Collings v WCB [1997] QCA 224

Court of Appeal (Qld)|1997-07-29|Before: Before McPherson J, Davies J, Moynihan J, Pherson J

This is an appeal by the unsuccessful plaintiff in an action for damages for personal injury alleged to have been sustained by him in the course of his employment. The plaintiff was working as a console operator at the BP Service Station at Woodridge on 25 October 1994, when at about 8.50 p.m. he was robbed at knife point by two men, who entered the shop area with their faces covered and took money. As a result of his experience on that occasion, the plaintiff claimed to have suffered post-traumatic stress which has rendered him unemployable.

The robbery incident was recorded by a video camera, and the video tape formed part of the evidence at the trial and on appeal. Basing himself on what can be seen on it and on the plaintiff's evidence at the trial, the judge found that, shortly before the incident. the plaintiff was stationed in the console area. It consists of a raised platform and counter on which the till was situated, and from which the attendant has a view of the shop and the petrol pumps outside. The plaintiff left the console and went to re-arrange some of the stock near the entrance door into the front of the shop. The door was closed but he did not lock it.

It was while he was there that the robbers entered the shop. They menaced him with knives. One of them remained with him, while the other went to the console area and tried to open the till. It caused the alarm to go off. Meanwhile, the plaintiff was pushed to the ground and ordered to sit on his hands. The robbers were unable to open the till, but took a bag of notes which the plaintiff had left beside the till. After they had gone, the plaintiff understandably, as the judge said, decided to remain on the floor, and not to return to the console area to operate the emergency button that would have summoned the police.

At the trial it was common ground that the plaintiff had been a victim of a robbery at knife point and that an experience of that kind was liable to induce a condition of post-traumatic stress disorder. There were, however, several reasons that led the judge to believe that the plaintiff was not a witness worthy of credit. The plaintiff emerged from the incident with bruising to his face which was observed and noted later on the same night by his medical practitioner Dr Rose, whom he consulted shortly afterwards. However, there was, as it turned out, a curious explanation for these injuries. The place on the floor on which the plaintiff had been seated during and after the robbery was not quite out of the range of the video camera scanning the scene. When the film is reviewed at slow speed, the plaintiff can be seen, shortly after the robbers had left, delivering a series of sharp blows with his fist to the right side of his face. In evidence at the trial the plaintiff said he had no recollection of hitting himself; but on the night of the incident he told Dr Rose that he had been hit about the head during the robbery. In answering an interrogatory, he said that he had been struck by one of the robbers on the right side of the head. Eventually, at the trial he agreed he had not been struck by anyone. The bruising noticed by Dr Rose was evidently self-inflicted.

The plaintiff's evidence was permeated with inconsistencies, or with something less creditable. The judge described as "less than impressive" his evidence about the value of a wrist watch said to have been taken in the course of the robbery. His account of how much money he had left out of the till was contradictory. In his answer to another interrogatory, he said that the lock to the front door had been damaged, and he believed it was difficult to lock. In cross-examination at the trial, he conceded he had no reason to believe there was anything wrong with the lock.

In addition, his evidence about his post-traumatic condition was shown to be false in several essential particulars. Although he claimed to have become a total invalid as a result of the incident, there was evidence that he continued to play soccer. According to Dr Rose, the plaintiff told him he had been training for soccer since February 1995. He injured his knee and ankle playing soccer in March 1995 but would not admit to having done so until confronted in the witness box with the record of his admission to Logan Hospital. At a time when he was allegedly unable to do any work, he was participating in a house cleaning business and, as the judge found, actively working in it for profit. He claimed and received workers' compensation payments for some of that period; but, he said, he ceased to do house cleaning because there were "so many stickybeaks around".

On the issue of the plaintiff's injuries, the learned trial judge said he was not satisfied that the robbery caused the plaintiff post-traumatic stress disorder. It was in the context of that finding that his Honour said he considered the plaintiff not to be a credible witness. The point becomes relevant on appeal because it was submitted on behalf of the plaintiff that there was evidence on which the judge ought to have found that the plaintiff suffered at least some post-traumatic stress as a result of his experience. Reference was made to the evidence given by the plaintiff's wife to the effect that, at least until February 1995, the plaintiff's personality had altered and he had stopped doing anything about the house. He did not respond to the children, and "just kept staying in the bedroom with the door closed".

His Honour did not specifically pass upon or refer to the evidence of the plaintiff's wife. It is, however, consistent with his rejection of the plaintiff's claim that he had sustained post-traumatic stress that he would not have been prepared to accept, and did not accept, her evidence about his condition. She said that when she first saw him that evening after the robbery "he was as white as a ghost"; that he was "shaking", and couldn't sit down. He went to the toilet, she said, and was sick. Other witnesses failed to confirm her impression of such a severe response to the experience he had gone through. There was evidence from Mr Egstorf, the service station proprietor, that, when he spoke to the plaintiff on the evening of 25 October 1994, he seemed upset about the robbery and kept saying he was sorry. After the incident Mrs Egstorf took the plaintiff into the office. In cross-examination Mr Egstorf was asked to repeat what she had told him about her observations of the plaintiff. He was asked whether the plaintiff was shaken by the ordeal, or anything like that. Mr Egstorf's answer was that Mrs Egstorf had said the plaintiff was upset. She had put an arm around him and given him a hug. Dr Rose, who had been treating the plaintiff since 1990 and continued to do so after October 1994, said that after the robbery he had not noticed anything surprising in the way he carried himself during that period. It seemed, he said, speaking of the plaintiff, "to be the same old Terry". Dr Rose saw the plaintiff not only on the night of the robbery but again two days later on 27 October 1994, when he recorded in his notes "Discussed further counselling (patient feels no need)".

The only other expert medical evidence consisted of a report and a written statement from Dr Wood (ex. 3A and 3B), and a report and evidence at the trial from Dr Mulholland. Dr Wood was not available for cross-examination, and the judge said he placed no reliance on his report. Dr Mulholland's opinion as a consultant psychiatrist was that an experience like being robbed would be enough to precipitate a person into post-traumatic stress disorder, and that the plaintiff was suffering from a "moderately severe" form of that condition, with associated anxiety disorder, phobic disorder, and depressive disorder. However, in arriving at that diagnosis he had necessarily relied on statements made to him by the plaintiff. Having viewed the slow motion version of the video recording, Dr Mulholland agreed in cross-examination that it brought into question what the plaintiff had told him about the incident and about his symptoms. When it was put to him that it must surely call into question his eventual diagnosis of the plaintiff, Dr Mulholland's answer was, "Yes, well, it does cause one to have some decreasing in one's confidence and a sense of unease about that diagnosis, that's correct".

A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth. In substance, that was the state of affairs that prevailed in the present case. The falsehoods in the plaintiff's evidence have the consequence of preventing the trial judge, and now this Court, from knowing and assessing the real disability, if any, caused by the experience he underwent on the night of 25 October 1994. The judge was justified in rejecting the plaintiff as a credible witness, and his finding to that effect was not challenged on appeal. Once that conclusion is reached, it infects other evidence (including that of his wife) about his condition after the incident. If he was prepared to go to the length of fabricating marks of an assault on himself, there is no reason to suppose he would have been reticent about doing so with respect to other aspects of his condition after the event. The suggestion on appeal that the plaintiff should be awarded compensation for some degree of post-traumatic stress finds no support in any reliable evidence given at the trial.

The trial judge assessed damages for pain and suffering at $10,000; but that assessment was contingent on the plaintiff's having suffered post-traumatic stress disorder as a result of the failure of the defendant employer to provide a safe system of work or of having acted in breach of statutory duty. His Honour's findings on each of these issues was unfavourable to the plaintiff. The principal foundation of the plaintiff's case on liability was that the security system at the service station should have incorporated sliding doors capable of being electronically operated from the console area by pressing a button. Such a system was provided at another service station or stations in the neighbourhood. The learned judge was not satisfied that if such a device had been installed at the plaintiff's place of work, the plaintiff would have used it on the evening in question. As it was, he failed to lock the front door when he went out to it to re-arrange the stock. The judge found that the plaintiff had been thoroughly trained in the various security measures adopted by the employer at the service station, but he chose to ignore all of them. The conclusion that he would not have troubled to activate electronically-operated sliding doors is one that was fairly open on the evidence at the trial. Indeed, it appears to follow from the finding that the plaintiff was not a credible witness. The plaintiff therefore failed to establish that any loss he sustained was caused by a breach of duty on the part of the defendant.

I have read the reasons for judgment of McPherson J.A. and Moynihan J. and for the reasons given by McPherson J.A. agree that the appeal should be dismissed.

The appellant was the sole person in a service station on 25 October 1996 when two persons entered it and carried out an armed robbery. This appeal is a consequence of his unsuccessful action for personal injuries sustained as a consequence of the robbery. The action was based on allegations of breach of common law and statutory duty by the appellant's employer as a consequence of which the appellant developed a post-traumatic stress disorder.

That a robbery occurred was not in doubt. The appellant of course had the onus of establishing the relevant duties, their breach and consequent damage. The trial judge was not satisfied that there was any breach of duty by the employer. He found that the appellant was trained thoroughly in the securities measures adopted by his employer but that he had ignored them on the night of the robbery. He found that had an alternative security system been in place the appellant would not have availed himself of it. He was not satisfied that the plaintiff suffered post-traumatic stress disorder as a consequence of the robbery. He rejected the appellant's evidence bearing on these matters and impliedly rejected the evidence of his wife which bore on how the appellant reacted to the robbery.

The plaintiff's credibility was crucial to his case and the evidence of others called in his case was, to a large degree, dependent on accepting that his conduct observed by them was genuine and that the accounts he gave to them were credible.

As the reasons of McPherson J.A. demonstrate there was ample basis for the trial judge rejecting the appellant's evidence on the grounds that he was dishonest or had misstated events to his legal advisers, medical practitioners and the trial judge. These matters are dealt with in some detail in McPherson J.A.'s reasons and it is unnecessary to rehearse them in these reasons.

Indeed the trial judge's adverse finding of credibility was not challenged on appeal, rather the appeal was argued on the basis that there was an undisputed armed robbery. There was then said to be undisputed evidence, that an armed robbery could precipitate a traumatic stress disorder. This was pointed to as well as other evidence which it was said indicated some degree of disorder on the appellant's part. As McPherson J.A. points out however, the plaintiff's evidence was so permeated with unreliability that it is impossible to determine whether any, and if so what, portions could be relied on to sustain the outcome contended for on this appeal.

The trial judge was justified in rejecting the plaintiff as a credible witness and consequently finding that there had not been any breach of duty by the employer and that he was not satisfied that the robbery had caused post-traumatic stress disorder.

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