Callegari v Cavallo [1997] QSC 25

301Q<;: IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE BETWEEN: CAMILLO CALLEGARI AND; CARLO CAVALLO W. No. 195 of 1987 Piaintiff Defendant REASONS FOR JUDGMENT - CULLINANE J. DATED THIS TWENTY-SEVENTH DAY OF FEBRUARY, 1997. In this matter the parties have agreed upon the quantum of damages in the sum of $203,401-18 which is a figure reached after the deduction of Workers Compensation payments. Two issues were litigated before me. These were: (a) negligence, (b) whether the Plaintiffs cause of action is statute-barred. The Plaintiff contends that the accident occurred on the 29th or 30th May, 1984 and the Defendant contends that it occurred on the 4th May, 1984. The writ was issued on the 12th May, 1987. The Plaintiff was born in Italy on the 13th January, 1935. He does not read or write English and although he gave evidence without the aid of an interpreter his spoken English is broken and at times difficult to understand but generally reasonably intelligible. l -- 1 of 10 -- 2 His cause of action arises out of an incident in which he slipped and fell whilst using a Stillson wrench. The Defendant was present when this occurred. A substantial body of evidence was addressed to the second of the questions. I do not propose to canvass it in detail. There are contemporary documents which support the Plaintiffs case. These include Workers Compensation claim documents prepared on behalf of the Plaintiff by his brother-in-law and signed by the Plaintiff and witnessed by the Defendant. (see exhibits 8(a) and 8(b)). There is the Workers Compensation form 3 completed by the Defendant (exhibit 9). In addition certificates issued by Dr. Giudice until the 23rd April, 1986 show the date upon which he first saw the Plaintiff in relation to the injury as the 30th May, 1984. (see exhibits 1 and 3e) There are a lesser number of contemporary documents which suggest an earlier date. Dr. Giudice's records (exhibit 11) would on his evidence tend to suggest so and Dr. Laister's notes of the 2nd July, 1984 according to Dr. Laister suggest that the Plaintiff told him that he was injured on the 4th May. Dr. Laister was not able to say whether he had received a letter from Dr. Giudice but conceded that the date may have come from either the Plaintiff or Dr. Giudice. The relevant contemporary documentation on balance tends to favour the Plaintiff rather than the Defendant on this issue. -- 2 of 10 -- 3 Subsequently Dr. Giudice changed the dates in the Workers Compensation certificates he issued. The certificates bearing the changed dates are exhibit 12. Dr. Giudice gave an explanation as to why he did this. A little before this 2 letters were written on behalf of the Plaintiff by his then solicitor. These are exhibits 5 and 6. They would suggest in one case that the Plaintiff had received Workers Compensation from the date of an accident which is said to have been the 3rd May, 1984 and in the other case that the Plaintiff had been unemployed since the 3rd May, 1984. Obviously these documents were completed by someone other than the Plaintiff as his english would clearly not have been adequate to do so. The Plaintiff had some recall of having made an application for !egal aid but does not seem to have any recall of the documents and said that he did not talk to anyone about the contents. A resolution of the matter is made more difficult by the 13 years that have passed since the Plaintiff was injured. Reliance upon evidence based upon a purported memory at this time is somewhat problematical. Dr. Giudice is an elderly man and some aspects of his evidence can only be described as confused and confusing. It is clear that he is now convinced that the Plaintiff was injured on the 4th May, 1984 and that he had been in error in issuing the earlier certificates showing the 30th May. He has at different times written letters with diametrically opposed assertions on this subject. These are exhibits 13, 14 and 15. It is clear that the first paragraph in each of exhibits 13 and 14 is at odds with the evidence which he gave before me where he stated that some of the information which appears in those paragraphs became known to him only over a period of time. In exhibit 16 as will be seen he was emphatic that the Plaintiffs work injury had occurred on the 30th May and not on the 4th May and that on the / -- 3 of 10 -- 4 earlier date the Plaintiff had consulted him for a respiratory infection and generalised aches. It was the Plaintiff's claim that in early May he saw Dr. Giudice for such a condition and there is some evidence from the Defendant that the Plaintiff had had a few days off in early May for some 'sickness or something'. It seems to me that there were four matters which can be taken as established common ground. The first is that the Plaintiff was admitted to the Ingham Hospital on the 31 st May, 1984. The second is that the Plaintiff saw Dr. Giudice twice about his back following his injury and before his admission to hospital. The third is that for sometime after the injury the Plaintiff received payment of his wages from Mr. Cavallo even though he was not working. The fourth is that the Plaintiff did not work after he had been in hospital. Any analysis of the evidence designed to establish when the accident occurred must start from these facts. The various documents generated at the time or even in succeeding years before any issue of limitation became relevant also have to be approached in the light of these accepted facts and from a consideration of the evidence as a whole the question to be answered is which of the competing claims most accords with that evidence bearing in mind that the onus of proof rests with the Plaintiff. -- 4 of 10 -- 5 Contemporary documents in a case tried almost 13 years later ought to provide the best means of resolving the issue. Unfortunately as I have said some of these documents were supportive on one view, others of the opposite view. Alone some documents would have warranted a finding for the Plaintiff, some a finding for the Defendant. For the Defendant it was contended that once it is accepted that Dr. Giudice made a mistake in exhibit 1 other documents tending to support the Plaintiff such as exhibits 8 and 9, it can be inferred, simply repeated the mistake using exhibit 1 as the direct or indirect source. This has its attractions but on the other hand it is clear from looking at exhibit 8(a) that there has not been a direct copying of the description of the injury from exhibit 1 to that document. So far as exhibit 9 is concerned it will be seen that Mr. Cavallo provided a day of the week which was not part of the information contained on the document when it was sent to him by the Workers Compensation Board. For the Plaintiff it is suggested that the problem has arisen because Dr. Giudice has miSinterpreted his notes and from this and what Dr. Laister has written as said reached an erroneous conclusion as to a relationship between the condition the Plaintiff presented with on the 4th May and that which he presented with on the 30th May. The fact that the Plaintiff was admitted to hospital on the 31 st May and that he had seen Dr. Giudice twice before this is much less easily reconciled with the Plaintiffs account that the accident happened on the 29th or 30th May than with the Defendant's account and Dr. Guidice's records. However the possibility is not excluded by the evidence. It would be possible however only if the 2 dates were the 30th and 31 st with -- 5 of 10 -- 6 the latter attendance being prior to his admission to hospital on that day. Although Dr. Giudice has no record of the Plaintiff attending his surgery on that date he acknowledged that it was possible that he had done so. On the other hand such facts would of course be quite consistent with the attendances on the 4th and 30th in relation to his back as Dr. Giudice suggested was the case. I should also mention that Dr. Giudice acknowledged the possibility that the Plaintiff's back complaints on the 4th May were associated with his cold or an influenza condition and agreed that the complaints at the L4/5 level on the 30th May were at a somewhat lower part of the spine than the area referred to in the note of the 4th May, 1984. However I think it would be a fair summation of his evidence that he maintained that the attendances on 4th May and 30th May concerned the same back problem. There is as I have already referred to the evidence of Dr. Laister and the 2 letters from the Plaintiff's solicitors. I had no evidence as to the source of the information contained in them. The date the 3rd May, 1984 would not be inconsistent with the Plaintiff's account in that he said that he could not remember whether it was the day of the accident or the day following that he saw Dr. Giudice. However it is clear that the Plaintiff had not received Workers Compensation payments as from the 3rd May and given that records ought to have been available showing the 30th Mayas the date from which the Plaintiff first received Workers Compensation the possibility that some error has been made from this cannot be excluded. It is not possible to reach any conclusion which provides a satisfactory explanation for the whole evidentuary picture which emerges and in particular the documentation. -- 6 of 10 -- 7 The evidence of the Defendant was as is the case with much of the evidence also somewhat unclear in some respects. Initially I understood him to say that the first occasion he saw the Plaintiff after seeing him fall was in hospital a few days later. This would of course provide some assistance to the Plaintiff. However I think it clear from Mr. Cavallo's evidence taken as a whole that this is not correct. I am inclined to think that Mr. Cavallo's evidence is probably reliable in one significant respect. He says that sometime after the Plaintiff slipped and fell (a time which he at one point thought was a week to 10 days later and at another '10 to 12, 14 days'), the Plaintiff came back and tried to work with a tractor at a time when some ground was being prepared. According to the Defendant the Plaintiff told him that his back was causing him such pain that he could not do this. The Defendant told the Plaintiff that he should go straight to a doctor. The Plaintiff cannot remember this and the matter was somewhat clouded in the course of re-examination of the Defendant but I am satisfied that I can rely upon his evidence that it occurred and that there were an appreciable number of days between the time he slipped and fell and when he attempted to drive a tractor on the farm and complained that he was unable to do so because of pain. I am also satisfied that the incident involving the tractor occurred before the Plaintiff entered hospital. This chronology would also have some support in Mr. Cavallo's evidence - repeated a number of times - that he last paid the Plaintiff on the 26th May. It was common ground that the Plaintiff received payment for sometime after he slipped and fell. This evidence seemed to be based upon some reference to his payment records. The -- 7 of 10 -- 8 payments are made on his behalf by Canegrowers and the records were in Court as an exhibit for identification but neither party sought to tender them and nor was this evidence the subject of formal objection. It is difficult to reconcile this picture with a visit by the Plaintiff to Or. Giudice on the 30th after the accident occurred on that day or the previous day followed by a visit on the next day and hospitalisation on that day which would have to be the case if the Plaintiff consulted Or. Giudice twice about an injury sustained in the fall prior to his admission to hospital. It is primarily the Defendant's evidence of the two incidents separated by some significant time before the Plaintiff was hospitalised which I regard as significant in this regard. The date of payment also tends to point in the same direction. The evidence of the Defendant alone does not necessarily place the accident outside the limitation period although it would place it significantly before the dates the Plaintiff alleges. However once a scenario of consultations on the 30th and 31 st of May (which scenario is not supported by Dr. Giudice's notes but which he acknowledged the possibility of) is excluded or treated as improbable the only evidence is of attendances on the 4th and 30th May. Nobody suggested the possibility of a visit between those dates not recorded by him. The result then unfortunately for the Plaintiff is that I am not satisfied that the incident occurred after the 14th May, 1984 and I am inclined to think the probabilities are otherwise. -- 8 of 10 -- 9 It is necessary that! make findings on the issue of negligence. The incident in which the Plaintiff was injured was a relatively simple one. He had used a Stillson wrench whilst working for the Defendant but it is apparent he had received no instructions as to the way in which it should be used. The Plaintiff with others was engaged in removing some pipes which had to be dug out of the ground. The pipes were i am satisfied dirty and rusty and I accept the Plaintiff's evidence as to the way in which he attempted to use the Stillson namely with the arm of it vertical from the pipe. I also accept that the pipe was at the time dirty and rusty with no attempt having been made to clean it. I accept Mr. Kahler'S evidence as to the principles upon which a Stillson wrench works. In this case the Stillson wrench involved had a handle of about 3 feet. The Plaintiff ought to have been instructed that the Stillson should be used so that the arm of it is parallel to the pipe and the Stillson should not have been applied until the material or as Mr. Kahler called it 'the scale' was removed. In addition it would seem that someone should have been holding the pipe with a Stillson exerting force in the opposite direction while the Plaintiff performed his task. The relevant principles upon which the wrench works and the risks associated with the task being done the way in which the Plaintiff did it were explained by Mr. Kahler and were not the subject of any real challenge. Mr. Cavallo made it clear that whilst he had used a Stillson before he had not been aware of the need to use it in the way Mr. Kahler explained to the Court and it is also clear he did not instruct the Plaintiff in its use. -- 9 of 10 -- , \ 10 I think the inference should be drawn that the Stillson slipped off the pipe because of the manner in which the Plaintiff was applying the force exerted by it with the arm in a vertical position and/or because of the material on the surface of the pipe. In addition to these matters it seems to me that the Defendant had it properly addressed the task would have also taken steps to ensure that someone was holding the pipe with a Stillson so that the Plaintiff might have performed his task without the risk of the movement of the pipe in such a way as to give rise to the risk that the Stillson would come away from it. Whilst the incident was a relatively simple one involving a fairly simple agricultural task performed on a cane farm it is plain that the use of the Stillson involved some risks which might have been guarded against and should have been guarded against by the Defendant and that the failure to do so has resulted in the Plaintiffs fall and his injury. I find that the Defendant was guilty of negligence. There will be judgment for the Defendant with costs to be taxed. -- 10 of 10 --