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."