Devries v Australian National Railways Commission

The trial judge found that, on 23 January 1985, the plaintiff sustained injury while using a tie tamper on a railway line near Gawler Railway Station. He was employed by the first defendant but his services had been made available to the second defendant by the first defendant. The learned judge found that the tie tamper, which is a pneumatic drill with a specially designed bit, became jammed under a railway sleeper. In attempting to free the tie tamper, the plaintiff had to exert "a good deal of pressure". The learned judge expressly accepted the plaintiff's account "given in evidence as to this particular incident". His Honour said that, in doing so, he was fully conscious of the fact that the plaintiff's evidence was inconsistent with statements of the incident or accident contained in reports filled in by the plaintiff on 24 January 1985. However, his Honour accepted the plaintiff's evidence as a truthful and reliable account of what had occurred. The learned judge found that the inconsistencies were the result of the confusion of the plaintiff caused by pain at the time when he filled in the reports and by his inability "to express himself in written English properly". It should be noted that on the morning that the plaintiff filled in the reports - which had been brought to him in hospital by his son - the treating doctor thought that the plaintiff was in too much pain to take a detailed history of the incident from him.

According to the plaintiff's evidence, he was using the tie tamper to compact ballast under the railway track. The ballast was muddy and hardened like concrete. The tip of the tie tamper had a roughly welded "lip" which caused it to catch in the compacted ballast making it difficult on occasions to withdraw the tie tamper. The plaintiff and others had complained about the problems arising from welded tips on the tie tampers. On 23 January 1985 at approximately 10.30 a.m., a train approached as the plaintiff was working on the lines. He alleged that his tie tamper caught in the ballast and, in attempting to remove it, he suffered an injury to his back.

Expert evidence established that the risk of such an injury was reasonably foreseeable. The risk could have been avoided by replacing worn blades with new blades rather than welding tips onto the worn blades. The cost of using new blades instead of welding tips on the worn blades was relatively inexpensive.

Upon the foregoing evidence, the trial judge was entitled to find that the defendants had failed to take reasonable care for the safety of the plaintiff. However, in the Full Court Mohr J. held that "the inconsistencies between established facts and the [plaintiff's] evidence were so great that grave doubts were thrown on his sworn testimony at the trial". His Honour said that such was the doubt that in his opinion the plaintiff had failed to establish that the incident had happened as he had sworn. Zelling A.J. agreed with the reasons of Mohr J. Matheson J., who also agreed with the reasons of Mohr J., said that the critical finding of the trial judge was "wholly at odds" with the plaintiff's accounts of the alleged incident.

The conclusion of the Full Court of the Supreme Court is surprising. First, the judge saw the plaintiff in the witness box for four days and accepted his evidence. He did so after taking into account the inconsistencies between the plaintiff's evidence and his out-of-court statements. Secondly, the judge accepted the evidence of a fellow worker who, although he did not see the incident, gave evidence that corroborated it. The witness said that, at about 10.30 a.m. on 23 January 1985, he asked the plaintiff whether he was feeling all right because "he was moving around slowly and he seemed to be in trouble or in pain". The witness said that immediately prior to that the plaintiff had "[j]ust come off the tie tampers." The witness acknowledged that, from about 10.30 a.m., the plaintiff's "appearance was drastically different from what it had been up until that time." The witness then took over the plaintiff's duties. Thirdly, it appears to have been common ground at the trial that the plaintiff's back was too sore at lunchtime to sit down, that he was unable, although it was his duty, to drive a truck back to the depot, that he had to get his wife to take him home, and that he saw a doctor that night and was hospitalized the following day.

Upon the evidence it would be impossible to conclude that the plaintiff was not suffering from a serious back injury by the end of the working day of 23 January 1985. Indeed, Mohr J. said that "[f]or the sake of argument I accept that sometime on the 22nd January 1985 and 23rd January 1985 the [plaintiff] did suffer an injury to his spine which led to his admission to hospital on the 24th January." However, his Honour held that, by reason of the inconsistencies between the plaintiff's evidence and the "established facts", the plaintiff had not proved that his injury was the result of the incident alleged to have occurred on 23 January 1985.

In coming to the conclusion that the inconsistencies between the established facts and the plaintiff's evidence were so great as to throw grave doubts on his testimony, Mohr J. relied on the following matters as "established facts":

When the plaintiff was in hospital he signed a casualty report and a compensation claim. The report stated that the date and time of injury was 10.30 a.m. on "22-1-85". The plaintiff described the accident as follows:

I whas [sic] working with the tie tampper [sic] on 22-1-85. When I was getting sarp [sic] pains in my'n [sic] back lower part on the 23-1-85. The pain whas [sic] worse, and hard to walk. The compensation claim form also stated that the time and date of injury was 10.30 a.m. "22-1-85". In answer to a question as to how the injury occurred, the plaintiff wrote: 22-1-85 I whas [sic] working whith [sic] the tie tamppers [sic]. When I whas [sic] getting sarp [sic] pain in my'n [sic] back. Back pain become worse on 23-2-85. Hard to walk. The learned trial judge refused to take these statements at face value. His Honour said: In my opinion the male plaintiff gave his evidence certainly in a somewhat loquacious manner and at times displaying impatience and a degree of frustration in just not understanding the questions that were put to him in a language with which he is not entirely fluent, although his English is really very good in the circumstances and at other times, because he felt that he was not making himself clear either to counsel or to the court. Having watched the male plaintiff closely in the witness box for a long period of time, (it was a long cross-examination, I think over 100 pages, nearly 140 pages), I am satisfied that the plaintiff was a witness of truth and, subject to certain inconsistencies, I accept his evidence as reliable. The inconsistencies that I previously referred to, particularly in relation to the documents that he filled out, I think are attributed to his inability at that stage to express himself in written English properly, and, secondly, and perhaps more importantly, because he was, at the time, undergoing a certain amount of pain and got confused about the dates. I am satisfied that he included the 22nd January on the basis he experienced some pain then. There is some support, from Mr. Pittaway, that the plaintiff made complaints about back pain on 22nd January. But I am equally satisfied the pain on the 22nd was normal at the end of [a] hard day. I am satisfied that the real incident when his back was very much affected and when he was substantially in pain occurred on 23rd January. This is confirmed by the fact that Mr. Pittaway agrees that the plaintiff who normally drove the truck or the bus to the job from Salisbury to Gawler each working day did not drive the truck back on the 23rd. After setting out part of this passage and a further part of his Honour's judgment, Mohr J. said: The inconsistencies in the plaintiff's evidence when compared with what he had written on previous occasions are so great as to call for a much closer examination than accorded to them. In almost all previous notifications of injury the respondent was able to give a coherent account of the circumstances - subject to his limited knowledge of English and his educational background. However, it is difficult to see how the fact that the plaintiff had given a more coherent account of injury on previous occasions entitled the Full Court to set aside the trial judge's finding of credibility. On this occasion, the plaintiff was in hospital in considerable pain. Mohr J. appears to have taken the plaintiff's answers in the compensation claim form and report form as "established facts", but that is not the sense in which the term "established facts" is used in authorities such as Brunskill v. Sovereign Marine & General Insurance Co. Ltd. [1] . The statements in the reports were not "established facts". They constituted admissions which could be used to discredit the plaintiff's testimony. But the "facts" in the statements did not constitute "facts incontrovertibly established by the evidence" [1] . One of the critical issues in the case was the extent to which the statements could be relied on as an accurate account of how the plaintiff had sustained injury. The question for the judge was whether he should accept the plaintiff's oral evidence or whether the accounts in the claim form and report threw such doubt on the plaintiff's evidence that it should not be accepted. Once the trial judge concluded that the plaintiff's hospitalization, pain and limited knowledge of English explained his failure to mention the specific incident or give 23 January 1985 as the date of the incident, the statements had little, if any, evidentiary value. In accepting that there was an explanation for the inconsistencies, the trial judge had the advantage, which was denied to the judges of the Full Court, of being able to judge the true character and intelligence of the plaintiff and his ability to understand questions and to express himself in answer to those questions. These matters were fundamental to determining whether the plaintiff's evidence should be accepted. 1. (1985) 59 A.L.J.R. 842, at p. 844; 62 A.L.R. 53, at p. 57. 2. (1985) 59 A.L.J.R. 842, at p. 844; 62 A.L.R. 53, at p. 57.

Dr. Lo, who saw the respondent on the evening of 23 January, was not called. However, Dr. Lo's note of the consultation was in evidence; it was not inconsistent with the plaintiff's account. Dr Lo's note stated "works with jackhammer, led to or caused back pain".

Dr. Ravindran, who saw the respondent at the hospital on the morning of 24 January, had taken a history which stated:

He complained of pain in his lower lumbar spine of two day's duration. He worked for Australian National Railways and was using a jack hammer for a whole day and felt pain in his back. In evidence, however, Dr. Ravindran said that he had been unable to take a full history of the plaintiff because the plaintiff was in a lot of pain and undergoing a muscle spasm when Dr. Ravindran first saw him. Moreover, Dr. Ravindran said in evidence that, what he found on examination on 24 January was not inconsistent with the account of how the incident had happened according to the evidence of the plaintiff.

The first mention of the incident, as described in evidence by the plaintiff, was in a report of a surgeon who examined him on behalf of his solicitors on 19 July 1988, which was almost six months after the plaintiff's statement of claim had been filed on 20 January 1988.

However, Mohr J. was in error in stating that the first mention of the incident as described in evidence by the plaintiff was to be found in the report of 19 July 1988. On 10 February 1986, the plaintiff had given an account, similar to that which he gave in evidence, to Dr. Schaeffer who had examined the plaintiff on behalf of the defendants. Furthermore, the account which he gave to Dr. Schaeffer appears to be the first real attempt to obtain a detailed history from the plaintiff. Although the plaintiff had apparently consulted a solicitor at that stage, it is noteworthy that this account was given to the defendants' own doctor almost two years before negligence proceedings were commenced against the defendants. Counsel for the defendants was unable to offer any explanation why the plaintiff should make up a false account of the incident some two years before he commenced an action for damages for negligence.

The plaintiff answered an interrogatory by stating that "[t]he injury occurred over several hours prior to lunch while using the said equipment".

However, the answer was given to a question which asked, "What period of time elapsed between your first commencing to operate the equipment at the time the first injury occurred and the occurrence of the said injury?" The question is badly framed and, if the plaintiff's answer meant that his injury occurred over several hours, it was not responsive to the question. In any event, the plaintiff's answer to this interrogatory can hardly be regarded as decisive having regard to the fact that more than two years earlier he had given an account to Dr. Schaeffer which was confirmatory of the sworn evidence which he gave in the case. Indeed, the fact that the plaintiff should answer this interrogatory in the terms which he did tends to support the trial judge's conclusion that he has difficulty in understanding questions and properly expressing himself in written English.

No doubt the inconsistencies between the plaintiff's out-of-court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept his evidence. But the trial judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out-of-court statements of the plaintiff. Furthermore, the trial judge accepted the plaintiff's wife as a witness of truth and her evidence confirmed that the plaintiff was fit for work on the morning of 23 January 1985, as did the evidence of the fellow worker who noticed a drastic change come over the plaintiff about 10.30 a.m.

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact [2] . If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" [3] or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" [4] .

1. See Brunskill (1985), 59 A.L.J.R. 842; 62 A.L.R. 53; Jones v. Hyde (1989), 63 A.L.J.R. 349; 85 A.L.R. 23; Abalos v. Australian Postal Commission (1990), 171 C.L.R. 167. 2. S.S. Hontestroom v. S.S. Sagaporack , [1927] A.C. 37, at p. 47. 3. Brunskill (1985), 59 A.L.J.R., at p. 844; 62 A.L.R., at p. 57.

The evidence of the plaintiff was not glaringly improbable. Nor was it inconsistent with facts incontrovertibly established by evidence. Indeed, the plaintiff's account received much support from the evidence of his wife and his fellow worker. The learned trial judge dealt in detail with the inconsistencies between the plaintiff's evidence and his out-of-court statements. No ground exists for concluding that the judge failed to use or palpably misused his advantage.

An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The "value and importance" of that advantage "will vary according to the class of case, and, [the circumstances of] the individual case" [5] . If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence. Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule. Indeed, as Kirby A.C.J. pointed out in Galea v. Galea [6] , in many cases today, judges at first instance expressly "disclaim the resolution of factual disputes by reference to witness demeanour". However, this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings. Indeed, as will be seen, the present was such a case.

1. See Watt (or Thomas) v. Thomas , [1947] A.C. 484, at p. 488, per Lord Thankerton. 2. (1990) 19 N.S.W.L.R. 263, at p. 266.

In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge's observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the "court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions" [7] . The appellate duty in such a case cannot, in our view, be explained in any short exhaustive formula [8] . It was correctly identified by Lindley M.R., Rigby and Collins L.JJ. in Coghlan v. Cumberland [9] in a passage which has been referred to with approval in many cases in this Court [10] and "adopted as a governing authority" [11] . Their Lordships said:

Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen. 1. The Glannibanta (1876), 1 P.D. 283, at p. 287, per James L.J., Baggallay J.A. and Lush J. referred to by Dixon C.J. and Kitto J. in Paterson v. Paterson (1953), 89 C.L.R. 212, at p. 219. 2. Note, in that regard, that the reference to "glaringly improbable" in the joint judgment in Brunskill v. Sovereign Marine & General Insurance Co. Ltd. (1985), 59 A.L.J.R. 842, at p. 844; 62 A.L.R. 53, at p. 57 was by way of "example". 3. [1898] 1 Ch. 704, at pp. 704-705. 4. See, e.g., the cases referred to by Asprey J.A. in Ravagnani v. Hollywood Sands Pty. Ltd. , [1972] 1 N.S.W.L.R. 362, at p. 367; see also McLaughlin v. Daily Telegraph Newspaper Co. Ltd. [No. 2] (1904), 1 C.L.R. 243, at p. 277; Kelly v. Tucker (1907), 5 C.L.R. 1, at p. 9; Gow v. White (1908), 5 C.L.R. 865, at p. 867; Cadd v. Cadd (1909), 9 C.L.R. 171, at p. 179; Cock v. Smith (1909), 9 C.L.R. 773, at p. 821; Lang v. James Morrison & Co. Ltd. (1911), 13 C.L.R. 1, at p. 8; Sampson v. Sampson (1911), 13 C.L.R. 338, at p. 343; Pendlebury v. Colonial Mutual Life Assurance Society Ltd. (1912), 13 C.L.R. 676, at p. 693; Light v. Mouchemore (1915), 20 C.L.R. 647, at p. 649; Berwin v. Donohoe (1915), 21 C.L.R. 1, at p. 16; Webb v. Bloch (1928), 41 C.L.R. 331, at p. 360; Australian Knitting Mills Ltd. v. Grant (1933), 50 C.L.R. 387, at p. 400; Edwards v. Noble (1971), 125 C.L.R. 296, at p. 306. 5. Dearman v. Dearman (1908), 7 C.L.R. 549, at p. 553, per Griffith C.J.

The background facts of the present case are set out in the judgment of Brennan, Gaudron and McHugh JJ. The critical finding of the trial judge which was overturned by the Full Court on appeal was that Mr. Devries sustained the first injury as a result of a single traumatic incident at approximately 10.30 a.m. on 23 January 1985. That finding had been squarely based by the trial judge (Legoe J.) on an acceptance of oral evidence of Mr. Devries which was inconsistent with a number of earlier written statements which he had made. In some respects, that oral evidence was supported by the oral evidence of Mrs. Devries whom Legoe J. also accepted as a witness of truth. In his ex tempore judgment, his Honour was at pains to make clear the extent to which his acceptance of Mr. and Mrs. Devries as witnesses of truth was based on his observation of them as they gave their evidence before him. Speaking of Mr. Devries, he said:

In my opinion the male plaintiff gave his evidence certainly in a somewhat loquacious manner and at times displaying impatience and a degree of frustration in just not understanding the questions that were put to him in a language with which he is not entirely fluent, although his English is really very good in the circumstances and at other times, because he felt that he was not making himself clear either to counsel or to the court. Having watched the male plaintiff closely in the witness box for a long period of time, (it was a long cross-examination, I think over 100 pages, nearly 140 pages), I am satisfied that the plaintiff was a witness of truth and, subject to certain inconsistencies, I accept his evidence as reliable. The inconsistencies that I previously referred to, particularly in relation to the documents that he filled out, I think are attributed to his inability at that stage to express himself in written English properly, and, secondly, and perhaps more importantly, because he was, at the time, undergoing a certain amount of pain and got confused about the dates. Speaking of Mrs. Devries, his Honour said: I see no reason to disbelieve her account. She was obviously an anxious witness. She's obviously had a difficult time with her husband over the years, particularly since 1985, and I think she found it hard to put in words what she wanted to tell me. Although some of her descriptions do not entirely fit with some of the other evidence, particularly the medical evidence, I'm satisfied that her account of her husband's condition throughout the years since 1985 is reasonably reliable, and I accept her as a witness of truth. Clearly, the case was one in which the trial judge's observation of the witnesses was of critical importance to his finding that Mr. Devries' evidence about the first incident should be accepted. In particular, the explanation which the trial judge accepted of the inconsistent statements which Mr. Devries had made in the earlier documents depended, to no small extent, on his observation of Mr. Devries' demeanour and linguistic ability. In these circumstances, the members of the Full Court were necessarily at a great disadvantage in considering whether the trial judge had been wrong in making that finding and accepting that explanation. Indeed, the circumstances of the case were such that, consistently with the obligation to make full allowance for the advantage which the trial judge had enjoyed, the Full Court could properly overturn the trial judge's finding only if it was vitiated by some error of principle or mistake or misapprehension of fact or if the effect of the overall evidence was such that it was not reasonably open to the trial judge to accept Mr. Devries as a witness of truth.

As we read the judgment of Mohr J. which included specific reference to the judgment of this Court in Brunskill v. Sovereign Marine & General Insurance Co. Ltd. [12] and to the judgment of Kirby A.C.J. in Galea v. Galea [13] , the members of the Full Court were conscious of the obligation to make full allowance for the advantage that the trial judge had enjoyed in observing the witnesses give their evidence. Nonetheless, they concluded that the extent of the inconsistency between Mr. Devries' sworn evidence and his earlier written statements (including an answer to interrogatories) was "so great" that the finding by the trial judge that his evidence of the first incident should be accepted could not be allowed to stand. As Brennan, Gaudron and McHugh JJ. point out, the reasoning of the Full Court was affected by a mistaken assertion, twice made in Mohr J.'s judgment, to the effect that "the first account of the incident of 23rd January [1985] more or less consistent with [Mr. Devries'] trial evidence is to be found in the medical report of Mr. Cohen dated 27th July 1988 some three years after the event". In fact, the evidence disclosed that Mr. Devries had given such an account of the incident in February 1986 to a doctor who had examined him on behalf of the respondents. That error was, of itself, probably of sufficient significance to undermine the reasoning of the Full Court. It is, however, unnecessary to pursue that question since we agree with the analysis of the reasoning of the Full Court and of the relevant evidence which is contained in the judgment of Brennan, Gaudron and McHugh JJ. In our view, that analysis leads to the conclusion that the Full Court was not justified in setting aside the finding of the trial judge in all the circumstances of the case.

1. (1985) 59 A.L.J.R., at p. 844; 62 A.L.R., at p. 57. 2. (1990) 19 N.S.W.L.R., at pp. 265-267.