Piper v Thakral Operations Pty Ltd

CATCHWORDS: APPEAL - finding that plaintiff had not discharged burden of proving injury suffered in circumstances alleged - finding credibility based - whether open to appellate intervention - HELD: No. (D)

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 CASES CITED: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219

Lloyd Henry Piper (Appellant) Thakral Operations Pty Limited (t/as Novotel Brighton Hotel) (First Respondent) PARTIES: Linfox Pty Limited (t/as Linfox Australia) (Second Respondent) G R & C A Ryan and G P & J Scully (Third Respondent)

S Norton SC / M M Fraser (Appellant) M A Elkaim SC/J B Turnbull (First Respondent) COUNSEL: M J Maxell (Second Respondent) K P Rewell SC (Third Respondent)

Brydens Law Office (Appellant) Vardanega Roberts Solicitors (First Respondent) SOLICITORS: Lander and Rogers (Second Respondent) McCulloch & Buggy (Third Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40757/04 DC 12859/01

HODGSON JA McCOLL JA BASTEN JA

Friday, 16 December 2005 PIPER v THAKRAL OPERATIONS PTY LIMITED (t/as NOVOTEL BRIGHTON HOTEL & ORS) Judgment

1 HODGSON JA: I agree with McColl JA. 2 McCOLL JA: Lloyd Henry Piper seeks to challenge Phegan DCJ's decision to enter a verdict and judgment in favour of the first and second respondents on his claim to recover damages in respect of injuries he allegedly sustained on 25 August 1999. The appellant, who was employed as a cellarman by Thakral Pty Ltd (which traded as Novotel Brighton Hotel) claimed that he was injured on that day when unloading cases of beer delivered by Linfox Pty Limited, the second respondent. Linfox denied that it had delivered the beer. It cross-claimed against G R & C A Ryan and G P & J Scully, the third respondents, asserting they were responsible for the delivery. That cross-claim gave rise to an issue between the appellant and Linfox as to whether the third respondents were Linfox employees or independent contractors. His Honour held the third respondents were independent contractors. The appellant challenges that determination too. 3 The primary judge concluded that the appellant had failed to establish that his injury had been suffered in the circumstances he alleged. Although Ms S Norton SC, who appeared for the appellant on appeal with Ms M Fraser, but not at trial, did not articulate her argument in these terms, her essential contention was that this conclusion was either glaringly improbable, contrary to compelling inferences, the result of the primary judge palpably misusing his advantage as the trial judge or the result of legal error sufficient to attract appellate intervention: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [29], [65] - [66].

Statement of the case 4 The appellant's case as set out in the Statement of Claim was that on 25 August 1999 "he was required to stand on the ground whilst the driver and offsider of [Linfox's] truck threw down cases of beer for [him] to catch". He alleged that the first and second respondents were negligent in failing to take any or any adequate precautions for his safety in various respects which related to unloading the truck, throwing beer to him, and failing to provide him with a trolley and a truck with a tailgate loader mechanism. 5 The appellant gave evidence that on 25 August 1999 a Linfox truck arrived to deliver Carlton United beer. The truck driver positioned himself on the back of the truck, his offsider just outside the cellar door while he was inside the cellar. There was about a metre and a half between each man. The truck driver threw a case of beer to his offsider who, in turn, threw it to the appellant. The appellant was standing on the same level as the offsider. The cases weighed approximately 20kgs. 6 The appellant said that as he was catching one of the cases he felt "a twitch in the lower of my back [sic, as in transcript]" which he described as "like a spring popping out my back". This sensation was accompanied by pain. He stopped working, asked for a moment and tried to do some stretches. He did that for about five minutes then recommenced work. At that stage, however, he was no longer catching the cases but was standing next to the offsider taking them from his hand. He did not tell either of the other two men why he asked for a break. They left after the truck was unloaded.

7 Over the rest of the day he noticed "a significant problem in my back" and felt a "nagging irritation" every time he lifted something. He said he reported his injury to the duty manager, Mr Donovan and the Head of Security, Mr Rayner, telling them that: "… While I was unloading this case and while I was catching cases lowering I had felt a twitch in the lower of my back." 8 The appellant consulted a chiropractor, Mr Goldsworthy, on 25 August 1999 and, two days later, a general practitioner, Dr Peter Lu. He went off work, but returned about two weeks later and, the primary judge found, "within a relatively short period of time, was undertaking essentially the same tasks as he had been involved in at the time of his injury". This finding was not challenged on appeal. 9 The appellant resigned from his position as a cellarman in May 2000 due, he said, to the strenuous nature of the work. Two weeks later, he commenced work for Alcatel Submarine Network as a logistics clerk. On the evening of 1 February 2001 he slipped off a chair and fell on his bottom while doing some work for Alcatel at home. Although, as the primary judge recorded, the appellant's evidence was that the chair incident involved "no sensation in the back", it was serious enough for him to obtain a lumbar spine X-Ray on 12 February and a CT scan on 14 February. In addition, it was common ground on appeal that he had five treatments from Mr Goldsworthy between 2 - 12 February 2001. 10 The respondents' case, at trial, was that the appellant had not been injured in the manner he described in chief. It was squarely put to him that he had not been injured catching cases of beer, a proposition he denied. He said that it was his understanding that "the act of catching the case of beer was what caused [him] to have the pain". 11 The respondents mounted a sustained attack on the appellant's credit. Counsel for each respondent cross-examined him closely about what they contended, in substance, were inconsistencies between the version of the accident the appellant had recounted at trial and that which appeared in contemporaneous documents, subsequent medical reports and the statement of claim. He was also cross-examined to the effect that he had failed to tell medical practitioners about the chair incident. There were other more peripheral attacks on his credit. Finally, it was put to him that he was tailoring his evidence.

The appellant's workers compensation claim form 12 The appellant completed a workers compensation claim form on 25 August 1999 in which he said his injury occurred: "Whilst unloading a truck which caused a tweak in my lower back."

In answer to the question "Who or what was responsible for the accident/injury", the plaintiff wrote: "I do not see anyone to blame, I bent my legs properly . After lifting as much as I had solely then maybe that's why I felt a tweak which got wo…" (emphasis added)

[The letters "wo…" were not explained at trial, but Ms Norton accepted were part of the word, "worse"].

Against the box which asked for the names of any persons who witnessed the accident, the appellant wrote "no-one". 13 In cross-examination, the appellant agreed he had not mentioned in his workers compensation claim form that he was catching cases of beer, that catching cases of beer did not require him to bend his legs, and that when he had said in the claim form "I bent my legs properly", he was not talking about catching a case of beer. He agreed that the entry in the claim form that no one had witnessed his accident was incorrect. He accepted that his use of the word "solely" in the section of the form asking who or what was responsible for his accident/injury, indicated that he was working on his own and that, on his version of the accident, it was not true to say that he was working "solely".

The employer's records 14 Mr Rayner completed an "Interim Form for early notification of workplace injury" on 25 August 1999. In response to the question "How did the injury occur and what was the worker doing at the time", he wrote: "Worker injured his lower back whilst unloading a delivery truck of wine and spirits."

In cross-examination the appellant said he had not told Mr Rayner that.

Dr Lu's records 15 Dr Peter Lu, who first saw the appellant on 27 August 1999, prepared two workers compensation medical certificates dated, respectively, 31 August 1999 (Exhibit XD4) and 7 September 1999 (Exhibit XD5). The first recorded: "15. Cause of injury as stated by this worker: Lifting a box of wine - felt sudden back pain."

The second was in substantially the same terms saying in response to question 15, "Sudden back pain when lifting box of wine". 16 Dr Lu provided a report dated 5 November 1999 to HIH Workers Compensation (NSW) Pty Limited, presumably the first respondent's workers compensation insurer, in which he said: "On the 25th May 1999, he was picking up a wine box and twisted his lower back causing lower back pain and discomfort over his left sacroiliac joint." He also opined: "Hopefully he will not have further back problems if he lifts boxes within his capability and in correct posture." 17 Dr Lu provided a report to the appellant's solicitors dated 1 July 2001 in which he recorded the history given by the appellant as: "While he was picking up a wine box as he twisted he felt his back give suddenly." 18 He also said that on 31 August 1999 the appellant had no further back pain and that "his back movements were almost back to normal". 19 The appellant was asked in chief about the account of his injury in Dr Lu's 1 July 2001 report: "Q. I think you are aware that Dr Lu has in his report a history of while you were picking up a box of wine you twisted and felt your back give suddenly, did you tell him that? A. No." 20 In cross-examination he agreed that Dr Lu had asked him what happened. He said he could not understand why Dr Lu had written the account of his injury which appeared on the medical certificate. He agreed with the proposition that it was "certainly not something you told him." He also said Dr Lu's report, that on 31 August he had no further back pain, was incorrect and that Dr Lu was also mistaken when he reported the appellant's "back movements were almost back to normal" that day. 21 Dr Lu was not called.

Subsequent medical reports 22 The appellant did not consult a medical practitioner about his back after his consultation with Dr Lu on 7 September 1999 until after the chair incident. He was cross-examined about the histories recorded by a number of medical practitioners who either treated or reviewed him after that incident. The following is a summary of the relevant reports and cross-examination:

(a) The appellant consulted Dr Simmons, a general practitioner, on 13 February 2001. Dr Simmons' report of 14 May 2001 did not record that the appellant had fallen off a chair 2 weeks before the first consultation; in cross-examination the appellant said he had "most definitely" told Dr Simmons that; he said that he had told Dr Simmons about the chair incident and could not explain why it was not noted in his report;

(b) Dr Simmons arranged for the appellant to be seen by Dr Stening, a consultant neurosurgeon, on 5 March 2001. Dr Stening's report of that date recorded a history that "in August 1999 … [the appellant] felt a 'tweak' in his lower back when unloading a truck". The appellant said he believed he had told Dr Stening that. Dr Stening's did not record that the appellant had fallen off a chair; the appellant said that he had "most definitely" told Dr Stening that. Dr Stening recorded that the appellant told him he was "trouble free until January 2001 when he started getting increasing stiffness in his back every morning". The appellant said he had not told him that "to my recollection". (c) The appellant was referred to the Pain Management team at the Prince of Wales Hospital in May 2001. Its report recorded that the appellant "attributed the onset of his pain to a work related injury … whilst single handedly lifting 75kg beer kegs whilst employed as a cellarman". The appellant said it was incorrect to say that he had told doctors at Prince of Wales that. He said that if that was recorded in the report the doctor got it wrong; he also said he believed he had told the doctors there that he had been catching cases of beer; there is no reference to that in the Prince of Wales' report.

(d) Dr Conrad, a surgeon, saw the appellant on 25 June 2001. He recorded a history in his report of the same date that the appellant "was involved in an accident at work on 25th August 1999 when he was lifting some cases of beer". The appellant said he did not tell Dr Conrad that and it was wrong. Dr Conrad also recorded that "whilst lifting a case of beer weighing about 20kgs, Mr Piper felt a twitch in his back". The appellant said that was incorrect. Dr Conrad made no reference to the chair incident. The appellant said he believed he had told Dr Conrad when he saw him in June 2001 that he had fallen off a chair. He could not explain why it was not mentioned in Dr Conrad's report.

(e) Dr Henry Hudson, a neurosurgeon, who saw the appellant on 5 July 2001 recorded that on the relevant day "after unloading a truck and stacking the cellar with crates and cases, he developed a twinge of pain in the lower back". The appellant said that was not what he had told Dr Hudson and it was wrong; he also said he had informed Dr Hudson that he had been catching cases of beer; no such detail appears in Dr Hudson's report; Dr Hudson's report did record the chair incident, noting that after it the appellant "had a great deal of pain and more intense pain down the right leg than he had before".

(f) The appellant saw Dr Jones, the Director of Rehabilitation Services at Prince Henry Hospital on 8 August 2001. She recorded a history of the appellant's injury as stemming from an August 1999 incident "as cases were being thrown to him and that "his back became increasingly painful from December 2000 and he finally ceased work on 2 February 2001. It did not refer to the chair incident. The appellant said he had told her about it and that she had omitted it. 23 The appellant denied that he did not have a good recollection of what he had told doctors over the years about the August 1999 incident. He said that it was "most possible" that the different histories recorded by the doctors were a product of misunderstandings as between the doctors and himself.

The statement of claim 25 The appellant was also asked about the version of his accident in the Statement of Claim which said that "the driver and offsider of the second defendants' truck threw down cases of beer for [him] to catch". He said that version was absolutely incorrect. He sought to explain that error on the basis of it being a misunderstanding.

The primary judge's reasons 26 The hearing took place on 14 - 15 September 2004. The primary judge reserved his decision, which he delivered on 22 September 2004. Ms Norton accepted that his Honour would not have had access to a transcript of the evidence at the time he delivered his judgment. 27 The respondents' primary case, as recorded by the primary judge was that the appellant had not suffered injury in the manner he alleged either in his Statement of Claim or in his evidence. Secondly, they argued that his current disabilities were not caused by any injury he suffered on 25 August 1999. They contended that even if he had suffered an injury as alleged on that date, it had resolved prior to 1 February 2001 when he fell off the chair. 28 The primary judge accepted both arguments. He found in favour of the respondents' primary case on the basis of the contemporaneous records which he concluded were inconsistent with the version of the accident the appellant presented at trial. His Honour also made substantial adverse credit findings against the appellant concluding, in short, that the appellant's version of events had been continuously revised so that the version he presented in his statement of claim was the product of a "level of reconstruction which does not substantiate the mechanism of injury on which the case against the defendants was based", that the appellant had failed to inform treating medical practitioners of the chair incident as part of a "quite conscious attempt to shift the blame for his current condition from the February incident back to the [August 1999] incident", as well as the appellant's demeanour as a witness.

The contemporaneous documents 29 I set out the judgment in the order his Honour approached the evidence. 30 The primary judge referred to Dr Lu's 5 November 1999 report recording a lifting/twisting incident and compared it to the 2 medical certificates which described only a lifting incident. He also referred to the appellant's workers compensation form and the employer's report of injury, which apparently formed part of the appellant's worker's compensation form, and which said: "Worker injured his lower back whilst unloading a delivery truck of cartons of wine and spirits." 31 At this stage the primary judge said he accepted the appellant's case to the extent that he contended that he suffered a back injury on the morning of 25 August 1999 while working as a cellarman for the first respondent and that it was more likely than not that the injury was sustained at the time of the delivery and unloading of cases of beer from Carlton United on the third respondent's truck. However he concluded "that there must be serious doubt when one looks at all the contemporary evidence, that is various accounts of the incident at the time of or shortly after it occurred, whether the injury was caused in the precise way described by the plaintiff in his evidence". While his Honour accepted that the method of unloading the appellant described was used at times, he found the appellant's account of how he suffered his injury was "uncorroborated in any of the contemporary evidence". 32 He added that this difficulty was "compounded by the plaintiff's own presentation as a witness", saying: "I found the plaintiff an unreliable witness in a number of respects. His evidence was consistently dissembling, he shifted his position in the course of his evidence in order to, as he saw it, protect his own interests. Many of his answers were unconvincing and very frequently vague in details." 33 Dealing with the appellant's workers compensation form, the primary judge said that if the appellant had been injured in the way he claimed, it was … difficult to see … how or why he would have been bending his legs at the time he caught the case, if that is what happened". He also said: "Perhaps of even more significance is his assertion that he did not see anyone to blame and also again on the same form under the provision for the names of persons who witnessed the accident, the plaintiff has simply inserted the word, 'no-one'. If the accident occurred as described by the plaintiff, that is that the person in the middle of the chain was standing in front of the cellar door throwing the cartons or cases directly the plaintiff, then there must have been at least one witness to his injury. His categorical assertion in his form that there was no such witness suggests that the injury occurred in circumstances other than those on which his case was based. In other words it happened, for example, while the plaintiff was placing the cases in the cellar but not in the immediate context of a throw at the end of a chain and he was doing it when there was no one else to observe what he was doing. This would be consistent with his reference to the fact that he bent his legs properly, that is that he was engaged at the time in either lifting a case or putting a case down but not in the context of the cases being thrown to him." (emphasis added) 34 At this stage in his judgment the primary judge dealt with the submissions advanced on behalf of the appellant to resist the respondents' argument that on the basis of the contemporary records the appellant could not be believed. 35 Mr Lidden, who appeared for the appellant at trial, but not on appeal, first submitted that it was "frequently the case" that the mechanism of injury was not precisely described in claim forms and other supporting documents and that the reference to the appellant "unloading a truck" in the claim form was consistent with the appellant's later version of the "precise mechanism of his injury". Secondly, Mr Lidden submitted that the description of the mechanism of injury in medical reports was often couched in general or inaccurate terms. Thus, he argued apparently, the reference in Dr Lu's report to the case of wine as distinct from beer "could easily have been an invention on Dr Lu's part rather than an accurate recounting of the history provided by the plaintiff" and that the fact that Dr Lu consistently referred to an act of lifting ought not, again, be regarded as a reliable reproduction of the history provided by the appellant. Thirdly, Mr Lidden argued that an inference favourable to the appellant should be drawn from the fact that one of the two cross-respondents, Mr Ryan, one of the two deliverymen on 25 August 1999 (the other having died prior to trial) had not been called. Accordingly, Mr Lidden argued a Jones v Dunkel inference favourable to the appellant should be drawn. In the latter respect the primary judge noted that there was no room for a Jones v Dunkel inference if the plaintiff had failed to make a case in the first place. The appellant abandoned any reliance on Jones v Dunkel concerning Mr Ryan, when Mr M Elkhaim SC who appeared for the first respondent with Mr J Turnbull on appeal, but not at trial, pointed out that an affidavit from Mr Ryan had been tendered by consent in which he said he had no recollection of doing a delivery at the Novotel, Brighton on 25 August 1999. 36 Leaving aside the Jones v Dunkel point, the primary judge acknowledged that there was "some merit" in Mr Lidden's submissions and that if the evidence went no further than the contemporaneous records "it would at least be open to the Court to conclude that there was nothing fundamentally damning in those records to undermine the plaintiff's case". One possible exception was the entries in the claim form that there was "no-one" to blame and there was no witness. In this respect his Honour noted that those assertions were "very difficult to explain and indeed, when they were put to the plaintiff, he had very little to offer by way of any convincing explanation for inserting them …". 37 His Honour then said that other evidence of the subsequent medical history and treatment of the appellant effectively eliminated whatever benefit of the doubt the appellant might be able to draw from the contemporaneous evidence. 38 He referred to Mr Goldsworthy's 17 April 2000 report, which recorded that upon "a comprehensive re-examination [the appellant] had returned to his pre-injury state". The primary judge noted that, according to Mr Goldsworthy, the appellant was to "receive a less frequent adjustment at his own expense", that the appellant had continued to see him until July 2000, when Mr Goldsworthy reported, "this matter … has reached a satisfactory outcome". On the basis of Mr Goldsworthy's reports and Dr Lu's statement that the appellant had no further back pain on 31 August 1999, the primary judge expressed the view that the appellant's evidence he left his position as a cellarman because of his back injury was "entirely inconsistent with the assessment made by Mr Goldsworthy and Dr Lu." 39 His Honour then noted there was no evidence the appellant received any medical or other treatment from July 2000 until February 2001. He appeared to contrast that with the appellant's evidence that he was "starting to get a stiff back" in February. 40 The primary judge described the chair incident. He then examined the reports prepared by the medical practitioners who treated the appellant after it occurred. He observed that Dr Simmons did not refer to the chair incident even though, according to the primary judge, "the medical history makes it very clear that the reason the plaintiff saw Dr Simmons was the consequences of the chair incident in February 2001". Although his Honour again apparently gave some weight to Mr Lidden's submission concerning the "general or inaccurate" nature of medical reports, he nevertheless was of the view that it was "very odd that Dr Simmons would have omitted from what was a very detailed report to the employer, any reference whatsoever to an incident which, at the very least was a source of aggravation of the back injury in February if he had been told about it". He then said: "The only reasonable conclusion to draw is that the plaintiff kept that incident from Dr Simmons and attempted to lead Dr Simmons to the conclusion that his back complaint was entirely attributable to the injury sustained in August 1999." 41 His Honour also thought it important that there was no evidence the appellant had returned to either Dr Lu or Mr Goldsworthy after the February 2001 incident, remarking that it was "very odd that the only two persons from whom he sought treatment in August 1999 are entirely avoided for some considerable period of time following the incident in February despite the fact that it was sufficiently serious to prompt the plaintiff to obtain two radiological reports and to see Dr Simmons for the purpose of providing a report to his current employer". Having regard to the parties' agreement that the appellant saw Mr Goldsworthy on 5 occasions immediately after the chair incident, the respondents accept that his Honour erred in concluding the appellant had "entirely avoided" Mr Goldsworthy. 42 His Honour noted that Dr Stening, like Dr Simmons, made no reference to the February 2001 chair incident. 43 Next, the primary judge referred to the Prince Henry Hospital report's history about the appellant being injured whilst "single handedly lifting 75kg beer kegs". He noted that was an "entirely novel account of the event at the time". His Honour thought that, were it not for the rest of the evidence, that account might "very easily be discounted as one that simply involved a lack of accurate recounting by the Doctor concerned". However, given the rest of the evidence, his Honour said he had to "contemplate the possibility that this was yet another version of events provided by the plaintiff". His Honour noted that the report referred to a relapse of low back pain in February of 2001 but, again, that there was no reference to the chair incident". 44 The primary judge came to the "inescapable conclusion that the chair incident in February was of sufficient concern to the plaintiff to generate a level of activity in terms of medical consultation and treatment which far exceeded what [he] had sought as a consequence of the incident in August 1999". 45 His Honour next referred to the medico-legal reports obtained by the appellant's solicitors from Dr Conrad and Dr Hudson, a neurosurgeon, who saw him on 5 July 2001. He remarked that Dr Conrad's history that "whilst lifting a case of beer weighing about 20kgs, Mr Piper felt a twitch in his back" was much the same general description contained in a number of other histories which had been recorded up to that time. He also noted that Dr Conrad made no reference to the chair incident. 46 His Honour referred to Dr Hudson's report referring to "unloading a truck" and "stacking the cellar with crates" then noted that Dr Hudson's report recorded that after an incident in February 2001 the appellant's low back pain became worse and commented that "on a careful examination of all of the documentary material up to that point, [Dr Hudson's report] is the first indication of a more frank account of events from the plaintiff to those to whom he was sent for treatment and/or examination". 47 Finally, his Honour noted that the first history broadly resembling the appellant's evidence was found in the report of Dr Andrew Robertson, a psychiatrist, to whom the appellant was referred for a medico-legal report dated 5 September 2001. That recorded: "He was taking part in the unloading of cases of beer from a truck. The truck was in the loading dock, and the usual method of unloading was that the driver would throw a case down from the truck, and it would be caught either by your client or an offsider. The minimum order was 100 cases of beer. In the course of this activity, he said that he felt 'a twinge' in his low back and had to sit down. His offsider completed the unloading task."

The primary judge noted that the last sentence was "not consistent with the plaintiff's version of events in the witness box where he said that after a brief period of recovery, he continued to assist in the unloading of the truck until it was completed by simply taking the cases directly from the person in the middle of the chain rather than accepting them having been thrown to him". Nevertheless, again, his Honour noted that that inconsistency would be a "matter of minor importance if it were not for the rest of the evidence". 48 His Honour concluded that: "… there is an almost inescapable inference that the version recorded by Dr Robertson was first of all an accurate representation of what the plaintiff told him including the reference to the completion of the task by the offsider and that this was part of a continuing revision of the plaintiff's version of events which had not yet been quite refined to the detail which he finally presented as a basis of his claim against the defendants. One cannot avoid the suspicion that the refinement of that particular aspect of the history with the plaintiff's own recognition that the continuing assertion that the job was completed by someone else would be an invitation to have that person give evidence one way or the other and that if the plaintiff's ultimate version of events was to be sustained, that is that he saw the task through to its end, then that particular detail needed to be revised. I also note that it was soon after Dr Robertson's report that the Statement of Claim in these proceedings was filed containing the version of events which then continued to be the basis of the plaintiff's claim …". 49 His Honour then observed that insofar as later medical reports were concerned he did not propose to revisit them in detail. He did, however, observe that there was a lack of consistency in the appellant's account of events, which could not be adequately explained by the inaccuracy of those relating the histories concerned, and that the later reports corroborated his impression of a continuing refinement of the history provided by the appellant. Thus, his Honour noted that there were further examples of histories which omitted any reference to the chair incident [Dr Clark, 27 June 2002; Dr Ellis, 26 July 2002].

50 His Honour noted that some reports also referred to the case of beer being "thrown down" to the appellant, which his Honour clearly regarded as another version of the accident, which had been "modified" by the time the appellant gave his evidence so that the appellant was receiving the cases from a person standing at the same level. 51 His Honour then concluded: "The evolution of the plaintiff's medical history and the multiplicity of discrepancies in the histories recorded by a large number of medical practitioners cannot be explained away on the basis on which I am invited to do so by Mr Lidden. When account is taken of the fall in February and the level of medical treatment which was sought as a consequence of that fall, the plaintiff's efforts to either eliminate that event from the history of his back condition, or at least to minimise its importance, can only be explained on the basis that the plaintiff was concerned that it was the incident in February of 2001 which had been the real cause of the condition exposed in the CT scan which left him with a permanent back problem from which he continues to suffer. The accounts which he gave and the development of a detailed description of the mechanism of his injury in August of 1999 were a result of a quite conscious attempt to shift the blame for his current condition from the February incident back to the incident some sixteen to eighteen months before . In those circumstances the evidence is so compelling that the plaintiff has engaged in a level of reconstruction of events which does not substantiate the mechanism of injury on which the case was based against the defendants, that the plaintiff has, in those circumstances failed to make a case. For that reason alone, the claim against both defendants must fail." (emphasis added) 52 Although that was a sufficient basis upon which to dispose of the case, the primary judge then considered the respondents' causation argument and concluded that, even if the appellant's evidence of the mechanism of his injury were accepted, and too, if it was concluded that either or both of the first and second respondents had been negligent, the appellant had failed to prove the August 1999 incident caused his current disability. His Honour concluded that the appellant had probably recovered totally from the consequences of the August 1999 incident prior to February 2001 and that it was the chair incident which had caused the disc protrusion. 53 Finally, the primary judge dealt with the question whether the third respondents were Linfox employees or independent contractors. He concluded that the terms of the contract pursuant to which the third respondents carried out deliveries on behalf of Linfox pointed to an independent contractor relationship. He distinguished Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.

Issues on appeal 54 The principal complaint identified in the appellant's Notice of Appeal was that the primary judge's credit findings "made insufficient allowance for the plaintiff's level of intelligence and education and the effects of his psychiatric injury and failed to attribute due weight to the instances when correct histories were given to various doctors" (ground 1). In addition the appellant complained that the primary judge had erred in placing, in effect, undue weight on the statements in his workers compensation claim form (grounds 3 - 4) and in finding that he had deliberately attempted to mislead some doctors by giving inaccurate histories when other medical reports contained accurate ones (ground 5). 55 There were other grounds of appeal but these were the principal grounds upon which the appellant's submissions focused. Success for the appellant depended, of course, on establishing that the primary judge's conclusion that he had not established the mechanism of injury for which he contended was erroneous. 56 Although there was some reference in the appellant's written submissions to his educational background, his intellectual ability and the fact that he had been diagnosed as suffering from major depression (albeit not until September 2001), I do not understand that aspect of the first ground of appeal was seriously pressed. Ms Norton accepted that the medical reports recorded unsatisfactory histories. She argued, however, that the primary judge erred in concluding that those histories revealed a continuing refinement of the appellant's version of the accident. She contended, by reference to a chronological analysis of the medical reports, that on a proper examination it could be seen that there had been no such process. She also argued, in effect, that there were aspects of the medical reports where it might be expected, had the appellant been confabulating, that he would not have disclosed the matters reported, such as that he was getting better. 57 She argued that the primary judge erred in a manner which appeared to have affected his assessment of the appellant's credit in concluding that the appellant had "entirely avoided Dr Lu or Mr Goldsworthy after the chair incident". First as, was common ground, she drew attention to the evidence that the appellant had consulted Mr Goldsworthy immediately after the chair incident. Secondly, she said that there was a credible explanation for the appellant's failure to consult Dr Lu again. The primary explanation was that the appellant had consulted Dr Simmons because he was Alcatel's doctor. The second was that the appellant had given evidence that he had consulted Dr Simmons because he was not happy with Dr Lu's services. 58 Ms Norton also complained that the inference the primary judge drew from the fact that some of the medical practitioners did not record a history of the chair incident was "a result of a quite conscious attempt to shift the blame for his current condition from the February incident back to the incident some sixteen to eighteen months before" had not been put to the appellant and was not, therefore, a matter upon which his Honour could rely in assessing the appellant's credit. 59 Finally, she submitted that the primary judge erred in concluding that the appellant's back injury had substantially resolved by April 2000 so that statements made that he was still having trouble with his back in May 2000 were inconsistent with Dr Lu's assessment in August 1999 that he suffered no back pain after that time and Mr Goldsworthy's assessment in April 2000 that the appellant had returned to his pre-injury state.

60 The respondents submitted that the primary judge's findings turned on his assessment of the appellant's credit and that such findings could not be lightly overturned: Fox v Percy. 61 The respondents acknowledged the primary judge was wrong to conclude the appellant had avoided Mr Goldsworthy. They contended that error was minor in circumstances where the principal reason the primary judge rejected the appellant's account of the accident was based on his view that that account had continuously evolved. They submitted far from supporting the appellant's case, the chronological examination of the records demonstrated that the appellant's account of his injury had evolved from a "lifting" incident into a "catching" incident, passing, at one stage, through the version recorded in the Statement of Claim of a "throwing down" incident. 62 They also submitted that the cross-examination of the appellant concerning his apparent failure to mention the chair incident to medical practitioners was sufficient to entitle the primary judge to draw the inference he did concerning the appellant's motive. 63 Mr Elkhaim also submitted that once the issue of the omissions and inconsistencies in the medical reports was raised, it was incumbent upon the appellant either to tender the doctors' notes or to call the doctors. In the absence of such evidence, he submitted the primary judge was entitled to infer that the doctors would not assist.

Consideration 64 It is incumbent on the Court, notwithstanding the substantial adverse credit findings made by the primary judge, to conduct "a real review of the trial" and of the primary judge's reasons. This review encompasses "weighing conflicting evidence and drawing … inferences and conclusions" while bearing "in mind that [the Court has] neither seen nor heard the witnesses, and should make due allowance in this respect". Having made due allowance for the advantages available to the primary judge, this Court must "not shrink from giving effect to its own conclusion": Fox v Percy (at [25], [29]). It should also be recalled that the task the appellant bears is particularly difficult for in cases where the primary judge "comes to a conclusion in favour of the party upon whom the burden of proof does not lie, it is almost hopeless to try to induce a Court of Appeal to interfere with that finding unless it has clearly proceeded upon a wrong principle": Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 553 per Griffiths CJ. 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. 66 It is apparent from the cross-examination I have summarised that the case depended to a significant extent on the primary judge's assessment of the appellant's demeanour as he was confronted on the many occasions which I have set out, with the proposition that he had not been injured in the manner for which he contended, that the version of his accident had not been recounted by him in contemporaneous documents or to the numerous medical practitioners and, too, that he had failed to mention an arguably significant event in the aetiology of his disability to medical practitioners to whom such an event would have been relevant. There were other instances in cross-examination where the appellant's reliability as a witness of truth was tested. 67 The primary judge undertook a painstaking review of the evidence and gave great weight to the appellant's submissions as to the latitude which should be extended to him in various respects concerning what, if there was only one instance on inconsistency, might have been explicable. Thus his Honour was prepared to give the appellant the benefit of the doubt that Dr Lu's description of the mechanism of injury may be general or inaccurate, a surmise others share: see Davis v The Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]. 68 However, as his Honour acknowledged that benefit of the doubt was "effectively eliminated" by the subsequent medical history and treatment of the appellant. There were two critical aspects of the subsequent medical material: first the fact that accounts of the appellant's accident as late as July 2001 (Dr Hudson) described it as having occurred, in substance, in a lifting incident and, secondly, the failure to refer to the chair incident. 69 It is apparent, however, that the weight of the evidence which told against the appellant's account of the accident as presented at trial and his observations of the appellant's demeanour was such that he felt bound to conclude that the appellant had failed to discharge the onus of proof that the accident had occurred in the manner for which he contended. 70 It was in the light of those matters that the primary judge made two compelling findings. First, that the appellant had continuously revised his version of events and, secondly, that that revision was a result of a conscious attempt to shift the blame for the condition disabling him at the time of trial from the chair incident to the August 1999 incident. The first finding was sufficient for his Honour to conclude that the appellant had failed to discharge the burden of proof. However it was, in my view, also open to the primary judge to draw an inference concerning the appellant's motive for not referring to the chair incident. He had been given the opportunity to deal with the proposition that he had failed to refer to it: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 224 per Glass JA (with whom Reynolds JA agreed). He was clearly on notice that the respondents would argue that the primary judge should draw an adverse inference if he accepted the medical practitioners' reports as complete: Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 16 ff. 71 The appellant's consistent response was that he had told the medical practitioners about the chair incident. The primary judge was entitled to reject that evidence and form the view in the light of all the evidence that the appellant's silence had been deliberate. 72 I have reviewed the evidence. The chronological examination of the appellant's accounts of the circumstances in which he was injured in August 1999 do, as the respondents submit, demonstrate an evolution from a lifting to a catching incident. Without any injection of a credit component, that evolution would be sufficient to cast doubt on the appellant's account at trial. When coupled, however, with the primary judge's conclusion that the appellant was an unreliable witness, the task the appellant faced in reversing his Honour's rejection of his case was almost insuperable. 73 I acknowledge that the primary judge erred in his conclusion that the appellant had "entirely avoided" Mr Goldsworthy. However that error did not, in my view, play a decisive part in his Honour's assessment of the appellant's credibility: see Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [43] per McHugh J. 74 In my view the primary judge's conclusion that the appellant had engaged in a level of reconstruction of events which did not substantiate the mechanism of injury on which the case was based against the respondents was open to him.

75 The appellant has failed to demonstrate any determinative error on the primary judge's part in rejecting his account of the mechanism of injury. In light of that conclusion it is unnecessary to deal with the appellant's argument on causation or the proper application of Hollis v Vabu. 76 I would dismiss the appeal and order the appellant to pay the respondents' costs. 77 BASTEN JA: I agree with McColl JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.