Condon v Jeffrey [1996] QCA 62

IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 208 of 1994 Brisbane [Condon v. Jeffrey] BETWEEN DAVID MICHAEL CONDON (Defendant) Appellant AND MERVYN CHARLES JEFFREY (Plaintiff) Respondent Pincus J.A. McPherson J.A. Shepherdson J. Judgment delivered 22/03/96 Separate concurring reasons for judgment by Pincus J.A. and McPherson J.A., Shepherdson J. dissenting. APPEAL DISMISSED WITH COSTS. CATCHWORDS NEGLIGENCE - PERSONAL INJURIES - Proof - Weight and credibility of evidence - Whether trial judge placed insufficient weight on prior inconsistent statements. Sections 18, 101, and 102 Evidence Act 1977 (Qld.); Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472. Counsel: Mr B.L.P. Hoare for the appellant Mr J. Rolls for the respondent Solicitors: Wonderley & Hall for the appellant Shine Roche McGavan for the respondent Hearing Date: 2 June 1995 -- 1 of 32 -- IN THE COURT OF APPEAL [1996] QCA 062 SUPREME COURT OF QUEENSLAND Appeal No. 208 of 1994. Brisbane Before Pincus J.A. McPherson J.A. Shepherdson J. [Condon v. Jeffrey] BETWEEN: DAVID MICHAEL CONDON (Defendant) Appellant AND: MERVYN CHARLES JEFFREY (Plaintiff) Respondent REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 22/03/1996 -- 2 of 32 -- I have read the reasons for judgment of McPherson JA and that of Shepherdson J. The appellant has made a number of criticisms of the way in which the primary judge dealt with the issue of credit, in working towards a conclusion that the respondent’s evidence about the way the two incidents occurred should be accepted. But the most substantial point made for the appellant on this question was, in my view, that there was a difference between the two versions of the second incident, that of 10 July 1991, given by the respondent at the two trials. It is unnecessary to explain again what the difference was; that is set out in the reasons of McPherson JA and in more detail in those of Shepherdson J. It is my opinion that the primary judge attached too little importance to this point; his Honour, referring to this and other instances of alleged inconsistency, said that they did not "detract in the slightest degree from the credibility of [the respondent] as a witness". The difference between the respondent’s first and second versions of the incident in question necessarily detracted from his credibility. This is not to say that the judge was obliged to reject the respondent’s evidence on that account. Nor does it appear to be correct, as the argument for the appellant implied, that detection of any important step along the primary judge’s path to a judgment in favour of the respondent requires that the judgment be set aside. The general effect of the primary judge’s reasons was that, despite what was said to be a number of inconsistencies, his Honour was very impressed with the respondent’s credibility and appeared to be in no doubt that he sustained his injuries substantially in the way he alleged. His Honour’s understatement of the real importance of the difference to which I have referred does not justify our differing from the judge’s view that the respondent’s case should be accepted. It should be added that the judge’s view on quantum was rather generous to the respondent, but not beyond the bounds of a proper discretionary judgment. -- 3 of 32 -- Subject to these remarks, I am in general agreement with the reasons given by McPherson JA and with the order of his Honour. REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 22nd day of March 1996 This is an appeal against a judgment for $130,394.51 given in favour of the plaintiff in the District Court at Dalby in an action for personal injuries sustained during the plaintiff's employment as a farm hand by the defendant, who is a grazier. The appeal is directed to both liability and quantum. The action was brought in respect of two separate injuries to the plaintiff's back alleged to have been sustained on different dates in 1991 which caused or contributed to a disability which has rendered him unemployable. The first incident was alleged to have taken place on 28 March 1991, which in that year was the Thursday before Easter. In para. 13 of the plaintiff's particulars of claim the second incident is alleged to have occurred on 17 July 1991, although at the trial everyone seems to have accepted that the date of it was 10 and not 17 July. Nothing turns on that difference. According to the plaintiff's evidence in relation to the first incident, he was engaged on the afternoon of that Thursday in the carting and spreading of gravel on black soil at the defendant's property in the Dalby district. He was driving a tip truck bringing the gravel from its source and dumping or "fanning" it at the site. The defendant was operating a tractor with a blade to grade and level the gravel dumped. The gravel contained boulders varying from stones of cricket ball size to rocks up to a couple of hundred kgs in weight. The practice was to push the boulders to the side and later to load them on to a utility for disposal away from the site. The bigger rocks would be lifted on to the tray of the truck mechanically, using a bucket attached to a tractor. The smaller ones were being loaded -- 4 of 32 -- 4 manually. So far as the evidence goes, there does not appear to have been any specific instruction by the defendant to the plaintiff as to which rocks were to be handled manually and which were to be left to the tractor. The plaintiff's evidence at the trial, which accorded with the allegation in para.9 of the particulars of claim, was that he was engaged in manually loading rocks on to the tray of the red utility, which had it sides and tailgate up to stop the load from rolling out. It was the last load of the day; it was raining; and the defendant said: "Quick, Let's hurry up, and get out of the rain" as they had only a few more rocks to move. The plaintiff picked up a rock and prepared to or began raising it to put it on the tray of the utility. He described it as a "flattish" rock about 18 to 20 inches in length, jagged, and weighting 30 to 35 kgs. or more. He asked the defendant who was nearby, for help with it, saying "David, could you give us a lift with this one here. It's a bit too heavy". The defendant responded by saying to hurry up or they would get wet. He gave the plaintiff no help with the rock. The rock the plaintiff was holding was covered in clay and wet from the rain. It began to slip from the plaintiff's grasp and, as he went to lift it over the side of the tray of the utility, it slipped back towards him, ending up against his chest. In repositioning himself to grab it, he felt a sudden pain in the lower part of the back, and had to let go of the rock. He said he just stood there in pain leaning against the side of the vehicle. When he told the defendant he had hurt himself, the defendant said "Well, bugger it, Merv, let's give it away. We're getting too wet". He told the plaintiff to take the utility home and dump the load of rocks on the way. It was then about 3.30 p.m. The plaintiff’s wife said that when he arrived home that afternoon he was soaking wet and in great pain. He was driving the red utility with the tray still full of rocks. -- 5 of 32 -- 5 The defendant's evidence of the first incident differed from that of the plaintiff in several important respects. In cross-examination he said that in respect of both incidents he accepted that the man was hurt; he had never doubted that. What he "disagreed with entirely" was that he was "liable through negligence or lack of instruction or whatever". He said he accepted 100 percent "the claim as stated of lifting rocks out of gravel", but that the plaintiff "did not suffer an injury lifting a rock that he asked me to help him lift in the pouring rain because it did not happen". He did, however, agree that at about 3.30 p.m. (or it may have been 4.00 or 4.30 p.m.) on the afternoon in question it had begun to "sprinkle" rain, and they had knocked off. He agreed he had said "Bugger it. Let's call it quits. Let's knock off for Easter". He had, however, no recollection of the plaintiff saying anything about a back problem at the time or a specific lifting incident which had caused pain. The learned trial judge accepted the plaintiff's account of the first incident as well as of the second incident. Indeed, he said he expressly believed the plaintiff and he expressly disbelieved the defendant. It seems likely that his Honour's conclusion with respect to the first incident influenced the impressions he formed of the credibility of the witnesses concerning the second incident. Before considering the reasons he gave for his finding on credibility, it is convenient to deal with the second incident, which took place on 10 July 1991. According to the plaintiff, he was instructed by the defendant that day to weld angle irons on to box sections of steel to construct two frames that would be attached to a shed wall. Having done the welding, he said he dragged the first one over and bolted it to the wall. He was in the process of dragging the second one over, when one end of it stuck or dug into the ground. He felt a severe pain in his back. At about that time his wife and his son Stephen arrived bringing his lunch. Stephen helped him drag the frame to the shed -- 6 of 32 -- 6 where the two of them fitted it to the wall. He estimated the weight of each frame at some 40 to 45 kgs. Stephen did not give evidence. The plaintiff explained that he was a chronic alcoholic, who was undergoing treatment at the time of the trial. The plaintiff's wife gave evidence, which supported the plaintiff's account of the incident. However, both she and the plaintiff had previously given evidence about the second incident in an earlier trial of the action in which his action had been dismissed. There was an appeal, as a result of which this Court ordered a re-trial, from which the present appeal is now brought. In the previous trial, the plaintiff had given evidence to the effect that it was while he was attaching the second frame to the wall that he had suffered the pain in his back. At that trial his wife said that when she and Stephen came to the site she saw him crouched over against the shed wall. When the difference between these two accounts was put to the plaintiff in cross- examination, he said he was "not 100 per cent sure" whether his wife and son arrived when he was in the process of dragging the frame over, or whether he was there starting to fix it to the wall. He added, "I just can't be sure. I am sorry". The defendant's account differed completely from either of these versions. While accepting "that the man was hurt" in the second as well as the first incident, he said he had not been informed of "specific instances as they happened". His evidence of the second incident was that he and the plaintiff had worked together on the welding on the morning of 10 July 1991. He had then gone to Dalby for an hour or two, leaving the plaintiff to complete the welding. When he got back at about lunchtime, the plaintiff's wife was there and they were having lunch. The plaintiff and the defendant had then finished the welding work, and had used a tractor with a forklift to move the frames to the shed where they were to be attached. He said it was not until the following morning that he was informed by the -- 7 of 32 -- 7 plaintiff's wife that the plaintiff had injured his back. Asked in cross-examination if the accident didn't happen, he said "the reason for the accident didn't happen". He agreed he was concerned at the allegation of failure to supervise or instruct adequately. In that regard, it may be noticed that, after the first incident in March 1991, the plaintiff had returned to work with the defendant under a Work Assessment Scheme dated 20 June 1991 (ex. 2) arranged by the Workers Compensation Board, in terms of which the plaintiff was not to lift objects weighing more than 15 kgs. There was contradictory evidence from the plaintiff and the defendant about whether the defendant had adhered to this arrangement in the period leading to the second incident. The trial judge's findings on credibility have been mentioned. He specifically accepted the plaintiff's evidence and specifically rejected that of the defendant. Of the plaintiff, he said: "I found Mr Jeffrey open and frank. His demeanour during his long ordeal in the witness box was calm and impressive. He did not attempt to embellish his case. He is a truthful, decent, working man and I accept his evidence as to when and how his injuries were sustained and the effect they have had on his health, his earning capacity and his life generally." That is a strong finding on the matter of credibility which, according to the principles applicable on appeals, can be upset only if it can be demonstrated that the trial judge made a critical error in assessing the reliability of one or both of the principal witnesses. Both counsel at the trial and on appeal stressed what were said to be inconsistencies between the testimony of the opposing witnesses at the trial and what each of them had said on earlier occasions. The difference in the versions of the second incident given by the plaintiff and his wife at the first and the second trials has already been adverted to. Essentially it concerned the time at which she arrived on the scene and what she saw him doing on arriving there. On the version she gave at the first trial she saw the -- 8 of 32 -- 8 plaintiff "crouched" at the shed wall attempting to install or fix the frame to the wall. The clear implication from her evidence is that he had already injured his back. At the second trial, she said she saw him trying to drag the second frame. When he walked she saw he was crouched or hunched. Counsel for the defendant suggested that these discrepancies showed they had put their heads together to fabricate a new story at the second trial. It is a suggestion which does not seem to have been put to either of those witnesses in the course of cross- examination. In any event, it does not necessarily demonstrate dishonesty on their part. It is not readily apparent that one version rather than the other would serve to improve the plaintiff's case against the defendant, the more so as the defendant himself gave a quite different account of events on that day. It was open to his Honour to accept that the plaintiff was being honest in saying that he was not sure whether his wife arrived while he was still dragging the frame or when he was fixing it to the wall. In these circumstances attention tended to focus on accounts of the first incident and what were said to be the inconsistencies on either side in relation to it. Under cross-examination the plaintiff adhered to what he had said about it in chief. He agreed he had completed and signed a workers compensation Form 4 (ex. 22), which had been witnessed by the defendant on 3 April 1991, in which he described the injury as having happened at 3.30 p.m. on Thursday 28 March 1991, which he also said was when he stopped work. In answer to the question "What were you actually doing when the injury was sustained?", he answered "Carting and spreading gravel. Lifting rocks out of gravel". In response to the further question "How did the injury occur?", his answer was "Lifting rocks out of gravel to spread". -- 9 of 32 -- 9 It was contended that the plaintiff’s answers in Form 4 were inconsistent with his oral evidence at the trial, in that his evidence had identified a specific incident involving the lifting of a particular rock as the cause of the pain in his back. It is more accurate to say that his evidence at the trial was specific, whereas his written answers in Form 4 were general. He said himself that in giving those answers he had been "generalising on what I was doing" and that he hadn't "a way with words". He had left school at the age of 15. Viewed as if they were answers to interrogatories, what he said in Form 4 might be characterised as unresponsive depending on the view one takes of the meaning of the questions themselves. Literally, it does not appear to be correct to regard his evidence at the trial as inconsistent with his written answers in Form 4. It may be noted that the plaintiff’s evidence at trial was consistent with what he had told Dr Curtis, who examined him in August 1993. Dr Curtis’s report (ex. 5) records that on 28 March 1990 (sic) the plaintiff was attempting to lift a heavy boulder in to the back of a utility. There were, however, some direct inconsistencies between the testimony of the defendant and various prior statements he had made about the first incident. At the trial he said that he had no recollection of the plaintiff complaining of any injury to his back on the afternoon of 28 March 1991. He said that after they stopped work that day they had sat around chatting in a shed "like we always do" at the end of a week. He said that the first he knew of any injury was when he was informed of it on the Easter Monday, which would have been 1 April. However, on 3 April 1991 he too completed and signed a workers compensation form (Form 3, ex. 26). In it he said the nature of the injury was strain to the lower back and that it occurred "Lifting rocks out of gravel". In answer to the question whether he was satisfied that the injury occurred in the manner reported, he answered "Yes". What was more, he gave the time when the injury occurred as Thursday 3.30 p.m. -- 10 of 32 -- 10 28/3/91 and the time when it was "reported to a person in authority” (meaning himself) as "4 pm. 28/3/91". A Mr McCarron from the Workers Compensation Board was called to give evidence of a telephone conversation with the appellant, which took place shortly after the incident was reported. He had an attendance note (ex. 27) of the conversation recording "Phoned employer. Injured worker hurt himself on 28/3/91 and the employer does not have any doubt about the injury occurring as stated". It is possible to date the call from a letter (ex. 28) written by the defendant on the following day, which is dated 9 April 1991, and which refers to "the conversation of the 8th ...". The defendant's explanation was that he did not receive any information about the plaintiff's back injury until the following Monday or perhaps the Tuesday, when he went to see the plaintiff, who was at home and obviously in pain. Under cross-examination he said the injury was “definitely” not reported to him on the day on which it was supposed to have occurred. That was quite contrary to the answer he gave to the question in form 3 (ex. 26). His explanation was that the mistake was due to "ignorance of procedure", by which he meant "ignorance of the details of filling in these Workers Compensation claims". Giving the wrong day as the time when the incident was reported to him as the "person in authority" (4 p.m. on 28/3/91) was, he said, probably “just a natural progression” of filling out the form. It was legitimate for the trial judge to treat the first incident as a test of the veracity of the two conflicting witnesses. In his reasons for judgment, he said that the defendant's prior inconsistent statements "strongly supported" the plaintiff's account of the first incident. In my respectful opinion that general conclusion was justified. -- 11 of 32 -- 11 It was not simply that both witnesses agreed that the injury had occurred while the plaintiff was lifting rocks. The plaintiff's oral evidence was that the incident in which he hurt his back occurred at about 3.30 p.m. on Thursday 28 March, which was when he stopped work, and that he reported the injury to the defendant soon after it happened. The defendant's written answer in Form 3 (ex. 26) was that the injury occurred at 3.30 p.m. on Thursday 28 March 1991 and that it was reported to him at 4 p.m. that day, which in another of his written answers he also said was the time when the plaintiff last worked because of the injury. His written answers to that effect are inconsistent with his oral evidence at the trial that it was because of rain that work stopped at 3.30 p.m. or 4.00 or 4.30 p.m.; that he and the plaintiff remained in the shed chatting afterwards, as they always did; and that he was not told about the back injury until the following Monday 1st or Tuesday 2nd April. On the other hand, the defendant’s answers given in Form 3 were thoroughly consistent with the plaintiff’s’s account of the first incident. The trial judge was not mistaken in saying that the defendant’s prior inconsistent statements supported the plaintiff’s evidence at the trial about the first incident. To say they did so “strongly” might, on one view of it, be regarded as somewhat overstating their effect; but the matter is one of degree on which opinions may fairly differ, particularly as his Honour had the advantage of observing the demeanour of the witnesses. Expressing himself in those terms did not vitiate or undermine his finding of credibility in favour of the plaintiff. Consistently with the approach adopted in Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472, 478-479 (in which there were some marked inconsistencies in the plaintiff’s account) this Court would not be justified in interfering on appeal with his Honour’s findings on credibility. -- 12 of 32 -- 12 The remaining question concerns the quantum of damages. At the trial it involved an assessment of the impact of the two incidents in 1991 on the plaintiff’s prospective working capacity having regard to the fact that his back had already been affected by an earlier incident of back strain sustained in 1990. In the evidence of Dr Curtis at the first trial (which was tendered by consent in the second trial), Dr Curtis was asked about the effect of the earlier incident of back strain in 1990, which had involved the lifting of a sack of grain. He said: “It is hard to be precise. As I have said before, within five to ten years, without any injury occurring, his present condition would have arisen. The first injury may have brought forward that period by a number of years, perhaps five to seven years. Had he been doing lighter work he may have been able to keep going for a longer period, maybe up to the full ten”. In this context “the first injury” is to be understood as referring to the 1990 incident and not that on 28 March 1991. His Honour construed this answer, taken in its full context, as meaning that Dr Curtis was saying that the 1990 “sack of grain” incident reduced the plaintiff’s prospective trouble-free future from a period of five to 10 years down to a period of five to seven years. His Honour preferred the evidence of Dr Curtis to that of another orthopaedic expert Dr Morris, who considered that the plaintiff had some hope of working again. The effect of the 1991 incidents was thus to destroy entirely the plaintiff’s capacity to continue working, as a farm labourer or as a truck driver, for the maximum seven year period which remained after the sack-of-grain incident in 1990. It is possible that in reaching this result the learned judge treated that seven year period as commencing in 1991 rather than in 1990; but the difference involved is not so great as to warrant interference with the award, given the principles on which quantum appeals are determined. His Honour was entitled -- 13 of 32 -- 13 to adopt the evidence of Dr Curtis as justifying the conclusion which he arrived at in the course of assessing the plaintiff’s future economic loss of $85,000. There is no error in the assessment which calls for revision of the award by this Court. The appeal should be dismissed with costs. -- 14 of 32 -- 15 JUDGMENT - SHEPHERDSON J. Judgment delivered the 22 day of March 1996 The plaintiff ("the respondent") sued the defendant ("the appellant") in the District Court held at Dalby for damages for personal injuries allegedly caused by the negligence of the appellant. He was at all material times employed by the appellant and working as a general farm hand. The action was tried before a learned District Court Judge. After an appeal against his judgment a new trial was ordered. The new trial was before another Judge of District Courts. His Honour had before him evidence from the respondent of two occasions on each of which it was said the respondent had injured his back in circumstances creating legal liability in the appellant to pay for damages sustained. The first was on 28 March, 1991 and the second on 10 July, 1991. At the second trial the learned trial Judge found in favour of the respondent and gave judgment for the respondent against the appellant for $130,394.51 together with costs. From that decision the appellant has appealed. The grounds of appeal challenge the findings of liability and the quantum of damages awarded. 1. APPEAL ON LIABILITY At the trial, both the appellant and respondent gave evidence. The respondent also called other evidence. In the evidence of both the appellant and the respondent there was, as His Honour found, a clear conflict in regard to each of the two incidents. I shall shortly set out the evidence showing the conflicts but before doing so point out that His Honour believed the respondent and "expressly" disbelieved the appellant. (a) The incident of 28 March, 1991 -- 15 of 32 -- 16 The respondent's case as pleaded was that in the course of his employment he was obliged to lift rocks from the ground onto the back of a utility motor vehicle; that while doing so was obliged to lift by himself a rock weighing about 30-40kgs which was wet because it had been raining at the time and that while he was holding the rock above the ground his grip slipped because of the wet rock, he made a sudden grab for the rock and immediately felt pain in his lower back. The appellant's case as pleaded was that on or about 25 March, 1991 the respondent was required to drive a Dodge truck loaded with gravel and to pick up small rocks not exceeding 6lbs and to place them in a utility - the appellant put in issue the circumstances in which the respondent had alleged he was injured. In evidence the respondent's case was that this incident had occurred on the Easter Thursday; that he and the appellant were picking up rocks; that rain had just started; that there was one large rock, that he asked the appellant to give him a lift with it because it was a bit heavy and that the appellant's response was to tell him to hurry up before they got too wet and that he did not help him. The respondent's evidence-in-chief also accorded with the matters pleaded. In his oral evidence the appellant conceded the respondent had hurt himself on 28 March, 1991 and that at the time he was lifting rocks. In cross-examination the following questions and answers appeared (and these were referred to by the learned trial Judge in his reasons for judgment):- "Q. So you have no doubt therefore that Mr Jeffrey suffered an injury whilst he was employed by you lifting rocks out of the gravel? A. But he did not suffer an injury lifting a rock that he asked me to help him lift in the pouring rain because it did not happen. -- 16 of 32 -- 17 Q. Something happened did it? A. Well the man was lifting rocks." The issue between the parties as to the circumstances in which the respondent was injured on 28 March, 1991 concerned whether or not the respondent had hurt himself in the exact way in which he said he had. On 3 April, 1991 the respondent had signed for the Workers' Compensation Board a document entitled "Employer's Report" (p. 274). It appears that this was a form which had been completed by the respondent. It shows that the respondent had suffered a lower back strain when working on a farm at 3.30pm on 28 March, 1991. When the form asked "State briefly how the injury occurred" the appellant had written "Lifting rocks out of gravel". The appellant signed a declaration within this report in which he warranted "the truth of the foregoing statements". The report was Exhibit 26. On 3 April, 1991 the respondent had signed a document "Application for Workers' Compensation" which stated (inter alia) that he had suffered an injury "left sciatica in lower spine" when his lower back was injured on a farm at 3.30pm on 28 March, 1991. When the form asked "What were you actually doing when the injury was sustained", he answered "Carting & spreading gravel, lifting large rocks out of gravel to spread". When asked "How did the injury occur", he answered "Lifting rocks out of gravel to spread". This document was signed by the respondent and became Exhibit 22. He also signed a declaration in which he warranted the truth of the foregoing statements. It appears that the appellant witnessed the respondent's signature on ex.22. Exhibit 22 did not mention the specific incident in which the respondent at his trial said he had injured his back. The learned trial Judge treated the statement in ex.22 as -- 17 of 32 -- 18 amounting to a prior inconsistent statement to which ss. 18 and 101 of the Evidence Act 1977 applied. The respondent was cross-examined as to the answer he had given in ex.22 to the question "What were you actually doing when the injury was sustained?" At pages 70-71 the following questions and answers appeared: "Q. Why wouldn't you have just answered that question by saying, 'Lifting one large rock. Felt my back go', or something like that? A. Well I felt an explanation of what I was doing to cause the injury would have been required and that's what I gave there I felt. Q. But then you said in answer to the question 'How did the injury occur?' - you have said, 'Lifting rocks out of gravel to spread'. Again you have used the plural 'lifting rocks'? A. Well that's right but I've not got a way with words I'm afraid." (b) The Incident of 10 July 1991 I turn now to the second incident which occurred on 10 July 1991 because in respect of it there was also what His Honour regarded as a prior inconsistent statement and the learned Trial Judge after dealing with it, made certain comments concerning these prior inconsistent statements which comments are at the heart of the appellant's appeal so far as concerns liability for the first incident. The respondent's case in respect of the second incident was as the learned Trial Judge said (p.299) that whilst on a work assessment scheme trial period he was directed to construct two heavy steel stacking frames and fix them to the wall of a nearby shed; that he was not provided with any assistance in this operation and while dragging the second of the frames to the nearby shed he further injured his lower back. In evidence-in-chief at the second trial the respondent was shown a photograph which showed two uprights with -- 18 of 32 -- 19 a series of arms. These were metal and the arms had been welded to the uprights. The respondent said he had built them. He said he had moved the first one to the barn (to the wall of which it was to be attached) and that he fitted that to it. He then said: "Then I continued to make the second one and I had just finished making the second one and just started to proceed to take it over to the barn to put it on when my wife and son arrived from town and my son Stephen, he helped me to carry it over and then fit it to the shed wall to the barn wall." (T. 31/26-31) He then said that when he was dragging the second piece over he hurt his back and that this was before his wife and Stephen turned up. His counsel asked him: "And can you just describe what precisely you were doing when you felt the pain in the back?" And he answered: "Well I had lifted it up and I was just starting to drag it and I had a pain in the lower back and then the son, he assisted me over." (T. 31/45-48) He said later he thought there was about thirty to thirty-five feet between the workshop and the shed wall and he thought he was about a third of the distance over but could not be "real sure" when the pain occurred. In the first trial (in September 1993) the respondent had given oral evidence concerning this incident. In cross-examination of the respondent at the second trial the following appears: "Q. (By Mr Hoare) You said yesterday - this is at transcript 31 line about 30, I will read the whole passage over to you and if you want to comment on it please do so - you said: 'I moved the first one over and I fitted that to the shed and then I continued to make the second one and I had just finished making the second one and just started to proceed to take it over to the barn to put it on when my wife and son arrived from town and my son Stephen he helped me to carry it over and then fit it to the shed wall to the barn wall'? (T. 83/48-55) -- 19 of 32 -- 20 A. Yes. Q. Now is that your recollection of what happened? A. Yes. That's just as I explained that I was standing there when they arrived. Q. Are you sure that they arrived before you had affixed the second frame to the wall? A. I think so. Q. See I suggest to you that that is not what you have always said. Now I'm going to put this to you. This was the evidence that you gave at the last trial - transcript 139 line 50 - I asked you this question: 'Was Stephen there on 10 July when this steel frame was put together and placed on the shed wall?' And I suggest to you that you replied: 'Both my wife and my son Stephen arrived as I was adjusting the last of the steel fabrication to the wall'. What do you say to that? A. They arrived at the same time. Q. See that is a fairly clear answer, is it not? .................................. HIS HONOUR: Well, first of all, did you say that? A. I can't recall, Your Honour. Q. Well, it is in the transcript. The chances are you did I suppose. A. Yes, Your Honour. Q. Okay, let's deal with that. It is being put to you that is a big difference? ................................... MR HOARE: A big difference from what you are saying now? -- 20 of 32 -- 21 A. Well after I made the steel frame I was dragging it over and that's when I incurred the sudden onset of pain and I am not 100 percent sure whether I continued to drag it over and start to mount it on the wall. I'm not 100 percent sure when my wife and son Stephen arrived, whether it was when I was in the process of dragging it over or whether I was there starting to fix it to the wall. I just can't be sure, I am sorry." The respondent's wife Lorris Violet Jeffrey gave evidence at the second trial. In her evidence-in-chief the following appeared: "Q. What time did you arrive at Pirrinuan?" (T. 99/5) [This was the name of the appellant's property] A. Between twelve and one. Q. Did you see Mr Jeffrey? A. Yes. Q. Well, as you arrived, what did you see? A. I saw him dragging a frame across from one shed to another. Q. What happened then? What else did you see? A. That's all. Q. All right. That was as you were driving up, was it? A. Yes, as I pulled in. Q. All right. What happened then? You pulled in, you got out of the car? A. I got out of the car. The stepson got out of the car. Q. That is Stephen, is it? A. Yes. I went into the barn as it was called. I had some hot food for lunch with me. Q. What, you bought that in town or something? A. Yes, and I think Stephen went and helped his father, and then they come in and had lunch. -- 21 of 32 -- 22 Q. All right. Did Mr Jeffrey say anything to you about his back at that stage? A. He didn't have to. Q. Before lunch? A. I could see that he was crouching to - the walking was different. Q. When? A. When he came into the shed. Q. So when he came into the shed you noticed his walk was different. Anything else? A. His eyes were real red and watery. Q. This crouch that you have described or you mentioned, can you describe that please? A. He walks like a gorilla. Q. Is that when you noticed the different walk? A. Yeah." In her cross-examination she was asked, "Can you tell us where it was that your husband was positioned when he was dragging this frame?" and she answered, "It was between the two sheds" (p.108/9-11). The following then appeared: "Q. There's a workshop or workshed area. Is that one of the ones that you are referring to? A. That's one, yeah. Q. Then there's another shed onto which it's agreed the frame was eventually placed? A. Yes. Q. Is that the shed that you are referring to? -- 22 of 32 -- 23 A. That's the other one." It is apparent from the transcript that the respondent's wife made a sketch in which she drew the workshed, and the shed on which the frame was placed. She marked on the sketch these two sheds and also the fuel tanks naming them. This sketch became ex.25 and on it she marked with an X the position where the respondent was when she saw him, as she said, dragging the frame. This X is between the workshed and the frameshed. The appellant's trial counsel then put to the respondent's wife certain statements which she had made in her evidence at the first trial. The following appears in the transcript at the second trial (immediately after ex.25 had been tendered): "Q. I suggest to you that that's quite different from - the version that you have given now is quite different from the version that you gave when you gave evidence in the court a year ago. A. I was quite upset that week. Q. I'm going to read to you some sections of the transcript and I'm going to ask you whether you agree that the questions and answers were put, and I will ask you to comment on them. This is at page 212 of the original transcript, about line 10. This is referring to the day when you and your son - sorry, you and Stephen - went out to the Condon's property, and the day which we agree is 10 July 1991 when these activities took place. I put this question. I said: 'You said that as you approached' - then I paused. I said, 'Perhaps I should ask first who was driving'. And you replied, 'I was'. Do you agree with that? A. Yes. Q. You acknowledged that you were driving. Then I put this to you: 'You say that as you approached you could see Merv but you couldn't see what he was doing'. You said, 'No, not totally'. You say 'Yes you could see him dragging this frame'. You are clear about that now? A. I am clear he was dragging something. I have never said that I know what it looked like. Q. The next question I put was: 'Where was he when you first saw him?' -- 23 of 32 -- 24 And the answer that was given was, 'Between the fuel tanks and that shed'. Now I suggest to you that that question was put and that you gave the answer 'between the fuel tank and that shed'. Do you agree with that? A. I would never have seen him. HIS HONOUR: Yes, but attend. We will get on much more quickly. MR HOARE: Do you acknowledge . . . HIS HONOUR: Do you acknowledge - you said that 'between the fuel tanks'? . . . MR HOARE: 'Between the fuel tanks and that shed'. I suggest to you that you gave that answer? A. Must have. Q. If it's there? A. That's . . . Q. The reality is that if you had driven into that area adjacent to the two sheds you could have seen him between the fuel tanks and the shed if he was there. Do you acknowledge that? A. No. Q. I then said, 'Sorry, between the what? Must have misheard', and the reply was given, 'The actual tanks and the shed'. Do you accept that? A. Yes. Q. I then said, 'As you approached him, did you then find yourself able to see what he was doing?' I suggest you replied, 'He stood up. I don't know what he was doing. I do know that there was a clearing sale coming up and everything was being cleaned up. I don't know in what manner he was doing things.' Do you acknowledge that you gave that answer? A. Yes. Q. It is not consistent with what you have said today? A. No. -- 24 of 32 -- 25 Q. The next question was put: 'You say he stood up. Are you suggesting he was sitting down or lying down when you first saw him?' You replied, 'I think he was crouching doing something'. Do you acknowledge that question and the answer that I have just read out was given? A. Yes. Q. It is not consistent with what you have said today? A. Yes. Q. I then asked, 'Do you have a recollection then of what it was that he was doing?' I suggest you answered, 'Something to do with something attaching something to a wall I don't know. I would imagine that's what he would be doing if there was a wall there and he was crouching at it and there was something there'. Do you acknowledge that that answer was given? A. Yes. Q. Again it is inconsistent with what you have said today? A. Yes. Q. I then said he was crouching at a wall. Is that what you are saying he was doing? You said, I suggest to you, 'There was a shed wall and he was crouching at that wall. I imagine he was attaching something to that wall. In subsequent conversation he told me he was putting a frame to the wall'. Do you acknowledge that that answer was given? A. Yes. Q. And again it is inconsistent with what you have said today? A. Yes. Q. Is there any explanation for that? A. Apart from the fact that I was very upset that week, yes - no. I had actually - on the day I gave evidence my stepfather was being buried in Toowoomba. We had just lost our first grandchild and I was emotional. Maybe I confused myself, I don't know. Q. But you were just being asked to recount the facts? A. On that day. -- 25 of 32 -- 26 Q. Yes? A. That I was emotional. HIS HONOUR: Well you are calmer today, aren't you? A. I am a lot calmer, Your Honour." I leave aside for the moment the above evidence of the respondent's wife. The respondent's evidence showed the following differences in his two accounts of this second incident. At the second trial he had said that he had moved the first fabricated bracket and fitted that to the shed, that he continued to make the second one and had just finished making it and had just started to proceed to take it over, dragging it over, to put it on the shed when his wife and his son Stephen arrived and Stephen helped him carry it over and fit it to the shed wall. At the first trial he had said that both his wife and Stephen had arrived as he was adjusting the last of the steel fabrication to the wall. The learned Trial Judge recognised that there were differences in the two accounts related to the moment when the respondent's wife and son had arrived at the sheds. He found they were clearly different and that ss.101 and 102 of the Evidence Act had effect. He referred to the decision in R. v. Perera [1986] 2 Qd.R. at p.431 which he cited as authority for the proposition that evidence of prior inconsistent statements in many situations may be regarded as having less weight or significance than other evidence relevant to the facts in issue. He went on: "Well then, what was Mr Jeffrey's explanation for this inconsistency? He was asked: 'A big difference from what you are saying now? ..Well, after I made the steel frame I was dragging it over and that's when I incurred the sudden onset of pain and I'm not 100 percent sure whether I continued to drag it over and start to mount it on the wall. I'm not 100 percent sure when my wife and son Stephen arrived whether it was when I was in the -- 26 of 32 -- 27 process of dragging it over or whether I was there starting to fix it to the wall. I just can't be sure, I am sorry.' In my estimation, in the context of the whole of the evidence, having regard to the several facts in issue, I am satisfied that this prior inconsistent statement, too, should be given very little weight. Furthermore, I am quite satisfied that none of the incidents of prior inconsistent statement, whether viewed jointly or severally, detract in the slightest degree from the credibility of Mr Jeffrey as a witness. This, of course, is in sharp contrast to the weight to be given to Mr Condon's prior inconsistent statements with which I shall deal at length presently. I found Mr Jeffrey open and frank. His demeanour during his long ordeal in the witness box was calm and impressive. He did not attempt to embellish his case. He is a truthful, decent working man and I accept his evidence as to when and how his injuries were sustained and the effect they have had on his health, his earning capacity and his life generally." He then went on to say that in contrast he found the appellant's demeanour and evidence astonishing and cited a number of extracts from the appellant's evidence concerning the first incident. At the second trial, in respect of the second incident, the appellant gave evidence of being present but denied the occurrence alleged by the respondent. The effect of his evidence was that the respondent was assisting him in the construction of the racks on the side of the shed. He denied that the respondent's son was present. He denied (p.141) that he gave to the respondent the task of cutting the various pieces of metal and welding them and he denied the suggestion that the respondent cut the pieces of metal and welded them together while he (the respondent) was in town. He admitted that the respondent had welded the angle iron onto the uprights. He denied being aware that the respondent had hurt his back until the respondent's wife had telephoned him on the afternoon of the following day. The law concerning how appeal courts deal with findings of fact by a trial judge based on the credibility of a witness was recently restated in the following passage in the -- 27 of 32 -- 28 judgement of the majority in Devries v. Australian National Railways Commission (1993) 177 CLR 472 at p.479:- "... a finding of fact by a trial Judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial Judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial Judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable." Counsel for the appellant has submitted that the learned trial Judge was demonstrably wrong when in his reasons for judgment he said this:- "Mr Condon's prior inconsistent statements in my judgment should be given considerable weight. They strongly support Mr Jeffrey's [evidence] as to the first incident." (see p.310) Counsel relied especially on the second sentence in this passage. Assuming that the appellant's statement in ex.26 as to how the respondent's injury occurred on 28 March 1991 namely "lifting rocks out of gravel" was a prior inconsistent statement by him - and I do not concede that it was - and giving that statement considerable weight (as the learned trial Judge did) then, with the greatest respect I am unable to see that it strongly supports the respondent's [evidence] as to the first incident. The appellant's statements in ex.26 deal only with the general namely, lifting rocks out of gravel and do not deal with the particular. The respondent's oral evidence as to the circumstances of this first incident dealt with a particular incident namely lifting one heavy wet rock which slipped while lifting and that occurred after the appellant had refused his request for help in the lifting. True it is that ex.26 does support the respondent in that it agrees that he was injured while lifting rocks out of gravel but this statement does not necessarily get the respondent -- 28 of 32 -- 29 home in his claim based on negligence. He was required to demonstrate failure by the appellant to take reasonable care for his safety; that case was based on the above particular incident and ex.26 does not mention such an incident. In respect of this first incident, in my respectful view the learned trial Judge's apparent reliance on the appellant's statements in ex.26 has influenced his decision to believe the respondent and disbelieve the appellant. This was a case where the credibility of the parties was obviously an important matter to be resolved by the learned trial Judge. Nevertheless, the statement that the appellant's prior inconsistent statements strongly supported the respondent's evidence as to the first incident underpinned the findings of credibility of the respondent. If the underpinning was wrong then the findings of credibility based on it must themselves be so suspect that they should be set aside and it can be fairly said that His Honour failed to use his advantage. In my respectful view then, the learned trial Judge erred in concluding that the appellant's statements in ex.26 strongly supported the respondent's version of the first incident and His Honour's findings in favour of the respondent in respect of the first incident which occurred on 28 March 1991 must be set aside. As to the second incident a different situation prevails. The learned trial Judge did not expressly rely on what was a prior inconsistent statement by the appellant to support the respondent's evidence as to the second incident. There was no such prior inconsistent statement by the appellant in respect of that incident. True it is that the learned trial Judge in his reasons said this (at p.310/30):- "In regard to the second incident Mr Condon claimed, as I have said, to have been present and denied the occurrence described by Mr Jeffrey. In regard to both incidents I believe Mr Jeffrey. Indeed this is not a simple case of my merely preferring Mr Jeffrey's evidence. I believe Mr Jeffrey and I expressly disbelieve Mr Condon." -- 29 of 32 -- 30 In regard to the second incident, the learned trial Judge, after having recognised that the respondent's two accounts of the incident were clearly different, then made the statements which I have earlier set out (at pp. 12 and 13 ante). The decision of Perera (supra) to which His Honour referred shows that evidence of prior inconsistent statements in many situations may be regarded as having less weight or significance than other evidence relevant to the facts in issue. In Perera the inconsistent statements there made were made out of court. In the present case, the respondent's prior inconsistent statements were made out of court in the sense that they were not made in the course of the second trial. However, they were statements made in court and on oath on a prior occasion. And, more importantly, they were statements concerning events which went to the heart of the respondent's case against the appellant in respect of the second incident. The respondent's explanation for inconsistency as quoted in the above extract from His Honours reasons did not deal satisfactorily with one important difference between the versions he gave at the two trials - in the first trial the respondent said he was adjusting the last of the steel fabrications to the wall- in the second he was not but was dragging the second frame across to the wall when he injured his back. While I recognise that it was within the province of the learned trial Judge to decide what weight he would attach to the respondent's prior inconsistent statement he should, in my respectful view, in the circumstances of this case have explained in his reasons why he gave very little weight to that prior inconsistent statement which had been given on oath at the first trial. The appellant especially was entitled to know these reasons. After all, he was the person sought to be made liable to the respondent. The matter is serious given first the -- 30 of 32 -- 31 existence of courts to decide the validity or otherwise of claims made by one citizen against another and secondly the well known fact that evidence in courts is given on oath. In my respectful view it did not suffice for the trial Judge who had a duty to provide reasons simply to say:- "In my estimation, in the context of the whole evidence, having regard to the several facts in issue, I am satisfied that this prior inconsistent statement too should be given very little weight." I recognise that His Honour was here referring to the respondent's explanation for an inconsistency quoted in the learned trial Judge's reasons and set out in p.12 of these reasons. The learned trial Judge did not refer to the evidence of the respondent's wife and more particularly its inconsistencies with the version she had given at the first trial concerning the occurrence of the second incident. Her evidence contained what in my view was a glaring inconsistency between evidence she gave at the first trial and her evidence at the second trial. She agreed that if her husband was where she said he was at the first trial, she could not have seen him. The thrust of her evidence at the second trial was that she saw him dragging the heavy iron and that he was obviously hurt. One of the inconsistencies in his evidence was that at the first trial the adjusting of the second bracket fixed to the wall was being completed and at the second trial he hurt his back while dragging the second piece of fabricated iron to the wall of the shed. It was the appellant's case at trial and in this court that the respondent and his wife put their heads together or conspired to concoct the story to justify the claim against the appellant based on the events of 10 July 1991. In my respectful view the learned trial Judge's failure to consider in his reasons the evidence of the respondent's wife and his failure to give more detailed reasons in the particular circumstances of this case for giving very little weight to prior sworn but -- 31 of 32 -- 32 inconsistent testimony results in the learned trial Judge having failed to use the advantage which he had over this court. In my respectful view the findings in favour of the respondent against the appellant on the issues of liability should be set aside and there should, regrettably, be a new trial on the issues of liability and quantum of damages. As to the matter of quantum, I prefer not to make any comment. I do so because the damages were assessed on the basis of liability proven in respect of the two incidents. It may be that at a new trial the respondent, if he succeeds will succeed on one incident only in which event the damages presently assessed, especially for pain and suffering will obviously be incorrect. In summary then, the orders I propose are:- 1. Appeal allowed, judgment below set aside. 2. Order a new trial on all issues. 3. Order the respondent to pay the appellant's costs of and incidental to the appeal to be taxed. 4. Order that the costs of the second trial be costs in the cause at the new trial. 5. Grant the respondent an indemnity certificate under the Appeal Costs Funds Act 1973. -- 32 of 32 --