BERKELEY CHALLENGE PTY LTD v ROCHFORD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER JA, POWELL JA and FITZGERALD AJA 7 September, 8 October 1998 [1998] NSWCA 37 WORKER'S compensation action — failure by trial judge to provide reasons for accepting one version of events rather than another conflicting version — inconsistent findings by trial judge — miscarriage of trial — new trial on all issues. Meagher JA. I have read in draft the judgment of Fitzgerald AJA and have the misfortune to disagree with it. The facts, insofar as they are ever knowable in a case like this, are set out in that judgement. The plaintiff's story is that (a) the machine stopped, (b) she then restarted it, and (c) it hit her; on some of her accounts, step (b) was omitted. But, on any view, there was both a stopping and a collision. That, relevantly, coupled with her evidence about previous complaints, isall she needed to prove to make out a case of negligence. She had formidable difficulties in her path: she was not particularly articulate, and obviously wholly ignorant of science; and, in addition, there were five or six witnesses against her who gave entirely inconsistent evidence. His Honour had to make some finding of fact as to what happened. He found her story true, and consequently that the evidence to the contrary was not true. Despite the infelicities of his Honour's language, I do not think he decided her credibility initially, in abstracto, as it were, and then turned to each of the other witnesses, disbelieving them in turn only in the light of his initial finding. I see no reason to doubt that his Honour only made his initial finding as to the plaintiff's credibility after he had considered the whole of the evidence, thus presenting the Court with a set of factual findings which are impregnable. As to the defendant's expert: he gave evidence that the accident could not happen; but there is no reason why his Honour should not have preferred the plaintiff's evidence that it did happen. Powell JA. The question for determination on this appeal is whether this is one of those rare cases in which, although the conclusion of the trial judge was said by him to depend upon the view which he took on the credibility of the Respondent as a witness, this Court should, in the circumstances and, after considering the probabilities in relation to such facts as may be in issue, differ from the conclusion reached by the trial judge. As the authorities — most recently Abalos v Australian Postal Commission ((1990) 171 CLR 167) and Devries v Australian National Railways Commission ((1992-1993) 177 CLR 472) — make clear, while — the appeal to this Court being by way of rehearing — it is the duty of this Court to set aside a challenged finding of fact which is shown to be wrong — to determine which this Court must weigh conflicting evidence and draw its own inferencesand conclusions — as a general rule, findings of fact by a trial judge, based upon the credibility of witnesses, must stand unless it can be shown that the trial judge has failed to use, or has palpably UNREPORTED JUDGMENTS misused, his advantage, or has acted on evidence which was inconsistent with facts uncontrovertibly established by the evidence, or which was glaringly improbable. This is particularly so in a case in which either story told in the witness box might be true, in which the probabilities and possibilities are fairly evenly balanced and in which the personal motives of the parties and their witnesses might well affect their testimony. In the written submissions which were filed on its behalf, the Appellant sought to rely upon the following matters as providing the basis for the Court's intervention: 1. inconsistencies between the oral evidence given by the Respondent as to the circumstances said to have given rise to her injury and earlier statements made by her to others — as, for example, Dr Pooviah and Dr Gliksman — which inconsistencies were not dealt with by Herron DCJ in his Judgment; inconsistencies between the oral evidence given by the Respondent and that given by her former co-workers both as to complaints said by the Respondent to have been made by her as to the defective polisher, and as to statements said to have been made by the Respondent as to her health, which inconsistencies so it was submitted, were not adequately dealt with by Herron DCJ in his Judgment;3. the expert evidence which was tendered on the hearing did not support the Respondents" version of the accident. While Dr Adam's evidence provided a basis for a finding that unreliable electrical contacts could result in intermittent and unpredictable stopping he did not explain how such sudden stopping could cause the polisher to strike the Respondent in the manner alleged by her; given the inconsistencies between the Respondent's oral evidence and the earlier statements made by her, and what was said to be the absence of any evidence to suggest how the defect alleged by the Respondent could cause the polisher to act in the way alleged by the Respondent, Herron DCJ, so it was submitted, could not have been satisfied that the accident happened, or, alternatively, could not have happened in the way alleged by the Respondent; finally, even if the Appellant knew of the alleged defect in the polisher, that fact — in the light of Dr Olsen's evidence — could not have given rise to a foreseeable risk of injury. Notwithstanding the form of the written submissions which had been lodged on behalf of the Appellant, on the hearing of the appeal (T.10-12) counsel appeared to accept that, in the light of the authorities and of Herron DCJ's general finding as to the Respondent's credibility, he could not successfully challenge his Honour's rejection of the evidence of the Respondent's co-workers. This being so, I set that matter aside. Some indication of what appear to have been earlier inconsistent statements made by the Respondent is to be found in the reports of Dr Pooviah, the Respondent's general practitioner, and of Dr Gliksman, the occupational physician to whom the Respondent appears to have been referred by the Appellant (or its Workers Compensation insurers). Dr Pooviah's report of 25 October 1995 (AB 94) addressed to the Respondent's solicitors contains the following (inter alia): — 1. Mrs. Rochford attended my Surgery on 25 October 1994. URJ BERKELEY CHALLENGE PTY LTD v ROCHFORD (Powell JA) 3 2. History: She stated that she worked as a Cleaner at East Hills Girls High School and while she was doing her job which entailed washing, mopping, moving heavy furniture, carrying a back pack, lifting 15 litres of stuff etc. etc., she experienced a pain and soreness between both breasts and noticed a swelling in an area in the midline below the Xiphisternum when the polishing machine that she was using cut out and she jerked it suddenly. . On Examination: There was tenderness of the upper rectus abdominis muscle at Xiphisternum. . This was quite consistent with the injuries sustained at work and the history given.' while, in his report of 15 March 1996 (AB 114) to the Respondent's solicitors, Dr Gliksman wrote (inter alia): 1. I first examined Ms Valerie Rochford on 15/11/94 .... Ms Rochford informed me that on 25/10/94, whilst using a heavy polisher, the polisher stopped "dead". This resulted in a strong twisting motion of the abdomen and led to an immediate onset of the pain described above .... 4. My diagnosis was that of a partial strain (tear) of the right rectus abdominous (sic) muscle. The history and physical findings were consistent with Ms Rochford's recorded account of their occurrence." (see also the report to the same effect of Dr Niesche of 23 December 1994 (AB 199)) These versions of what is said to have occurred are to be compared with the version which the Respondent appeared to advance on the hearing, namely, that after the polisher had stalled it restarted unexpectedly and moved sharply backwards striking the Respondent in the chest area under her breasts. It is, of course, open to a trial judge to accept the evidence of a witness notwithstanding that the witness has made earlier inconsistent statements but it seems to me that, if he is to do so, it is incumbent upon him, both, to make clear that he is aware of the inconsistencies between the evidence and the earlier statements, and, to explain why it is that he prefers to accept the version of events given in evidence over that given in those earlier statements. This was the course taken, at first instance, by Legoe J in Devries v Australian National Railways Commission as the following passage in the joint Judgment of Brennan, Gaudron and McHugh JJ in the High Court in that case (1992-1993) 177 CLR 472 , 474) makes clear: 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 the 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 whathad 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 4 UNREPORTED JUDGMENTS 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 from him. If, however, a trial judge who is faced with inconsistencies between the evidence of a witness, as a matter of importance, and earlier statements of the witness, either, does not refer to those inconsistencies, or, while referring to those inconsistencies, provides no reasons for his preferring one or other version, then, so it seems to me, he fails properly to perform the function which the law calls upon him to exercise and the trial is to be regarded as having miscarried. Although, as what I have written earlier will make clear, Herron DCJ in his judgment recognised the conflicts between the evidence given, on the one hand, by the Respondent, and, on the other, by her co-workers, and resolved those conflicts in favour of the Respondent, his Honour nowhere referred to, and still less did he resolve, the apparent inconsistencies between the Respondent's evidence and the earlier statements apparently made by her. The apparent inconsistencies, in my view, needed to be resolved as they bore upon the questions whether the Respondent's injury was sustained in the way alleged by her — there was expert evidence to suggest that it could not have done so, which evidence Herron DCJ did not refer to — whether the injury was sustained as the result of the Appellant's negligence, the nature and extent of the Respondent's injury, and, of course, the quantumof any damages to which the Respondent might be entitled, all of which questions were clearly of importance in the proceedings. This being so, it seems to me that the trial is to be regarded as having miscarried, it following that the appeal should be allowed, the verdict and Judgment in the District Court set aside and that the proceedings be remitted to the District Court for a new trial on all issues. I agree with the Orders proposed by Fitzgerald AJA. Fitzgerald AJA. In an ex tempore judgment delivered on 22 May 1997, the trial judge awarded the respondent damages for injuries which he found that she sustained on 25 October 1994 as a result of a faulty floor polisher negligently supplied to her by the appellant, her employer. His Honour described the respondent as 'an intelligent and honest woman', and said that he accepted her 'as a witness of truth and accuracy'. No explanation was given for that conclusion, and it is clear from his Honour's reasons for judgment that his favourable opinion ofthe respondent was formed without reference to matters which were material to that question, and in turn, influenced his Honour's other findings. In my opinion, that course was impermissible. According to the respondent's testimony, the floor polisher, a heavy machine weighing in excess of 40kg, stopped suddenly and the handle 'came back and hit her in the chest underneath her breasts'. The trial judge apparently accepted that evidence. His Honour also apparently accepted the respondent's different evidence that, after the polisher had stopped, she 'attempted to manoeuvre the machine to see whether it would start again and ... the handle of it struck her with force ....', 'nearly knocked her right out', and 'she felt pain straight away in the URJ BERKELEY CHALLENGE PTY LTD v ROCHFORD (Fitzgerald AJA) 5 breast area, and to her abdomen'. (Emphasis added). Although 'a puzzling situation', his Honour found that, 'ever since', the respondent 'has been troubled with pain in ... the rib cage area and underneath and ... including the area of her breasts'. The 'puzzling situation' referred to by the trial judge was created by the unsatisfactory nature of the respondent's evidence, which included both the versions of how she was injured which are referred to in the previous paragraph, and other variations of the alleged incident. Makingdue allowance for any difficulties which the respondent might have experienced in giving her testimony, she failed to provide a consistent, plausible account of what had occurred. That deficiency was exacerbated because each party tendered a report from an expert, neither of whom was called to give evidence or cross-examined. Confusion resulted, as was predictable. However, on one view the trial judge had unchallenged evidence from the appellant's expert that what the respondent claimed could not have happened. His Honour made no reference to the appellant's expert's opinion and, although he quoted from the respondent's expert's report, said that ' ... most of the comments really I would have though do not really call upon expert opinion but are really matters of common sense'. In my opinion, the contrary is correct, and common sense suggests that the respondent was not injured in either of the ways referred to by the trial judge's reasons. In any event, his Honour could not legitimately resolve the critical issue of how the respondent was injured and the reliability of her versions of events in the superficial manner adopted. Significantly, counsel for the respondent was driven to submit to this Court that, although the respondent swore that she was struck by a moving polisher,her evidence should be taken to mean that the polisher was stationary and she was moving when they collided. In these circumstances, it is instructive to consider other evidence. The date of the alleged accident, 25 October 1994, was two weeks prior to the respondent's 65" birthday. She and her late husband had operated a cleaning business which experienced financial difficulties after his death, and she commenced work as an employed cleaner. She 'had a blood pressure problem' and 'periods of anxiety which may have been related to ... financial problems ... ", She consulted her general practitioner, Dr Poovaiah, 'on a fairly regular basis' and, on 4 August 1994, visited him to complain of stress, not feeling 'quite right', and that her work 'appears to cause a lot of strain in abdomen'. She had 'tenderness in one of the abdominal muscles', and other problems. The respondent again visited Dr Poovaiah on 25 October 1994, the date of her alleged injury, and told him that ' ... while she was doing her job ... she experienced a pain and soreness between both breasts and noticed a swelling'. She did not suggest that she had been struck by a polisher and injured. Nor was that asserted in her WorkersCompensation Claim Form dated 31 October 1994. Those omissions assume greater significance when the respondent's version of events leading up to and involving her alleged injury is set against other evidence. The respondent claimed that she had previously complained about the defective polisher to her supervisor, Mrs Young, 'whom she knew well', and Mrs 'Young promised to have it inspected and repaired but did nothing. Mrs Young denied that the respondent had ever complained about the polisher, and said that, if a complaint had been made, the polisher would have been replaced by one of the other available machines. 6 UNREPORTED JUDGMENTS Another witness, Mrs Sullivan, said that she also used the polisher which allegedly injured the respondent, without the problems which the respondent claimed to have experienced or any problems. The trial judge accepted Mrs Sullivan's evidence. There was no evidence from any person other than respondent that she complained about being struck by the handle of the polisher prior to 1996. Mrs 'Young and another witness, Mrs Brooks, said that the onlycomplaint which the respondent made to them on 25 October 1994 was that she had a lump under her breast, and that she was advised to see a doctor. The trial judge rejected the evidence of Mrs Young and Mrs Brooks, in part at least because neither was asked to recollect the events of 25 October 1994 until 1996, which was when the respondent brought her action. While Mrs Brooks was credited with a defective memory, Mrs Young, as 'the person in charge' might have been 'reluctant to accept any fault on her part', although that 'was not put to her'. When attention is turned to the trial judge's discussion of the medical evidence, statements by some doctors concerning the circumstances of the alleged incident upon which the respondent's claim is based — which must have been told to them by the respondent — seem to have been treated as direct evidence of what occurred. His Honour noted that there were a number of reports from Dr Pooviaih, and disposed of that which related to the respondent's complaint of abdominal soreness on 4 August 1994 on the basis ' ... that the probabilities are that whatever abdominal problems she had inAugust 1994 it was not the one about which she was complaining to the doctor after the happening of this accident on 25 October 1994, ... '. No reason was given. Likewise, the respondent's omission to inform Dr Poovaiah on 25 October 1994 that she had been injured that day did not prevent a finding that the ' ... pain and soreness' had 'on the probabilities ... arisen directly as a result of the incident with the polisher ... '. Again no reason was given. His Honour merely said that the 'tenderness of the upper rectus abdominus muscle' revealed on Dr Poovaiah's examination that day 'was quite consistent with the injury sustained at work and the history given'. The opinion of Dr Poovaiah that the respondent 'will continue to experience "constant abdominal muscle pain and would never ever achieve sufficient fitness to allow a safe return to full duties as a cleaner" was also apparently accepted. His Honour further noted that, in a report dated 20 January 1997, reference was made by Dr Poovaiah to the respondent's 'other health problems ... which relate to hypertension, anxiety, depressive neurosis which she had had since 1976 and also a cholesterol problem '. His Honour additionally found 'that theprobabilities are that at the moment she is not suffering from angina pains although obviously she is a person at risk'. Dr Poovaiah referred the respondent to a physiotherapist, whom she visited about 105 times. According to his Honour, 'this incredible regime of physiotherapy' indicated 'the severity of the problem which the [respondent] was having' as a result of the injury she allegedly suffered on 25 October 1994. Another medical witness for the respondent, Dr Patrick, assumed that the respondent had 'sustained direct trauma to the upper abdomen costil margin region by the handle of the polisher when it has come up suddenly at work on 25 October 1994 as described', and expressed the opinion that it was likely 'that she has sustained a contusional injury to the upper abdomen costil margin region and URJ BERKELEY CHALLENGE PTY LTD v ROCHFORD (Fitzgerald AJA) 7 there may be some ongoing enthesopathy at the site of rectus abdominous origin from the costil margin'. Dr Patrick went on to say: In short, there may have been a strain injury at the tendinous origin of the rectus abdominous muscle, along strap muscle which flares up whenever she exerts herself unduly.""On a fair reading of his evidence quoted by the trial judge, Dr Patrick was saying no more than that the incident which the respondent alleged occurred on 25 October 1994 could have caused the symptoms which he described. The trial judge noted that the respondent 'came under the care of Dr Gliksman who appears to be a rehabilitation expert'. There was no further detail given with respect to Dr Gliksman's treatment, but the context perhaps suggests that his Honour thought that Dr Gliksman's involvement was indicative of the severity of the respondent's injury. A psychiatrist, Dr Clark, also expressed an opinion which was accepted, but only subject to qualification. It need not be referred to further. The appellant's medical experts were summarily disposed of in the following passage: She was examined by doctors on behalf of the [appellant]. One was Dr Goulston. He will have none of this. He just comes to the conclusion that there is no clinical or radiological evidence of any organic abnormality to support the [respondent's] claim. Dr Bourke is of the same opinion and even goes so far as to expressly disagree with Dr Patrick with regard to his view in the matter. But it seems to me that on the probabilities the [respondent] has made out her case, namely that this problem has resulted from the polisher colliding with her, and in this regard I would accept Dr Patrick's view of the matter and also that of the general practitioner Dr Poovaiah. Again no reasons were given. Although this appeal is a rehearing, this Court has many times stated that it will ordinarily defer to findings of fact by a trial judge. A major reason for this approach is that it is considered that a trial judge who has seen and heard witnesses has a significant advantage over an appeal court, which must decide the case on the appeal record. Nonetheless, findings must be reconsidered if a trial judge or other tribunal of fact has manifestly misused his or her advantage. I am satisfied that that has occurred on this occasion. The result was an unsustainable conclusion that the respondent was injured as a result of the appellant's negligence, accompanied by inconsistent findings concerning how that occurred. Since the findings which form the basis of the respondent's judgment cannot stand and must be set aside, the appeal should be allowed. There is no basis upon which this Court could itself make findings which would allow the judgment to be upheld. The appellantdoes not seek an order for judgment in its favour, but asks for an order for retrial. In these circumstances, the appropriate orders in my opinion are: 1. ORDER that the appeal be allowed. 2. ORDER that the verdict and judgment, and order for costs made in the District Court be set aside. 3. ORDER that the proceedings be remitted to the District Court for a new trial on all issues. 4. ORDER that the costs of the first trial be reserved to the trial judge on the new trial. 5. ORDER that the Respondent pay the Appellant's costs of the appeal but, if qualified, to have a certificate under the Suitors" Fund Act 1951. UNREPORTED JUDGMENTS Orders accordingly. Counsel for the appellant: J McIntyre Solicitors for the appellant: Hickson Lakeman Holcombe Counsel for the respondent: A J Leslie QC/P J Mooney Solicitors for the respondent: Steve Masselos and Co