New South Wales Court of Appeal CITATION: Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382 HEARING DATE(S): 24 October 2006 JUDGMENT DATE: 20 December 2006 JUDGMENT OF: Handley JA at 1; Santow JA at 43; Bryson JA at 44 DECISION: 1. Appeal allowed with costs.; 2. Judgment for the defendant set aside.; 3. In lieu thereof substitute judgment for the plaintiff for damages to be assessed.; 4. The defendant is to pay the plaintiff's costs of the first trial.; 5. Proceedings remitted to the District Court for the assessment of the plaintiff's damages.; 6. The costs of the further trial are to abide the order of the Judge presiding at that trial.; 7. The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal if qualified. CATCHWORDS: MOTOR ACCIDENTS ACT – injury – defect in vehicle – fault of employer – within Act LEGISLATION CITED: Motor Accidents Compensation Act 1999 CASES CITED: Ghazal v Government Insurance Office (1992) 29 NSWLR 336 Stead v State Government Insurance Commission (1986) 161 CLR 141 PARTIES: Yusuf Huseyin (Appellant) Container Terminals Australia Ltd (Respondent) FILE NUMBER(S): CA 40035 of 2006 COUNSEL: P R Sternberg (Appellant) K Andrews (Respondent) SOLICITORS: Smallwoods (Appellant) Leitch Hasson Dent (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2482 of 2004 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 19 December 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40035 of 2006 HANDLEY JA SANTOW JA BRYSON JA 20 DECEMBER 2006 YUSUF HUSEYIN v CONTAINER TERMINALS AUSTRALIA LTD CATCHWORDS MOTOR ACCIDENTS ACT – injury – defect in vehicle – fault of employer – within Act FACTS The appellant sustained a back injury while operating a gantry at the respondent's container terminal at Port Botany when the motor cut out and he was jerked forward. He brought proceedings against his employer for damages under the Motor Accidents Compensation Act 1999. The trial Judge found for the defendant because the injury was not caused by a defect in the gantry and did not fall within the scope of the Act. The Judge also found that the appellant had lied to the Court and he rejected some of his evidence about the incident. HELD: (1) The trial Judge was not entitled to find that the plaintiff had deliberately lied; (2) He had not been cross-examined for this purpose: Ghazal v Government Insurance Office (1992) 29 NSWLR 336; (3) The appellant was denied procedural fairness by the trial Judge on this issue: Stead v State Government Insurance Commission (1986) 161 CLR 141; (4) The back injury was caused by the use/operation of the gantry as a result of a defect in its diesel motor which caused it to cut out suddenly; (5) The defect was due to the fault of the owner; (6) The appellants injury was within the Motor Accidents Compensation Act. ORDERS (1) Appeal allowed with costs. (2) Judgment for the defendant set aside. (3) In lieu thereof substitute judgment for the plaintiff for damages to be assessed. (4) The defendant is to pay the plaintiff's costs of the first trial. (5) Proceedings remitted to the District Court for the assessment of the plaintiff's damages. (6) The costs of the further trial are to abide the order of the Judge presiding at that trial. (7) The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal if qualified. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40035 of 2006 HANDLEY JA SANTOW JA BRYSON JA 20 DECEMBER 2006 YUSUF HUSEYIN v CONTAINER TERMINALS AUSTRALIA LTD Judgment 1 HANDLEY JA: This appeal arises out of a back injury sustained by the appellant on 15 June 2001 while operating a rubber tyre gantry at the respondent's container terminal at Port Botany. The appellant sued his employer under the Motor Accidents Compensation Act 1999 (the Act) alleging that his injury was within the Act and was caused by a motor accident. The trial Judge (Garling DCJ) held that the gantry was a motor vehicle within the Act and this finding has not been challenged. 2 The Judge found that while the plaintiff was operating the gantry on the day in question it stopped suddenly, jerking his body, and he suffered an injury to his back. However he found that this was not an injury for the purposes of the Act because it did not arise out of the use or operation of the gantry as a result of a defect in it. Accordingly he entered judgment for the defendant and did not assess the plaintiff's damages. 3 The gantry is used to move containers. The whole gantry can move along the terminal (long travel) but the cabin and if necessary a container can be moved across the gantry from one side to the other (cross travel) either while the gantry is moving on long travel or stationary. The gantry moves on long travel under electronic restraint (the magic eye) which will switch off the gantry's motors if it deviates from a fixed path. 4 The gantry can be stopped by the driver, or by someone on the road surface activating an emergency stop button. If the gantry motor is shut off emergency braking is automatically activated causing the gantry to stop suddenly. Its maximum speed on long travel is 8.1 kph and the maximum speed of cross travel is 4.2 kph (blue 157). 5 The driver sits in a small cabin high above the road surface. The cabin has an adjustable seat in front of the control panel and joysticks to right and left to drive the cross travel. There are windows on three sides and a glass floor to enable the driver to see below. 6 About 1.10 pm on the day in question the plaintiff was driving the gantry on long travel and his cabin on cross travel. The seat was adjusted downwards in the direction of long travel and he was leaning forward to look down through the floor when the motor suddenly cut out. There was a dispute as to what happened next but the Judge found that the plaintiff, who had been sitting in an awkward position, was jerked in his seat, felt pain, and suffered a back injury. 7 The Judge said (red 117) that the plaintiff gave the following evidence: "The machine suddenly cut out, jerked me off my seat. I left the seat, held onto the side, hit the glass at the front. I was looking at the wheels, not the computer screen which was on the left. I was holding onto both joy sticks, [my] hand struck the glass window at the front." 8 Elsewhere he referred to the plaintiff's evidence "that he was thrown out of his seat, hitting the window in front with his hands" (118, 119, 121). 9 Although the Judge reserved his judgment he did not have the benefit of a transcript. This records the plaintiff as having given the following evidence about the events immediately after the sudden stoppage of the gantry (black 14): "I was long travel, cross travel, concentrate on the roadway, make sure I get better location, better look to make sure everything clear and then the crane cut out, suddenly cut out and it jerked me off the seat. I hold onto the glass. When I jerked I hold to the side and the glass. Q. Did you leave your seat? A. Yes. Q. You held the glass? A. Yeah. Q. The glass window of the cabin? A. Yes. Q. Is there a glass front to the cabin that you can see through? A. Yes. Q. Is that what you came in contact with? A. Yes." 10 Later (black 22) he gave this evidence: "Q. What happened when you moved forward? Were you still holding the levers or did you let them go? A. I let go because sudden – I couldn't – it was so sudden. I released them then hold to the glass and I jerked. Just saved my head instead of go through the window." 11 Thus the Judge's note of the plaintiff's evidence was inaccurate. The plaintiff did not say that he was thrown out of his seat or that he hit the glass at the front or that his hand struck the glass window. 12 The Judge referred to the histories recorded by a number of doctors and in the claim forms signed by the plaintiff to establish what he considered were significant inconsistencies. It will be necessary to consider these histories in more detail later. As a result the Judge was not satisfied (red 118) that the plaintiff was "thrown out" of his seat or that he "hit" or "struck" the window in front "with his hands" (118, 119). 13 The plaintiff only said that he was "jerked off" his seat or "left" his seat and that he "held" the window, probably with only one hand, while the other held "the side". He was not asked to explain exactly what he meant when he said he "left" or was "jerked off" his seat. The differences between the Judge's summary of the plaintiff's evidence, and his evidence as recorded in the transcript are significant because of the Judge's findings. 14 He also found that the plaintiff had been untruthful and evasive in relation to his activities at the factory managed by his wife. The Judge said (red 119-120): "… he gave evidence about what he did in the business owned by his wife. He very much distanced himself from doing any work whatsoever at that business, merely visiting, but not working. His wife on the other hand was an excellent witness … and she said that he did work there and set out what he did. Having heard all of that evidence, I have no doubt the plaintiff lied to the Court. I do not say that lightly, it was not a matter, in my view, in which he could be mistaken. It was a matter in which I believe he did not tell the truth because he felt that … it would damage his claim." 15 The absence of a transcript again led the Judge into error. The plaintiff was a Turkish Cypriot whose first language was not English who had arrived here in 1969 at the age of 17. He gave evidence without an interpreter but allowance must be made for his difficulties in giving evidence, particularly during cross-examination, in a second language. 16 The plaintiff's evidence about his activities at the factory was given in cross-examination (black 51-3). The critical evidence (52-3) was introduced by this question and answer: "Q. And how often in the last six months would you have gone to your wife's business? A. I never count." 17 In answers to the questions which followed the plaintiff denied "using" the small hand forklift at the factory, and denied doing so "lately". He was asked "but you do use it don't you" (present tense) and answered "I was next to it but I don't use it". He then denied moving boxes with it and when asked "have you ever loaded boxes onto it" he said that he did not remember. 18 He then gave this further evidence about his activities at the factory (62): "Q. What do you to in that business, what do you do? A. I do? Q. Yes? A. What I do. Q. What's your part in that business? A. Just sometime take care for the – I don't actually do much you know. Q. What do you do in that business? A. I'm not doing anything at this stage. Q. When was the last time you worked for that business? A. Last time I was before when I had the light duties. Q. And what were you doing in that business at that time? A. That time sometime I use that machine. Q. And that is the jack machine that we have referred to that your wife's business operates? A. What you call the walk through. Q. You've used that machine? A. I use it when I was at light duties yes … Q. And you still help out in that business? A. Little – much as I can because I'm human I do the best as I can for my family." 19 His wife's evidence was to the same effect. She said that although her husband had done some work at the factory for some time after it opened (65-6) he had not worked there since March 2004, a year and eight months before the trial (67, 71). He still came to the factory to have a cup of coffee with her or to drop off their daughters to work there. 20 Some of the plaintiff's answers appear unsatisfactory on a reading of the transcript and were possibly inconsistent with his wife's evidence of his activities at the factory prior to March 2004. However the plaintiff may have understood the questions to refer to the previous six months or to the present time. His cross-examination did not clearly distinguish between his activities in May 2003 (51) and at the time of the trial and his activities between the commencement of production in January 2003 (65) and March 2004, and since. 21 The Judge's reasons for finding that the plaintiff had deliberately lied do not refer to the change in his activities at the factory after March 2004 or the fact that the plaintiff and his wife both said that he had not worked at the factory during the last six months although he had worked there earlier. A finding that the plaintiff deliberately lied to the Court was not reasonably open on this evidence. Indeed the plaintiff was not cross-examined to suggest that he had deliberately lied about his activities at the factory: compare Ghazal v Government Insurance Office (1992) 29 NSWLR 336. 22 Reference was made to this evidence during final addresses at the trial. Counsel for the defendant did not submit that the plaintiff had deliberately lied (T 8). His Honour said (black 155): "He's also got to face up to the fact that there's potentially a finding that you didn't tell the truth about one matter in particular. I mean as hopeless as [he] was, his wife was equally impressive the other way … I've still got to treat his evidence with care don't I? Sternberg: Yes but your Honour - His Honour: I'm not going to find he's liar, I don't do that … It's not my job." 23 Counsel for the plaintiff then went on to other matters without dealing with the evidence of the plaintiff and his wife about his activities at the factory. The plaintiff's counsel was thus denied the opportunity of addressing on those matters and if he had done so his Honour may have made different findings or obtained the transcript before giving judgment. In the result there has been procedural unfairness and the plaintiff has been denied natural justice. This entitles him to a new trial: Stead v State Government Insurance Commission (1986) 161 CLR 141. 24 The Judge undertook a lengthy review of the histories in the medical reports, in the claim forms, and in the report of Mr Dubos (red 115-8). Some of the reports contained no description of the accident at all (Dr Salama 21/12/01, blue 57; Dr Synnott 19/2/04, 62; Dr Chaudhary 7/10/04, 21). Some contained no report of the gantry stopping suddenly or of the plaintiff's body being jarred (Dr O'Brien 13/8/01, 228 "he had to twist and bend suddenly to the left and experienced a sharp pain"; Dr Parameswaran 13/3/03, 216 "crane suddenly stopped and he felt a sharp pain"; Dr Shultz 8/9/04, 205 "the machine stopped suddenly [and] his body moved slightly to the left"). 25 Other reports referred to the sudden stoppage and jarring (Dr Kirychenko 23/11/01, 233; Dr Bhattacharya 4/3/02, 13; Dr Evans 1/4/03, 34), and yet others to the plaintiff falling forward or being thrown forward (Dr Lee 14/6/02, 47; Dr Collins 24/1/03, 28; Dr Chan 13/3/03, 223; Dr Jones 14/11/03, 41). 26 The employer's workers' compensation claim form (21/6/01, 154) stated "the machine jolted and I felt a sharp pain. I was turning to the computer panel [left] … in a bent over position". The motor vehicle claim form (13/10/03, 140) stated "the machine … suddenly stopped. Threw me off the seat forward back and sideways. I had a sharp back pain." 27 The Judge did not refer to the histories reported by Dr Attia-Soliman (12/9/02, 4) "crane was cut and he lost his balance"; by Dr Bentivoglio (28/11/03, 9) "stopped suddenly causing him to fall forward"; Dr Robertson (1/12/03, 53) "stopped suddenly throwing him forward"; Dr Smith (9/9/04, 197) "suddenly stopped. He was leaning forwards and jerked himself falling forwards"; and Dr O'Neil (24/9/04, 240) "stopped abruptly … he was thrown forward from his seat and in order to avoid falling to the floor he tensed his back". 28 The Judge also did not refer to the plaintiff's statutory declaration (4/11/03, 118) which presumably was prepared to explain the delay in submitting a claim on 13 October 2003, well outside the time limit under the Act ("the sudden action of stopping threw me off the seat … immediately I felt a sharp pain in the back"). 29 This evidence is entirely documentary and the trial Judge was not in a position of advantage when evaluating it. He said (red 118): "I have often said that I have difficulty with histories to doctors, difficulty with their accuracy. Doctors treat patients, they are not investigators. They are not setting out to take a full and detailed statement as to how an accident happened. They simply record what is said. No doubt sometimes they record it more accurately than at other times." 30 He continued: "However, in this case, it can be seen from that long line of histories recorded that on no occasion did the plaintiff say that he was thrown out of his seat, hitting the window in front with his hands. The histories vary … but not one of them goes as far as he goes in his evidence." 31 I have already found that the plaintiff did not say in evidence that he was "thrown out of his seat" and did not say that he "hit" the window in front with his "hands". The histories do vary, but there is substantial consistency in the plaintiff's reports of a sudden stoppage of the crane when he was leaning forward, a jerking movement of his body, and an immediate sensation of sharp pain in his back. 32 These histories provide no basis for a finding that the plaintiff lied to the Court. Indeed the Judge found (119) that the machine did stop suddenly, that the plaintiff was sitting forward, and that his body was jerked. He also found that the plaintiff had suffered an injury (127). The plaintiff only needed a further finding that his injury fell within the definition in s 3 because it was: "(a) … caused by the fault of the owner or driver of the motor vehicle in the use or operation of a vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle or … (iv) such use or operation by a defect in the vehicle." 33 The sudden stoppage occurred during the driving of the vehicle and the Judge found that the plaintiff's back injury was a result of and caused during that driving. The remaining issues are whether the injury was caused by the fault of the owner in the use or operation of the vehicle by a defect in the vehicle, during such use or operation. Mr Donahue, an engineering expert called by the defendant, said (black 108): "I see in front of me the machine is run to what's called … defect. In other words run to the state of which it suddenly becomes damaged. So there's very little preventative maintenance. It's very much a case of corrective maintenance, we wait until something happens and then we repair it … They've decided in their wisdom to let the machine run to defect, in need of corrective repair." 34 The defendant's maintenance records for this gantry (blue 125) disclosed 16 incidents during June 2001 prior to the date of the accident when corrective maintenance or running repairs became necessary, including four occasions when the motor cut out. There were seven incidents on 15 June itself as follows: "no power, start diesel, speed ok but no volts, progress no power, start diesel, speed ok but no volts, progress investigate start up, replace globes in diesel volts cutting out – diesel hunting, fault cleared rectified wheel turn fault, found leg1 0 limit not made cut out again, diesel hunting again, put it to grid 4 wheel turn fault while changing to grid 4 leg1 limit, no made" 35 The maintenance records relating to these incidents were no longer available at the date of trial and it is not possible to determine from the defendant's records whether either of the reported incidents when the motor cut out occurred at 1.10 pm and caused the plaintiff's back injury. However the plaintiff gave evidence (black 14) that he was on his third run which commenced at noon when the machine stopped for the first time that shift. It was then reset and he operated it until it stopped again. He was not cross-examined to suggest that someone activated the emergency stop button or that the magic eye shut off the motor. 36 In these circumstances the Court is entitled to find that the stoppage which caused the plaintiff's injury was the second of those recorded that day and was due to a fault in the diesel motor. Thus the plaintiff's back injury was caused in the use or operation of the gantry as a result of a defect in its diesel motor which caused it to cut out suddenly. 37 The Judge was not satisfied that the provision of a restraining harness would have prevented this injury (127) and this finding cannot be disturbed. There is no additional case against the employer based on defects in the design of the cabin. 38 The plaintiff's injury was therefore an injury for the purposes of the Act if it was caused by the fault of the owner. The Judge found that the plaintiff had to sit forward in the chair (red 119) which was adjusted downwards (red 113). He sat in an awkward position looking down (red 124). He found that it was not uncommon for the gantry to come to a sudden stop (red 113, 114). He concluded (121): "On the evidence before me I can also find that the defendant knew, or should have known, that from time to time these machines, including this one, stopped as a result of emergency braking for a number of reasons. It seems to me that was not uncommon … it is hard to argue that, if the defendant knew that these vehicles stopped suddenly, they would not know that an operator of such a vehicle could be jerked in his … seat and if they are jerked that they could injure their back, particularly if they had had a previous injury to the back." 39 The defendant therefore failed to exercise reasonable care for the safety of the plaintiff when it adopted a policy of corrective maintenance and allowed its gantries to operate until they became defective, and liable to stop suddenly. This constituted fault on its part in the use or operation of the vehicle. 40 The plaintiff therefore established a cause of action in negligence within the Act. The posture he had to adopt when driving the gantry may have placed a cumulative strain on his already injured back making him vulnerable to a jerking injury if the gantry stopped suddenly but these were only pre-disposing conditions which did not negative a finding that he suffered a frank injury when his body was jerked on the occasion in question. 41 The plaintiff was not cross-examined to suggest that he did not suffer any injury at work that day nor, apart from the question of his work at the factory, that he had exaggerated his symptoms. His complaints of pain and weakness find some support in the radiology (blue 240) and there is also evidence of one-sided muscle wastage and other clinical signs (blue 18). 42 The adverse credit findings in relation to the plaintiff's evidence about what happened when the gantry suddenly stopped and his evidence about his activities in the factory must be set aside. The evidence relating to liability and the evidence relating to damages was not otherwise interrelated. In these circumstances it is not necessary or appropriate to order a new trial on the issue of liability. The following orders should be made: (1) Appeal allowed with costs. (2) Judgment for the defendant set aside. (3) In lieu thereof substitute judgment for the plaintiff for damages to be assessed. (4) The defendant is to pay the plaintiff's costs of the first trial. (5) Proceedings remitted to the District Court for the assessment of the plaintiff's damages. (6) The costs of the further trial are to abide the order of the Judge presiding at that trial. (7) The respondent is to have a certificate under the Suitors' Fund Act 1951 for the costs of the appeal if qualified. 43 SANTOW JA: I agree with Handley JA. 44 BRYSON JA: I agree with Handley 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.