(x) Dr Roldan, 23 May 2002: " … she found five or six large rocks the size of 'half a carton of beer' and probably weighing 30 kilograms each. She told me that she picked these rocks up and moved them off the road but when she reached for the fifth one she felt a 'creaking' sound in her lower back".
15 Of the authors of these notes and reports, only Dr King gave evidence. He did not have an independent recollection of the consultation on 28 January 1999, but said that he wrote down everything said by a patient which in his opinion was significant to understand the mechanism of injury, that in "threw rock off road" he most likely used the word used by Ms Watts, and that if she had told him of throwing small rocks off the road and rolling two larger rocks off the road he would most likely have recorded it; he said that he would have regarded rolling two larger rocks off the road as significant.
16 The judge asked Dr King whether the note as to "two or three house brick sizes" could mean rocks approximately as big as two to three house bricks, and he said that that was not his way of expressing size and that he "would say, from interpreting my notes, the rocks would each be the size of a house brick, approximately". The judge continued -
"Q. Because as it's written there, it seems to me, equivocal --
A. Mm.
Q. Would you agree with that or not?
A. It could be --
Q. It could mean the rocks were two to three house bricks in size?
A. It could be interpreted as that --
Q. Do you have an actual recollection of what she said?
A. No, no."
17 In answer to Boral's counsel, Dr King then affirmed that he interpreted his notes as being two to three rocks each the size of a house brick approximately.
18 These histories were not fully put to Ms Watts in cross-examination. She said that it had always been her recollection that the rock she moved before injuring herself was "about 2 feet by 2 feet or a spherical shape", and that it was too heavy for her to lift off the ground. Dr Spooner's note was put to her. She did not dispute that it recorded what she had said but said that she was upset and in a lot of pain. She said that she told Dr King that the rocks were from the size of house bricks, and initially agreed that she told him that she threw the rocks off the road; reading this passage of cross-examination as a whole, however, it is evident she had no real recollection of what she told Dr King although saying that she demonstrated how she moved the rocks and that she had bowled them off the road. It was put to her that she did not tell Dr Green or Mr Grant that she was bowling large rocks off the road, and she answered "No": as I read the transcript, she was agreeing that she did not. She said that she told Dr Green that she had injured herself removing rocks from the road. She agreed that she did not tell Dr Isaacs that she bowled large rocks off the road, and said that she told him that she was moving rocks from the road. There is no doubt, however, that injury in the manner Ms Watts asserted was put in issue and raised with her.
19 Secondly, Boral said that Ms Watts' evidence was not consistent with the course of the pleadings and particulars prior to the hearing, as to which regard was had also to her evidence concerning the fishpond rock.
20 In the statement of claim filed on 29 January 2001 it was alleged that as part of her duties Ms Watts was required to remove heavy rocks that had fallen on the roadway and that "as she picked up the fifth heavy rock, [she] suffered severe injury …". In the further amended statement of claim filed on 13 October 2003 the latter part became, "While in the process of removing a rock or immediately thereafter the Plaintiff sustained injury … ".
21 By a letter dated 13 March 2001 Boral's solicitors asked for particulars of the "approximate dimensions and weight of the four previous heavy rocks and what was the approximate dimension and weight of the fifth heavy rock which resulted in the injury". The answer in a letter of 2 October 2001 from Ms Watts' then solicitors was -
"The Plaintiff cannot provide approximate dimensions for the four previous heavy rocks. The Plaintiff has in her possession the fifth rock and we are currently obtaining same from the Plaintiff in order to obtain the dimension. This information will be provided to you in due course."
22 In a further letter from Ms Watts' solicitors dated 29 October 2001 it was said -
"The fifth rock is presently in our office and is available for inspection. The dimensions of the fifth rock are as follows -
Length: Approx 40 cm.
Width: Approx 25 cm
Height: Approx 25 cm
Weight: Approx 20 kilo's [sic]"
23 Ms Watts agreed in cross-examination that the day after her injury she asked a fellow worker to obtain a particular rock. She did not agree that it was the rock she said she had "touched before injuring herself"; rather, it was a rock "on the side of the road that had a drill hole completely through it", one of the smaller rocks which she threw. She said that she wanted the rock for her outside fishpond, that it was in her fishpond for a while, and that she gave it to her then solicitors at their request. It was about a foot long and skinny with the drill hole through it. Later in cross-examination Ms Watts said that the fishpond rock was "the last one that I threw/bowled [sic]", before she pushed the two larger rocks. It was the only rock she gave the solicitors.
24 In further cross-examination, Ms Watts said that Mr Kilpatrick of the solicitors initially handled her case, then Ms Grguric; that she told Mr Kilpatrick that she had one of the rocks she had moved but not that it was the fifth rock; that she gave the fishpond rock to Ms Grguric; and that she gave the rock to her solicitors because they asked for it and she could only speculate why. She was asked whether she was told why they wanted the fishpond rock. Objection was taken on the ground of privilege and the question was rejected.
25 Neither Mr Kilpatrick nor Ms Grguric gave evidence. No explanation for their failure to do so was given.
26 An arbitration was held in October 2002, following which Ms Watts changed her solicitors and counsel and the allegation was reframed in the further amended statement of claim of 13 October 2003. It was put to Ms Watts that until the change in representation her instructions had been that she was injured picking up the fifth rock, which she denied. The implication of a change of instructions following the arbitration and change in representation was not taken further.
27 The judge said of these matters -
"She was cross-examined at length about various histories she was said to have given to doctors. Those histories were said to be inconsistent with the evidence she gave before the Court. I have taken into account her answers on those issues. My view of the plaintiff as regards those alleged prior inconsistent statements was that she was unlikely to be a person who would be giving great detail as to how an accident happened when being seen by doctors, and she was unlikely, in my view, to be turning her mind to the need for complete accuracy when seeing the doctors.
I am also cautious about accepting histories, as regards detailed information as to the occurrence of an event, allegedly given to treating doctors. It is one's general experience that medical practitioners are far more concerned with knowing just the mechanics of how the injury occurred and thereafter much more intent on seeking to remedy the symptoms. As I say, I am cautious as to how much weight I can give to the histories said to have been recorded by the doctors.
I thought the plaintiff was reasonably credible when answering questions put to her on those recorded histories. She was prepared to give answers which, on one view, could be unfavourable to her case. She did not give me the impression that she was seeking to deceive me. She was taken to details as to the number of solicitors who had been employed by her in this action and particulars she had given to those solicitors. She was specifically cross-examined about answers given to particulars sought by the defendant. The answers were tendered by the defendant in the matter. I have taken those into account.
I accept that there is some variability in the history given by the plaintiff and the particulars given by the plaintiff, but I have formed the view, as I watched and listened to her and considered other evidence, that she was trying to be truthful with the Court when she gave her version as to how the accident happened. I prefer the version that she has given in her evidence as being the likely scenario of circumstances at the time of the accident. She confirmed that she had moved three of the small rocks away and that there was then room for her truck, but she decided to move the two larger rocks."
28 Later in his reasons the judge said -
"My impression of the plaintiff was that she was attempting to give honest evidence before me. I did not form the view she was seeking to deceive me - she made concessions against her interest. Although I approached her evidence cautiously, having regard to the different histories attributed to her in doctors' notes and similar reports and in regard to the somewhat chequered litigation history, I formed the view that the version of the accident she gave before me was more than likely to have been true. I have, as I have said, taken into account the answers to particulars that she gave. I have formed the view that her injury occurred when she was seeking to manipulate heavy rocks on the roadway at the quarry."
29 Later again the judge said -
" … There had been interposed in the plaintiff's evidence a witness called by the defendant, being a Dr King. He gave evidence as to the history he obtained from the plaintiff. That history included the plaintiff telling him, when he consulted her on 28 January 1999, that some rocks had fallen onto the road, that there were two or three house-brick sizes, that the plaintiff had pulled up, thrown the rocks off and, as she straightened up, she noted backache. It was his view that that history was the only one given to him by the plaintiff at that time. It was his view also that it was most likely the plaintiff had used the word 'threw' in relation to the way she dealt with the rocks. He interpreted his notes as meaning that the plaintiff had said there were two to three rocks, each of house-brick size. Clearly, the notes are equivocal, in my view. He conceded in cross-examination, however, that he did not record histories from patients word for word; it was his understanding of what had been said. As I have observed earlier, I think doctors are often more concerned with treating the injured patient than getting detailed histories.
My impression, having listened to Dr King, was that I should be cautious about accepting his summary of what was said as being an accurate account of the plaintiff's version of the accident. If it had been accurately recorded, I am cautious about accepting that the plaintiff would have truly turned her mind to the full circumstances of the accident."
30 Boral submitted that the judge was not entitled to take into account "general experience" of what medical practitioners were concerned to know, and that although he referred to the particulars provided by Ms Watts' solicitors he failed to refer to the change in the statements of claim from picking up the fifth heavy rock to removing a rock. It said that the judge could not have regarded Dr King's notes as equivocal when Dr King had affirmed their meaning. And it said that, while the judge had accepted Ms Watts' truthfulness, he had failed to address whether she was reliable in her recollection. Apart from those specific deficiencies, Boral submitted that Ms Watts' evidence of how she suffered her injury was inconsistent with the histories and the early pleadings and particulars, including as to the smaller rocks which had grown to being close to two house bricks; that her explanation of the fishpond rock was far fetched; and that although the judge's finding was credit-based it was appealably wrong.
31 The restraint on setting aside a trial judge's credit-based finding of fact was recently re-stated in Fox v Percy (2003) 214 CLR 118. From the joint judgment of Gleeson CJ and Gummow and Kirby JJ at [23]-[31], the finding may be set aside if it is shown to be wrong by incontrovertible facts or uncontested testimony, or if it is glaringly improbable or contrary to compelling inferences. The trial judge's advantages should be recognised, although they do not preclude appellate review. McHugh J at [65]-[93] paid particular regard to the trial judge's advantages, and affirmed the principles stated in Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-9.
32 The judge was alive to the matters on which Boral relied, and accepted Ms Watts' evidence notwithstanding them. He had the advantage of seeing and hearing Ms Watts give her evidence, including an extensive cross-examination, and his references to truthfulness plainly encompassed the reliability of her recollection. I do not think the histories show incontrovertibly that his finding was wrong, or the pleadings and particulars and associated evidence, or both together. There was no doubt that Ms Watts injured her back, and the judge's caution in the weight he gave to the histories as recorded was open to him, and particularly so when the histories as recorded were brief and varied; I do not think the reference to "general experience" was any more than an expression of available reasoning, and the caution was properly taken into account. Ms Watts' evidence concerning the fishpond rock was explicable as a misunderstanding of her solicitors, and was not impossible of belief so as to point to what could hardly have been less than conscious embroidery of her case. I am not persuaded that, within principles of appellate restraint, the judge's finding was appealably wrong.
33 Boral relied in particular on Bootle v Kettlewell (1993) Aust Torts Rep 81-250. The issue was whether the plaintiff was the passenger in or the driver of the car at the time of the accident. The trial judge's credit-based finding that she was the passenger was set aside on appeal, because the contemporaneous records of her statements to and observations of the police officer, the ambulance officer and the hospital staff was to the contrary and there was no satisfactory reason for her to say she was driving when she was not. The alleged driver had not given evidence, and the plaintiff and the alleged driver were in a close personal relationship. These facts were very different from, and stronger than, those of the present case.