Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd

Date of Decision: 2011-07-21 00:00:00 Before: O'Toole DCJ File Number(s): 2009/338711

Judgment 1McCOLL JA: The facts underlying this appeal are comprehensively set out in Bergin CJ in Eq's reasons which I have had the advantage of reading in draft. For those reasons, as well as what follows, I agree with the orders her Honour proposes. 2At the heart of the appeal is the appellant's complaint that the primary judge erred in the process of fact finding primarily due to the absence of any reasoning process leading to her conclusions. 3The primary judge recorded (at [19]) that Redbro Investments Pty Ltd ("Redbro"), the defendant, admitted that Mr Simmons sustained an injury on or about 18 January 2006 but required the plaintiff, Ceva Logistics (Australia) Pty Ltd ("Ceva") "to prove the circumstances of the injury, alleged by Ceva in its Statements [sic] of Claim and by Mr Simmons and Warren Leighton in their oral evidence". 4There were two competing theories of the case at trial. Ceva's theory of the case was that Mr Simmons had been injured on or about 18 January 2006 while working at Ceva's premises in Perth, Western Australia and that that injury was caused by Redbro's negligence - an assertion advanced following the settlement in Mr Simmons' favour of proceedings he brought against Ceva in respect of his injury. If Ceva could establish that Redbro was a joint tortfeasor in respect of the damage Mr Simmons had sustained for which it was also liable, Ceva was prima facie entitled to contribution and/or indemnity from Redbro pursuant to the relevant legislation dealing with such contributions. 5Redbro's theory of the case was that while, as it admitted, Mr Simmons may have suffered back pain on or about 18 January 2006 while working in or around a trailer owned by Ceva, he had not been injured in the manner he had contended in his principal proceedings, namely by slipping and falling from the upper deck of a trailer to the ground. It relied in this respect on a documentary trail it contended was inconsistent with that case. That documentary trail included a claim form Mr Simmons submitted in late February 2006 to what appears to have been his disability insurer, "Shield/Plansure", to claim expenses incurred in relation to treatment for his back pain. Part of Redbro's case was that it was only when his insurer rejected that claim that Mr Simmons made a claim on his worker's compensation insurer and, in due course, brought civil proceedings against Ceva. 6There was, as one might envisage in these circumstances, a substantial issue as to Mr Simmons' credit. As the transcript Bergin CJ in Eq has extracted in her reasons demonstrates, Mr Simmons' credit was put squarely in issue in cross-examination by reference to the contemporaneous documents, including many medical reports, the histories in which were, on Redbro's case, apparently inconsistent with his evidence in chief insofar as the mechanism of injury was concerned. As Bergin CJ in Eq has pointed out, those histories were admissible as evidence of the fact by the operation of s 60 of the Evidence Act 1995: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 (at [75]) per Campbell JA (Basten JA and Handley AJA agreeing). 7The primary judge was required to subject all the evidence, including the documentary evidence, to rational analysis, including drawing whatever inferences were capable of arising having regard to all the evidence and the conduct of the trial: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 (at [63]) per Gaudron, Gummow and Hayne JJ; (at [94]) per Kirby J (whose reasons the plurality approved (at [64])); see also Callinan J (at [139], [155]). 8Her Honour had to undertake that exercise in a manner which exposed her reasoning process. Her judgment albeit extensive, regrettably failed to engage with either task. Rather it was a detailed chronological recitation of mainly evidentiary material - a recitation which did not reflect the dispute between the parties focussed principally on the mechanism of the injury Mr Simmons had suffered and, too, on his credit. 9The recitation culminated in a series of conclusions (at [114] - [117]) expressed alternatively, which sequentially rejected Ceva's claim. However, as Bergin CJ in Eq has amply explained, the conclusions were not the product of a reasoning process which analysed the respective parties' contentions in the manner required. The fact-finding process failed. 10In my view, there has been a substantial wrong or miscarriage prima facie requiring a new trial: UCPR 51.53. As the amended notice of appeal recognised, that is the almost inevitable outcome where error in the process of fact finding, albeit in a case involving credit issues, is discerned, unless it is open to this Court to decide the factual questions for itself, which could only be done if the answer is inevitable: Athval Management Pty Ltd v Doherty [2000] NSWCA 277; (2000) 20 NSWCCR 687 (at [31]) per Heydon JA. That is clearly not so in this case. 11BERGIN CJ in Eq: The appellant, Ceva Logistics (Australia) Pty Ltd (formerly known as TNT Logistics (Australia) Pty Ltd (TNT)) (Ceva), appeals against the decision of O'Toole DCJ (the primary judge) in the District Court of New South Wales on 21 July 2011, pursuant to which verdict and judgment was entered for the respondent, Redbro Investments Pty Ltd (Redbro): Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd (District Court of New South Wales, unreported, 21 July 2011). 12Ceva, as plaintiff in the District Court, sought contribution or indemnity from Redbro, as defendant, in respect of the award of damages negotiated between TNT and Rodney Simmons (an employee, sole director/secretary and shareholder of Redbro) in earlier District Court proceedings before Delaney DCJ in 2009 (the earlier proceedings). Earlier Proceedings 13In the earlier proceedings before Delaney DCJ, Mr Simmons (as plaintiff) sought damages from TNT (as defendant) under the Workers Compensation Act 1987 (NSW) plus interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). The claim arose out of an injury that Mr Simmons claimed occurred during the course of his employment by Redbro as a driver of a prime mover designed to haul vehicle trailers. 14TNT carried on the business of transporting motor vehicles throughout Australia. Redbro contracted with TNT (which had premises in various States) to haul vehicle trailers owned by TNT by means of a prime mover, owned by Redbro. The trailers were supplied to Redbro pursuant to a Vehicle Logistics Contract Carriers Agreement. At the relevant time, Redbro's place of business was in Oakdale, NSW. 15Mr Simmons' pleading in those proceedings included the following: 6 The trailer supplied by the defendant was an older model designed for smaller sedans. 7 On 18 January 2006 the defendant required the transport of a number of large four-wheel-drive motor vehicles from Perth. 8 Because of the size of the four-wheel-drive vehicles to be transported it was necessary for the plaintiff to drive each vehicle onto the transporter and after applying the brake it was necessary for the plaintiff to get out of the vehicle by means of the window as the structure of the trailer did not allow the door of the four-wheel-drive vehicle to open sufficiently for the plaintiff to get out. 9 The size of the four-wheel-drive vehicle and the construction of the trailer supplied by the defendant left only a 4cm wide strip for the plaintiff to stand on after he had climbed out of the vehicle. 10 The 4cm strip of the upper deck available for the plaintiff to stand on was slippery as it did not have a non slip substance applied to it. 11 On the 18 January 2006 the plaintiff having positioned one of the four-wheel-drive vehicles on the upper deck then climbed out of the window, operated the window closing mechanism and then twisted to move along the deck between the frame of the vehicle trailer and the four-wheel-drive vehicle standing on the 4cm wide strip of deck available to him. 12 As he did so the plaintiff slipped and fell from the upper deck to the ground and the plaintiff was injured. ... 14 The plaintiff's injuries were caused by the breach of duty of care by the defendant. 15 Particulars of negligence: a. Requiring the plaintiff to enter and exit vehicles in an unsafe manner. b. In respect of entering and exiting a vehicle requiring the plaintiff to turn, step on a platform of minimal width being no more than four centimetres so that when the plaintiff was entering or exiting the upper deck of the trailer there was an increased chance of slipping and falling. c. Failing to provide a trailer of sufficient size to permit the plaintiff to move about the upper deck without risk of falling. d. Failing to provide a trailer of sufficient size to permit the plaintiff to enter and leave cars with [sic] risk of falling. e. Failing to provide a trailer which was equipped with guard rails to prevent the plaintiff falling. f. Failing to provide a non slip surface to the steel of the upper deck. 16After his injury Mr Simmons was unable to work for a period of approximately two years. However, after surgery to his lumbosacral spine he improved and returned to employment, although he was unable to continue with his previous employment. He claimed that he suffered economic loss and damage that included past economic loss of $445,853; future economic loss of $1,243,814; past household care requirements of $64,637; and future household care requirements of $232,524. 17The matter proceeded before Delaney DCJ on 16 November 2009 and was adjourned to 15 February 2010. On 3 December 2009, the parties informed Delaney DCJ that the matter had been settled in principle and, on 8 December 2009, Consent Orders were filed. Judgment was entered in accordance with the Consent Orders that provided as follows: 1.Verdict and judgment in favour of the plaintiff against the defendant in the sum of $550,000. 2.The parties agree that the entitlement to damages was calculated on the basis that the plaintiff was responsible for his own injury to the extent of one third. 3.Each party to pay his and its own costs of these proceedings. 4.Defendant to be at liberty to remit, from the said sum, such amount as is notified to it by the workers' compensation insurer as the amount to be reimbursed in respect of payments previously made to or on behalf of the plaintiff pursuant to the Workers Compensation Act. 5.No interest on judgment from: a.The date of entry of judgment; or b.The date of receipt by the defendant of an authority to receive; or c.Receipt by the defendant of a Notice of Charge from Centrelink; or d.Receipt by the defendant of a Notice of Past Benefits from Medicare, or Notice of Judgment or Settlement signed by or on behalf of the plaintiff authorising payment of 10% of the judgment to Medicare; whichever is last. 6.These terms are not to be disclosed. Proceedings before the Primary Judge 18Ceva commenced proceedings in the District Court against Redbro on 22 December 2009. The primary judge heard the proceedings on 16, 17 and 18 November 2010 and 9 March 2011. The nature of the challenges to the primary judge's conclusions make it necessary to refer in more detail than might otherwise be required to the pleadings and the evidence at trial. The pleadings 19In its Second Further Amended Statement of Claim (the SOC), Ceva claimed that: TNT carried on business utilising car carriers/trailers; Redbro provided a prime mover and driver for the purpose of towing the car carriers/trailers; and Redbro employed Mr Simmons to drive the prime mover for that purpose (Red 2 [3]). Ceva claimed that on or about 18 January 2006 at the TNT Perth depot, Mr Simmons sustained injury, loss and damage when he "slipped and fell from the upper deck of a car carrier/trailer" (Red 2 [4]). 20Ceva repeated paragraphs 10, 12, 14 and 15 of the Statement of Claim in the earlier proceedings (Red 2 [5]). 21After referring to the earlier proceedings in which judgment in the amount of $550,000 was entered in favour of Mr Simmons, Ceva claimed that the injury, loss and damage occasioned to Mr Simmons was caused by Redbro's negligence. It was alleged that Redbro had failed (Red 3 [7]): (i)to provide Mr Simmons with a safe place of work; (ii)to place non-slip material on the deck of the car carrier; (iii)to provide Mr Simmons with a safe system of work, namely, a system whereby Mr Simmons would be prevented from slipping on the upper deck of the car carrier and falling; (iv)to clean the upper deck of the car carrier so as to ensure that it was not slippery and likely to present a slip hazard; (v)to provide Mr Simmons with a safety harness; (vi)to provide Mr Simmons with a mechanism whereby in the event that he slipped he would not fall; (vii)to provide Mr Simmons with instruction and/or warning to avoid slipping and the risk of falling. 22Ceva claimed that Redbro was a joint tortfeasor in respect of the damage sustained by Mr Simmons and that it was entitled to recover contribution and/or indemnity from Redbro pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) or pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (Red 3 [8]). 23In its Further Amended Defence (the Defence), Redbro admitted paragraph 4 of the SOC "insofar as an injury was sustained by Rodney Simmons". However it claimed that the injury "was sustained on 18 January 2006" (Red 8 [4]). This claim was in response to a typographical error in the previous SOC in which it was claimed that the injury was sustained on 18 January 2005. During the first day of the trial, Redbro was permitted to amend the Defence to adjust the admission to read that the injury "was sustained on or about 18 January 2006" (Black 63-64). Redbro did not otherwise admit the claim in relation to Mr Simmons' injury as pleaded in paragraph 4 of the SOC, in particular that he "slipped and fell from the upper deck of a car carrier/trailer". 24Redbro denied negligence and also denied that it was a joint tortfeasor (Red 9 [7] - [8]). It claimed that, given the circumstances of the case and Mr Simmons' admission in the earlier proceedings that he was responsible for his injury "to the extent of one third", it was "not just and equitable" for Ceva to also recover contribution and/or indemnity from it (Red 9-10 par 10). Redbro also claimed it was not just and equitable for Ceva to recover contribution and/or indemnity from it because it had inherited an unsafe workplace from TNT (Red 10 par 10A) and, by virtue of a provision of its contract with TNT, it was not permitted, without TNT's consent, to alter the trailers to avoid a risk of injury (Red 10 par 10B). 25Redbro relied on s 151Z(2) of the Workers Compensation Act 1987 (NSW) to contend that any contribution for which it was held liable was to be determined as if the whole of the damages were assessed in accordance with the provisions of Division 3, Part 5 of that Act (Red 10 [11]). Redbro also claimed that the $550,000 settlement figure between TNT and Mr Simmons in the earlier proceedings represented the combined sum of the damages claimed and Mr Simmons' costs of the earlier proceedings rather than damages alone (Red 10 [12]). The Evidence 26Colin Douglas Hancock was the first witness called by Ceva. At the time that he gave evidence, he was employed by Ceva as the General Manager of Transport Services. At the time of Mr Simmons' injury in January 2006, Mr Hancock was the Operations Manager for TNT (Black 30). Mr Hancock described TNT's B-Double trailers that were provided to Mr Simmons as "two trailers connected to a primary mover" that "run in concert with each other" (Black 31). He said that a "falling from heights cable" was required for the trailers at certain levels. The front trailer (the A trailer) had these cables fitted, whereas the back or "tag" trailer (the B trailer) did not have these cables fitted because it had tarpaulins lining the trailer (Black 32). The trailers that Mr Simmons was towing at the time of the incident in January 2006 had a "falling from heights cable" fitted to the A trailer and fitted tarpaulins attached to the frame of the B trailer (Black 33). Mr Hancock accepted that the tarpaulin would not prevent a driver from falling from the tag trailer. However, the driver would be contained within the body of the vehicle (Black 53). 27As at 18 January 2006, TNT had non-slip tape available in all its depots. That tape had an adhesive back and a "sandy type of surface" on the other side. It provided a level of grip very distinct from just plain, slippery metal. Mr Hancock said that it had always been and continued to be the "driver's choice" as to whether the non-slip adhesive was attached to the trailers that the driver used. If a driver wished to use the tape, it could be obtained from the operations manager of the relevant depot (Black 33). Mr Hancock claimed that, to his recollection, Mr Simmons did not ask him for any non-slip tape (Black 34). 28There is a metal walkway area in the gap between the side of the trailer and the side of the vehicles being carried on the trailer. Mr Hancock conceded that the metal "can be" slippery without the tape on it (Black 44). He also conceded that the fact that the metal "can be slippery" without the tape on it was known to him, to TNT, to others of his "ilk" in the management of TNT and to depot managers in TNT (Black 45). 29Mr Hancock and his team were responsible for assessing the suitability and safety of the area of work for drivers on the TNT trailer (Black 50). He agreed that, whilst the trailers were in for maintenance service, it would have been very easy for the maintenance personnel to put adhesive tape on an area of slippery walkway (Black 51). Mr Hancock did not carry out the task or delegate the task of assessing the safety of the area of the trailer between the vehicle and the side of the trailer because the "opportunity for the safety tape to be fitted rested with the individual carriers" (Black 51). There was a risk assessment done on the style of trailer that Mr Simmons was using and Mr Hancock assumed that it would have revealed the potential for slipping on the material that did not have the adhesive tape on it (Black 52). Mr Hancock agreed that it would have been sensible to put adhesive tape on the areas of slippery metal including the metal walkway between the vehicle and the side of the trailer (Black 53). Mr Hancock gave the following evidence (Black 53): Q. But you see that [the use of safety footwear] didn't cure the problem with the slippery metal did it? A. Well, metals can be slippery for a number of different reasons. Q. That's why it would've been sensible for you to put adhesive tape on it isn't it? A. In certain places on the trailer, yes, you're probably correct. Q. Including the metal walkway between the vehicle and the side of the trailer? A. Potentially, yes sir. 30The contract between Redbro and TNT provided for Redbro to regularly maintain the equipment provided to it by TNT at a nominated TNT workshop. It provided that "no repairs or alteration" of the equipment was to be carried out without TNT's consent and all defects had to be reported to TNT (Red 27; clause 13.3). 31Mr Hancock agreed that, if the non-slip tape had been fitted to a trailer and was coming off, he would regard it as something that he would repair (Black 54). He agreed that he would do so because he recognised that the tape was on there to serve a "safety purpose" to "stop people slipping on the metal" (Black 54). He said that putting the tape on the trailer was not regarded as "an alteration". In this regard he was cross-examined as follows (Black 54-55): Q. But in fact if the tape was on but coming off it would've been something added to the vehicle other than how it was manufactured. That's right isn't it? A. Yes, but not modified by the way it was manufactured sir. Q. It would be altered from the way it presented after manufacture? A. Yes sir. Q. And that means that the first time the tape was put on that altered the way it appeared after manufacture? A. The trailer was manufactured in 1992 or 1996. Therefore there was no requirement then to do that sir. So therefore yes the trailer was changed for that very reason. Q. It was altered by the affixing of the tape. A. Yes sir. Q. So that if somebody was to put tape on the trailer for the first time what they would be doing would be altering it? A. Altering, not modifying, that's correct. 32Mr Hancock agreed that the contract between TNT and Redbro prohibited any "alteration" to the trailer without TNT's consent. He said he was not aware of any method by which the drivers were advised of the "system" for obtaining the non-slip tape. He had no recollection of Mr Simmons asking him for some non-slip tape (Black 55). 33Mr Simmons was Ceva's next witness. He described the process of loading vehicles onto the B-Double trailers and said that there was not a lot of room when one got off the top of the tag trailer after the vehicles were loaded onto the trailer. He said that sometimes he came down between or slid down sideways between the car and the edge of the trailer in a very narrow, 6-to-8-inch space, depending on the size of the vehicle (Black 70-71). He said that the surface on the floor of the trailer was slippery when it was wet or dirty and that it was "just smooth steel against the boots" not a lot of grip. He said it was "something you do very slowly" (Black 71). 34Mr Simmons' evidence was that he noticed the anti-slip tape on other TNT trailers similar to the ones that he was using in January 2006. He said that he asked "many times" for the tape from Mr Hancock and Mr Mark Thornton, the Sydney Manager (Black 80). Mr Simmons claimed that the response to these requests was that TNT was not spending money on the old trailers because they were not being replaced. He gave evidence that neither he nor Redbro ever purchased such tape. Nor was there any arrangement to obtain safety harnesses or "fall from heights" restraints (Black 80). Mr Simmons said that he asked for the tape to "alleviate a potential problem" that he saw with the walkway on the trailer (Black 91). 35Mr Simmons gave the following evidence-in-chief in relation to the incident on 18 January 2006 (Black 72-73): Q. Perhaps you could tell us what happened to you on 18 January 2006? A. Having loaded the roof of the truck and the top of the first trailer I was loading the top of the second trailer, I had two large vehicles on, and while getting down between them to strap the wheel straps on I slipped off the edge and went from the top deck through to the bottom deck and then one leg through past the bottom deck to the ground. Q. Where was the rig at that stage, what State were you in? A. Perth depot. Q. Where were you going? A. From there to Darwin. Q. And from there? A. To Adelaide. Q. What was the weather like? A. Fine. Q. Was the steel - you gave some evidence about it being slippery at different times, how was the steel on this occasion that you were standing on? A. Well it wasn't wet because it was fine weather, but it was very dirty, I hadn't been home for a long time so yeah you get the oil spray and dust, dirt and whatnot so it was slippery. Q. Was the rig equipped with a harness? A. No. Q. You weren't the only driver for TNT driving these type trailers or towing these trailers. Were some of those trailers equipped with anti-slip material? A. Some of them had anti-slip material but some of them also had wider decks, so the earlier ones that I had the deck was like a channel so it was only six foot wide with an inch along the side to walk on. The later ones they had the channel taken off and a full sheet floor so it was closer to eight feet or seven foot six wide inside. Q. The place where you slipped on this occasion, on other trailers did they have this anti-slip material attached? A. Some of the later ones, I'm not sure about all of them, but I know some of them did. Q. But you saw some of them? A. Some of them did yes. Q. After you slipped what did you do then? A. I had, one of the other local guys had to help me get out from the bottom of the trailer and he helped me finish loading and then I left Perth the following morning. Q. What was his name? A. Warren, Warren Lateman (?). Q. You then went to where? A. Darwin via Broome and Kununurra. Q. Did you do deliveries in Broome and Kununurra? A. Kununurra yes, I dropped one in Broome and two at the same place in Kununurra. 36In cross-examination Mr Simmons was shown the Medical Certificate signed by his general practitioner, Dr P Grinbergs, on 22 February 2006 for Mr Simmons' health fund Shield/Plansure in which the question was posed "If the patient sustained an injury what were the circumstances of the injury?" and the answer was given "No injury". Mr Simmons was cross-examined as follows (Black 105-107): Q. And you told him the circumstances surrounding that complaint didn't you? A. Yeah I told him what had happened yes. Q. And he's written in there in answer to the question, "If the patient sustained an injury what were the circumstances of the injury?" "No injury". A. I wouldn't have classed it as an injury. It was an accident. I fell off the truck and that's what happened and it wasn't from something that I had an injury. I hurt myself from falling off the truck. Q. I see. Well let's look at Question 9. Question 9 says, "on what date did the injury/accident occur?" You see that? A. Yeah. Q. Whilst you say you wouldn't have classed it as an injury, it was an accident, the doctor asked you about that and he's recorded N stroke A? A. I don't know if he asked me or if he just filled in the form? I don't know. Q. Mr Simmons you knew what was going to happen to this document didn't you? A. No. It was filled in at that time. Q. I'm sorry? A. It was filled in at that time. Q. You knew that you needed this document to submit to your business insurance insurer for the purpose of making a claim pursuant to a policy you had. That's right isn't it? A. (No verbal reply). HER HONOUR Q. You shrugged. You do have to respond audibly please. A. I went to the doctor because I was in extreme pain. I was given a doctor's certificate and it was dragged on for weeks and weeks before I got all these claims sorted out. I didn't sit there and think well gee I'd better write this down. HARBEN Q. You mean you'd better have something completed honestly and accurately? A. Are you calling me a liar? Q. Is that what you thought? A. Are you calling me a liar? Q. Mr Simmons -- A. No, answer my question. Are you calling me a liar? ... Q. You told me a little while ago that a man of your experience understood when submitting documents and making claims you were careful to be honest and accurate. That's what you told this court? A. That's right. Q. And here at the very first opportunity that we see you have an opportunity to make a claim to get money from your insurer you submit a document that you know the insurer will rely on. That's what you knew isn't it? A. Well that's how the system works isn't it? You fill in the paperwork, you send in the claims. Q. But you see you don't just make it up do you? A. I've had these workers comp policies for 20 odd years. I've never made a claim against any insurance I've had. And the first time I have a major injury and I've got to make a claim I'm getting drilled in here. Q. Well you knew the reason you were submitting this form to your insurer was so that it could consider the material you gave? A. Yes. Q. You told the doctor, I want to suggest to you, that you didn't really have any particular injury, that what happened is your back started playing up at work. That's what you really thought isn't it? A. No. Q. And I want to suggest to you that just like in 2004 you thought I'll have a bit of time off, I'll have some physiotherapy and I'll go back to work? A. I don't get paid for time off so how do you figure that's to my advantage to pull a muscle in my back and have a week of physio that I paid for with no income? 37Mr Simmons was then shown a letter that he had written to the insurer enclosing a Workers Compensation Claim Form signed by him on 31 March 2006 (Blue 131-137) that included the following: 2. Injury details How did the injury occur, and what were you doing when the injury happened? (e.g. slipped when climbing a ladder) WHILE LOADING CARS ON TO TRAILER I EXPERIENCED PAIN IN MY LOWER BACK. What part/s of your body is/are injured? LOWER BACK. Was this/these part/s of your body normal before the injury? YES Where did the injury happen? AT WORK What is the address where the injury happened? 310 TREASURE ROAD, WELSHPOOL WA 6106. Did anyone see your accident? NO. Date of injury. 18/1/06 Time of injury. 6am APPROX Name of person at your workplace you reported the injury to? Name and position. SHAUN DUNLOP OPERATIONS MANAGER TNT WELSHPOOL Date reported 18/1/06 38Mr Simmons was cross-examined in relation to the Claim Form as follows (Black 108-117): Q. You understood what was being asked didn't you? A. Yeah. Q. You understood that in something as shocking as you falling and slipping from one level of a car carrying trailer to another metal level that's what you were being asked. You knew that didn't you? A. Well yes, that's not my writing, so yes. Q. Mr Simmons -- A. What are you trying to say to me? HER HONOUR Q. Please listen to the question. If you have any difficulty understanding -- A. No I'm understanding what he's saying. He's trying to change around and make me out to be a liar. HER HONOUR: Just listen to the question please. If you have any difficulty understanding it just let me know. HARBEN Q. You understood that that question required you to describe to the insurance company for the purpose of your claim how the injury occurred, didn't you? A. I'll say yes. Q. And it gave in brackets an example. Slipped when climbing a ladder. So you understood perfectly well what sort of information was being sought? A. Yeah I'll say that yes. ... Q. I want to suggest to you that the answer, handwritten answer to that question is this "While loading cars onto trailer I experienced pain in my lower back"? A. Yeah I can read that. Q. That's what your answer was isn't it? A. That's what's written there. Q. No description of the shocking event where you slipped on a slippery surface you'd been complaining about and fell from a height and landed in an awkward fashion with one leg protruding through the lower trailer? A. I've been through this with GIO with many of the case managers that I had over the time I was off and they know exactly what happened and I've been through it over and over again with them. Q. Mr Simmons if what had happened to you is what you have told this court in providing information to your insurer for the purposes of your claim I want to suggest to you you would have described the incident in the way you described it to her Honour. That's what you would have done? A. When you are sitting around doped up on pain pills you don't think clear. Q. So the first medical certification the doctor records no injury, not applicable accident, a document you submit to an insurance company? A. I can only go by what's written on the paperwork. ... Q. And you knew that that question asked you to tell the insurer so that it could assess your claim how the injury occurred? A. Yes. Q. And you knew that that required, were it the case, that you fell in a manner you've described in this court, were that the case you knew that this document required you to answer in that form? A. Yes. Q. And you didn't do it did you? A. As I said I didn't fill the form in, I just signed the form. I know what you - I know exactly what you are saying. It's not written as I said it in the court. We've established that already. Q. So when you declared it to be true you are not telling her Honour that you simply didn't look at the material in the document are you? A. You want to rephrase that? Q. Well you're a person who you've told her Honour knew and understood the obligation to be honest and accurate when putting material in documents. You knew that? A. Yes. Q. So it wouldn't be the case that a document as important as a claim form to be submitted to an insurance company would be submitted unless you satisfied yourself of the honesty and the accuracy of the material in the document? That's right isn't it? A. Yeah. Q. So can we take it that you satisfied yourself of the honesty and the accuracy of the material in answer to the question under the heading 2, injury details? A. Well it's just what's written there, right. It's not accurate. Q. Well -- A. We've established that already. Q. So you knew that at the time you submitted it to the insurer is that what you are saying? A. At the time I submitted it to the insurer I just really didn't know it all. Q. Well you see this document contains in its six pages a whole host of material doesn't it? A. Yeah. ... Q. Did you write that? A. No it's my mother's writing. Q. But the information had to come from you didn't it? A. Well it tells the appointments of when I went to what doctor and what - when I went to work and when I didn't. So that would of all been taken off doctor's appointments and when I returned to work and didn't work or whatever or when I went to wherever I went. ... Q. When you got back on 6 February and you went to the doctor having sustained this fall that you've described in this court and sustaining the injury that's been described did you think you should pick up the phone and ring GIO and tell them so that you could have that authorised? A. No I didn't. Q. And is that because in the circumstances of this event, you really didn't think you had any legitimate claim under your workers' compensation insurance. A. I'm not going to wear that. Q. And is that because -- A. I'm not going to wear you trying to turn something around on me. Q. And is that the reason that when you first saw the doctor for the purposes of medical certification to get a business claim going, which you did back earlier? A. Yeah and I got rightly screwed over with that too. Q. Is that the reason that the doctor recorded no injury, accident/injury not applicable, because you really didn't think it was to do with work -- A. I'm not even going to justify that with an answer. Stupid question. ... Q. And what you were telling the insurer is that you hurt yourself loading a truck? A. Well that's what I was doing. ... Q. See Mr Simmons only one person knows what happened, whenever it was you injured yourself, that's right isn't it? A. I'm not even going to justify that with an answer. Q. Why say something different? A. Only one person knows what happened. Q. You were there. GIO wasn't there. The case managers weren't there. The doctors weren't there, that's right isn't it? A. And it was reported to two people in TNT's depot and I had the help of another driver to get out of the trailer. ... Q. And presumably if something as shocking as falling from the height on the trailer onto a metal surface with one leg going through, it occurred to you as the injury, that person would have been told that just like all the rest of the information? A. You're just trying to change everything, all my words round and make it out that I've just made the whole story up. That's what you're getting at. That's what you've been getting at to me for the last hour. Q. Yes? A. That I'm telling lies. Q. What's the answer to my question Mr Simmons? A. Which particular one? You keep changing the question, asking the same thing, I keep answering it. Nobody's perfect, I've made mistakes in the letters. Q. I see? A. And you're just trying to change it round that the whole thing that's happened to me, is just lies. Q. Well? A. You think I'm going through all of this just for the fun of it? Q. No. A person who you say filled in the form that you declared to be truthful wasn't under the adverse influence of pain pills like you say you were? A. What do you mean I say I was? Q. Well that's what you've told us? A. So you're doubting that as well now. Q. No, I'm repeating what you have told us? A. That I say I was under the -- Q. Well, were you? A. I had just done over 9,000 kilometres to get home from Perth back from Sydney. I lost three years of my life and then all of this and you're just trying to turn it all around against me now and just make me out to be a liar. Q. No. A. That's all you've done since the time I sat in here and you started talking to me, you're just trying to make me out to be a liar with everything I've said. 39Mr Simmons was then cross-examined about his consultations with Dr Abraszko. It was suggested to him that, in his consultation with Dr Abraszko on 3 May 2006, he said that, whilst driving a truck, he had put a strap around some cars and tried to wrench it. He disagreed that he had given that information to Dr Abraszko. He also denied that he informed Dr Abraszko that since then he had significant and immediate pain in his lower back on the right side (Black 119). Mr Simmons said that Dr Abraszko went on "medical evidence" and it had "bugger all" to do with what he had said. The cross-examination on this topic included the following (Black 119-120): Q. You didn't tell Dr Abraszko I want to suggest to you, that you fell from a top level of a car carrier? A. I don't know. Q. That you fell down to a metal landing area? A. I don't know. Q. Well if that had happened to you that's what you would have told her isn't it? A. So you're saying that's not what happened? Q. If that had happened to you, you would have told her wouldn't you? A. Not necessarily. Q. What you would have just said instead you did it putting a strap around some cars and trying to wrench it, would you? A. No that's not what I said because that's not what I would do. Q. Well you didn't tell her that what happened to you, is you fell from a height from one level, inside a tarpaulin, onto a metal landing area and you're leg going through the lower level. You didn't tell her that did you? A. I don't recall. Q. If it had happened to you that way, that's what you would have told her isn't it? A. Not necessarily. I don't know. I don't know what I said to her. We're going back to nearly five years ago and you expect me to remember what I said to someone. 40The cross-examiner then suggested to Mr Simmons that he had informed the occupational therapist, Elizabeth Creswick, that he was tightening a wheel strap to secure a vehicle on the trailer of the truck when he felt a snap in his back. Mr Simmons responded that this was "when I fell from the top deck" (Black 121). The following cross-examination then took place (Black 121-122): Q. Sorry, are you saying now - are you telling her Honour now that you were tightening a wheel strap to secure a vehicle on the trailer of your truck when you felt a snap in your back? A. I fell off the top of the truck tightening up wheel straps in the middle of the depot, trying to put wheel straps onto vehicles with no - with no space. I just want to try and get to what your point is - what your point is of me coming in here twelve months later after I thought this was finished and me copping a drilling for it. I've been sitting here, listening to you talk to me for an hour and twelve minutes and you've said anything yet, except just trying to make me out to be a liar. Q. Elizabeth Creswick asked you to tell her what happened? A. More than likely I've told hundreds of people what happened, I'm sick of hearing about it. I'm over the whole thing. Q. And you told her that you were tightening a wheel strap to secure a vehicle on the trailer of your truck when you felt a snap in your back? A. I don't know, as I said its nearly five years ago, I don't know what I said to the girl. Q. Well if you'd said that, did you think you'd just make it up? A. Well you - I've had enough of this. I really just don't want to talk to you anymore. All you're doing is sitting here drilling me, trying to make me into a liar. Do you want to see the scar up the middle of my back. The lack of body movement that I have, the lack of income that I now have. 41The cross-examiner than pursued a similar line of questioning in relation to the history Mr Simmons gave to Dr Dowla as follows (Black 125-126): Q. I want to suggest to you that you gave this history to Dr Dowla. It recurred, that is the problem with your back, on 18 January 2006 when you were pulling a ratchet strap with sudden lower back pain on the right side radiating to the right thigh and knees? A. I'm sure I had the pain, yes. Q. I want to suggest to you that you didn't tell Dr Dowla that the injury you were seeing him for and the back complaint you were seeing him for had occurred as a consequence of falling from a height from one level -- A. Its irrelevant. Q. -- of a car carrying trailer -- A. It was irrelevant -- HER HONOUR: Wait, wait please Mr Simmons. HARBEN: Q. One level of a car carrying trailer to the lower level, with one leg going through the lower level to the ground. You didn't tell Dr Dowla that? A. Relevance. He was going on a request from - and a referral from Dr Abraszko and it was stuff that I don't understand you probably don't either, unless you're a doctor. Go through with the list what they want. 42The Warren "Lateman" to whom Mr Simmons referred in his evidence on 17 November 2010 (Black 73) was Warren Leighton. Mr Leighton was contacted by Ceva after Mr Simmons gave his evidence and was called to give evidence before the primary judge on the following day, 18 November 2010. His evidence included the following (Black 191-194): Q. Okay. And did you see something happen to Mr Simmons? A. I did. Q. Just tell us what you saw. A. What I saw? When Rod had loaded the car, he has got out, closed the door, locked the car, which is our procedure, gone forward to put a strap to restrain the vehicle on the front wheel. And as he has done so - he's gone - he has slipped and gone down between the edge of the deck and the curtain and landing on the bottom deck. And when I found him - I was there watching him load - so I immediately went to help him -- HER HONOUR Q. Now just slow down, won't you, because we all have to understand you as well as hear you. A. I'm sorry. When I went to help him he was on the bottom deck with a cut leg and, well, he had appeared to have landed heavily on his tailbone or backside - for want of a better -- PARKER Q. And did you help him? A. I certainly did. Q. And did anybody else help him? A. No, there was no-one else there at the time. Q. Right. A. There are other office staff which were in another shed some - I would say about 100 metres away, they were unaware of this until we presented front and centre -- ... Q. The office staff came out and assisted at some point in time as well. A. No. Q. No? In any event, now you said, he was using a strap on the front wheel -- A. That's correct. Q. -- of the car. Firstly, about what time of the day was it? A. A bit after lunch about one o'clock, Perth time. Q. Right. And what was he doing with the strap? A. Well, attempting to put it over the wheel. Q. How does he do that? You need to describe for us what - give us a word picture, if you could. A. Okay. On his type of deck that he had, which was pre-modification, there's the deck, if you look at it in a cross-section it looks like a C-channel, we have what are called "stoppers" which are just merely a steel pipe that is fabricated. HER HONOUR Q. Slow down please, I need to follow you. A. It's a steel pipe that is fabricated to fit in slots, in various positions, so that we can chock the wheels for security. PARKER Q. Right. A. Now once that is done you can put your stoppers in and then the straps come over the top of that and secure down behind it usually using more of these stoppers. Q. Right. Does he stand up to do that or does he - what position is the driver's body in when he is doing that? A. Usually in a crouch position, beside the vehicle, because you're - you're working in a very confined area, like from the edge of the vehicle to the side of the tray you've probably got about that much. ... Q. About 600 plus? A. Wouldn't be 600 plus. It would be 300 plus to 300 to 400, maybe. ... Q. Now when did you first notice Mr Simmons, before the accident? A. I was accompanying there while he was loading so I was in conversation with him and watching what he was doing, because that's how we help one another, if he's got closer to another vehicle, we - on car carrier sometimes we will park cars nearly an inch or two off each other. So you need a bit of other guidance to -- ... Q. Now you assisted Mr Simmons. On the ground was there any - what did you do with him to assist him? A. I had to physically assist him to his feet which meant that I had to get him into the trailer underneath the deck that we were loading. And help him to his feet. And at which stage then we found that his - knew his leg was cut -- HER HONOUR Q. I don't want to interrupt you, because you can imagine how interested we all are in what you are saying. But please slow down. I heard you "help" and then I lost the rest of it. A. I helped him to his feet and at that stage that's when I notice that his leg was cut as well. And he was quite sore and not moving at all very well. PARKER Q. And did you take him somewhere or do something with him? A. Yes. Q. Where did you take him? A. Took him Sean Dunlop, who was our Site Manager at which stage -- Q. And what did Mr Dunlop do, to your observation? A. I believe - well -- Q. Did you see him do something or not? A. If memory serves me correctly - if memory serves me correctly Sean did tend to the cut and patch him up that way. I don't know if an incident book was filed or not, I don't think one was. But -- 43Mr Leighton said that the accident definitely did not occur at 6 o'clock in the morning and that there was "not a chance" of it having happened at that time (Black 196-197). He was cross-examined as to how he could see Mr Simmons through the tarpaulins. He said that he could see a "silhouette" but that in any event Mr Simmons was still at the top rail so that he could see him (Black 198-199). Mr Leighton said that he watched Mr Simmons get out of the car, lock it and put the key in his pocket. He said that he then moved forward alongside the car and in between the car and the rail. He said Mr Simmons then crouched down and secured the strap around the wheel onto the deck. While he was putting the strap on, he slipped from the deck because it did not have any anti-slip tape on it (Black 199-202). Mr Leighton was then cross-examined (Black 203): Q. Yes. What you have told us is, as I understand it, Mr Simmons got out of the vehicle, walked in a forward direction, in the direction towards the prime mover, a short distance, crouched down and was doing something with the strap to secure it around the wheel to the body of the trailer and he ended up from one level to the other level. That's what you've told us? A. That's pretty much correct, yes. Q. What I would suggest to you is it would be untrue to say that what happened was he got out of the vehicle and he walked along the gap between the vehicle and the trailer and just slipped off the metal portion that he was walking on from one level to the other. That would be untrue? A. It would be. 44Mr Leighton was challenged in relation to his evidence of being able to see through the curtain or tarpaulin. He said that he could see Mr Simmons clearly and was cross-examined as follows (Black 205): Q. High enough over the top of the rail to see him crouched down? A. You can - at the positioning the way our trucks are in the yard in Western Australia we had the sun coming across from the west, so that the curtains aren't totally blocking any - every bit of light you can see silhouette very easily. Q. So what you saw is the silhouette of him in a crouched position doing something with a strap? A. Yes. Q. And he ended up on - where did he end up? A. Ended up on the bottom deck on his - when I saw him he was sort of in a sitting position if you like and his legs were straddled - still further down the outside of the other trailer, the bottom half of that deck. Q. Both legs? A. No, just one. Q. When you say when you saw him -- A. When he has fallen and I've walked forward a couple of paces to the side of the trailer and looked around inside so I could see him. Q. And he was sitting on dock? A. Well, he has probably held himself to that position when he's fallen because there's plenty of bars and stuff in there to grab hold of on the way down. If he's landed there like that in a - you start falling head first, he's probably grabbed something to stop himself landing on his head and it's broken his grip and he has fallen, I could assume, because I know I have fallen off the - over there a couple of times and ended up with broken legs. Q. I see. What did you say about where the sun was? A. It would have been over to the left-hand side of the truck being - as the sun there for some reason is different, not different as its positioning in the sky is different to what it would be here because their time frame is two hours behind, I think it is. Q. Mr Leighton, at around about lunchtime, were this the case? A. Yeah. Q. You wouldn't have been silhouetted by the sun shining from the side, would you? A. It doesn't have to be directly to the side. The Judgment 45After referring to the background of the parties to the litigation, the primary judge set out the detail of Mr Simmons' GIO Workers Compensation Claim Form dated 31 March 2006 that included a claim by Mr Simmons that "while loading cars onto trailer I experienced pain in my lower back" (Red 12 [4]). That Claim Form also included the following: AT TIME OF INJURY I WAS WORKING IN PERTH. I WAS THEN LOADED FOR DARWIN, THEN ADELAIDE, THEN BRISBANE BEFORE RETURNING TO SYDNEY. THE PAIN BECAME INCREASINGLY WORSE...ON MY RETURN TO SYDNEY I CONSULTED MY DOCTOR ON 6/2/06. I WAS OFF WORK UNTIL...7/3, 8/3 9/3/06 then 14/3-17/3/06 AT WHICH TIME I WAS UNABLE TO CONTINUE. 46The primary judge set out the competing claims and referred to the earlier proceedings before Delaney DCJ and the Consent Orders settling those proceedings (Red 13-15). After referring to the claims made in the pleadings (including noting that Redbro admitted that on or about 18 January 2006, Mr Simmons sustained an injury (Red 17 [19])), the primary judge referred to the transcript of the proceedings and counsel's opening statements and interlocutory arguments. Her Honour observed that "the live issue" that had been raised was whether Redbro is a tortfeasor; whether Ceva is entitled to contribution and indemnity; and whether it is just and equitable for Ceva to recover contribution or indemnity from Redbro (Red 18 [23]). 47In dealing with Mr Simmons' evidence the primary judge said (Red 18): 24. In the witness' box, Rodney Simmons conveyed the impression that he is astute. When Mr Simmons commenced his evidence, he had not seen TNT's record of its customers' motor vehicles on its car trailers, which he had coupled with Redbro's prime mover. Mr Simmons alleges that a significant gap in TNT's data corresponds with his "Claim Number: P165372J157...Date of Injury: 18/01/2006" for weekly compensation. His vague allegations that on 18 January 2006, he reported an injury or his fall to TNT are not persuasive (16/11/10, 72.43-8, 73.1-40, 73.37-46, 74.1-7, 17/11/10 143/39-50 144.1-50, 145.1-13; exhibits B, C, 14). 25. Rodney Simmons blustered, volunteered extraneous data belligerently and steadfastly refused to answer questions when his veracity was challenged. Intermittently, he admitted that he could not remember events he had described to this Court. Part of his evidence is implausible. His uncorroborated allegations are unreliable. The handwritten records of his representations to Dr Peter Grinbergs and to GIO Workers Compensation have been altered (exhibits 13-15, 17, 23, 24). 48The primary judge then referred to the evidence of Mr Leighton as follows (Red 18-19): 26. CEVA employs Warren Leighton to manage his "local depot" at Washpool (sic) in Western Australia. On Thursday morning, 18 November 2011, he was at work in Brisbane when he was asked by Mr Doug Vorbach to give evidence about an incident on 18 January 2006, involving Rodney Simmons. Mr Parker informed the Court that CEVA wished to call Mr Leighton because of something that had arisen out of Mr Harben's cross-examining Mr Simmons on 17 November 2011. Mr Parker described Mr Leighton as "a witness to the circumstances of the accident and it's taken a while to find him, but we found him last night, and we're just trying to find out how long it will take him to get to Court" (18/11/2010, 1.23-9, 40.30-3). 27. Mr Leighton keeps a diary and log books but had not consulted those records before giving evidence. In the witness' box, he had no useful, independent recollection of whenever and whatever he had seen of Rodney Simmons at TNT's Washpool depot. Mr Leighton's allegation that on 18 January 2006, they left the depot together contradicts Mr Simmons' evidence on the subject. On the other hand, Mr Leighton's vague memory of TNT's "internal enquiries" in mid 2006, is consistent with Mr Simmons' belated claim on GIO Workers Compensation. Mr Leighton conjectured, blustered, was flippant and became bellicose when his veracity was challenged. The majority of his evidence is implausible (16/11/10, 73.37-46; 18/11/2010, 36.5-15, 38.50, 39.1-50, 40.1-50, 41.13-50, 48.5-20). 49The primary judge then referred to Mr Hancock's evidence and said (Red 19 [28]): Mr Hancock's evidence regarding the motor vehicle, transported by Redbro on TNT'S B-double Runge Engineering car trailers, the trailers' maintenance and the adhesive tape, which TNT permitted its contract carriers to affix to the trailers, contextualises its Assets Register and illuminates CEVA's and Rodney Simmons' allegations to this Court (16/11/10, 30.17-50, 31.18-45, 36.21-50, 37.42, 38.1-8, 42.50, 43.1-31; exhibits B, C, 1, 12). 50Dr Peter Grinbergs was Mr Simmons' primary treating physician in February 2006. Dr Grinbergs practised in Camden at the general medical practice where Mr Simmons had been known for thirty-two years. In referring to Dr Grinbergs' records, the primary judge said (Red 20): 31. ...None of Dr Grinbergs' clinical records nor his referral of Mr Simmons to Dr Renata Abraszko is in evidence. Part of Mr Simmons' "previous history of...injury" has been redacted from Dr Grinbergs' SECTION 2 MEDICAL CERTIFICATION on Shield/Plansure's CLAIM FORM. Page one of Section 1 of the format is not in evidence but its content and purpose are discernible from the intelligible part of Dr Grinbergs' Certification (MFI 19, MFI 32, exhibit 13). 32. Dr Grinbergs provided GIO Workers Compensation with a certificate, dated 21 April 2006, that is not in evidence. His Initial and Progress Workcover NSW Certificates have been altered. The evidence does not enable one to determine who made those alterations nor when they were made. However, Mr Simmons' disparate histories and complaints are evident from the remainder of Dr Grinbergs' Certificates (MFI 19, MFI 32, exhibit 13; exhibits 14-17, 23, 24). 51The primary judge then referred to the reports of Ms Elizabeth Creswick, an occupational therapist. Her Honour said (Red 20-21 [33]): Ms Creswick's description of Mr Simmons' interstate journeys in Redbro's prime mover, coupled with TNT's car trailers, is consistent with his own and Mr Hancock's evidence on the subject. I accept Ms Creswick's statement that Mr Simmons "reported" and "advised" her of the detailed history she recounted to him and to GIO Workers Compensation (16/11/10, 41.1-9; 17/11/10, 97.21-48; exhibits 14, 15, 17, 23, 24, 26). 52The primary judge then referred to the evidence of Dr Abraszko, a neurosurgeon who saw Mr Simmons on nineteen occasions between 3 May 2006 and 19 January 2009. The primary judge observed that, in October 2007, Dr Abraszko excised Mr Simmons' L5/S1 disc and fused its adjacent vertebrae. Her Honour said that she accepted Dr Abraszko's statement that Mr Simmons gave her the detailed histories that she reported to Dr Grinbergs and recounted to Slater & Gordon (Red 21 [34]). 53The primary judge then referred to the report of Dr M Shareef Dowla, a specialist in neurology and neurophysiology, to whom Mr Simmons had been referred by Dr Abraszko. The primary judge said (Red 21 [37]): Dr Dowla was not called nor was he required for cross examination on his report to Dr Renata Abraszko. The "two years history of recurrent back pain", reported by Dr Dowla to Dr Abraszko, is consistent with the history she recorded during her first consultation with Mr Simmons. I infer that Mr Simmons gave or confirmed that history to Dr Dowla during their single consultation (exhibits J, K, 13, 16, 20, 26). 54The primary judge referred to the report of Dr Peter E Giblin, an orthopaedic surgeon, and said (Red 22 [40]): On 27 May 2008, Dr Giblin acknowledged his obligations to the Court as an expert witness and reported his single consultation with Rodney Simmons, four days earlier. Mr Simmons' history and complaints, recounted by Dr Giblin to Slater and Gordon, differ from my view of the evidence. The major spinal surgery, performed by Dr Abraszko, bases Dr Giblin's assessment of Mr Simmons' permanent whole person impairment (exhibits J, K, 26; paragraph 55, Plaintiff's Submissions). 55The primary judge then referred to the report of Dr James G Bodel, an orthopaedic surgeon and said (Red 22 [42]): Dr Bodel accepted Mr Simmons' history and complaints, "provided by the claimant at the time of their consultation", which differ from my view of the evidence. 56Under the heading, "The facts", the primary judge said (Red 23): 44. Contemporaneous records of Rodney Simmons' complaints and clinical signs, the histories he gave Dr Peter Grinbergs in May 2004, and in February 2006, and the Court's primary records of its proceedings are the most reliable sources of material facts. Those records do not enable one to determine the dates nor the sequence of all relevant events. 45. In addition to the history of this litigation and the inferences I draw, set out above, I find the following facts. Those facts include the parties' and their witnesses' proper concessions during this hearing. 57The primary judge then recounted the history of the establishment of Redbro, its directors, office bearers and shareholders (Red 23 [46]-[49]). He Honour also recounted the places of residence of the directors, including Mr Simmons, and the policies of insurance issued to Redbro over the years. Her Honour also identified the usual or principal places of business for Redbro over the years (Red 24-25 [50]-[60]). 58The primary judge referred to Mr Simmons' earlier injury on 17 May 2004 and the claim that he made at the time which included that the injury had occurred "while doing up strap on trailer" (Red 26 [62]). 59After referring to the history of the prime movers owned and registered by Redbro, the primary judge referred to the nature of Mr Simmons' employment in driving the prime mover coupled with TNT's car trailers around Australia. The primary judge extracted some of the terms of the agreement between Redbro and TNT including the following (Red 26 [64]): 13.3 If TNT supplies the [Contract Carrier] with car carrying equipment, the [Contract Carrier] shall have it regularly maintained at a nominated TNT workshop. No repairs or alteration of it shall be carried out without TNT's consent. Any defect shall be reported to TNT. 60The primary judge then said (Red 27): 65. Between 7 July 2004, and 29 September 2004, and throughout Redbro's Contract Carriers Agreement with TNT, Rodney Simmons' employment necessitated his driving Redbro's prime mover, coupled with TNT's car trailers, around continental Australia. At TNT's depots, he drove motor vehicles onto and off TNT's car trailers and walked and crouched on the trailers to secure and to release restraining straps on the motor vehicle's wheels. He commenced and concluded his interstate journeys at TNT's depot in Villawood, New South Wales. Usually, he parked the prime mover, coupled with TNT's empty car trailers, outside Redbro's principal place of business at his home on Banksia Place in Oakdale, New South Wales. Occasionally, he parked the prime mover at TNT's depot in Villawood (17/11/2010, 92.45-50, 93.1, 147.24-24; exhibits C, 4, 10, 14, 17, 19, 25). 66. Between Wednesday, 28 December 2005, and Wednesday, 11 January 2006, Rodney Simmons drove Redbro's prime mover, coupled with TNT's car trailers, from TNT's depot at Villawood, in New South Wales, to TNT's depots in the Northern Territory, in Queensland and at Washpool (sic) in Western Australia. Between 18 January 2006, and 25 January 2006, Mr Simmons loaded or unloaded motor vehicles from TNT's trailers at its depots in Perth, Western Australia, in the Northern Territory, in South Australia and in Brisbane, Queensland. At 11.00 on Wednesday, 1 February 2006, Mr Simmons concluded his interstate journey by delivering the remainder of the motor vehicles on TNT's trailers to its depot at Villawood in New South Wales. He parked the prime mover outside Redbro's principal place of business at his home on Banksia Place in Oakdale, New South Wales (16/11/10, 73.37-46; exhibits B, C, L, M, 14, 17). 67. On Monday, 6 February 2006, Rodney Simmons' complaints to Dr Peter Grinbergs were confined to back pain. Mr Simmons denied that he had had an accident or an injury. He did not associate his back pain with his employment, performing Redbro's Contract Carriers Agreement with TNT. Dr Grinbergs examined Mr Simmons. The following day, a radiologist reported a computerised tomographic scan of Mr Simmons' lumbar spine to Dr Grinbergs. The radiologist or Dr Grinbergs diagnosed an L5/S1 disc prolapse. Dr Grinbergs explained the scan to Mr Simmons. They discussed the "previous history of this or of a similar condition", caused by Mr Simmons' work related injury in May 2004. Dr Grinbergs advised physiotherapy and prescribed non-steroid anti-inflammatory medication for Mr Simmons (exhibits G, J, K; MFI 19, MFI 22, MFI 32, exhibit 13). 61The primary judge then set out the history of complaints made by Mr Simmons, the claims that he made in WorkCover Claim Forms, and his statements about the nature of his condition. In particular, reference was made to Dr Grinbergs' Certification on 22 February 2006 in which he recorded that Mr Simmons had first consulted him in relation to "this period of disability" on 6 February 2006 and that he diagnosed him on 7 February 2006. Reference was made to Dr Grinbergs' record that there had been a previous history of a similar condition in May 2004 which was described as "back pain" that settled after one week of physiotherapy. The Certification completed by Dr Grinbergs on 22 February 2006 extracted in the judgment included the following (Red 29 [69]): 7. Was there any previous history of this or of a similar condition? YES If so please provide the detail of the dates and nature of the previous history of the illness or injury. 24.5.04 - BACK PAIN SETTLED AFTER 1 WEEK OF PHYSIOTHERAPY. 8. If the patient sustained an injury, what were the circumstances of the injury? NO INJURY 9. On what date did the injury/accident occur? N/A ... 62The primary judge then referred to other claims and Certificates that had been lodged by or on behalf of Mr Simmons in particular on 26 April 2006 in which the question was asked "how the injury occurred" and the answer was given "loading truck". The date of the injury was given as "1/1/06" or "10/1/06" or "11/1/06" (Red 31 [76]). The primary judge then referred to the report of Elizabeth Creswick, the occupational therapist, dated 26 April 2006 that included the following (Red 32 [78]): Mr Simmons reported that he was tightening a wheel strap to secure the vehicle on the trailer of his truck when he felt a snap in his back. Mr Simmons advised that he continued to work, in a hunched over position, requesting assistance from other drivers to load the remaining cars on his trailer. Once 9 cars had been loaded onto his truck, Mr Simmons advised he left Perth. Mr Simmons advised he travelled from Perth to Darwin in four days, from Darwin to Adelaide in two days, then travelled from Adelaide to Brisbane where he was advised to return to Sydney immediately by a previous supervisor at the Brisbane Depot. Mr Simmons reported he returned to Sydney on 6 February, 2006 with 5 vehicles on the trailer of his truck...he had been certified unfit for work by Dr Grinbergs since the date of [their] first consultation... 63The primary judge also referred to Dr Abraszko's report of 3 May 2006 (Red 32 [80]) in which the following was recorded: On 18 January, 2006 in Perth whilst driving a truck, he had to put a strap around some cars and tried to wrench it. Since then he had significant and immediate pain in his lower back on the right side. He told his Manager in Perth and [was] commenced on painkillers and continued his trip through the west coast to Brisbane. When he returned to Sydney he saw his local doctor and had a CT scan done. 64The primary judge then referred to Mr Simmons' consultations with Dr Abraszko as follows (Red 33 [84]): Between 24 May 2006, and 19 January 2009, Rodney Simmons consulted Dr Abraszko eighteen times. He gave her or confirmed the following history. On 18 January 2006, while driving a truck, he had to put a strap around some cars and tried to wrench it. Since then he had significant and immediate pain in the lower back on the right side. Mr Simmons told his manager in Perth and was commenced on painkillers and continued his trip through the west coast to Brisbane. 65The primary judge also referred to the report of Dr Dowla that included a history given by Mr Simmons on 9 June 2006 as follows (Red 33 [85]): It initially started in 2004 while pulling a ratchet strap. This required physiotherapy for a few weeks with complete recovery. This recurred on the 18th January 2006 when [Rodney Simmons] was pulling a ratchet strap with sudden lower back pain on the right side radiating to the right thigh and knees. 66The primary judge also referred to Dr Giblin's report of Mr Simmons' history provided on 23 May 2008 as follows (Red 34 [88]): [Rodney Simmons] was over at Perth, just after lunch, 18th January, 2006 and he was up on the top deck of a car carrying BDouble trailer when he fell, on the inside, through the 2 storeys down to the bottom of the deck. He said he hurt his back. There being no previous history of these symptoms or injuries. 67The primary judge referred to a report of Mr David Dubos (a consultant in Occupational Heath and Safety) of 15 April 2009 as including the following (Red 35 [90]): Between approximately 1.00 pm and 2.00 pm on 18 January, 2006, [Rodney Simmons] fell from a narrow and unguarded edge of a two level vehicle transport trailer owned and provided by TNT. He fell a distance of some 2.5 metres, landing awkwardly on the lower deck with a leg protruding through the lower deck of the trailer. The space available to him for access on the top deck of the trailer at the side of a four wheel drive vehicle was about 100mm. There was no anti-slip material and no guard railing to prevent his fall from the vehicle. As a result of the fall he was injured. ... ...For the purposes of strapping and tying down a four wheel drive to the top deck of the trailer, [he] was required to...exit the vehicle by climbing out of the window of the four wheel drive because there was insufficient space to use the door of the four wheel drive. The process was one where he would climb out of the window, close the window using the window closing mechanism and then slide sideways along the space at the side of the top deck of the trailer. The space was less than 100mm wide and he was required to slide between the frame and the vehicle on the balls of his feet. The surface of the trailer deck was smooth steel...his foot slipped and he fell off the top deck inside the curtains at the side of the trailer... 68The primary judge also referred to the history provided to Dr James Bodel on 17 April 2009, in which Mr Simmons claimed that he was loading and securing cars on the trailer and that he "slipped and fell from the top deck of the truck" (Red 35 [91]). 69The primary judge then recounted some of the history of the trial, the settlement of the earlier proceedings and the entry of judgment (Red 36-39 [92]-[108]). In recounting this history the primary judge referred to the delivery of an ex tempore judgment by Delaney DCJ on 18 November 2009 in respect of an expert's report and to the adjournment of the proceedings to 15 February 2010. The primary judge then said (Red 37): 100. Delaney DCJ drafted six paragraphs and commenced drafting a seventh paragraph of his impending judgment on Rodney Simmons' Statement of Claim against TNT. His Honour's draft concludes with a reference to Mr Simmons: "He did not request th-" followed by the date to which his Honour had adjourned the Claim: "15/. febr ry". 70After referring to the notification to the court of the settlement of the earlier proceedings and the entry of judgment, the Judgment included the following (Red 38-39): 104. On 4 February 2010, Delaney DCJ noted on the Court's paper file of Rodney Simmons' Statement of Claim against TNT: "Action settled T/S filed. Supplementary jmt on contrib neg published. Verdict jmt for the ptf pursuant to T/S filed". ... 109. Between 19 November 2010, and 2 December 2010, the Court retrieved its paper file of Rodney Simmons' Statement of Claim against TNT from Wollongong. With the exception of his Honour's note, there was no record of the "Supplementary jmt on contrib neg published" by Delaney DCJ on 4 February 2010. My Associate asked the Court for a copy of the judgment and requested the Attorney-General's sound recording contractor for a transcript of those proceedings. The contractor could not "locate any mention on 4/2/10 before HH Judge Delaney". 110. On 6 December 2010 Judge Delaney's Associate certified nine paragraphs "of the Reasons for Judgment of His Honour Judge Delaney dated 17 [sic] December 2009" and sent the judgment to the Court's Registrar in Wollongong. The Registrar sent my Associate a copy of that "supplementary Judgment forwarded by his Honour Judge Delaney's Associate", a REVISED transcript of part of the argument, heard by his Honour on 18 November 2009 and his Honour's interlocutory judgment, overruling TNT's objections to the reports by David Dubos Consulting (exhibits G, L). (emphasis in the original) 71The Judgment concluded as follows: (Red 40-42): Conclusions 111. GIO Workers Compensation (NSW) Limited, as Agent for WorkCover New South Wales, investigated Rodney Simmons' claim number P165372J157 on its WC77561 policy with Redbro. He persuaded GIO that he was a worker, employed by Redbro, and that he had suffered personal injury, arising out of or in the course of his employment, entitling him to weekly payment and medical expenses compensation, as defined in section 4 of New South Wales' Workplace Injury Management and Workers Compensation Act, 1998, and in sections 9, 9A, 9AA, 10, 15, 16, 33, 59 and 60 of New South Wales' Workers Compensation Act, 1987 GIO discharged its liability to Redbro under their WC77561 policy by paying the claims, amounting to $156,387.96, specified in exhibit 26. 112. The medical evidence supports GIO Workers Compensation's decision to accept Rodney Simmons' belated "Claim Number: P165372J157...Date of Injury: 18/01/2006". Between 17 May 2004, and 24 May 2004, he was incapacitated by back pain, caused by an injury to his lumbosacral disc in the course of his employment with Redbro. Between Wednesday, 28 December 2005, and Monday, 6 February 2006, his back pain recurred. Between 7 March 2006, and mid April 2006, his degenerate L5/S1 facet joints were tender and he complained of "neurological symptoms", prompting the sophisticated radiological investigations which revealed, eventually, the necessity for spinal surgery (MFI 19, MFI 32, exhibit 13, 14, 16, 20). 113. Rodney Simmons may have injured his back between 1 January 2006, and 11 January 2006, during his periodic journey from TNT's depot at Villawood in New South Wales, to TNT's depots in the Northern Territory, in Queensland and at Washpool (sic) in Western Australia, or while he was at one of those depots. Possibly, he injured his back on 19 January 2006, when he alleges that he was at TNT's depot in Perth, Western Australia. It is equally possible that he injured his back during his periodic journey from Perth to TNT's depots in the Northern Territory, in South Australia and in Queensland or while he was at one of those depots. Between 1 February 2006, and 6 March 2006, none of those possibilities occurred to him as a cause of his recurrent back pain (16/11/10, 73.37-46; MFI 22, exhibit 13: emphasis in original). 114. CEVA does not persuade me that on 18 January 2006, Rodney Simmons fell from TNT's car trailer at Washpool (sic) in Western Australia, nor that he injured himself otherwise or elsewhere as a result of Redbro's negligence. If I were wrong in those conclusions, the evidence would not persuade me that on 18 January 2006, Mr Simmons' employment was connected with Western Australia. 115. It seems to me that Rodney Simmons' employment was connected with New South Wales. Between 7 July 2004, and 29 September 2004, and throughout Redbro's Contract Carriers Agreement with TNT, Mr Simmons commenced and completed his periodic interstate journeys at TNT's depot in Villawood in New South Wales. Consequently he drove Redbro's prime mover, coupled with TNT's car trailers, for thousands of kilometres on New South Wales' roads. Some thirtyone per cent of his collecting and delivering motor vehicles on the trailers also occurred within New South Wales. Mr Simmons and Redbro deliberately based its prime mover, for the purposes of his employment, at Redbro's principal place of business in his home on Banksia Place at Oakdale in New South Wales. Mr Simmons usually worked in that employment in New South Wales. If I were wrong in that conclusion, the evidence would persuade me that New South Wales was the State in which he was usually based for the purposes of that employment. 116. If I were wrong in those conclusions, the evidence would not persuade me that Furzer Crestani's "most conservative calculation" of Mr Simmons' economic loss resulted from whatever may have happened to his back on 18 January 2006. Within a few weeks, he was fit for his usual work, driving Redbro's prime mover, coupled with TNT's car trailers. He made a remarkable recovery from major spinal surgery and regained his economic capacity swiftly. 117. If I were wrong in those conclusions, the evidence would not persuade me that in these proceedings it is just and equitable for CEVA to recover a contribution or indemnity from Redbro of the "award of damages" negotiated by TNT with Rodney Simmons, nor of half that sum. It seems to me that "the Reasons for Judgment of His Honour Judge Delaney dated 17 December 2009", published on 4 February 2010, are obiter. I conclude that since 8 December 2009, CEVA has had the benefit of TNT's settlement with Mr Simmons and of "the workers compensation payback" of $104,258.53, which CEVA retains (exhibits A, 21, 22). Orders 118. Verdict and Judgment for the defendant, Redbro Investments Proprietary Limited, against the plaintiff, CEVA Logistics (Australia) Proprietary Limited. 119. The plaintiff is to pay the defendant's costs, as agreed or assessed. Grounds of Appeal 72Ceva relies upon four grounds of appeal in the Amended Notice of Appeal filed in Court on 11 September 2012. It is contended in substance that the primary judge erred in: (1) Failing to find that Mr Simmons had sustained an injury on 18 January 2006; (2) Concluding that between 28 December 2005 and Monday 6 February 2006 Mr Simmons suffered a recurrence of back pain due to an injury to the lumbo sacral disc sustained in May 2004 in the course of his employment with Redbro; (3) Drawing an adverse conclusion as to the oral testimony of Mr Simmons that it was "implausible and unreliable"; and (4) Rejecting and failing to act upon the evidence of Mr Warren Leighton on the basis that he had no useful independent recollection of whenever and whatever he had seen of Rodney Simmons at TNT's Welshpool depot and that the majority of his evidence was implausible. 73The issue at trial was whether Redbro was negligent in failing to provide a safe workplace for Mr Simmons. An essential part of Ceva's case in this respect was proof that Mr Simmons had been injured at work in the manner pleaded. There was no issue on the pleadings that Mr Simmons suffered an injury on or about 18 January 2006. The real issue was the mechanism of the injury. 74Ceva alleged that Mr Simmons had slipped on the dusty metal of the trailer and had fallen from the top level of the trailer through to the lower level of the trailer. Ceva claimed that the fall and the injury that Mr Simmons sustained resulted from Redbro's negligence, inter alia, in failing to place non-slip tape on the trailer deck. Redbro contended that the histories recorded by Ms Creswick, and Drs Abraszko and Dowla that Mr Simmons had experienced immediate pain in his back when he was securing a strap around a car on the trailer (without any mention of a slip or a fall) accurately reflected what had occurred on 18 January 2006. 75It was no part of Ceva's case at trial that, if Mr Simmons had injured his back on 18 January 2006 whilst securing a car to the trailer with a strap, it was as a result of Redbro's negligence in not providing enough space on the trailer for that process. In any event, the primary judge did not make a finding that Mr Simmons injured his back in that fashion on that date. 76The primary judge concluded that: (1) Mr Simmons was incapacitated by back pain between 17 and 24 May 2004 caused by an injury to his lumbosacral disc in the course of his employment with Redbro (Red 40 [112]); (2) Mr Simmons' back pain recurred between 28 December 2005 and 6 February 2006 (Red 40 [112]); (3) Mr Simmons may have injured his back between 1 and 11 January 2006 or possibly on 19 January 2006 or equally possibly on his return journey to Sydney from Western Australia (between 19 January 2006 and about a week or so later (Black 73)) (Red 40 [113]); (4) Mr Simmons did not fall from the trailer on 18 January 2006 in the Perth depot (Red 40 [114]); and (5) Mr Simmons did not injure himself otherwise or elsewhere as a result of Redbro's negligence (Red 40 [114]). 77Ground (1): Ceva submitted that in failing to find that Mr Simmons had sustained an injury on 18 January 2006, the primary judge failed to have regard to the concession made by Redbro in its Defence. The primary judge's reference to Redbro's concession was as follows (Red 17 [19]): Redbro admits that on or about 18 January 2006, Rodney Simmons sustained an injury. Redbro requires CEVA to prove the circumstances of the injury, alleged by CEVA in its Statements of Claim and by Mr Simmons and Warren Leighton in their oral evidence (paragraphs 1, 25-41, Defendant's submissions). 78The following exchange between the primary judge and Ceva's counsel at trial reflects the understanding that there was no issue that Mr Simmons had been injured on or about 18 January 2006 (Black 29): PARKER: But the fact of incident to use a neutral expression on 18 January 2006 is not in issue as I understand it. HER HONOUR: Well he had an injury on 18 January 2006. PARKER: That's not in issue as I understand the pleading. HER HONOUR: No but whether it caused loss and damage is. PARKER: I understand there's an issue about all that. HER HONOUR: The mechanism of it yes and its sequale. 79Although this exchange occurred before Redbro amended its Defence to add the word "or about" 18 January 2006, there was still no issue that Mr Simmons suffered an injury on or about that date. The issue was the mechanism of the injury. 80The primary judge's findings that it was "equally possible" that Mr Simmons "injured his back" between 1 January 2006 and 11 January 2006 on 19 January 2006 or between 19 January 2006 and 1 February 2006 (Red 40 [113]) failed to have regard to the fact that the parties were ad idem that Mr Simmons sustained an injury on or about 18 January 2006. It was not suggested by either party at trial that there was any possibility of an injury to Mr Simmons' back at any place other than the Perth depot on or about 18 January 2006. 81Although it was not the subject of express admission on the pleadings, the parties proceeded at trial on the basis that the injury sustained by Mr Simmons was an injury to his back. The real issue for her Honour to determine was how the injury was sustained on or about 18 January 2006. Her Honour embarked on a process of assessment of when an injury may have been sustained, rather than commencing from the agreed premise that there was an injury sustained on or about 18 January 2006. 82Ground (1) is made out. 83Grounds (2), (3) and (4): The primary judge's finding that Mr Simmons suffered a recurrence of back pain and did not fall from the trailer as claimed depended upon the rejection of the evidence of Mr Simmons and Mr Leighton. Accordingly, there is a great deal of overlap in the matters raised by Grounds (2), (3) and (4) that makes it convenient to deal with these Grounds together. 84Ceva contended that the primary judge's conclusion that Mr Simmons had suffered a recurrence of the back pain he suffered in 2004 (Red 40 [112]) was against the weight of the evidence of Mr Simmons and Mr Leighton and the Medical Certificates and reports. 85The timeframe of between 28 December 2005 and 6 February 2006 in the finding in relation to when Mr Simmons' back pain may have recurred in paragraph [112] of the Judgment (Red 40) appears to be a reference back to paragraphs [66] to [67] of the Judgment. In those paragraphs the primary judge refers to Mr Simmons' work journey commencing on 28 December 2005 from New South Wales, arriving in Western Australia (via the Northern Territory and Queensland) on 11 January 2006, leaving Western Australia for New South Wales (via the Northern Territory, South Australia and Queensland) and arriving on 1 February 2006. The date 6 February 2006 was when Mr Simmons attended his general practitioner Dr Grinbergs. 86Mr Simmons' evidence was that he departed from Perth on 19 January 2006 (the day after the injury) and arrived back in Sydney ("give or take") about a week or so later (Black 74). There was no evidence about the timing of the journey to Perth. It may be that the primary judge relied upon Exhibit C (the TNT records) (Blue 49-106) to reach her conclusion about these dates. Those records include a reference to Welshpool on 28 December 2005 (Blue 102). However, Mr Simmons' evidence was that, although he had not seen these TNT documents before they were shown to him in the witness box, they evidenced where the cars came from and went to and not necessarily where he picked them up or the destination to which he delivered them. He said that the documents tracked the car and not the driver (Black 139). Mr Hancock's evidence supports that opinion (Black 36-37). It is probable that the TNT documents in Exhibit C tracked the cars and not the drivers of the transport vehicles. They did not provide a basis upon which to conclude that Mr Simmons was in a particular location on a particular date. However, they may have provided some indication of the approximate dates the cars were delivered to a particular area. 87It is not possible to identify from the Judgment how the primary judge chose the dates in the period during which it was found that Mr Simmons' "back pain recurred" (Red 40 [112]). 88There are some other findings by the primary judge in respect of Mr Simmons' evidence about the documents in Exhibit C that relate to Ground (3) with which it is convenient to deal at this point. 89The dates of the invoices in Exhibit C were between 7 July 2004 and 10 May 2006. In some parts of the documents there were blank spaces. The largest portion of blank spaces was between 8 February 2006 and 8 March 2006. The primary judge said that Mr Simmons "alleges that a significant gap in TNT's data" corresponded with his claim for weekly compensation (Red 18 [24]). Mr Simmons did not make such an allegation. Rather, when he was shown the documents, and in particular the page for the dates 8 February 2006 to 8 March 2006, he observed that the date 8 March 2006 was "near the big blank spot there" (Black 138). At no stage did Mr Simmons use the expression "significant gap". He gave the following evidence in cross-examination (Black 139): Q. And your evidence is I think, as I understand it, that on 6 February you went to Dr Grinberg (sic). On 7 February you went back to him. And you commenced your time off work and I think you said you went back to work on about 7 or 8 March or thereabouts. A. That's what I thought, I had a month off. Q. And that would coincide with the blank section shown on that page wouldn't it? A. Yeah. 90It is not possible to discern what the primary judge intended to convey in using the expression "significant gap" or in stating that Mr Simmons made the so-called allegation. However, it appears that these observations played some role in the judge's reasoning because they immediately precede the conclusions that Mr Simmons' allegations about reporting his injury to TNT on 18 January 2006 were "vague" and "not persuasive". 91The primary judge dealt with Mr Simmons' evidence as follows (extracted earlier but repeated here for convenience) (Red 18): 24. In the witness' box, Rodney Simmons conveyed the impression that he is astute. When Mr Simmons commenced his evidence, he had not seen TNT's record of its customers' motor vehicles on its car trailers, which he had coupled with Redbro's prime mover. Mr Simmons alleges that a significant gap in TNT's data corresponds with his "Claim Number: P165372J157...Date of Injury: 18/01/2006" for weekly compensation. His vague allegations that on 18 January 2006, he reported an injury or his fall to TNT are not persuasive (16/11/10, 72.43-8, 73.1-40, 73.37-46, 74.1-7, 17/11/10 143.39-50 144.1-50, 145.1-13; exhibits B, C, 14). 25. Rodney Simmons blustered, volunteered extraneous data belligerently and steadfastly refused to answer questions when his veracity was challenged. Intermittently, he admitted that he could not remember events he had described to this Court. Part of his evidence is implausible. His uncorroborated allegations are unreliable. The handwritten records of his representations to Dr Peter Grinbergs and to GIO Workers Compensation have been altered (exhibits 13-15, 17, 23, 24). 92The references to the transcript and exhibits at the end of these paragraphs appear to have been included as support for the primary judge's conclusions in those paragraphs. The first reference in relation to the conclusions in paragraph [24] is Black 72 lines 43 to 48. That is a section of the transcript extracted at paragraph [35] of this judgment that includes Mr Simmons' version of what happened on 18 January 2006. 93The next section of transcript is at Black 73 lines 1 to 40, which is the balance of the extracted transcript at paragraph [35] of this judgment. The next section of transcript referred to by the primary judge is on the same page and overlaps with the previous reference, being at Black 73 lines 37 to 46. The primary judge also referred to lines 1 to 7 at Black 74 in which Mr Simmons referred to his back being "very sore" with a pain from his right leg through to his back, and to the cuts and abrasions from falling. 94The next section of transcript referred to by the primary judge in paragraph [24] of the Judgment is at Black 143, lines 39 through to Black 145 at line 13. That included the following evidence in relation to Mr Simmons' claim that he reported his injury to Mr Dunlop: Q. Mr Simmons you know the name - see when you had this, as you told her Honour yesterday, this fall from one level of the car carrier to the other you didn't fill out any report of injury form did you, at that time? A. For who? Q. For anybody, at that time? A. I filled out the injury report form in the depot. The names that are on the forms are who it was submitted to. I can't remember, one was Shaun Dunlop. Q. I'm about to come to Mr Dunlop. What you say is that you reported something, on your claim form in which you describe how the injury occurred while loading cars onto trailer I experienced pain in my lower back. On page 2 you reveal that you reported the injuries to Shaun Dunlop, Operations Manager, is that right? A. Yes, that's who it was at the time, I don't know if he's there or not, I don't know. Q. And do you say that you completed a document to that effect? A. Yes. Filled in one of their forms. Q. I want to suggest to you that you never completed a document setting out that you injured yourself falling from one level of a car carrier to another level. What do you say about that? A. How can you come up with that theory? Q. Do you deny that? A. I told you, I'd written, I told you I filled out an injury report form in the depot. Q. Are you saying that you filled out a report form saying that you fell from one level of car carrying trailer to another level, is that what you are saying to this court? A. I've said three times that I filled in the forms recording it in the Perth depot and that's where -- Q. Reporting it in those terms? A. I don't know what I wrote. I do not have a copy of the forms. We're going back nearly five years ago and you want me to remember what I wrote on a piece of paper. Q. And you tell the court you can't recall what you reported but you tell the court you reported something to Mr Dunlop? A. Well I know his name is on the form there in front of you? Q. You tell the Court you reported something to him? A. Well tell them to have a look through their records, that's where the report will be. 95The primary judge made no reference to the portion of the transcript of Mr Simmons' earlier cross-examination in which he gave the following evidence (Black 115-116): Q. See Mr Simmons only one person knows what happened, whenever it was you injured yourself, that's right isn't it? A. I'm not even going to justify that with an answer. Q. Why say something different? A. Only one person knows what happened. Q. You were there. GIO wasn't there. The case managers weren't there. The doctors weren't there, that's right isn't it? A. And it was reported to two people in TNT's depot and I had the help of another driver to get out of the trailer. Q. Well I'll come to the report you say you gave to TNT in a little while? A. But then I don't know which form its on. I've got the names of the two people it was reported to. Q. Yes. A. They're on the paperwork. 96Mr Leighton's evidence was that he helped Mr Simmons to his feet and he took him to Mr Dunlop at the Perth depot. Mr Leighton said that he did not know if an "incident book was filled or not" although he said he did not think that one was completed (Black 193-194). Dr Abraszko's reports dated 3 May 2006 and 17 June 2009 included the history that Mr Simmons had "told his manager in Perth" (Blue 140; 193). The primary judge made no reference to this part of Mr Leighton's evidence or to the portion of Dr Abraszko's reports in concluding that Mr Simmons' "vague allegations that on 18 January 2006, he reported an injury or his fall to TNT are not persuasive". Although the primary judge found that Mr Leighton's evidence was generally "implausible" it is not possible to identify why Mr Leighton's evidence that he took Mr Simmons to see Mr Dunlop was not accepted. 97The primary judge also referred to Exhibit 14 at the end of paragraph [24] of the Judgment. That is the Claim Form dated 31 March 2006, that was completed by Mr Simmons' (with his mother's assistance). The question in the Claim Form, "How did the injury occur, and what were you doing when the injury happened? (e.g. slipped when climbing a ladder)" was answered, "While loading cars onto a trailer I experienced pain in my lower back". In cross-examination (extracted at paragraph [38] above) Mr Simmons accepted that the answer was "different" to what he had said in Court and that it was "not accurate". Mr Simmons asserted that he had been through the discrepancies in the documentation with the Workers Compensation Insurer's Claims Managers who were satisfied with his explanation (Black 109). The second section of the Claim Form contains further questions and answers in relation to the "injury" including that Mr Simmons reported the injury to Mr Dunlop at the Perth depot on 18 January 2006 (Blue 133). 98Ceva relied upon this Court's decision King v Collins [2007] NSWCA 122 to submit that the answer in the Claim Form would not justify an adverse finding as to Mr Simmons' credit or reliability. In that case the appellant slipped on the top step of the driver's cab of a prime mover and fell heavily, injuring his back. In his claim against the owner of the prime mover, the appellant alleged that the step was "loose" and that he had previously reported this condition to the respondent's employee. The respondent succeeded at trial and the issue on appeal was whether the trial judge erred in reaching the conclusion that the step was not loose based on various matters that led the trial judge to conclude that the appellant was an "unreliable witness". 99In answer to the question in one of the forms requesting a brief description of injuries received in the accident, the appellant had stated that he had "slipped on step while exiting truck then fell backwards onto the step which is what caused my injury": at [36]. There was no mention of a "loose" step. Basten JA, with whom Mason P and Santow JA agreed, observed that the forms "did not suggest that the reason for slipping needed to be identified": at [36]. His Honour also said that "some care must be taken in attributing too much weight" to documents recording the cause of the particular accident, and that the omission of particular material must be assessed against the purpose and nature of the document, the circumstances in which it was created and by whom it was created: at [34] and [36]. 100In that case, the absence of any reference in the answer to the loose step is understandable. It was the fall that caused the injury. However, in Mr Simmons' circumstances, it is not unreasonable to expect that he might have mentioned that the injury occurred when he fell. On the other hand, his evidence was that he fell when he felt the snap in his back (Black 121). If that were the case it may have been accurate, at least in his mind, to answer the question that the injury occurred "while loading cars onto trailer". 101Redbro submitted that the answer given by Mr Simmons as to how the injury occurred without mention of any fall is a reasonable basis upon which to conclude that he did not fall. It was submitted that when this absence is coupled with the recorded histories given by Mr Simmons to Ms Creswick, Dr Abraszko and Dr Dowla (dealt with below) such conclusion is quite justified. The difficulty with that submission is that the primary judge gave no reasons touching upon Mr Simmons' answer to this question. There were no reasons given as to whether the answer in the Claim Form formed part of the primary judge's reasons for concluding that Mr Simmons allegations were "vague" and "not persuasive". 102It might be that the primary judge concluded that the entries in the Claim Form were inconsistent with Mr Simmons' oral evidence. Even if that were so, it was necessary for the trial judge to give reasons as to why and/or how the conclusion that Mr Simmons' evidence was not persuasive was reached. This was particularly so where Mr Leighton corroborated Mr Simmons' evidence that he had reported his injury to Mr Dunlop and where there was no evidence called to suggest that Mr Simmons and Mr Leighton did not attend upon Mr Dunlop on 18 January 2006. 103In dealing with Mr Simmons' evidence in paragraph [25] of the Judgment and concluding that an unidentified "part" of it was "implausible", the primary judge also concluded that Dr Grinbergs' documents and the GIO Workers Compensation documents had been altered. Her Honour repeated this statement in paragraph [32] of the Judgment and said that the evidence did not enable a determination of "who made those alterations nor when they were made". 104There was no issue at trial relating to the alteration of any documents. One of the documents was difficult to decipher (Blue 45) and it appears that there was a handwritten entry (the contents of which are insignificant) over the original entry to assist with the deciphering of that document. Having regard to the context in which this conclusion is found (Red 18 [25]), and its repetition in the section of the Judgment dealing with Dr Grinbergs' Certificates (Red 20 [32]), it would appear that the alterations (whatever they might have been) had some significance to the primary judge's conclusion that Mr Simmons' evidence was in part "implausible" and that his "uncorroborated allegations" (not identified by the primary judge) were "unreliable". However, it is not possible to know what role this conclusion about the alterations played. To the extent that it played a part in the primary judge's conclusions adverse to Mr Simmons it was an error. 105Dr Grinbergs' Medical Certificates were admitted into evidence before the primary judge as Exhibit 13, without objection (Black 167-168). They included the Workcover Medical Certificate dated 24 May 2004 (Blue 43); the WorkCover Medical Certificate dated 6 February 2006 (Blue 44); Medical Certification for Mr Simmons' health fund Shield/Plansure dated 22 February 2006 (Blue 45-46); the WorkCover Medical Certificate dated 17 March 2006 (Blue 47); and the WorkCover Medical Certificate dated 8 September 2006 (Blue 48). 106The WorkCover Medical Certificate dated 24 May 2004 included the following (Blue 43): How the injury occurred while doing up strap on trailer 107The WorkCover Medical Certificate dated 6 February 2006 included the following (Blue 44): How the injury occurred Loading truck In my opinion, the worker's employment is a substantial contributing factor to this injury. Yes 108The Medical Certificate for Shield/Plansure dated 22 February 2006 (Blue 46) included the following (as extracted by the primary judge in the Judgment (Red 29 [69])): 7. Was there any previous history of this or of a similar condition? Yes If so please provide the detail of the dates and nature of the previous history of the illness or injury. 24.5.04 - Back pain settled after 1 week of physiotherapy 8. If the patient sustained an injury, what were the circumstances of the injury? NO INJURY 9. On what date did the injury/accident occur? N/A 109The WorkCover Medical Certificates dated 17 March 2006 (Blue 47) and 8 September 2006 (Blue 48) included the following: How the injury occurred Loading truck In my opinion, the worker's employment is a substantial contributing factor to this injury. Yes 110The 6 February 2006 Certificate recorded the date of the injury as 10 January 2006. The 22 February 2006 Certificate did not record any date in 2006. The 7 March 2006 Certificate recorded the date as 10 January 2006. The 8 September 2006 Certificate recorded the date as 18 January 2006. 111Although it is not clear, it appears that the primary judge may have reached the conclusion that Mr Simmons suffered a recurrence of back pain rather than an injury, partly on the basis of the following findings in respect of Mr Simmons' attendance on Dr Grinbergs on 6 February 2006 (Red 28 [67]): Mr Simmons denied that he had an accident or an injury. He did not associate his back pain with his employment, performing Redbro's Contract Carriers Agreement with TNT. 112These findings appear to be based on the Shield/Plansure Medical Certificate signed by Dr Grinbergs on 22 February 2006, in particular the answers to questions 8 and 9 above. Ceva submitted that the form is ambiguous and that there is a real likelihood that Dr Grinbergs answered questions 8 and 9 believing that they referred to the similar condition suffered by Mr Simmons in May 2004 that resulted in no apparent continuing sequelae. 113Ceva submitted that ambiguous questions and answers could not provide probative evidence as to whether Mr Simmons had denied that he had an accident or an injury or that he did not associate his back pain with his employment. In this regard Ceva relied on Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352. That was a case in which ambulance officers attended upon an injured man who was found lying unconscious at the base of the wall of a drain. The ambulance officers made a note in the Patient Healthcare Record under the heading "Patient History" that included the following "impugned representation" (at 360 [15]): Found by bystanders - parkland ? Fall from 1.5 m onto concrete No other Hx 114The plurality (French CJ, Heydon and Bell JJ) held that "the impugned representation was so ambiguous that it could not rationally affect the assessment of the probability of a fall from the vertical head wall" (at 365 [26]). 115The entries in the Medical Certificates signed by Dr Grinbergs, dated 6 February 2006, 7 March 2006 and 8 September 2006, referring to the injury occurring while loading the truck and the employment being a substantial contributing factor to the injury, are inconsistent with the statement "no injury" in the Certificate dated 22 February 2006. 116Redbro submitted that Dr Grinbergs' Certificate dated 6 February 2006 could not have been completed on that day because the diagnosis "L5/S1 disc prolapse" was not made until 7 February 2006 (Blue 45). Dr Grinbergs Shield/Plansure Certificate of 22 February 2006 includes certification that Mr Simmons had consulted him on 6 February 2006 and that the diagnosis was reached on 7 February 2006. The Certificate dated 6 February 2006 includes certification that Mr Simmons was unfit for pre-injury duties from 6 February 2006 to 6 March 2006. Ms Creswick noted that Mr Simmons had reported to her that he attended Dr Grinbergs' surgery on 6 February 2006 and that he received a WorkCover Medical Certificate certifying him unfit for work (Blue 144). 117It is possible that Dr Grinbergs may have written the diagnosis into the Certificate at a later time. Even if the submission made by Redbro has force and Dr Grinbergs did not complete the Certificate until a later time, perhaps on 22 February 2006 concurrently with the Certificate for Shield/Plansure, or at the time of the 7 March 2006 Certificate, there was still the reference to the injury having occurred whilst "[l]oading truck" and the opinion that Mr Simmons' employment was a substantial contributing factor to the "injury". In any event this was not a matter raised at trial. 118In cross-examination, Mr Simmons denied that he had informed Dr Grinbergs that he did not have "any particular injury" (Black 106; lines 42-45). Dr Grinbergs was not called to give evidence. There was no analysis by the primary judge at to why Dr Grinbergs would sign a Certificate on 22 February 2006 in which he certified that there was no injury, and yet would sign a Certificate dated 6 February 2006 referring to the injury and two weeks after the 22 February 2006 Cerificate, on 7 March 2006, sign a further Certificate that contained reference to the injury. 119The Medical Certificate dated 22 February 2006 appears to be the only basis upon which the primary judge found that Mr Simmons "denied that he had an accident or an injury" and "did not associate his back pain with his employment". The entries, "Loading truck", in the Certificates of 6 February 2006 and 7 March 2006 clearly associate the injury to Mr Simmons' employment. When regard is had to the whole of the evidence, in particular the Certificates of 6 February 2006 and 7 March 2006, one explanation may be that Dr Grinbergs was referring to Mr Simmons' May 2004 medical condition when he answered questions 8 and 9 in the Medical Certificate dated 22 February 2006. 120When the whole of the evidence is taken into account, the findings that Mr Simmons denied that he had an accident or an injury and that he did not associate his back pain with his employment were not justified. 121The primary judge concluded that Mr Leighton had "no useful, independent recollection of whenever and whatever he had seen of" Mr Simmons at the TNT Perth depot. Her Honour referred to Mr Leighton's "vague memory" of TNT's internal inquiries in mid 2006, concluding that this was consistent with Mr Simmons' belated claim on GIO Workers Compensation. Her Honour also concluded that Mr Leighton had "conjectured, blustered and was flippant and became bellicose when his veracity was challenged". Her Honour concluded that the "majority" of Mr Leighton's evidence was "implausible" (Red 19 [27]). 122Ceva submitted that Mr Leighton's evidence corroborated Mr Simmons' evidence in a number of respects including that: (1) the accident happened at TNT's Perth depot; (2) he observed Mr Simmons on the bottom deck; (3) he assisted Mr Simmons; (4) he took Mr Simmons to the Site Manager, Mr Dunlop; (5) Mr Simmons was using a wheel strap when he fell; and (6) Mr Simmons slipped because there was no anti-slip tape on the deck of the trailer. 123Ceva submitted that it is important to note that Mr Leighton was not cross-examined to suggest that he was reconstructing, or had no useful memory or recollection of, the events. Redbro's written submissions before the primary judge included the following (Black 352 [51]): If necessary we would submit that your Honour would be well able to find that the whole story put forward by Simmons and Leighton at hearing in these proceedings was a concoction. That finding is not however necessary. It is enough, we would submit, that the Court could not be satisfied that the accident occurred in the way it is pleaded and as a consequence the Court would not be able to find that Redbro was a joint tortfeasor. It would follow that Ceva would not be entitled to either contribution or indemnity from Redbro. 124Although Mr Simmons asked the cross-examiner whether it was being suggested that he was lying (Black 106) and Mr Leighton asked the cross-examiner not to insinuate that he was lying (Black 194), it was not suggested to either Mr Simmons or Mr Leighton that they had got together and concocted a version of events to put before the Court. There was no basis for finding that the evidence had been "concocted" and the primary judge made no such finding. 125The primary judge included a series of transcript references at the end of the paragraph that includes the conclusion that "the majority" of Mr Leighton's evidence was "implausible" (Red 19 [27]). Ceva submitted that when those transcript passages are examined, they do not support the conclusion that Mr Leighton's evidence was implausible or the product of a defective or reconstructed recollection. It was submitted that the primary judge's assertion that Mr Leighton had no useful, independent recollection of whenever and whatever he had seen of Mr Simmons at TNT's depot, cannot be sustained. Indeed it was emphasised that the proposition was not put to Mr Leighton in those terms by counsel for Redbro or by the primary judge. 126The first section of transcript apparently relied upon by the primary judge to reject Mr Leighton's evidence was Black 73, lines 37 to 46 on 16 November 2010 set out at [35] above. That is a passage of Mr Simmons' evidence-in-chief in which he claimed that after he fell "one of the other local guys had to help me out from the bottom of the trailer and he helped me finish loading and then I left Perth the following morning". In this passage Mr Simmons identifies Mr Leighton as that person (albeit that the transcript reads "Lateman (?)"). The second passage of transcript is at Black 191 (page 36 of the trial transcript) lines 5 to 15 on 18 November 2010. That is a passage of transcript in which Mr Leighton gave evidence of what he observed when Mr Simmons fell from the top trailer to the bottom trailer. Mr Leighton said that Mr Simmons had gone forward to restrain the vehicle by putting a strap on the front wheel and that he had slipped and fallen between the edge of the deck and the curtain landing on the bottom deck. 127The next passage of transcript is on the same date at Black 193 (page 38 of the trial transcript) line 50 to Black 195 (page 40 of the trial transcript) line 50. That is a passage in which Mr Leighton said that he had taken Mr Simmons to see Mr Dunlop. He also gave evidence that he and Mr Simmons departed at the same time, he to Kalgoorlie and Mr Simmons to Darwin, maybe one or two hours after the events that he had described. The balance of that portion of the transcript on Black 194 (page 39 of the trial transcript) is the commencement of the cross-examination of Mr Leighton in which he was challenged as to how he could remember that the incident occurred on 18 January 2006. This is the portion of the transcript in which Mr Leighton clearly became irritated about the challenge to his memory and responded that on 18 January 2006 he was "probably on the moon". However he subsequently said that he knew "for certain" that he was at that depot and asked the cross-examiner not to insinuate that he was a liar. 128The balance of the transcript includes a further challenge to Mr Leighton's evidence about his memory of the date of the incident. Mr Leighton referred to the fact that he was only asked that morning whilst he was at work to come to Court to give evidence. This was an explanation as to why he did not have his logbooks or diaries with him. It was suggested to him that he could not "possibly remember" the date on which he observed Mr Simmons fall from the trailer. However Mr Leighton said that the incident sat "fairly significantly" in his mind. 129The next passage of transcript is at Black 196 (page 41 of the trial transcript) lines 13 to 50. That is a passage of Mr Leighton's further cross-examination in which he was requested to identify the last time that he had been asked to recollect any incident at the Perth depot in which Mr Simmons was involved. It was at this stage that Mr Leighton referred to "some internal inquiries" a few months after the event in 2006. Mr Leighton also gave evidence that the incident "most definitely" did not happen at six o'clock in the morning. This question was asked in order to establish the inconsistency with Mr Simmons' Claim Form in which it was recorded that the injury occurred at approximately 6 am (Blue 133). 130The final passage of transcript is at Black 203 (page 48 of the trial transcript) lines 5 to 20. That is a passage of further cross-examination of Mr Leighton in which he confirmed his earlier evidence in relation to Mr Simmons falling through the trailer. Mr Leighton also said that it would be "untrue" to claim that Mr Simmons got out of the vehicle and walked along the gap between the vehicle on the trailer and "just slipped off the metal portion that he was walking on from one level to the other". Once again this was to establish an inconsistency between Mr Leighton's evidence and Mr Simmons version of events. However, this version of events that was put by the cross-examiner was that contained in the pleading (Blue 164 [11]-[12] and Red 2 [5]) rather than Mr Simmons oral evidence (Black 72). 131The primary judge did not give any reasons for rejecting "the majority" of Mr Leighton's evidence as "implausible". The evidence that might fall within that description was not identified. There were no reasons given as to the basis upon which the primary judge reached the conclusion that Mr Leighton's recollection was not "useful". As I have said, it was not suggested to Mr Leighton in cross-examination that he was concocting his evidence. Although the primary judge concluded that Mr Leighton "conjectured", none of the passages identified above supports such a finding. If the primary judge was referring to Mr Leighton's identification of the date as conjecture, that does not seem to support a finding that his evidence was implausible, particularly when there was no issue between the parties that Mr Simmons injured himself on or about 18 January 2006. 132There was one aspect of Mr Leighton's evidence that Redbro submitted was "absurd" (tr 49). Mr Leighton was cross-examined about his observations of Mr Simmons at the time of the accident. He said that he could see a "silhouette very easily" (Black 205). In this regard he said that the positioning of the trucks in the yard in Western Australia "had the sun coming across from the west so the curtains" were not blocking "every bit of light" (Black 205). When the cross-examiner returned to the topic of the sun and asked what it was that Mr Leighton had said about it, he gave the following answer (Black 205): It would have been over to the left-hand side of the truck being - as the sun there for some reason is different, not different as its positioning in the sky is different to what it would be here because their timeframe is two hours behind, I think it is. 133This portion of Mr Leighton's evidence does present as absurd. However, it was not mentioned by the primary judge as a basis for rejecting Mr Leighton's evidence otherwise, nor was it pursued further in cross-examination. The epithets applied to Mr Leighton's evidence that he "blustered, was flippant and became bellicose when his veracity was challenged" would appear to result from Mr Leighton's reference to being on the moon and challenging the cross-examiner not to call him a liar. 134It was necessary for the primary judge to give proper reasons so as to identify the basis upon which Mr Leighton's evidence was rejected as implausible: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442-444 per Meagher JA; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 per Hayne J at 1835-1836 [129]-[131]. This was not done. 135Redbro submitted that the combination of the inconsistent, contemporaneous reports of Mr Simmons' alleged injuries, combined with his belligerence in the witness box, meant that the primary judge was entitled to reject his evidence where it was uncorroborated. The difficulty with that submission is that it is not possible to know which of Mr Simmons' "allegations" were held to be uncorroborated. Obviously, the claim that he slipped and fell was rejected. However, Mr Leighton's evidence was corroborative of that claim. It follows from the primary judge's rejection of Mr Simmons' evidence that her Honour did not accept Mr Leighton's evidence in this regard. However, it is not possible to know why the primary judge concluded that Mr Leighton's evidence in this regard was "implausible". Mr Leighton was a person who Mr Simmons identified in his evidence on the first day of the trial as having given him assistance after his fall. Mr Simmons did not claim in his evidence that Mr Leighton had seen him fall. Mr Leighton was at his workplace in Brisbane and was contacted by Ceva to attend court the following day in Sydney to give evidence. He did so without reference to any documentation such as his diaries or logbooks. Notwithstanding that he was an employee of Ceva and notwithstanding that he objected to the cross-examiner's suggestion that he may not have been recounting his evidence accurately (to use a neutral term), it was necessary for the primary judge to set out her reasons for rejecting his evidence which, on one view, clearly corroborated Mr Simmons' evidence in respect of his fall on 18 January 2006. 136Redbro contended at trial that Mr Simmons had hurt his back when trying to tighten a strap around the wheel of a vehicle that he had loaded onto the trailer rather than from falling from the top of the trailer as he had claimed. In this regard it was suggested to Mr Simmons in cross-examination that the entries in the reports of Ms Creswick, Dr Abraszko and Dr Dowla to the effect that he had reported to them that he had experienced back pain when he was putting a strap around the cars and/or pulling on a ratchet strap were accurate and reflected what had happened. Mr Simmons denied that he informed Dr Abraszko that he had tried to wrench a strap (Black 119). He conceded that he did not know what he had said to Ms Creswick "five years ago" (Black 122). He also said that he could not recall what he had said to Dr Dowla but that the doctor was "going on" a request and referral from Dr Abraszko (Black 126). 137The primary judge accepted Ms Creswick's statement in her report that Mr Simmons reported to her that, "he was tightening a wheel strap to secure the vehicle on the trailer of his truck when he felt a snap in his back" (Red 21 [33]; Red 32 [78]). 138The primary judge also accepted Dr Abraszko's statement in her report that Mr Simmons had reported that he "had to put a strap around some cars and tried to wrench it" and that he had "significant and immediate pain in the lower back on the right side" (Red 21 [34]; Red 33 [84]). Dr Abraszko's report of 3 May 2006 to Dr Grinbergs (Blue 140) recorded the history given by Mr Simmons but does not include any diagnosis linked to that history. Rather Dr Abraszko recorded Mr Simmons' symptoms as reported to her by him and then advised that his neurological examination was "normal" with reference to the results of the CT scan showing "L5/S1 disc protrusion and smaller L4/L5". Dr Abraszko advised Dr Grinbergs that Mr Simmons was to have an MRI, after which she would report further. However, Dr Abraszko's report of 17 June 2009 directed to Mr Simmons' solicitors includes a diagnosis that "Mr Simmons provide [sic] a consistent history with radiological findings and neurological examination. He suffers from L5/S1 disc protrusion and discogenic back pain as a result of his work related injury" (Blue 194). 139The primary judge also accepted Dr Dowla's statement in his report that Mr Simmons reported that he was "pulling a ratchet strap with sudden lower back pain on the right-hand side radiating to the right thigh and knees" (Red 21 [37]; Red 33 [85]). Dr Dowla's report to Dr Abraszko advised that a nerve conduction and EMG was performed on Mr Simmons that showed "no evidence of focal or generalised neuropathic abnormality" (Blue 155). Accordingly, although the history provided by Mr Simmons was included in Dr Dowla's report, it does not appear that his history was the "foundation, or part of the foundation" of his expert opinion: Ramsay v Watson (1961) 108 CLR 642 at 649. Rather, it appears that his expert opinion was based upon the physical examination and the nerve conduction study and EMG that were performed. 140The primary judge found that Mr Simmons' "history and complaints, recounted by Dr Giblin" in his report "differ from my view of the evidence" (Red 22 [40]). Dr Giblin's report included the history given by Mr Simmons that "just after lunch" on 18 January 2006 he was "up on the top deck of a car carrying B-Double trailer when he fell, on the inside, through the 2 storeys to the bottom of the deck" (Red 34 [88]). Dr Giblin concluded that Mr Simmons had a "soft tissue injury to his low back as a result of the subject accident 18th January 2006 and consistent with the changes as noted at L5/S1 in the various scans" (Blue 159). 141The primary judge also found that Mr Simmons' history and complaints that were accepted by Dr Bodel in his report "differ from my view of the evidence" (Red 22 [42]). Dr Bodel's report recorded that Mr Simmons had reported that whilst he was "loading and securing the cars" on the trailer he "slipped and fell from the top deck of the truck" (Red 35 [91]). Dr Bodel concluded that Mr Simmons "suffered a disc rupture at the L5/S1 level as a result of the fall that occurred at work on 18 January 2006" (Blue 188). 142Ceva contended that the primary judge failed to recognise that a recorded history contained in an expert's report is not evidence of the fact unless proved by admissible non-hearsay evidence. In this regard Ceva relied on Ramsay v Watson (1961) 108 CLR 642 at 649 and Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at 619 [80] per Heydon J. There was no mention in Dasreef Pty Limited v Hawchar of s 60 Evidence Act 1995. This is understandable because Heydon J was dealing with the decision of the High Court in Ramsay v Watson in 1961. In R v Welsh (1996) 90 A Crim R 364 Hunt CJ at CL, with whom Newman J and Bell AJ agreed, analysed the position of the common law prior to the introduction of the Evidence Act as it related to histories given to medical practitioners (at 367-368). With reference to Adelaide Chemical & Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 at 531 and Ramsay v Watson at 649 Hunt CJ at CL said that, where the history consisted of statements of past experiences or "a narrative of a past event", such statements were hearsay and did not establish the truth of what was said (at 367). His Honour observed that s 60 of the Evidence Act had "extraordinarily wide ramifications" (at 368) and said (at 369): Evidence of the history taken by a doctor has always been admissible, as I say, in establishing the basis upon which the doctor framed the expert evidence to be given by him or her in evidence, but not (except for statements of the type now made admissible by s 72) in order to establish the truth of what was said. As a result of s 60, evidence by a doctor of the history given to him or her by the patient and upon which the doctor bases his or her expert opinion is therefore now evidence of the truth of that history ... unless an order is made limiting the use which may be made of that evidence pursuant to s 136. 143The medical reports to which the primary judge made reference were all admitted as evidence without objection. There was no order sought under s 136 of the Evidence Act 1995 limiting the use of the contents of the reports. There may be an argument that the history in Dr Dowla's report was not something upon which he based his opinion. However that is not the case in respect of Dr Abraszko. I would conclude that the reports were admissible and her Honour was entitled to rely upon them without restriction: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at 419-420 [70]; Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at 237-238 [75]. 144It was submitted that there is no indication in the Judgment that the primary judge had regard to any of the matters identified in Container Terminals Australia Limited v Huseyin [2008] NSWCA 320 at [8] per Basten JA. These matters include that the medical practitioner who took the history was not cross-examined; the medical histories were taken for a purpose not identical with establishing liability in tort; that there may be a range of factors that affected the content of the history; and that there may be several reasons why the mechanics of the fall may not have been mentioned, including that such details had little to do with the diagnosis and treatment of an obviously serious injury. That is so. However, the real problem with the primary judge's approach to this evidence is that her Honour gave no reasons for her preference in accepting the history in some reports rather than in others. In those circumstances the primary judge's fact-finding miscarried because she did not examine or explain why she preferred the histories in certain reports to those recorded in others: Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 per Hayne J at 1835 [129]-[131]. 145Redbro submitted that the primary judge's findings as to credibility should not be overturned, because Ceva failed to show that her Honour has "failed to use", or had "palpably misused her advantage" or acted on evidence that was "inconsistent with facts incontrovertibly established by the evidence" or "which was glaringly improbable": Fox v Percy (2003) 214 CLR 118 at 139 [66] per McHugh J. Ceva submitted that, notwithstanding the advantages of the primary judge, the primary judge's fact finding had miscarried. 146In Piper v Thakral Operations Pty Ltd (t/as Novotel Brighton Hotel) & Ors [2005] NSWCA 459 McColl JA, with whom Hodgson and Basten JJA agreed, referred to this Court's task in a case such as this of conducting a real review of the trial and of the primary judge's reasons [64]. Similarly to the present case, an issue in that case was whether the appellant/plaintiff had suffered an injury in the manner pleaded. The appellant had completed a claim form in which he stated his version of the mechanism of the injury. There were also medical and other reports that contained histories from the appellant in respect of that mechanism. In that case the trial judge found in favour of the respondents on the basis of the contemporaneous notes that were found to be inconsistent with the version of the accident given by the appellant. The trial judge also made substantial adverse credit findings against the appellant and concluded that he had continually revised his version of events so that it was a product of reconstruction that did not substantiate the claimed mechanism of the injury. 147McColl JA said at [65]: This is not a case like Fox v Percy where the High Court held that the Court of Appeal had not erred when setting aside a finding of fact made by a trial judge which was based on the credibility of a witness where incontrovertible facts or uncontested testimony demonstrated that the primary judge's conclusions were erroneous. This was a case where resolution of the principal issue (the mechanism of injury) turned on determining whether, out of many versions of the August 1999 incident apparently given by the appellant, that which he asserted in the witness box should be accepted. Assessing the appellant's credit was integral to determining whether he had discharged his burden of proof. 148The present case is also one where the principal issue (the mechanism of the injury) turned on the resolution of determining whether the version of accident and injury on 18 January 2006 given by Mr Simmons to three expert consultants or the version given by him to two other expert consultants and by him personally in the witness box should be preferred. It is also a case where Mr Simmons' credit was integral to determining that issue. However in the present case there was the potentially corroborative witness Mr Leighton whose evidence it was necessary to review and weigh against the other evidence in the proceedings. 149In Piper v Thakral Operations Pty Ltd (t/as Novotel Brighton Hotel) & Ors McColl JA also referred to the "painstaking review of the evidence" that had been conducted by the trial judge [66]. The trial judge had exposed his reasoning for making the critical findings that the appellant had revised his version of events and sought to shift the blame for his disabling condition that had been suffered in a later incident to the respondents. The appeal was dismissed. 150Although there are similarities, the present case is distinguishable from that case in some very important respects. In the present case the primary judge did not conduct a "painstaking review of the evidence". The primary judge did not "review" the evidence but merely listed transcript references and exhibits without any analysis to assist the parties to understand on what basis her Honour had reached the conclusions in paragraphs [112] to [114] of the Judgment. There was no exposure of the reasons for rejecting the evidence of Mr Simmons and Mr Leighton that was integral to determining whether the appellant had discharged its burden of proof. 151Ceva undertook what has been described as a "difficult exercise" in challenging findings of credit: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8]. The manner in which the principles are to be applied in such a case was considered in Skinner v Frappell [2008] NSWCA 296 per Basten JA at [4]-[16]. In particular his Honour referred to the well-accepted principle that the appellate court must defer to the advantages of the trial judge in assessing the testimony of witnesses: at [8]. However, his Honour referred to the requisite degree of deference depending upon a number of factors that are not clearly distinguishable and that tend to merge into each other. His Honour said at [8]: It is frequently said that findings may be based upon assessments of credibility or reliability or, more diffusely, matters of impression. Each of these three concepts covers a range of factors. For example, an assessment of credibility may range from a conviction that a witness is lying, to a degree of uncertainty as to whether or not the witness is telling the truth. The assessment may relate to a specific question and answer, to a subject matter, or of the whole of the witness' testimony. These distinctions are matters of importance when countervailing factors are placed in the balance. 152One of the difficulties in determining the basis upon which the primary judge concluded that "part" of Mr Simmons' evidence was "implausible" is that there was no identification of any specific question or answer or any other specific matter warranting such conclusion, nor was there any analysis of any countervailing factors, for instance, the evidence of Mr Leighton that he took Mr Simmons to see Mr Dunlop and/or the entry in the Claim Form dated 31 March 2006 that Mr Simmons had reported the accident/injury to Mr Dunlop. In those circumstances, the degree of deference that is to be given to the trial judge's advantage in assessing the testimony of Mr Simmons (and also Mr Leighton) is less than it otherwise would be had reasons been given for the conclusions reached in respect of their evidence. 153Ceva submitted that although Redbro's submissions sought to identify discrepancies or differences between the accounts given by Mr Simmons on the one hand and Mr Leighton on the other, the only identified discrepancy that the primary judge referred to was whether or not they left the Perth depot at the same time. It was submitted that if there were other inconsistencies on the primary judge's mind at the time they were certainly not revealed in the Judgment. Ceva submitted that the matters raised by Redbro as possible bases for the primary judge's conclusions are not identified in the Judgment. In those circumstances it was submitted that the case warrants a fresh trial. 154There was no examination by the primary judge in the Judgment as to why the evidence of Mr Simmons amounted to vague allegations that were not persuasive. Nor was there any examination as to why the evidence of Mr Leighton was implausible. There was no examination as to why the reports of Dr Giblin and Dr Bodel differed from the primary judge's view of the evidence. Nor was there any indication given as to what the primary judge's view of the evidence was to enable a comparison between those views and the reports. The absence of explanation for and reasoning in support of the conclusions expressed by the primary judge to reach the conclusions contained in paragraph [112] to [114] of the Judgment reveal that the process of fact-finding miscarried: Waterways Authority v Fitzgibbon at [129]-[131] per Hayne J. 155Grounds (2), (3) and (4) are made out. 156Redbro filed a Notice of Contention in which it contended that it would not be just and equitable for Ceva to recover contribution and/or indemnity from Redbro in circumstances where damages had been calculated on the basis that Mr Simmons was responsible for his own injury to the extent of one third. This Notice was filed before Ceva amended its Notice of Appeal. If Ceva is successful at the new trial, this will be a matter for consideration by the trial judge. 157I propose that the following orders be made: