New South Wales Court of Appeal CITATION : Green Leisure Group Pty Ltd & Anor v Maguire [2001] NSWCA 384 revised - 2/11/2001 FILE NUMBER(S) : CA 40499/00 HEARING DATE(S) : 28 August 2001 JUDGMENT DATE : 1 November 2001 Green Leisure Group Pty Ltd - First Appellant PARTIES : Brian Beatsen - Second Appellant Sean Andrew Maguire - Respondent JUDGMENT OF : Giles JA at 1; Hodgson JA at 37; Ipp AJA at 38 LOWER COURT JURISDICTION : District Court LOWER COURT 298/99 (Parramatta) FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER : COUNSEL : J Hislop QC & B Smith - Appellants D Cassidy QC & C Burge - Respondent SOLICITORS : W R Harvey & Associates, Parramatta - Appellants Grech Partners, Blacktown - Respondent CATCHWORDS : PERSONAL INJURY - adequacy of reasons - preference for evidence of plaintiff and his father - but much other evidence against plaintiff's account - failure adequately to deal with the other evidence - new trial ordered. D Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430; CASES CITED: BHP Steel (JLA) Pty Ltd v Khan (No 2) (2001) NSWCA 269; Devries v Ausralian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival (2001) 75 ALJR 734. DECISION : (1) Appeal allowed; (2) Verdict and judgment for the plaintiff set aside; (3) Order that the respondent pay to the appellants the $75,000 paid under the judgment; (4) Proceedings remitted to the District Court for a new trial; (5) Respondent pay the appellants' costs of the appeal and to have a certificate under the Suitors Fund Act if qualified; costs of the trial to be in the discretion of the judge conducting the new trial. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40499/00 DC 298/99 (Parramatta) GILES JA HODGSON JA IPP AJA Thursday, 1 November 2001 GREEN LEISURE GROUP PTY LTD & ANOR v MAGUIRE Judgment 1 GILES JA: The respondent claimed to have been injured at work. Delaney DCJ accepted his evidence, found the appellants liable, and assessed damages at $150,021. The appellants contend that they should not have been found liable and that, if they are liable, the assessment of damages for past economic loss was excessive. 2 The first appellant, Green Leisure Group Pty Ltd, conducted a wholesale plant nursery at Catherine Fields. The respondent, Mr Sean Maguire, had training as a horticulturalist and was employed by the first appellant as an order picker. On being provided with an order he collected the appropriate plants from where they were kept in the nursery, took them to the despatch area, and when the truck arrived loaded them onto the truck. For the heavier trees loading was usually by use of a Bobcat, fitted with tines in place of the bucket so that it operated as a fork lift. The second appellant, Mr Brian Beatsen, was employed by the first appellant as a driver, and commonly operated the Bobcat on such occasions. 3 On 18 September 1995 the respondent and a fellow employee, Mr Adrian Dell'Olio, were loading trees onto a truck. Advanced trees up to eight feet tall were being loaded, which together with the root ball weighed from 100 to 150 kilograms. The Bobcat was being used, operated by the second appellant. The respondent and Mr Dell'Olio were on the tray of the truck. The second appellant would lift a tree and lower it onto the tray of the truck, and it would be slid off the tines of the Bobcat and dragged to a suitable position. 4 On the respondent's evidence, on one such lift the tines of the Bobcat were lowered onto his right foot as he stood on the tray of the truck, trapping his foot between one of the tines and the tray. (At times it was said that the tines were "dropped", on my reading of the evidence meaning a lowering rather than uncontrolled fall.) The pain was severe, and the respondent called out. The second appellant could not hear because of the noise of the Bobcat, and Mr Dell'Olio jumped down from the truck and told him what had happened. The second appellant then raised the tines and released the respondent's foot. Still on the respondent's evidence, he went to the office of his boss, Mr Mulrooney, and told Mr Mulrooney that his foot had been crushed by the Bobcat and was very sore. The respondent telephoned his father from the office. His father arrived about an hour later, and took the respondent to the surgery of a Dr Parhawk at Camden and then home. 5 On the appellant's case, none of this happened, and any injury to the respondent's foot came about in some other way. 6 Apart from his own evidence, the respondent's case was supported by evidence from his father. The respondent's father said that he received a telephone call to say that the respondent had had an accident with a fork lift dropping something onto his right foot and needed to be picked up. He drove to the nursery and picked the respondent up. The respondent said that his foot was aching and asked to be taken to a doctor. He was taken to a doctor, and then home. The respondent's father could not identify the date and was not confident of the time of day, and said that he was "almost certain" that he took the respondent to a doctor on the way home. Apart from the questions directed to date, time and taking the respondent to a doctor, he was not challenged in cross-examination. 7 There was possible further support for the respondent's case from what happened in relation to workers' compensation benefits. The evidence included an employer's report of injury to the workers' compensation insurer, signed by Mr Fouracre on behalf of the first appellant. It was dated 10 October 1995, and recorded an injury to the respondent on 18 September 1995 and reported to Mr Mulrooney, described as "bob cat forks were lowered onto his foot". The respondent was paid workers' compensation on the basis of an injury on 18 September 1995. 8 Mr Fouracre was the accountant or financial controller of the first appellant. There was no direct evidence of the source of the information in the report of injury, but the respondent said that he filled in some forms in relation to workers' compensation and on the evidence of Mr Mulrooney he (Mr Mulrooney) was not the source. Mr Fouracre did not give evidence, and his absence was not explained. No doubt the report of injury and the payment of workers' compensation could have been founded on a story made up by the respondent, but it may be thought unlikely that Mr Fouracre would have completed the report without some investigation or that the workers' compensation insurer would have paid compensation without taking steps to verify the injury reported. On the other hand, investigation and verification would have had to be by contact with Mr Dell'Olio, the second appellant and Mr Mulrooney, and their evidence was not consistent with confirmation on investigation or verification. On balance, what happened in relation to workers' compensation benefits could favour the respondent's case, but its weight is dubious. 9 The appellants pointed to a number of matters which, they said, nonetheless told so heavily against the respondent's case as to require its rejection. 10 First, the respondent had given different accounts of the circumstances of his injury to doctors who had treated or examined him. The usual sheaf of medical reports was tendered and admitted by consent, and none of the doctors gave oral evidence. No original notes of consultations with the relevant doctors were tendered. The appellants' reliance on the differences is only as good as the doctors' understanding and recording of what the respondent told them, but subject to that the differences were marked. 11 The most striking different account is found in the report of Dr Shenstone, a consultant rheumatologist who examined the respondent on 24 November 1995. This was a little over two months after 18 September 1995, and one would expect the respondent's recollection to have been good. The respondent readily agreed in cross-examination that what Dr Shenstone recorded was not what had happened. What Dr Shenstone recorded was - "At that time he was loading up a truck, supervising a forklift truck with his foot on the rung of a ladder on the side of the truck. The foot subsequently became crushed underneath the forklift and the logs [sic: ?legs] jammed between the rung of the ladder and the side of the truck which required jacking the side of the truck to release it over a 5 minute period." 12 Dr Haynes examined the respondent on 20 December 1996. In circumstances which need not be described, his record of the respondent's account of his injury was only in evidence so far as it included that "His mother collected him from work and took him to a local medical centre." 13 Dr Harrison examined the respondent on 12 February 1998. The respondent and Mr Dell'Olio "were in the process of fitting a belt-like plastic brace around [the tree] as a band to support the root ball and plastic as it was lowered": this was not referred to in the respondent's evidence. When his foot was released the respondent "fell backwards onto the tray of the truck in severe pain". Dr Harrison recorded that the respondent "got off the truck awkwardly and drove himself to the nearby Camden Medical Centre where he was seen by a doctor …": a third alternative, therefore, to being driven by his father or his mother. 14 Dr O'Malley examined the respondent on 3 November 1998. He recorded, "He was loading a large pine tree onto a truck when the forklift broke down and one of its prongs struck him on the right foot". As a perhaps lesser matter, this raised a question of the fork lift malfunctioning. 15 Secondly, the respondent's credit was by no means beyond reproach. He claimed that a later injury when his right ankle gave way was consequential on the injury on 25 September 1995. In his evidence in chief he said that he was "leaning up" at a rock concert to see the band "and as I came back down my leg gave way". In cross-examination he acknowledged that he "jumped" to see the band, and according to the hospital records he was crowd surfing and fell awkwardly. He claimed that he had another injury when he "slipped off the bus", which it turned out was involvement in a scuffle on a bus. There was, when taken with the different accounts of the circumstances of the respondent's injury on 25 September 2995, cause to question whether his evidence was reliable. 16 Thirdly, the evidence was not consistent with the respondent consulting Dr Parhawk about his injury on 18 September 1995. The respondent said quite firmly in his evidence in chief that he attended Dr Parhawk only on one occasion, although he rather drew back from that when its significance became apparent in cross-examination. Dr Parhawk did not provide a report, but there was tendered from his records a note of a consultation with the respondent on 25 September 1995, not in relation to a foot injury but in relation to vomiting and passing blood in the urine. There was no objective evidence of any other consultation with Dr Parhawk. 17 A facet of any consultation with Dr Parhawk, and possibly also of inconsistent accounts to doctors, was the position as to x-rays of the respondent's foot. In his evidence in chief the respondent was asked, in connection with going to Dr Parhawk, whether he had "any other treatment that day". He answered, "I had x-rays". In cross-examination he said that Dr Hung sent him for x-rays, not Dr Parhawk. Other evidence showed that he first consulted Dr Hung, his general practitioner, on 9 October 1995. The earliest x-ray report in evidence was dated 10 October 1995. The history taken by Dr Harrison included that no x-rays were taken when the respondent saw a doctor on the day of the injury. 18 In the circumstances, the appellants said, the only rational conclusion was that the respondent had not had x-rays when he saw Dr Parhawk. At the least, they said, there was an error in the respondent's evidence; but of more significance, the absence of an x-ray at the time confirmed that the respondent had not consulted Dr Parhawk on 18 September 1995. The reasoning, however, is not without qualification. Dr Hung's report of 18 August 1996 said of the consultation on 9 October 1995, "He had been seen by a doctor and the foot was x-rayed, revealing no fracture. He presented because the foot was still painful … ". 19 Fourthly, while Mr Dell'Olio agreed that on occasions he worked with the respondent in loading plants onto trucks, he denied any occasion on which the respondent's foot was hurt by the lowering of the Bobcat's tines or on which he told the second appellant to raise the tines in order to free the respondent's foot: he said he would remember that if it had happened. So far as Mr Dell'Olio was concerned, the respondent was at work one day and was no longer at work thereafter, and he knew of no reason for the departure. 20 Fifthly, the second appellant said that there was no occasion as described by the respondent. The second apellant ceased to work at the nursery in 1997, and he said that when he returned to pick up some pay he was told that he had injured someone's foot and "it was all news to me". There was specifically put to the second appellant an occasion on which Mr Dell'Olio told him to lift the tines up because they had been dropped on the respondent's foot, and he said, "It never happened". 21 Sixthly, Mr Mulrooney denied any occasion on which the respondent came to his office, said he had been injured in the manner described, and telephoned his father. According to Mr Mulrooney, one day the respondent was working at the nursery and then he suddenly left. Mr Mulrooney later heard that the respondent was being paid workers' compensation, and asked why. He was informed that the respondent had "hurt his foot with the Bobcat", and he told his informant that it was news to him. Asked whether it was a case of no recollection or not happening, Mr Mulrooney said, "In my mind it didn't happen". 22 How did Delaney DCJ resolve these matters? 23 His Honour said that he accepted the respondent as a truthful witness, at one point prefacing that by the words "On observing him … ". He did not refer to the evidence about the rock concert and the bus. He said that he had not the slightest hesitation in accepting the respondent's father as a truthful witness. He did not elaborate. 24 His Honour did not in the reasoning leading to his finding as to liability refer to the differences between the respondent's evidence of the circumstances of his injury, and the accounts given to the doctors who treated or examined him. In part he referred to the differences when considering the doctors' reports for assessment of damages, but attributed them to error on the part of the doctors. As to the materials suggesting that the respondent's evidence of consulting Dr Parhawk on the day of his injury had to be incorrect, the first and only consultation with Dr Parhawk being a week later than 18 September 1995 and in respect of another condition and the first recorded consultation in respect of a right foot injury being with Dr Hung on 9 October 1995, his Honour noted the submission that he should not accept that the respondent "had sought medical treatment when he alleged he did" but otherwise quite passed over the significance of these matters to his findings. 25 His Honour said that he preferred the respondent to Mr Dell'Olio as "a more accurate historian", not because Mr Dell'Olio was not endeavouring to tell the truth but because "he has just forgotten about these events as his life has progressed". He thought also that Mr Mulrooney's recollection of events had been "coloured by the effluxion of time and not being so specifically involved in them", and preferred the respondent's recollection to that of Mr Mulrooney. As to the second appellant, however, he was quite blunt, saying - "I just did not accept Mr Bestsen [sic] as being a truthful witness. I found that Mr Bestsen [sic] would say and did say anything which he thought would advantage the defendant, his employer in this case. Where his evidence conflicts with that of Mr Maguire, I have not the slightest hesitation in accepting Mr Maguire." 26 The substance of the appellants' submissions on appeal was that the respondent's evidence was manifestly unreliable and the objective evidence was inconsistent with injury on 18 September 1995 in the manner he suggested or at all. The respondent may have injured his foot, but on the objective evidence the injury could have been suffered away from work shortly prior to 9 October 1995 and dressed up as a work injury in order to claim workers' compensation and then common law damages. 27 It is clear enough, and was not controverted by the appellants, that we must approach the appeal on the basis that Delaney DCJ's observation of the witnesses did or may have influenced his acceptance of the respondent's case. The appellants submitted, however, that there should nonetheless be appellate intervention, because there were objective facts which incontrovertibly stood in the way of acceptance of the respondent's case and there were compelling reasons for rejecting the respondent's case with which his Honour had not dealt; further, they said, the forceful rejection of the second appellant's evidence was not adequately explained and was unwarranted. In the course of argument in the appeal the appellants placed increasing emphasis on Delaney DCJ's failure adequately to deal with these facts and reasons, and to explain his preference for the evidence of the respondent and his father and the rejection of the second appellant's evidence. 28 There were undoubtedly significant reasons for rejecting the respondent's case. A doctor's record of the history given by the patient may reflect some distortion in the process, but the differences in the present case were so marked and in a number of different histories that it is difficult to explain them in that way. An event of the kind of which the respondent gave evidence was likely to have been remembered, by Mr Dell'Olio in particular, and effluxion of time really did not explain the denials of the respondent's account by Mr Dell'Olio and Mr Mulrooney. There was nothing in the evidence of the second appellant which would justify the strictures heaped upon him, and it was not put to him that he was favouring the first appellant (which was of course no longer his employer). That the respondent had consulted Dr Parhawk on 25 September 1995 was objectively in question, and although it was supported by his father's evidence that evidence was qualified by some doubt. The acceptance of the respondent's evidence was in the face of much to the contrary. 29 The respondent submitted that it nonetheless withstood appellate review, because founded on Delaney DCJ's observation of the witnesses. He referred in particular to the judgment of McHugh J in Rosenberg v Percival (2001) 75 ALJR 734 in which, in repeating the well-known emphasis on the trial judge's advantages explained in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477, 479, his Honour said (at [38]) that the appellate court could not set aside the trial judge's finding "on the bare ground that he did not give sufficient weight to matters that the judges of the Full Court thought assisted the patient's case", and (at [41]) - "One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury." 30 The passages in the judgment of McHugh J at [38] to[41] were cited as expressing the determinative principles in this Court in Gillett v Murphy (2001) NSWCA 199 at [37]. 31 The evaluation of weight is one thing. Adequacy of reasons is another: hence, no doubt, the appellants came to focus on the failure Delaney DCJ adequately to deal with the matters telling against the respondent's case. The trial judge's advantage makes it all the more important that the reasons explain the outcome. If credibility is important to the outcome, then although in the end express or implied acceptance of credibility may not bear elaboration it should at least be made apparent that the acceptance is after due consideration of the other facts and circumstances in the case. 32 This, in my opinion, is where the reasons of Delaney DCJ are wanting. The pressures on a busy trial judge must be acknowledged, and unrealistic demands should not be made, but the obligation to give adequate reasons remains: see Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430. 33 His Honour asserted acceptance of the respondent as a truthful witness, but without at that time paying regard to the differences between the respondent's evidence of the circumstances of his injury and the accounts given to the doctors who treated or examined him; without doing more than saluting in passing the question of his consulting Dr Parhawk; and without referring at all to the rock concert and the bus. The evidence of the respondent's father was at least open to doubt. His Honour then put aside the evidence of Mr Dell'Olio and Mr Mulrooney as not reliable, but did so because of his preference for the evidence of the respondent rather than coming to that preference despite the evidence of Mr Dell'Olio and Mr Mulrooney. And he rejected the evidence of the second appellant in a manner for which there was no warrant. What happened in relation to workers' compensation benefits provided some support for the respondent's case, but it had to be weighed with all else. The deficiency in his Honour's reasons is not in the weight given, but in the weighing process as revealed in the reasons. 34 In these circumstances the verdict and judgment for the respondent must be set aside and there must be a new trial. It is not necessary to deal with the appeal as to the assessment of damages for past economic loss, and pointless to do so. 35 The appellants sought an order, in the event that a new trial was ordered, for repayment of $75,000 paid under the judgment. They expressly did not ask for interest on that amount. The respondent opposed the order if there was to be a new trial as distinct from a verdict and judgment for the defendant, but did not present argument. The cases are against the respondent, see BHP Steel (JLA) Pty Ltd v Khan (No 2) (2001) NSWCA 269 and cases there cited. 36 The respondent must pay the appellants' costs of the appeal, but since there must be a new trial the costs of the trial should be in the discretion of the judge before whom the new trial is held. I propose the following orders - 1. Appeal allowed. 2. Verdict and judgment for the plaintiff set aside. 3. Order that the respondent pay to the appellants the $75,000 paid under the judgment. 4. Proceedings remitted to the District Court for a new trial. 5. Respondent pay the appellants' costs of the appeal and have a certificate under the Suitors Fund Act if qualified; costs of the trial to be in the discretion of the judge conducting the new trial. 37 HODGSON JA: I agree with Giles JA. 38 IPP AJA: I agree with Giles JA. ______________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.