Bolton v Coating Enterprises Pty Ltd [1992] QSC 249

· ( ) I \ . '-. / TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRlSBAN£. Q. 4000 Tel. (07) 2Z7.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting · Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY J No 3071 of 1987 JOHN MAXWELL BOLTON and COATING ENTERPRISES PTY LIMITED No 2715 of 1987 JOHN MAXWELL BOLTON and COATING ENTERPRISES PTY LIMITED BRISBANE .. DATE 19/6/92 JUDGMENT 1 REVtS:::G COPES ISSUED i St3ta t:-1::;pc-rt:r~g Bu~eau ~ ~(:-/ {~I '~I I ' Plaintiff Defendant Plaintiff Defendant -- 1 of 8 -- /""':- 190692 JUDGMENT 1 HIS HONOUR: There will, in each action, numbers 2715 and 3071 of 1987, be judgment for the defendant against the plaintiff with costs, including any reserved costs, to be taxed. I make my reasons for that decision available. 10 20 0 0 30 () 40 0 .. 50. 60 2 -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND No. 2715 of 1987 BETWEEN: JOHN MAXWELL BOLTON Plaintiff AND: COATING ENTERPRISES PTY. LIMITED Defendant ( \ No. 3071 of 1987 BETWEEN: JOHN MAXWELL BOLTON Plaintiff COATING ENTERPRISES PTY. LIMITED Defendant JUDGMENT - de JERSEY J. Delivered the lCJtiday of June, 1992 The plaintiff sues for damages in respect of injuries he suffered on 1Oth August, 1984 when he fell from the back of his truck at the defendant's premises. The plaintiff alleges that his injuries were caused by the negligence of the defendant, through the negligence of the defendant's crane operator Michael Visco, or its negligence in not maintaining a safe loading system. At the time of the accident, the plaintiff was a self- employed truck driver, aged 44 years. The defendant's crane operator, Michael Visco was only 16 years old and unlicensed (but as will appear, I do not consider that any deficiency resulting from those features contributed to the accident). Mr. Visco was loading pipes onto the plaintiff's trailer. The -- 3 of 8 -- 2 plaintiff said that just before the accident, Mr. Visco was raising a twisted pipe with the crane. The plaintiff said that he turned away, kneeling on one knee, when the pipe hit him in the head, knocking him from the truck to the ground. Some pipes fell from the truck on top of and around him. Mr. Visco' s contrary version was that as he lifted the pipe, in response to the plaintiff's signal, the plaintiff appeared to overbalance backwards and fell off the truck to the ground, but that the pipe did not hit him, coming no closer to him than two to three feet away. Pipes did fall off ( onto the plaintiff. On all the evidence, the plaintiff was at the time of the accident positioned on pipes already loaded onto the trailer. I accept the evidence of the Industrial Inspector Mr. Walsh that after the accident he found a piece of rotten dunnage by the driver's side of the truck, and that that piece of wood matched up with a piece remaining on the trailer. I also accepted Mr. Visco' s evidence about that wood. The use of that rotten dunnage could have led to the plaintiff's overbalancing and falling, with the pipes, not otherwise secured, also falling off on top of him. The resolution of the case depends on my view as to the credibility of the witnesses. There was a sustained and comprehensive attack upon the plaintiff's credibility. That cross-examination did throw up many inconsistencies within the plaintiff's evidence, and many points upon which the plaintiff could fairly be criticised. I take account of the fact that some inconsistency may often emerge within otherwise reliable -- 4 of 8 -- 3 evidence given eight years after the event. Counsel for the plaintiff provided me with many transcript references establishing those difficulties about the plaintiff's evidence, covering topics including his receipt of the invalid pension, the circumstances in which he signed the discharge ex. 20, his use of morphine, his use of the name Peter Roche and his claims as to lost vision in the left eye. I do not intend to set out in detail the reasons for the ( \ assessment of the plaintiff's credibility which I make. Suffice it to say that having carefully observed the ( plaintiff's demeanour, and taking account of the substance of his evidence, I did not consider him to be a credible witness. I regret to have to record that I took a most unfavourable view of his credibility, based on my assessment of his demeanour. A mere reading of his evidence itself goes a long way towards explaining that assessment, although it was also largely affected in the end by my observation of him while he was giving his evidence. To the extent that the evidence of other witnesses called for the plaintiff tended to support his claims on issues in dispute, I doubted the reliability of that evidence also. (I did not find Mrs Gillespie a generally reliable witness.) I find that the accident happened in the manner described in evidence by Mr. Visco. That means that no negligence has been established against the defendant. The cause of the accident was, I infer, the plaintiff's use of rotten dunnage which led to his overbalancing, perhaps also in conjunction -- 5 of 8 -- 4 with his failure to secure the pipes on the tray progressively as they were loaded. Any fault was his own. The defendant also relied by way of defence on the discharge ex. 20. The defendant made out that separate defence, although my view on liability means that the defendant must succeed anyway. I wish nevertheless to mention the question of the discharge, because it was partly my favourable view on the credibility of Mr. Jensen which helped (- confirm my adverse opinion as to the credibility of the plaintiff reached through my observations of him while he gave his evidence. One of the aspects of Mr. Jensen's evidence which convinced me that Mr. Jensen. was an honest and reliable witness was his candour about how he interpreted the effect of the discharge - an interpretation which at first might have been considered to run strongly counter to the defendant's case. It was then significant to me that Mr. Jensen recalled a much fitter and healthier plaintiff on 5th September than the plaintiff's description of himself on that occasion. : \'---- I Mr. Jensen's evidence confirmed me in the view that the plaintiff grossly exaggerated the difficulties from which he was apparently suffering when he visited the defendant's premises on 5th September. I accepted Mr. Jensen's evidence of what happened on that day, and rejected the plaintiff's and Mrs Gillespie's evidence where in conflict. Another feature of the case in relation to the discharge which I found highly significant was the plaintiff's failure -- 6 of 8 -- 5 to raise with the defendant or someone in authority a claim that he had been duped by the defendant after Mrs Gillespie had drawn his attention to the terms of the discharge. I found that remarkably inconsistent with the plaintiff's claim to have been misled by the defendant. I make it clear that I am conscious of some inconsistencies within the defendant's body of evidence. The existence of some inconsistency is not surprising after eight ( years. I am also conscious of the unusual character of the taking of the discharge ex. 20. That is a matter to which I have given close consideration in my overall assessment of the question of credibility. Because of the way I have determined this case, it should really be unnecessary for me to set down my assessment of quantum. To make an assessment in this case is highly artificial, because it must depend on evidence from the plaintiff which I do not accept. But because of the authorities, I will nevertheless do my best to express an assessment, but briefly. For pain and suffering, I would have allowed $20,000 for the crushing facial injury and some diminution in left eye function, in relation to which I relied substantially on the evidence of Dr. Harrison. I would have allowed nothing for the alleged back injury because I was not satisfied that the plaintiff suffered an aggravation of his existing back problem because of this accident. For past economic loss, I would have allowed $4,000 for approximately two months inability to work. I should emphasise that setting that amount is extremely artificial because it depends almost -- 7 of 8 -- ( ,. 6 entirely on the plaintiff's own evidence, which I do not accept as credible. I would not have found a claim for future economic loss made out. Prior to this accident the plaintiff was suffering from serious health problems which will prejudice him for the rest of his life, and I do not believe that the instant injuries had a continuing disabling effect taken in conjunction with those other substantial problems. As to the Griffiths v. Kerkemeyer claim, I would on the limited evidence given allow approximately $500 together with Ann Gillespie 1 s $240 air fare. The special damages claimed are listed on ex. 26. Again I have great difficulty making an assessment because of my view on credibility, but I would have been prepared to allow i terns (a) , (d) , (g) , ( i) , ( j) and ( k) . The claim for exemplary damages was not pursued. There will, in each action, numbers 2715 and 3071 of 1987, be judgment for the defendant against the plaintiff with costs, including any reserved costs, to be taxed. -- 8 of 8 --