Farrell v Qld Newspapers P/L [1998] QCA 18

The appellant lost his case because he was unable to convince the primary judge, who regarded him as an unreliable witness, that he remembered sustaining injury on a particular occasion, or that he was injured while pulling a table. The appellant was able to adduce only his own evidence to prove that he was injured as alleged; no-one was called to say they saw this happen. And there were some documents which were written shortly after the relevant date which tended to throw doubt on his version.

The appellant's case was that he was injured during a night shift which began at 4 pm on Friday 21 February 1992. The respondent employer's record of accidents and illnesses relating to the appellant did not record any accident as having happened during that shift, but showed that on 22 February 1992 at 8.30 pm there was a complaint of tense muscles and right neck pain for the past day, and on that same date a note, "strained neck from lifting" (emphasis added). The allegation in the case was not that there was an injury suffered by lifting, but that the appellant was hurt when pulling a trolley.

Apart from the record just referred to, three other roughly contemporaneous documents all told against acceptance of the appellant's account of having suffered an injury while pulling a trolley; and there was no document supporting that version. First, an application for worker's compensation contained a statement which the appellant admitted having written in answer to the question: "What were you actually doing when the injury was sustained". The answer was: "Sacking (sic) papers on pelletts (sic). Pulling loaded tables. Pulling machines. Driving forklift". The next question and answer were: "How did the injury occur?", "As above". The appellant said in effect that he misunderstood the former question, thinking it required him to say what he was doing throughout the whole shift, but the answer given is more consistent with the judge's conclusion than the appellant's case. It gives rise to the suspicion that by the end of the shift, after performing various activities the appellant was sore, but that he was not able to attribute this to any specific cause.

Next, according to a report of a Dr Whish, the appellant came to him on 24 February 1992 - 2 or 3 days after the supposed pulling injury - "complaining of right sided neck pain for 3 days after lifting at work". This account is consistent with the record made by the respondent on 22 February. Lastly, two days later, the appellant went to see a physiotherapist who wrote that the appellant attended complaining of pain "which had come on suddenly after lifting at work". It was not until nearly two years later that, for the first time, the complaint is recorded as having been of an injury sustained while pulling a table. Mr Dutney Q.C. who led Mr Di Carlo for the appellant argued that pulling the table might have been described, or understood, as lifting, or that in some other way this series of records mentioning a lifting injury could have come into existence, although there was no lifting injury. That is so, but the primary judge had to deal in probabilities and the documents must, rationally, have made the appellant's claimed recollection difficult to accept. Of course, if an injury were sustained while lifting the appellant would have had to show that the lifting occurred in such circumstances as to fasten liability on to the respondent.

We have mentioned that the judge expressed a general view adverse to the appellant's reliability and a number of circumstances combine to support that conclusion. One is that the appellant gave evidence that when he was pulling the table and suffered injury a man called Gray was with him, but shortly after that the appellant said that he could not remember whether he was there by himself or not. But there is no need to discuss the judge's view about the appellant's reliability, because Mr Dutney does not ask us to disagree with it. His principal point, and the only substantial ground upon which the judge's conclusion was attacked, was that the medical evidence pointed to the appellant's neck injury having been caused by pulling a table. A physician, Dr Myers, was asked by the judge whether pulling was more likely to have caused the injury than lifting. Dr Myers replied that it was not so much the weight that was lifted as the forces transmitted to the restraining membrane of the intervertebral disc. He said that if the injury happened while lifting heavy newspapers one would have expected the appellant to hear a "click" (as the appellant said he did) and feel a pain at that time. But Dr Myers could not say whether the injury would be more likely to be caused by lifting heavy weights or pulling heavy objects. A Dr Low, described as a specialist in occupational medicine, was asked a question about whether pulling a trolley would be more likely to injure the neck as opposed to some other part of the body; Dr Low's answer implied, without expressly saying, that a neck injury was more likely. He also said, at another point in his evidence, that the disc injury was of a kind which could be caused by "something very minor". Dr Pentis was asked whether the injury was equally consistent with lifting heavy objects as opposed to pulling heavy objects and he said it could be either, but usually one would find some form of "rotary" insult applied to cause it. This was not pursued further, to enable a conclusion to be drawn whether such an insult could have been sustained by certain modes of pulling or certain modes of lifting. Dr Tomlinson, a neurosurgeon, said in effect that pulling in the circumstances of which the appellant complained could have caused the appellant's injury. Taking the medical evidence as a whole it throws little light on the question whether the injury was sustained by pulling rather than lifting.

Mr Dutney made a number of other criticisms of the judge's reasoning, one of which was that his Honour adopted a mistaken view on the question whether more rather than fewer people ordinarily helped in pulling the laden tables. That appears to be of little consequence, for the initial hurdle, which the plaintiff failed to pass over was to satisfy the judge that the injury was sustained while pulling a table. What the judge was left with was that the appellant had a neck injury which may have been, but was not necessarily, caused by some specific remembered incident.

It is unnecessary to refer to authority for the view that this Court will not ordinarily upset a finding, or a refusal to make a desired finding, based on the judge's view of the reliability of a particular witness. The appellant's task in such a case is all the harder where, as here, all the contemporaneous documents tend to support rather than throw doubt on the view the primary judge has adopted. It is our opinion that no ground has been shown on which we could properly reverse the judge's conclusion and find that the appellant was injured in the way he described in evidence.