Callegari v Cavallo [1998] QCA 7

IN THE COURT OF APPEAL [1998] QCA 007 SUPREME COURT OF QUEENSLAND Brisbane Appeal No. 2781 of 1997 [Callegari v Cavallo] BETWEEN: CAMILLO CALLEGARI (Plaintiff) Appellant AND: CARLO CAVALLO (Defendant) Respondent Davies JA Dowsett J Helman J Judgment delivered 10 February 1998 Judgment of the Court APPEAL DISMISSED WITH COSTS. CATCHWORDS: PERSONAL INJURIES - injury suffered in course of employment - whether action statute-barred - whether accident occurred within limitation period - extent to which appellate courts should intervene in trial judge’s findings of fact Counsel: Mr C.A. White for the appellant Mr J. Baulch for the respondent Solicitors: Nehmer McKee & Partners for the appellant Spina Kyle Roati for the respondent Hearing date: 5 December 1997 -- 1 of 13 -- -- 2 of 13 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Brisbane Appeal No. 2781 of 1997 Before Davies JA Dowsett J Helman J. [Callegari v Cavallo] BETWEEN: CAMILLO CALLEGARI (Plaintiff) Appellant AND: CARLO CAVALLO (Defendant) Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 10 February 1998 In this action the appellant sued the respondent for damages for personal injuries suffered in the course of the former’s employment with the latter. The statement of claim alleged that:- “On the 30th day of May 1984, the (appellant) in the course of his employment with the (respondent) was engaged in removing a section of water pipe . . . with a Stillson wrench when the wrench slipped and/or gave way and the (appellant) fell backwards striking the ground and causing injury . . .”. It was further alleged that the accident occurred as a result of negligence and/or breach of duty on the part of the respondent, his servants or agents. The action was commenced by writ issued on 12 May 1987. The statement of claim was delivered on 18 July 1989. A defence was delivered on 12 October 1989, but an amended defence was delivered on 9 September 1994, alleging that if the appellant injured himself in the course of his employment as alleged, then such injury “was caused on or prior to 4 May 1984", and that the cause of action was statute-barred. -- 3 of 13 -- 2 The action was tried before the Northern Judge at Townsville on 19 and 20 February 1997. The parties had agreed quantum, leaving two matters in issue at the trial, namely:- (a) negligence; and (b) whether the cause of action was statute-barred. His Honour found for the appellant on the issue of negligence but concluded that the action was statute- barred. Judgment was therefore given for the respondent, and the appellant now appeals against that judgment. The appellant said that on the day in question, he and the respondent, with two other men, were dismantling a shed in the course of which he was involved in removing a water pipe. Whilst using a Stillson wrench to undo a joint, the appellant fell on his back. He said that he immediately felt sore but did not worry about it. He did not know whether he stayed at work for the rest of the day, but his condition worsened. He subsequently saw Doctor Guidice. He was unsure whether that was on the same day as the accident. He said that he did not have any other disability or illness at the time of the consultation. Dr Guidice prescribed tablets for his back pain. A couple of days later, he saw Dr Guidice again. He was admitted to hospital and placed in traction. He said that he did not return to work thereafter. He was asked about receiving wages and said: “See my boss only a matter of a few weeks they pay me just the same. They don’t let me go on compensation. They don’t worry about it. For a few weeks I don’t worry about it. After it get longer and get longer, I say, ‘I can’t do anything’. They can’t pay me for nothing all the time and I go on compensation.” Counsel for the appellant then said, “So your boss paid you for a couple of weeks, did you say?” He replied “Oh, yeah, yeah.” It should be noted, however, that the appellant had referred to being paid for “a few weeks”. He was unable to give evidence as to the actual date of the accident but said that he had completed a Workers’ Compensation Form 4 on 14 June 1984. This document became ex.8A -- 4 of 13 -- 3 although it appears in the appeal book as ex. 7 for reasons which are not of any importance. The appellant dictated the contents of this document to his brother-in-law, Mr Braikenridge, who completed it for him. The document specifies the date of the accident as 30 May 1984 and gives the following account:- “Fell, when unscrewing a pipe when spanner slipped.” Exhibit 8B is a statement made by the appellant and Mr Braikenridge on the same date. It recites that:- “On 30.5.84, while unscrewing a pipe with a spanner, which slipped, did fall dislocating a disc in my back at about 9 a.m. on 30.5.84.” Mr Braikenridge gave evidence that he had recorded the appellant’s version in exs.8A and 8B. He said, however, that the purported date of each document, 14 June 1984, was not written by him. Both documents were witnessed by the respondent. Because there was some suggestion to the contrary, I should observe that the evidence does not suggest that in so witnessing the documents, the respondent in any way adopted the contents thereof. In cross-examination the appellant agreed that after his injury, there was a period during which the respondent continued to pay him. The appellant said that this could have been for two or three weeks. He denied having tried to return to work. He agreed that he went into hospital after he had been off work for two or three weeks on pay and that he later claimed compensation. He did not remember the day on which he went into hospital, but it was common ground that it was 31 May 1984. This evidence appears at ts. p.31 l.25 to p.32 l.60. The appellant’s apparent acceptance of some of these matters as put to him by counsel was somewhat equivocal. Perhaps for this reason, his Honour asked the appellant:- -- 5 of 13 -- 4 “I thought you said before you went into hospital one day or two days after you saw Dr Guidice?” The appellant replied:- “And the second time - yeah, in the second time I go and see him - not the first time - I go see him about my back. When I go and see Dr Guidice the second time - after they put me in hospital”. He was asked, “Had you seen him earlier about your back?” He replied, “When I got hurt I saw Dr Guidice then.” He then said, “After - I can’t say exactly if it’s one or two or three days after that I gone back to him is when he put me in hospital.” It was suggested to him that he went into hospital three or four weeks after the accident. He said that he could not remember exactly. In 1986 he applied for legal aid in connection with this matter. On 8 April, 1996 Messrs J.J. Williams & Williams, a firm of solicitors in Ingham, wrote to the Legal Aid Office on behalf of the appellant, seeking legal aid to obtain counsel’s advice. In the accompanying application form it was stated that he had been unemployed from 3 May 1984 for a period of 22 months. These documents are part of ex.5. In a letter dated 24 July 1986 (ex.6) the solicitors said that they had been instructed that the appellant had been on Workers’ Compensation “since the accident which occurred on the 3rd day of May 1984". It is possible to infer from these documents that the appellant told his solicitor that the accident occurred on 3 May 1984. Dr Guidice said that he first saw the appellant for present purposes on 4 May 1984, at which time he complained of a heavy chest cold and of pain in his right loin, radiating to the groin. The doctor diagnosed respiratory tract infection accompanied by tenderness over the lumbar area attributable to back strain. He issued a certificate for back strain. He next saw the appellant on 30 May 1984 when the latter again complained of pain over his right loin, radiating to his right buttock and down his leg to -- 6 of 13 -- 5 his foot. The pain was worse on coughing, sneezing and bending. There was tenderness over the last lumbar disc. Dr Guidice diagnosed a disc lesion. Exhibit 1 is a Workers’ Compensation certificate issued by Dr Guidice on 14 June 1984 in which he recorded that he first relevantly saw the appellant on 30 May 1984 for a lumbar disc prolapse caused by “a fall when spanner slipped”. He said that he meant by this that on 30 May 1984, he was first told that the appellant had injured himself. The same explanation was offered for a series of other certificates. Dr Guidice also said that at some stage the appellant told him that the injury had occurred on 4 May. Such an entry appears in his record cards (ex.11) in an entry dated 2 July 1984. He was not clear as to when he actually received this information. Dr Guidice agreed in cross-examination that he had written to the solicitor, Mr Williams on 12 June 1991, saying that according to his records, the date of the accident was 30 May and not 4 May 1984. He was unsure about the date of the appellant’s admission to hospital. The relevant entries which appear from ex. 11, Dr Guidice’s notes, are:- “4.5.84 Has a cold - cough and phlegm - no fever - pain over Rt loin radiating to groin - no urinary symptoms - rash on hands. O/E Temp 36.5 - RS clear - and clear - no loin tenderness - scaly rash on hands PD 1) URTI 2) Back sprain 3) Neuro dermatitis Certificate for back sprain 1.1. 4.5.84 to 25.5.84 30.5.84 Still has pains over Rt loin radiating to buttock and down leg to foot - worse on coughing, sneezing or bending over O/E tender over L5-S1 - pain on str leg flexion PD Lumbar Disc Degeneration Lumbar Spine x-ray Diminished L5-S1 disc space Hospitalized on 31.5.84 1) Wt traction 10 lbs each leg 2) IMI Pethedene 500 mgms IMI Largactil 25 mgms 8 hrly for 48 hours 1.6.84 Admitted yesterday - still has back pains - otherwise well” -- 7 of 13 -- 6 Dr Laister saw the appellant on 2 July 1984. The appellant told him that on 4 May 1984, he had slipped and fallen whilst using a large Stillson wrench, as a result of which he injured his lower back. On 6 August 1986 Dr Laister provided a report to Messrs J.J. Williams & Williams, giving that version. It is fair to say that in cross-examination, Dr Laister conceded the possibility that he may have derived the date of the accident from Dr Guidice, but the thrust of his evidence was otherwise. The respondent was present when the appellant injured himself. He thought that the incident may have occurred towards the middle of the year, perhaps towards the end of May. He qualified this by saying “But it’s hard to say because I’m not very good on remembering dates.” Immediately after the appellant fell, he complained of feeling sore. He tried to return to work but was unable to do so. The respondent told him to go home and rest and come back the next day. The respondent next heard from his children that the appellant was in hospital. He thought that he saw him in hospital a couple of days after the accident, or at least that is the inference I draw from ts. p.113 ll.35-50. He continued to pay him after the accident until about 25 or 26 May. He said that the appellant was off work for a week to ten days and then tried to return. At another point in his evidence, he said that this was 10 to 14 days after the accident. The appellant persevered for only a very short time and then indicated that he could not continue. The respondent told him to go and see a doctor. The respondent completed his own Workers’ Compensation report form, showing the accident as having occurred on 30 May 1984. He suggested that he had relied upon some other document, possibly a doctor’s certificate or pay record. He also suggested (at ts. p.123 11.20-30) that he may have had reference to the appellant’s report (ex.8A). The respondent appears to have said as much in para. 4 of ex. 20, an affidavit sworn by him on 15 August 1994. Mr Cavallo was rather vague as to the source of his information concerning the date and about the period during which he paid the -- 8 of 13 -- 7 appellant after the accident. He did not think that the occasion on which he saw the appellant in hospital would have been as long as 3½ to 4 weeks after the accident. The learned trial Judge saw the issue as being whether or not the event in question occurred on 29 or 30 May or on 4 May. He considered that while some of the contemporaneous documents supported the appellant’s case, a number of other documents suggested an earlier date. He concluded that on balance, the contemporaneous documents appeared to favour the appellant’s version. Although his Honour was clearly sceptical as to the reliability of much of the oral evidence, he must have considered that taken as a whole with the contemporaneous documentation, it tipped the balance against the appellant’s case. The learned trial Judge found that four matters were established, namely:- (a) that the appellant was admitted to Ingham Hospital on 31 May 1984; (b) that the appellant saw Dr Guidice twice concerning his back following his injury and before his admission to hospital; (c) that for some time after the injury, the respondent continued to pay the appellant’s wages although he was not working; (d) that the appellant did not return to work after his period of hospitalization. His Honour rejected the appellant’s evidence that he had not tried to return to work after the accident. He accepted the respondent’s evidence on this score and that this occurred before the appellant went into hospital. He appears also to have accepted the respondent’s evidence that he paid the appellant for some period after the accident. These facts lead to the inference that there was a significant period of time between the accident and the appellant’s admission to hospital, making it unlikely that he was admitted a day or two after the accident. His Honour also gave weight to the fact -- 9 of 13 -- 8 that Dr Guidice’s notes record visits on 4 and 30 May. The appellant’s case was that he had seen Dr Guidice on two occasions before he was admitted to hospital, but that both visits were in close proximity to 30 May. He said that the visit on 4 May was for an unrelated matter. Dr Guidice conceded the possibility of an unrecorded visit, and his Honour also took that into account. In the end, the learned trial Judge was not satisfied that the incident upon which the appellant sought to rely occurred less than three years prior to the issue of the writ. The appellant bore the onus of establishing that the cause of action arose within the limitation period. Halsbury (4th) Vol.28, para.652 states:- “When issue is joined on a plea of the statute, the burden of proving that the cause of action arose within the statutory period lies on the plaintiff.” The authorities to which reference is made support that proposition. Some of them were referred to with apparent approval by Dixon J., as his Honour then was, in Cohen v Cohen (1929) 42 CLR 91 at p.97. Counsel for the appellant asserted in this Court that “a proper determination of the probable date of the accident does not require any assessment of the honesty of any witness, only an evaluation of the relevant evidence as a whole . . .”. It was further submitted that this Court is in as good a position as was the learned trial Judge to evaluate that evidence and so might substitute its own findings for those made below. His Honour was not willing to accept unconditionally all of the evidence of a number of witnesses, however it cannot be said that none of the evidence of those witnesses was accepted. He obviously gave weight to much of the oral evidence. A number of examples will suffice. Firstly, it is clear that he accepted the respondent’s evidence that he paid wages to the appellant after the accident, although the latter was not working and that the appellant did not return to work after the respondent saw him in hospital. His Honour appears also to have accepted that Dr Guidice considered that the -- 10 of 13 -- 9 appellant’s condition when he saw him late in May, 1984, was a continuation of that of which he had complained when the doctor saw him early in that month. Although the learned trial Judge was not willing to accept absolutely Dr Laister’s evidence that the appellant told him that the accident occurred on 4 May 1984, he did not reject that account out of hand. He gave some weight to it. It is obviously not correct to say that this Court is in as good a position to assess the evidence as was his Honour who was clearly satisfied that the oral evidence was such as to reverse the balance of the contemporaneous documents. Any attack upon the ultimate conclusion reached at the trial must be based upon his Honour’s assessment of the evidence of the various witnesses. It is difficult to see how the appellant can succeed in those circumstances. The four primary findings appear to reflect evidence which was virtually undisputed. At the hearing of the appeal, the appellant sought to challenge the fourth finding, that the appellant did not return to work after his period of hospitalization. At pp.3 and 4 of the transcript of the appeal hearing, counsel suggested that in his evidence, the appellant had merely been unable to exclude the possibility that he had returned to work. This understates the evidence. At ts. p.14, ll.46-50 this passage, appears:- “Did you continue in hospital for a period of time -- Yeah. Did you ever return to work after that -- No. After the day of the injury, did you ever return to work? -- No.” In addition to these four findings, his Honour accepted the respondent’s evidence that the appellant returned to work some 10 to 14 days after the accident, and that this occurred prior to his entering hospital. In those circumstances, there must have been a period of more than 10 days after the accident and before his admission to hospital. This is inconsistent with it having occurred on 29 or 30 May. It is, however, consistent with it having occurred early in May. It is also impossible to -- 11 of 13 -- 10 accommodate within the appellant’s version of events the fact that his wages were paid for an appreciable period of time after the accident and up to 26 May, indicating that the accident must have occurred prior to that date. However, his Honour was cautious about this evidence because it appears to have been derived from records which were not tendered. The learned trial Judge records, however, that there was no objection to the evidence, and the records were in court. It was open to his Honour to infer that the accident occurred much earlier than the date nominated by the appellant. The evidence supporting that conclusion was overwhelming. The appellant did not seek to establish that the accident had occurred earlier than about 29 May 1984, but within the limitation period. The appellant sought to place great reliance upon ex.17 which is a letter from Dr Guidice to somebody described as “Sister”, presumably the person responsible for hospital admissions. The letter is dated 31 May 1984 and requests the appellant’s admission to hospital. It is suggested that the letter indicates that there was a consultation with Dr Guidice on 31 May. Whilst that is a possible explanation, it is also possible that the letter was written on 31 May following a consultation on 30 May. It does not conclusively prove that there was another consultation on 31 May which was not recorded in Dr Guidice’s records. Even if there had been such a consultation, that would not detract substantially from the compelling strength of the other evidence upon which his Honour relied and to which we have referred. In the circumstances, the appeal should be dismissed with costs. -- 12 of 13 -- 11 -- 13 of 13 --