Singh v McKey Distribution Pty Ltd

Court of Appeal (NSW)|2015-02-04|Before: Meagher JA, Ward JA, Beech-Jones J

Solicitors: Brydens Law Office (Appellant) Sparke Helmore Lawyers (Respondent) File Number(s): 2014/53678 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 31 January 2014 Before: Lakatos DCJ File Number(s): 2011/00123241

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

The forklift vehicle

The appellant alleged that his injury resulted from the use or operation of a motor vehicle and was caused by the negligence of his employer so as to give rise to a "work injury claim" to which the Motor Accidents Compensation Act 1999 (NSW) applied.
The ride-on could be driven in a forward or backwards direction. It was driven by an operator who stood facing at a 45 degree angle to the left of the direction of the two tynes which were at the front of the vehicle. The back of the platform on which the operator stood was partly enclosed by a curved backrest.

The competing versions of events

At the time of the incident the appellant and Mr Darmalingam were working in a storage area packing pallets which were then to be loaded into trucks from loading bays. The appellant was wrapping a pallet with shrink-wrap in an area opposite loading dock No 5. He gave evidence that he was doing so by walking backwards and in a crouched position around the lower section of the pallet when "someone drove from behind me and knocked me over". According to the appellant's version of events, he was struck by the backrest of the moving ride-on and did not see it or hear anything before he was struck.
The respondent employer contested this version of events. Mr Darmalingam's evidence was that he drove the loaded pallet jack backwards into a position between a single pallet, which was on the right side of the forward facing ride-on, and a row of three pallets which was on its left side. So positioned the tynes of the ride-on were facing towards loading dock No 5, as was the row of three pallets. Once he reached this position Mr Darmalingam stopped the ride-on, sounded the horn and looked around. He then saw the appellant shrink-wrapping the single pallet to his right, moving backwards in an anti-clockwise direction. The appellant collided with the side of the stationary ride-on immediately forward of the curved backrest area, spun around and staggered a few steps backwards, falling to the floor on his back.

Documents recording the competing versions of events

The accident happened at about 6.20 in the morning of 1 April 2008. In the following months, three documents were completed which contained a short description of what had occurred. Almost immediately after it occurred, a form headed "Register of Injuries and Treatment" (which, although it is a single page, I will refer to as the Register) was completed, as to part by Mr Darmalingam and as to the remaining part by his supervisor, Mr Thompson. It was then signed and dated at the foot of the form by the appellant and Mr Thompson. It will be necessary to consider in more detail the circumstances in which that occurred. It described the "Cause of Injury (as stated by injured worker)" as "hit side of ride-on" and the "Contributing Factors" to the happening of the accident as being "too many pallets on dock".
On 7 April 2008, the appellant and an officer of the respondent, Ms Weston, completed a Workers Injury Claim Form (which I will refer to as the Injury Claim Form). In that form the appellant answered the question "What happened and how were you injured?" as follows: "I was in process of wrapping a plt on loading dock when I was struck by a ride-on plt mover from behind to my right hip - back". In July 2008 another employee of the respondent, Mr Zarb, completed an Employer Injury Claim Report (which I will refer to as the Injury Claim Report). In that document the question "What happened and how was the worker injured?" was answered: "The employee was struck by a ride-on pallet mover". Again, it will be necessary to consider the circumstances in which these and other documents were prepared.

The issue before the primary judge

The appellant's case before the primary judge was that, on his version of events, the respondent was liable for the failures of its employee, Mr Darmalingam, to keep a proper lookout, to steer or otherwise control the pallet jack so as to avoid a collision with him and to warn of his approach by sounding the horn on the vehicle. Although in the course of the trial the appellant's claim was amended also to allege negligence by Mr Darmalingam in positioning the pallet jack "immediately behind the [appellant] whilst [he] was pallet wrapping", that particular of negligence was not the subject of any written or oral submissions in final address and, unsurprisingly, was not dealt with by the primary judge.
The issue of liability was formulated before his Honour and decided on the basis that the claimed liability turned on which version of events was accepted - that of the appellant or that of Mr Darmalingam. The primary judge found that the "true version of events" was that the appellant had backed into the stationary ride-on. That being the position, his Honour concluded it was the appellant who failed to exercise due care for his safety and that there was no fault on the part of the driver: [269], [270].
In the event that his conclusion on liability was overturned the primary judge went on to consider issues of contributory negligence and quantum of damages.

The issue in the appeal

The grounds of appeal challenge the findings on liability, contributory negligence and the assessments of damages for economic and non-economic loss, domestic assistance and out-of-pocket expenses. The appellant, by his notice of appeal, seeks judgment for an amount of damages to be assessed by this Court, alternatively judgment on liability with the assessment of damages to be remitted and, alternatively again, a retrial on all issues.
However, at the commencement of his oral argument senior counsel for the appellant accepted, subject to one argument which is dealt with below, that if this Court was to hold that there was error in relation to the finding of no negligence there would have to be a retrial because of the issues of credit which would have to be re-considered in light of the competing versions of events. The respondent did not contend otherwise.
By taking that position the appellant implicitly acknowledges that the present appeal is not one attracting the principles for which Fox v Percy [2003] HCA 22; 214 CLR 118 stands as authority. A finding of fact of a trial judge based on the credibility of a witness may be set aside on appeal as involving error where that finding is inconsistent with incontrovertible facts or uncontested testimony or demonstrated to be glaringly improbable or contrary to compelling inferences which are available. In such a case the appellate court ordinarily is able to conclude the matter for itself, at least where there is no realistic prospect that in any new trial the position in those respects is likely to be any different. See the discussion in Fox v Percy concerning the possibility of a new trial in the joint judgment (Gleeson CJ, Gummow and Kirby JJ) at [44] - [46].
In his written submissions to this Court, the appellant argued, albeit faintly, that even if his version of events was rejected, the respondent was nevertheless negligent by reason of Mr Darmalingam's positioning of the ride-on too close to the pallet that was being wrapped. In oral argument it was conceded that this submission was not available in circumstances where that argument had not been pressed before the primary judge.
In the light of the foregoing the only issue to be considered on appeal is whether the primary judge erred in finding that the collision and therefore the appellant's injuries happened in the way described by Mr Darmalingam. That finding was expressed to be based, in part, on his assessment of the credibility of the two principal witnesses.
An understanding of the appellant's arguments directed to that issue requires first that further reference be made to the way in which the trial was conducted and to the primary judge's reasoning.

The conduct of the trial

The appellant's case was that, as a result of the accident, he sustained significant injuries to his upper and lower back and psychological injury, including depression. That claim was made in circumstances where he had suffered earlier work injuries in 1998 (back), August 2000 (right ankle), December 2000 (left ankle and subsequent aggravation of back) and December 2001 (back). Those injuries were the subject of a workers compensation claim which was settled in September 2002. The appellant received lump sum compensation for a seven and a half per cent permanent impairment to his back, a five per cent loss of use of his left leg below the knee and a five per cent loss of use of the right leg at and above the knee. The medical evidence also established that the appellant suffered from depression and anxiety and had received treatment for those conditions before April 2008.
The respondent relied upon the evidence of Mr Darmalingam and the entries in the Register. That was said to be the most contemporaneous document recording the events of 1 April 2008 and to have been signed by the appellant as indicating that he had no issue with Mr Darmalingam's version of events. The respondent also made extensive submissions about the unreliability of the appellant's account of how the claimed injuries occurred and as to their consequences, particularly taking account of the contributions of earlier and later accidents to his back problems. It was submitted to the primary judge that in the light of these considerations the appellant's credibility was "highly questionable": [249].
In response, it was pointed out that the appellant's version of events was supported by the Injury Claim Form dated 7 April 2008 and the Injury Claim Report signed by Mr Zarb and dated 15 July 2008. The entries in the Register were dismissed by the appellant as a "self-serving explanation" completed by Mr Darmalingam which he never accepted: [263]. It was conceded that in the course of the appellant's evidence there were "long pauses, and unbalanced rants, straying from the question, crying, [and] frequent breaks". They were explained as indicative of his overall pain and psychiatric condition and it was submitted that the appellant's demeanour "along with his difficulties in answering questions" were a product of physiological injuries consequent upon the physical injuries sustained in the accident: [250].

The conclusions and reasoning of the primary judge

The primary judge accepted the evidence of Mr Darmalingam, both as to the accident itself and as to his having consulted the appellant before describing the cause of the accident in the Register. He found that when the appellant signed the Register "he was aware of the results of [the] preliminary investigation either by reading the comments in it or by having been informed of them by the supervisor" and that as a result the appellant did not dispute the presence of a number of pallets on the dock at the time of the incident and the short description of the accident - "hit side of ride-on". The primary judge acknowledged that the two later documents (the Injury Claim Form and the Injury Claim Report) supported the appellant's version of events but concluded that "they are a less reliable record because they were completed from about one week to some many months after the event and so far as those completed by the employer, they were completed without reference to contemporaneous documents": [266].
He expressed his ultimate conclusion at [269] as follows: Given that the first recorded version of the accident was consistent with Mr Darmalingam's version and given that in my view that witness's demeanour was indicative of a person attempting to tell the truth, I conclude that the true version of events was that the [appellant] backed into the ride on and not that the ride on struck the [appellant].
Earlier at [118], he made the following observation as to Mr Darmalingam's credibility: … Mr Darmalingam impressed as an honest and candid witness. He answered questions in a straightforward manner and without evasion. In my opinion, his evidence was truthful.
In contrast, his view of the appellant's credibility was unfavourable. He said at [267]: … In my opinion, the vagueness and unresponsiveness of the [appellant] in many respects referred to above, caused me to doubt his credibility about the circumstances of the accident. Notwithstanding that he became upset on occasion during the days that he was in the witness box, (and I have little doubt that he is suffering from some form of depression), I consider that his vagueness was not a result of these factors but in pursuit of furthering his own claim.
The primary judge summarised his reasons for this view at [318]: In summary then the [appellant's] credibility, in my opinion, [was] adversely affected by the following: his inability to recall the details of this accident and how his injuries occurred; the inconsistent accounts he gave of the result of the collision to a number of doctors (Dr Evans at para 152, Dr Teoh at para 162: that he was knocked to the ground; Dr Bodel at para 179: that he fell onto the pallet; Dr Mitchell at para 185, Professor Jones at para 194: that he avoided falling; and Dr Samuells at para 199: his leg was swept from under him); [his] inconsistent accounts of the number and placement of pallets on the loading dock; his lack of full disclosure about his previous injuries and medical conditions and his inconsistent accounts of his symptoms to his general practitioners after the accident.

Disposition of the appeal

The written and oral arguments made on behalf of the appellant can be considered in three parts. Each is directed to an aspect of the primary judge's reasoning that led to his conclusion to accept the respondent's version of events.
First, it is said that the primary judge erred in finding that by signing the Register the appellant was to be taken to have adopted the correctness of its contents; and, in particular, those under the headings "Details of Accident" and "Preliminary Investigation".
The contents of the Register are significant in three respects. First, the description of the "Cause of Injury (as stated by injured worker)" - "hit side of ride-on" - is more consistent with Mr Darmalingam's version that the appellant was wrapping the pallet in an anti-clockwise direction and collided with the side of the ride-on to Mr Darmalingam's right as he stood in the stationary ride-on. The Register's description is not consistent with the appellant's evidence that he was moving in a clockwise direction, that the pallet jack was moving in a backwards direction and that the point of impact was on the curved back plate which, as was conceded by the appellant, was part of "the back section of the ride-on". Secondly, the Register gives as a factor contributing to the accident that there were too "many pallets on dock". That was inconsistent with the sketch plan (Ex 15) produced by the appellant in the course his cross examination (which showed no other pallets in the vicinity of the accident) and his evidence that he did not know if there were any pallets on the other side of the ride-on. Finally, a failure of Mr Darmalingam to keep a proper look out whilst driving the ride-on was not identified as a contributing factor to the accident. If the accident had happened as the appellant described, there would have been a clear failure in that respect on the part of Mr Darmalingam whilst driving the ride-on.
The primary judge found that the information under the heading "Details of Accident" was completed by Mr Darmalingam in the appellant's presence and after each of the subjects of inquiry in that part had been discussed between them: [258]. He found that the information under the heading "Preliminary Investigation" was completed by the supervisor, Mr Thompson. He also found that the Register was signed at its foot by Mr Thompson and the appellant and that at the time it was signed by the appellant, the form had been "completed": [259], [260]. Each of these findings was supported by the evidence.
Mr Darmalingam said that immediately after the incident he helped the appellant get up and took him to the supervisor's office. He left the appellant in the supervisor's office, "finished off what [he] had to do", and then went back and took the appellant to the first aid room because he was also the first aid attendant. There Mr Darmalingam completed the parts of the form headed "Details of Injured Worker" and "Details of Accident" in the appellant's presence having first discussed the subjects of inquiry that appeared in those parts of the document. Having done so, he signed the document as the "First Aid Attendant", and handed it to the supervisor who completed the part under the heading "Preliminary Investigation". Mr Darmalingam gave evidence that he then "left".
In the face of that evidence, the primary judge's finding that "Mr Darmalingam observed the [appellant] sign the form" (at [263]) was not clearly supported by the evidence. However, the appellant agreed in cross examination that the document was "filled out" before he signed it. That evidence justified the conclusion that when the appellant signed the document "he was aware of the results of [the] preliminary investigation either by reading the comments in it or by having been informed of them by the supervisor". No evidence was led from the appellant to suggest that was not the position.
The second submission made by the appellant is that the primary judge failed to take account of objective matters telling against Mr Darmalingam's version of events and failed to consider the inherent probability of the appellant's version having regard to that material. The relevant material is the Injury Claim Form, the Injury Claim Report and a record of the medical practice which the appellant attended on 5 April 2008, the day after the accident. This last document was in evidence but not identified or relied upon before the primary judge as a contemporaneous record supporting the appellant's version.
The two documents brought into existence in April 2008 described the accident in terms that were consistent with the appellant's version of events. The report prepared by the respondent in July 2008 was said to support the appellant's version as recorded in the two earlier documents. The primary judge rejected this submission in relation to the July document because it was completed by Mr Zarb who had no involvement in the relevant incident and was unable to recall whether he had access to any documents or had discussed the matter with anybody at the time he completed it: [265].
An examination of the evidence shows that none of these documents provided any independent corroboration of or support for the appellant's version of events. On 5 April 2008 the appellant consulted his general practitioner, Dr Puglisi. The note of that consultation includes "hit by a palette [sic] mover on his right buttock at work on 1/4/08". The appellant gave no evidence as to what he told Dr Puglisi in that consultation. The note also indicates that at the same time Dr Puglisi prepared a WorkCover medical certificate. That certificate was in evidence, is dated 5 April 2008 and contains the same statement as to how the injury occurred. It is most likely that Dr Puglisi was the author of both documents and that the source of his information was the appellant. Whether the recorded description accurately records something that Dr Puglisi was told by the appellant was not explored.
On 7 April 2008 the appellant completed the Injury Claim Form, which was also signed and completed in part by Ms Weston, the respondent's return to work co-ordinator. On the same day Ms Weston sent by email to Mr Zarb a copy of Dr Puglisi's medical certificate and a copy of the completed Injury Claim Form. The Injury Claim Report completed by Mr Zarb on 15 July 2008 records that the injury was first reported on 7 April 2008. Mr Zarb could not recall seeing the completed Injury Claim Form until July 2013 which was shortly before he gave evidence. He believed that any information he obtained to complete the Injury Claim Report was provided by Ms Weston or obtained from a month-end report prepared by her.
Having regard to the fact that the description of the accident in the Injury Claim Report is the same as that in the earlier Injury Claim Form, the likely source of the description in the former was Ms Weston, who in turn relied on the information in the latter. That information may in turn have been taken from Dr Puglisi's certificate. The appellant submitted that the consistency between the Injury Claim Report and the appellant's version of events is significant because the respondent employer had an opportunity by this form to report Mr Darmalingam's more favourable version of events to its insurer. None of this evidence suggested, however, that Mr Darmalingam or Mr Thompson was, either directly or indirectly, the source of any relevant description that was contrary to what was recorded in the Register. For that reason the primary judge did not err in concluding that the July 2008 document did not provide any independent support for the appellant's version of events, either as given orally or as recorded in the April documents.
It was also submitted that Dr Puglisi's note of 5 April 2008 provided some support for the appellant's version because it was a very early record of that version given at a time when the appellant had no reason to do other than accurately retell what had happened. One difficulty for this argument is that the appellant did not give any evidence as to what he had told Dr Puglisi. That leaves open the plausible possibility that what is contained in the note was not an accurate record of what was said. Another possibility is that without necessarily doing so conscious of any need to establish negligence on the part of the employer, the appellant decided to describe the incident in the most favourable light from his point of view which involved his being hit by the moving ride-on.
The primary judge had to resolve the inconsistency between the description of the accident in the Injury Claim Form and the appellant's evidence on the one hand and Mr Darmalingam's evidence and the description of the accident as its cause in the Register on the other. One obviously significant factor was that the Register was completed earlier and was signed by each of the only witnesses to the accident.
In an attempt to confront this difficulty the appellant submitted that there was no substantial difference between the incident as described in the Register and the description in the Injury Claim Form signed three days later. Each referred to a collision between the appellant and the ride-on. The Register correctly recorded that the appellant had "hit" the ride-on. It was not to be taken as saying, by the use of the active tense, that the ride-on was necessarily stationary. The appellant may have signed the Register not understanding that implication.
There are two problems for this argument. The first is that the appellant did not say he had interpreted the note in that way. The second is that the contents of the Register are inconsistent with the appellant's version of events in two other respects. The first is that the point of impact is described as the "side" of the ride-on rather than the back. The second is the absence of any reference to the driver's failure to keep a proper look out as a contributing factor to the accident. As I have said earlier in these reasons, these matters represent significant differences between the incident as described in the Register and that described in the Injury Claim Form. The fact of those differences makes it more difficult to explain away the appellant's adoption of the Register as not carrying with it an acceptance of the correctness of Mr Darmalingam's version of events.
The third argument of the appellant is that the primary judge erred in findings and observations made when arriving at his assessment of the appellant's credibility. The principal matters relied upon in that assessment are referred to in [318], which is set out in [24] above. The first is that the appellant was unable to recall the details of the accident and how his injuries occurred. There was evidence justifying that observation. In his evidence in chief, the appellant's description of the incident was brief. He said he was "wrapping the pallet and someone drove from behind me and knocked me over". In cross examination he said that after he collided with the pallet jack he fell onto the pallet, tried to stand, felt pain, could not stand and then fell backwards. In cross examination he could not remember whether there were any pallets on the other side of the ride-on, although in his Motor Accident Claim Form completed in September 2008 a diagram which he had prepared showed that there was a line of three pallets answering that description.
There were also, as the primary judge observed, differences between the descriptions of the incident in the medical reports of the various treating and medico legal doctors who examined the appellant: [318]. However, care must be taken in concluding that those descriptions recorded something said by the appellant as distinct from something advised by his solicitors or contained in some other document with which the medical practitioner had been provided. The doctors were not cross examined and there was no opportunity to clarify with them the source of any particular statement about the incident. The same observation may be made in relation to whether there was disclosure of previous injuries and medical conditions.
That said, the primary judge's observation as to the differences in these recorded descriptions finds support in the report of Dr Samuell dated 1 December 2011 where the appellant is recorded as having been asked about the incident in which he was injured and describing it as follows: He said that he fell backwards. He fell onto the "ride-on". He said the "ride-on" was pushing him forward. He said that he screamed and the "ride-on" driver backed the machine off. He told me he then fell to the ground. That description is inconsistent with the accounts the appellant gave in chief and in cross examination. Other accounts were given that were consistent with his being struck from behind and knocked to the ground. They are referred to in the paragraphs of the judgment referred to in [318].
Recognising that the same general caution applies when considering the primary judge's reference to there being a lack of full disclosure about the appellant's previous injuries and medical conditions, there was at least one clear example of that having occurred. It is recorded in two reports of Associate Professor Jones. When he saw the appellant in June 2012 the only previous injury disclosed following "specific inquiry" was that the appellant's left leg had been crushed by a forklift in 2000. Subsequently the Professor became aware of the other earlier injuries and expressly recorded in his later report of 27 June 2012 that the "multiple injuries apart from that of 2000 were not conceded" to him by the appellant.
The primary judge also refers in his reasons at [267] to the "vagueness and unresponsiveness" of the appellant in answering questions in cross examination. The appellant's written submissions to the primary judge accepted that his evidence involved "long pauses" and "straying from the question". An examination of the transcript confirms that on occasions the appellant did not respond directly to questions and at other times avoided responding to questions by asserting that he did not understand them.

Conclusion

It is not necessary to consider any other particular observations made by the primary judge concerning the appellant's demeanour. There is no doubt that his credibility was put in issue and that there were difficulties in the way he gave his evidence. The primary judge was in the best position to assess whether in doing so the appellant was seeking to answer the cross examiner's questions directly and truthfully.
His conclusion that the respondent's version of events should be accepted was not made solely upon his assessment of the credibility of the two principal witnesses. It was based on the contents of the Register completed on the day of the accident and the fact that that version accorded with Mr Darmalingam's account and was not disputed by the appellant at the time it was prepared. The Injury Claim Form and Injury Claim Report did not provide any independent support for the appellant's version of events. In these circumstances the primary judge is not shown to have erred in so concluding.
The appeal should be dismissed with costs. In the way the appeal was argued, the appellant's written arguments addressing contributory negligence and quantum do not arise for consideration.
WARD JA: I agree with Meagher JA.
BEECH-JONES J: I agree with Meagher 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. Decision last updated: 13 March 2015

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