Scholten v Bland Shire Council [2003] NSWSC 290

New South Wales Supreme Court

CITATION : Scholten v Bland Shire Council [2003] NSWSC 290 HEARING DATE(S) : 3 April 2003 JUDGMENT DATE : 11 April 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : There will be judgment for the defendant. The plaintiff is to pay the defendant's costs. The Exhibits may be returned.

CATCHWORDS : Liability - negligence - delay - no question of principle. LEGISLATION CITED : N/A CASES CITED : N/A Maria Jacinta Lucia Francisca Scholten (Plaintiff) PARTIES : v Bland Shire Council (Defendant) FILE NUMBER(S) : SC 20230 of 2000 COUNSEL : Mr Greg Niven (Plaintiff) Mr Chris Hickey (Defendant) SOLICITORS : Napier Keen (Plaintiff) A O Ellison & Co (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 11 April 2003

20230 of 2000 Maria Jacinta Lucia Francisca Scholten v Bland Shire Council

JUDGMENT 1 MASTER: These proceedings concern an incident that took place on 8 May 1984. The proceedings were commenced by the then plaintiff (the deceased, the late Richard Scholten) in 1986. He died on 31 May 1994. The proceedings are now maintained by his widow. The hearing finally took place on 3 April 2003. 2 The delay in this matter coming to hearing is largely left unexplained. It is of such length that it is now extremely difficult, if near impossible, for the court to do justice between the parties. One consequence is that the plaintiff is now left with but limited material to present in support of her case. 3 The plaintiff's evidence consists of two bundles of documents and some short oral evidence from the plaintiff herself. 4 One bundle is described as a "Schedule of Evidence" (Exhibit A). It comprises inter alia two statements from the deceased (one of which is dated 24 July 1989) and a copy claim of injury made by him on 15 May 1984. 5 The other bundle is described as "Plaintiff's Medical Report Schedule" (Exhibit B). The reports contain inter alia history (including versions of the incident). The earliest is a history given on 2 December 1985. 6 The short oral evidence of the plaintiff contained inter alia her recollection of a version of the incident given to her by the deceased on or about the evening of the day of the incident. She was but briefly cross-examined. 7 The defendant has not led any evidence on the question of liability. At the conclusion of the evidence on that question, the court was asked to first deal with it. I reserved judgment to enable further consideration of the material. 8 At the time of the incident, the deceased was an employee of the defendant. He was one of a gang of employees working at West Wyalong. He was fulfilling the role of leading hand. He was asked by the foreman to assist him in the hooking up of a caravan to a truck. The caravan was equipped with a ring-type truck hitch. It was used inter alia to transport tools. 9 It seems to be common ground that the foreman was in the truck and was reversing it to the caravan and the deceased was between the truck and the caravan attempting to line up the hook on the back of the truck with the hitch on the trailer. At some stage, the deceased came to use a crow bar to assist in the process. He claims to have suffered injury thereafter. 10 The nature of the injury claimed by the plaintiff may be found in his medical reports. It has been described as a back injury with functional overlay. For completeness, I should add that the defendant has informed the court that it has medical reports which provide views that are in conflict with those of the plaintiff's experts. Indeed, the defendant's view seems to be that no real injury was suffered in the incident. 11 The submissions made on the question of liability were brief. Largely, they concerned what have been regarded as the three versions of the incident which emerge from the evidence. 12 It seems to be a common approach that there are three versions and that the versions are different. 13 There is the version that emerges from the plaintiff's evidence. It is her recollection of what was said to her by the deceased in May 1984. It was to the effect that the foreman backed up a little too hard and the bar slipped off his knee and he copped the strain. 14 There is the version that appears in the claim form made by the deceased on 15 May 1984. It provides an abbreviated version which attributes the cause of the incident to a slipping of his foot. It reads inter alia "whilst levering draw bar of caravan with crow bar to hook up to truck, foot slipped, causing wrenching of back". It receives some support from the content of the copy report of injury prepared about the same time by the employer. The deceased's document was prepared at a time when it could be expected that the incident was fresh in his memory. 15 There is the version which appears in the statement made by the deceased which is dated 24 July 1989 (it was made about 5 years after the incident). It is the most detailed of the three. It has the caravan not standing level. The right wheels were in a gutter. He had jacked it up so that the two side supports were off the ground. The statement also contained inter alia the following:- "The Foreman reversed the truck to the van and had made 3 attempts to line up the hook on the back of the truck with the hitch on the trailer. He kept missing the bar. The truck had a tonne of bag cement on the back and this may have restricted visibility so the Foreman may not have been able to see me properly. Certainly, had the Foreman asked another member of the gang to act as a guide, then the Foreman would have been able to identify where the hitch of the van was, in order that I could drop the draw bar onto the ball. As it happened, on the third attempt, I got a crow bar and putting one end of the crow bar under the draw bar and using the edge of the crow bar I endeavoured to level the van's draw bar hitch about 2 – 3 inches so it would drop on easily. As the Foreman drove back, the hook on the truck missed the eye on the van and hit the side of the draw bar deflecting the van to the right and causing the whole weight of the van to come onto the crow bar held by me. As the weight came suddenly onto the bar which I held in the cradle of my right arm, I found myself suddenly trapped with the crow bar over my leg. I felt a sudden sensation of sharp tearing pain in my right chest, shoulder, neck and through my head down to my right buttock." 16 The plaintiff invites the court to accept the version which appears in this document. It is said that this version evidences an unsafe system of work (inter alia it is said that the foreman should have used another member of the gang to act as a guide in the hitching process). 17 The onus rests with the plaintiff. The plaintiff has to satisfy the court, on the balance of probabilities, that there has been a breach of duty causing damage to the deceased. In the circumstances of this case that is a formidable task. In my view, that onus has not been discharged. 18 The plaintiff is asking the court to accept a statement made about 5 years after the event. It is a statement that cannot now be tested by cross-examination. There are prior inconsistent statements. The statement itself has its own inadequacies. 19 I am not satisfied that I should accept the version appearing in the statement dated 24 July 1989. I am not satisfied that I should prefer it to the much earlier inconsistent version which appears in the document dated 15 May 1984. I should also observe that it was also inconsistent with the other earlier version arising from the plaintiff's recollection of what was said to her by the deceased. 20 If a view needs to be expressed as to preference, it is my view that the document dated 15 May 1984 propounds the version which should be preferred. 21 Even if a different approach had been taken on these matters, I am not satisfied that the version propounded in the statement dated 24 July 1989 evidences a breach of duty which caused the damage allegedly suffered by the deceased. 22 Accordingly, the plaintiff's claim fails. There will be judgment for the defendant. The plaintiff is to pay the defendant's costs. The Exhibits may be returned. **********