied that negligence had been established. This appeal challenges that verdict on various grounds. Difficulties in this appeal The learned judge found this to be a difficult case to determine, for several reasons. First, there were the inevitable difficulties associated with the vast amount of time that had elapsed between the injury and the trial. Secondly, there were language difficulties. The respondent had migrated to Australia from Lebanon in 1973 when he was aged 18. English was not his first language, nor was it the first language of his only lay witness Mr Ahmed Mich. The trial proceeded without interpreters. In his judgment McInerney J remarked upon the two men's imperfect knowledge of English, stating that this meant that "it has been extremely difficult to understand precisely what occurred on the day'. I shall return to this matter in the context of a specific ground of appeal suggesting denial of procedural fairness. But it is also of general relevance, because it suggests the need to consider sympathetically possible ambiguities in the evidence given by the two men. Thirdly, there was the undoubted fact that something happened on the night in question to cause serious and continuing injury. It was not in dispute that the appellant suffered some injury to his back at work on the night in question. The appellant's evidence of sudden onset of debilitating pain is corroborated by medical records and reports. After reporting the injury to his supervisor the appellant went to Campbelltown Hospital. He rested overnight, returned to work the next day, found that he was still unable to work, and went back to hospital. He was treated initially with pain killers. Later he was referred to specialists. There was physiotherapy, traction, a myelogram, a spinal fusion operation and other treatment. The appellant does not appear to have worked since 1979. Fourthly, there were no witnesses to the accident. Nor were any accident reports tendered by either party. Mr Mich was called merely to support the appellant's case that the trolley system (discussed below) was not functioning at the relevant time. More than once in his judgment, McInerney J remarked that it was critical to determine what occurred in the accident (if it occurred at all). It was entirely appropriate to have approached the matter in this way. The trial took place 17 2 UNREPORTED JUDGMENTS years after the accident, in circumstances where little if any of the delay could be laid at the respondent's door. There were no witnesses to the alleged accident apart from the appellant, and there was no suggestion of any contemporaneous written report as to the circumstances of the accident. In the form that it was ultimately pressed in final submissions, the appellant's case differed significantly from that pleaded, particularised, reported to doctors over many years, or disclosed in an affidavit that was sworn in 1991. In view of the foregoing, his Honour was also correct to have remarked that for the plaintiff to succeed it was critical that his evidence should be accepted. It was not. The reason for the rejection of the case included a finding that the judge was "most unimpressed by the plaintiff's demeanour" as well as a number of specific problems with the case which will be referred to below. Counsel for the appellant accepts that, with the exception of the procedural fairness point, he faces the well-known difficulties discussed in Devries v Australian National Railways Commission (1993) 177 CLR 472 in seeking to challenge the verdict. This concession was properly made. The issues in context The appellant's case as pleaded in an amended Statement of Claim filed in late 1991 was that "the plaintiff was manoeuvring a heavy reel of cable across the floor in consequence of which he sustained injury'. This is as specific as the pleading gets on the critical point. The particulars of negligence have a scattergun quality, including failure to provide a safe system and place of work, failure to provide adequate and/or sufficient assistance, and failure to provide any adequate mechanical device to enable the reel to be manoeuvred without exposing the respondent to an unnecessary risk of injury. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 was cited at trial and on appeal. Some matters were common ground at trial. The appellant was 24 at the date of injury. He is described by McInerney J as a small man with a slight build. He had commenced employment with the respondent at its newly completed Minto factory on 3 September 1979. The factory manufactured building wire and telephone wire. After the wire was stranded and insulated it was wound onto a production drum. (At times it was described as a bobbin or reel.) The task in which the appellant was employed involved the moving of loaded drums from one section of the factory to another where they were fitted to a large machine called a Meredith machine which was used to take the wire from the production drum and wind it onto smaller bobbins or spools. The drum's dimensions were 1025mm in diameter and 580mm in width. When fully laden it weighed between 400 and 500kgs. The system for moving the drums had been designed by an Italian engineer, Mr Maragliano. Mr Maragliano gave evidence at trial that the system was fully operative when he returned to Italy from Australia on 27 September 1979, ie a little over one month before the incident. This evidence was corroborated by that of another witness, Mr Stride, and it was accepted by the trial judge. The system consisted of a two-wheeled trolley pushed along inlaid tracks set in the factory floor. Turntables enabled changes of direction. The heavy drum could thus be pushed easily by trolley into a position opposite the Meredith machine, and then rolled by hand directly across the floor to where it was attached to the Meredith machine. So long as the drum could be rolled fairly straight across the floor this could be done easily. There was evidence that the slight adjustment (or "little nick") needed to fit a drum into place on the Meredith machine was something URJ MINKARA v PIRELL| CABLES AUSTRALIA LTD (Mason P) 3 that could be done without difficulty, at least where the standard procedure was followed by a properly instructed employee. It was common ground at trial that, if the system was operating in the manner in which it was designed to operate, it was a perfectly safe system. The appellant submits (in his first and second grounds of appeal) that the judge erred in rejecting that part of the case which asserted that the basic system was not functioning at the relevant time. This depended on preference of the evidence of Messrs Maragliano and Stride overt that of the appellant and Mr Mich, something clearly open to the judge. I detect no appealable error in the judge's approach to this issue. (I shall address a Jones v Dunkel argument separately.) The appellant had also given evidence that he had not received proper instructions about the method of manoeuvring bobbins in the factory. There was evidence to the contrary, and this part of the claim was also properly rejected. The circumstances of the accident according to the appellant Putting aside the generalised claims of a non-functioning safe system of work and of lack of proper instruction as to how to operate it, the appellant's evidence at trial was that he was working in the evening shift at about 2am. He was pushing a heavy drum across the floor. The drum had not been placed in a position that enabled it to be pushed straight onto the Meredith machine. It was necessary to manoeuvre it around other drums and then straighten it up. The appellant said that the accident occurred when one of the flanges of the drum dropped into the inlaid trolley track and stuck there. When that occurred, he spoke to his supervisor telling him that he was unable to move the drum himself because it was too heavy. The supervisor (identified by the appellant as "Reg") told him that he could not spare any men to assist, and said: "You have to do it". The appellant went back and tried to push the jammed drum. By pushing and lifting it at the same time, he got it out of the track, but in doing so "I felt very sharp pain coming down my hip to my leg, my right leg". It was the need to lift, push and twist the drum while holding his hands across it that caused the injury. This version of the accident was adhered to in cross-examination (AB 52-54). At the same time, the appellant was advancing his case about a non-existent (or at least non-operating) system of trolleys. The appellant had also sworn an affidavit on 21 June 1991 that stated that "the large reel became jammed in a rut". The respondent's successful challenge to the primary case The respondent challenged the appellant's evidence in cross-examination and also established the impossibility of the accident occurring in the way indicated by the appellant. The learned trial judge indicated that there would have been a clear case of negligence had he accepted the appellant's account that he had had to struggle with the drum to get it out of the groove after having been refused help by his supervisor. But this account of the accident was rejected in the light of a careful review of all of the evidence. That review betrays no error. The claim that the appellant had lifted the drum whose flange had gone into the gap between the tracks was properly rejected. It was an impossible task. And it was not the version which the appellant had given his treating doctors until 1995. The trial judge was "most unimpressed by the plaintiff's demeanour and his evidence". I do not understand counsel for the appellant now to dispute the rejection of the appellant's case in so far as it is to be understood as asserting that the flange or edge of a heavily laden drum fell completely into the groove of one of the tracks. 4 UNREPORTED JUDGMENTS Not only had the appellant given no account of the injury having occurred in this way to any of his many treating doctors prior to 1995, but the evidence of the experts called on each side established incontrovertibly that that version simply could not have happened. The gaps designed to take the trolley wheels were 130mm deep and 15mm wide. The flange of the drums was 10mm wide. Two things followed: the flange would have had to have been practically parallel with the groove to have fallen in it; and it would have been impossible for a man to have lifted the drum out. To have lifted a fully laden drum one of whose flanges had dropped fully into the groove of the trolley track would have required a force of 225kgs. This was quite impossible. Of course an employee might attempt the impossible, but the appellant's evidence was that he had succeeded in lifting the drum out of the track. The trial judge was perfectly entitled to reject such a case, especially when coupled with problems of lack of corroboration, unsatisfactory demeanour, and inconsistency between such case and that pleaded or reported to the appellant's doctors. Was there an alternative case? The critical questions, as I see it, are whether the evidence at trial left the appellant with the opportunity of advancing some alternative case; and whether it can be demonstrated that it was either not addressed by the judge or was wrongly rejected by him. The possibility of an alternative version of the accident emerged in the course of evidence given by two experts who visited the site long after the injury. Mr Buckland was called as an expert witness for the appellant. He was a consulting engineer who had done industrial accident investigations since about 1990. It is apparent from Mr Buckland's written report (Exhibit "C") that his instructions from the appellant or his solicitors had been that the drum had "dropped right into that groove " (AB 84. See also 182). According to his report, Mr Buckland had been instructed that the appellant had been required to manoeuvre the drums manually, at a time when there were no trolleys available. Mr Buckland's evidence was that this would have been an unsafe system of work. His Honour accepted this evidence, but the appellant failed because the trolley system was found to have been functioning correctly. In the course of his evidence in chief Mr Buckland said the following: Q. What sort of force for the purpose, would be required to move the direction of a 500 reel low drum of the type shown in the photographs? A. On that floor I would calculate a force, minimum force of around 80 kilograms to actually change the direction of the drum in a pulling motion. Q. What about a pushing motion? A. Similarly if you are trying to push and turn. Q. If the side of the drum - was it a flange, is that what we call the side? A. I would call it a flange. Q. If the flange on the drum had dropped into an indentation such as the side of a railway track, can you give an estimate of the force required to get it out of there and turn it into the direction you want it to go? A. It depends how far it dropped in the tracks. I think the tracks in the factory were over 100 millimetres deep. If it dropped, I would say you would not be able to get it out. If at an angle, it depends on the angle, how far it dropped, the force would be significant, if you rolling to right angles to the track, not a great force. URJ MINKARA v PIRELL| CABLES AUSTRALIA LTD (Mason P) 5 Q. Somewhere in excess of 80 kilograms, that would be required to turn around and change direction? A. If you lift it out from a depression and turn it. (AB 74) {I have made minor but obvious punctuation corrections to the original transcript.] As I read this evidence, Mr Buckland was saying initially that a minimum force of about 80 kilograms would be required to change the direction of the drum while pushing or pulling it across the surface of the floor. However, the last question and answer suggest that he was also considering the situation where the drum had fallen into "'a depression", although it was certainly not clear from this evidence in chief that he had in mind the partial jamming of a drum in the trolley track as distinct from a minor indentation in the factory floor. Cross-examination of Mr Buckland confirmed that his instructions had been that the drum had fallen right into the groove. Mr Buckland also agreed that it was an impossibility for a man to have lifted it out (AB 82-84). It was also established that Mr Buckland had not apparently measured the precise width of the gaps in the track (AB 83). Senior counsel for the appellant then re-examined Mr Buckland. A series of leading questions established that if the drum was at right-angles to the groove it could be simply pushed across it; whereas, depending upon the angle at which it was to the groove, the amount of force to lift it out would vary between 10 kgs and 250 kgs to get it over the trolley tracks (AB 85-86). Near the end of the re-examination McInerney J asked Mr Buckland to clarify the statement in his report recording his instructions that "the flange of one wheel is said to have dropped into the recessed groove of the rail". Asked to explain this phrase, he said: My understanding is that it somehow became caught in the rim. I had no instruction as to whether it was right to the bottom, that was the scenario that I considered, that was my understanding, that it had dropped right into the rail and become caught but I may not have gotten the full picture of what occurred, but that was the best as I could determine. (AB 86) The respondent's expert who gave evidence at trial was Dr Towson, a chartered professional engineer. Dr Towson had made precise measurements of the gap between the trolley track and his evidence on this matter was accepted by the trial judge. It was to the effect that the gaps were 130mm deep and 15mm wide. Dr Towson concluded that the drum would have had to have been at an angle of 0° to the track for it to have fallen into the gap and that in such event it would have required at least 250 kgs force to get it up out of the gap. Indeed greater force would be required in the likely event that the flange became jammed (AB 118-119). Later he modified this by conceding that the drum would not have fallen into the track if it had crossed the track at an angle between 2° and 88° (AB 122). During Dr Towson's cross-examination senior counsel for the appellant explored another possible explanation for the accident. In final addresses he sought to marry this evidence to that of Mr Buckland which I have set out from AB 74. Dr Towson's measurements had shown that there was a vertical gap of about 3mm (less than 1/8" of an inch) between the ordinary floor level and the top of the steel rail. He agreed that a drum being rolled at right angles over the trolley tracks would have to dip down 1/8" of an inch. It was suggested to him 6 UNREPORTED JUDGMENTS that if the drum came to rest in this cavity then it would take a force of at least 80kgs, perhaps a minimum of 112kgs to roll it out (AB 123). Dr Towsen denied this, adding As a matter of fact, the force forward would provide the lifting component upwards and all you would do is to push it forward with a force of - as I said, about 10kg. (AB 124) He agreed that more force would be required if the person pushing the drum was endeavouring to change its direction at the same time. For that purpose something between 130-140kgs force would be required (AB 125). Later he suggested the force might be 100kgs if one of the flanges was sitting on the steel rail. He readily agreed that a system that required a man to exert that force would be unsafe (AB 125-127). In final addresses at trial, senior counsel for the appellant relied strongly on this evidence of Dr Towson, arguing that it had not been his client's evidence that the whole of the flange had dropped the 130mm to the bottom of the track (AB 169). This attempt to resuscitate the appellant's case from its gross overstatement in the appellant's own evidence was repeated in the appeal. Twice in his judgment McInerney J stated that if he had been satisfied that the defendant's system required the manual handling of extremely heavy drums, thus exposing employees to an unnecessary risk of injury, then the plaintiff would have been entitled to a verdict (AB 324, 343). In its context, and taken with the finding accepting the evidence of Messrs Maragliano and Stride, I take his Honour to have been rejecting the appellant's case that he had been required to manoeuvre drums other than by using the safe trolley system. His Honour clearly accepted Mr Stride's evidence that no heavy lifting was involved in a properly working system (see AB 344). It is equally clear that McInerney J addressed the theory of the accident that arose in the context of the cross-examination of the experts. At one stage in his judgment he recorded that Mr Miller [senior counsel for the respondent] submitted that the theory advanced during the cross-examination in relation to the drum becoming "a little stuck" cannot be satisfactorily explained, bearing in mind that the tracks were flush with the floor. Later, having repeated that the problem that confronted him was how to determine how the accident occurred, his Honour said: I just cannot accept that the flange of the bobbin was jammed in the tracks, and it would be impossible for the plaintiff (or indeed any other person) to lift the bobbin from its jammed position and push it free. Further, as the tracks were flush with the floor I fail to see how it would be caught or jammed in the tracks. This final sentence addresses the appellant's case in so far as it relied in the alternative upon the suggestion that the gap in which the drum was caught was the 3mm indentation between the floor level and the top of the steel track. It was a conclusion properly based upon Dr Townson's evidence. All that is left is the possibility that the plaintiff may have been trying to twist or turn the drum at the same time as he was pushing it out of the indentation. Dr Towson had said that at least 100kgs force might be needed for this exercise, and that it would have been unsafe to have required an employee to do it. In my view no error is shown in declining to address this yet further transmogrification of the appellant's case. It involves speculation as distinct from the application of expert evidence to a situation established by credible evidence. This was not the account URJ MINKARA v PIRELL| CABLES AUSTRALIA LTD (Mason P) 7 which the appellant gave his treating doctors. The clear thrust of the appellant's evidence was that the drum fell into a groove between the trolley tracks and that the injury occurred as it was lifted out of this groove. The rejection of this case - and the damage that its advancing had done to the appellant's credibility - did not require the judge to reconstruct a hypothetical alternative version as an explanation for the injury consistent with negligence. I have already indicated that the trial judge was correct in emphasising that resolution of the issues fought in this very stale and hotly contested case depended upon acceptance of the appellant's version of how the particular accident occurred. It is clear that his Honour considered the various alternative ways in which senior counsel for the appellant based the appellant's case in his final submissions. However, both counsel and judge were, in the end, confined by the evidence and the way the case had been fought at trial. There is nothing in the judgment to suggest that his Honour fell into the error of thinking that simply because the appellant's evidence was rejected on one point then it had to be rejected on the other. To the contrary, the various alternatives were carefully addressed. The procedural fairness point This point was not taken at trial, in the Notice of Appeal, or in the appellant's written submissions that were filed (in breach of the rules) on the eve of the hearing. The matter sought to be advanced was that a miscarriage had occurred because the trial judge had revealed, for the first time in his reserved judgment, that: Because of the plaintiff's and his witnesses' imperfect knowledge of English, it has been extremely difficult to understand precisely what occurred on the day. No interpreters were used. Counsel for the appellant submitted that this revealed that the trial miscarried because it did not proceed on the evidence. He relied upon Saraya (1993) 70 A Crim R. There is no merit in this belated point. The transcript reveals that the appellant and his witness spoke less than perfect English. But equally it demonstrates that each had a clear capacity to understand questions and to give answers, including answers on technical matters. Now, it is true that witnesses sometimes answer questions, particularly in cross-examination, without fully understanding what they are conceding. But that was not the case here. The two witnesses were articulate and responsive. If there were situations where they might have been confused - and we were not referred to any in the transcript - then one would expect that either counsel or the judge would have insisted that there was a proper understanding of a question before it was answered. No counsel suggested any difficulties at trial. More importantly, counsel for the appellant accepted that nothing in the judgment reveals any misunderstanding by the trial judge of the evidence as transcribed. His Honour's reserved judgment in this matter was at pains to record the relevant details of the evidence of the various witnesses, and to reference them to the transcript. Saraya is a case where the accused person gave evidence through an interpreter whose translations were shown (on appeal) to have been seriously defective, and to have deprived the accused of the ability to give an effective account of the facts vital to his defence. No such deprivation occurred here, when the transcript of the evidence of the two witnesses is read as a whole. 8 UNREPORTED JUDGMENTS Jones v Dunkel point The appellant submitted that the trial judge erred in failing to draw an inference adverse to the respondent's case from the respondent's failure to call Mr Reg Shamavonian (cf Jones v Dunkel (1959) 101 CLR 298). It is submitted that Mr Shamavonian was the witness that would have been required to have been called on behalf of the respondent to rebut the appellant's claims about the system working at the relevant time, as well as his evidence that help had been requested and refused. As indicated above, the appellant in his evidence identified "Reg" as the supervisor who refused assistance when the drum became jammed. Failure to provide adequate or sufficient assistance was a pleaded particular of negligence. But there had been no pleading of refusal of a specific request, nor had the appellant disclosed this particular allegation or referred to "Reg" in any correspondence preceding the trial. Counsel for the appellant submitted that there had been no obligation to do so. I agree. However, the absence of any prior identification is clearly relevant to the question whether it was appropriate to have drawn any adverse inference from the respondent's failure to call the person whose existence was first disclosed in the appellant's evidence in chief. The respondent called Mr Stride who gave evidence that he was the night shift foreman with the rewinding section of the factory in October 1979. In the early hours of 30 October he received a report from the appellant, presumably to the effect that he had been injured. Mr Stride gave evidence (AB 130) that there was a person known to him who was a foreman or supervisor known as "Reg". "Yes, Reg Shamavonian." According to Mr Stride, Mr Shamavonian only worked the day shift. Asked whether he knew where Mr Shamavonian was in 1996, Mr Stride said that he did not know, although he added that he thought he was still at Spinaway Cables at Wetherill Park. He had not seen Mr Shamavonian for approximately eight years. Senior counsel for the respondent next called Mr Zaluzny who had been the respondent's solicitor at an earlier stage in the litigation. He gave unchallenged evidence that the first occasion he had heard of a leading hand called "Reg" was the previous day when the appellant had given his evidence, and the first occasion on which he had heard the name "Shamavonian" suggested was during the lunch break on the second day of trial, being the very day on which Mr Zuluzny was called to give evidence (at 3.05pm). Mr Zuluzny gave evidence of his attempts to locate Reg Shamavonian. He had found out that Spinaway Cables no longer employed him. Mr Zuluzny was cross-examined by counsel for the appellant who suggested that there were only two entries in the phone book for Shamavonian, with initial of S and VR. There was then debate as to whether the respondent should have anticipated this issue arising. His Honour indicated that the name of the witness should have been given to the respondent prior to trial, if not as a matter of particulars, then as a prelude to praying in aid Jones v Dunkel. I have already indicated that I agree with this conclusion. After the interposition of a medical witness, senior counsel for the appellant called Mr Smirilios, a legal clerk in the employ of the respondent's solicitors. He gave evidence that he rang the telephone number of Mr V R Shamavonian and spoke to a man who identified himself as having that name. He asked him would he be kind enough to attend court in the event that he may be called as a witness. Mr Shamavonian had said that he was not able to do this because of the need to attend to his own business. Mr Smirilios obtained his current address. It is unfortunate perhaps that Mr Smirilios did not ask or did not give evidence about URJ MINKARA v PIRELLI CABLES AUSTRALIA LTD (Beazley JA) 9 having asked the Mr Shamavonian to whom he spoke whether he was in a position to cast any light upon the issues at trial. Neither side took the matter any further. Final submissions commenced at the beginning of the following day. In his judgment McInerney J accepted the evidence of Mr Stride that he was the person responsible for the area on the night of the alleged accident. He declined to draw any inference from the failure to call Mr Shamavonian, noting that there was no allegation in the pleadings of being refused assistance by a superior when the flange of the drum became stuck. While it was theoretically open for an adjournment to have been sought while further steps were taken to locate Mr Reg Shamavonian or to explain the reason for not calling him, I think that would be to take an unrealistic approach to litigation. It would have been impracticable to have delayed the trial while this most uncertain and peripheral issue was firmly laid to rest. The appellant had not put the respondent on notice that the evidence of a supervisor called "Reg" might be critical. And the respondent's evidence (which was accepted) was that Mr Stride was the relevant supervisor. It should be remembered that the principle in Jones v Dunkel operates to strengthen inferences otherwise available to be drawn in favour of a party. Here the appellant's case failed because the evidence of the appellant himself did not persuade the learned trial judge. It is well-nigh inconceivable that Mr Shamavonian would have had any actual recollection of the events in question. At the very least the ground work was not laid to indicate that that would probably have been the case. In all of the circumstances, the inference that might have been drawn had Mr Shamavonian's absence not been sufficiently explained was such a weak one that it cannot be said that the trial miscarried. There was a clear conflict of evidence about the operation of the trolley system, with two witnesses being called on either side. This conflict was resolved in favour of the respondent. The more specific issue of the supervisor's refusal to assist when asked to do so was resolved adversely to the appellant simply because the appellant's evidence as a whole was unsatisfactory and because this particular variant of the accident was only raised after the appellant had given many inconsistent versions to his treating doctors and, it seems, his lawyers. The appeal should be dismissed with costs. Priestley JA I agree with Mason P. There were features in the case, relied on by the appellant, which may have had some force if the court thought it right to set aside some of the factual findings of the trial judge and substitute different findings of its own. However, the case is one where it would not be right for this court to take such a course, both because within the conventional rules there is no basis for doing so, and because the trial judge's findings seem in any event to be well based in the evidence. Beazley JA I agree with Mason P. Appeal dismissed. Counsel for the appellant: D Baran Litigant in person Counsel for the respondent: G T Miller QC; G Evans 10 UNREPORTED JUDGMENTS Solicitors for the respondent: Hunt & Hunt