NEW BROKEN HILL CONSOLIDATED LTD & ORS v MICHAEL GILLESPIE [1999] NSWCA 109

New South Wales Court of Appeal CITATION : NEW BROKEN HILL CONSOLIDATED LTD & ORS v MICHAEL GILLESPIE [1999] NSWCA 109 FILE NUMBER(S) : CA 40704/98 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

NEW BROKEN HILL CONSOLIDATED LTD & ORS PARTIES : v MICHAEL GILLESPIE JUDGMENT OF : Handley JA at 1; Powell JA at 19; Beazley JA at 20

LOWER COURT JURISDICTION : Compensation Court LOWER COURT FILE NUMBER(S) : 10578/96 LOWER COURT JUDICIAL OFFICER : Curtis CCJ

COUNSEL : J D Hislop QC/J Doak (Appellant) G Little/P Khansar (Respondent) SOLICITORS : Bartier Perry (Appellant) Buckworth Keady & Chalker (Respondent) CATCHWORDS : EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Mifsud v Campbell (1990) 21 NSWLR 725 DECISION : Dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40704/98 CC 10578/96 HANDLEY JA POWELL JA BEAZLEY JA

16 April 1999

NEW BROKEN HILL CONSOLIDATED LIMITED & ORS v MICHAEL GILLESPIE EVIDENCE - whether evidence warranted Jones v Dunkel inference - whether failure of trial Judge to deal with relevant and credible evidence error of law A mine worker had been awarded compensation for an injury to his shoulder. The employers appealed alleging two errors of law. The first was that the Judge had erred in drawing a Jones v Dunkel inference against the employers for failing to call a witness. The second was that the trial Judge had failed to deal with relevant and credible evidence called by the employers. HELD, dismissing the appeal: The appellant had failed to establish legal error. ORDER Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40704/98 CC 10578/96 HANDLEY JA POWELL JA BEAZLEY JA

16 April 1999

NEW BROKEN HILL CONSOLIDATED LIMITED & ORS v MICHAEL GILLESPIE JUDGMENT

1 HANDLEY JA: New Broken Hill Consolidated Limited and associated companies appeal from a decision of Curtis CCJ given in May 1998 during the Broken Hill circuit of that Court. His Honour found that the worker, Michael Gillespie, had sustained an injury to his shoulder which prevented him making full and normal use of his arm above the shoulder level. The injury was based upon the nature and conditions of his employment and a discreet injury to his left shoulder on 18 October 1989. The injury itself is not in dispute. His Honour found that the worker had a 15 per cent permanent loss of efficient use of his left arm at or above the elbow and assessed compensation under s 40. 2 The employers raise the following questions of law. The first relates to an inference that his Honour is said to have drawn, based upon Jones v Dunkel (1959) 101 CLR 298. The second relates to his Honour's failure to deal with or refer to the evidence of the foreman, Mr Boyce, called by the employers. 3 The worker was the only witness called in his case. It was established in his cross-examination that Mr John Prior, who he had worked with in the mines, was present outside court during the hearing. In final address, counsel for the employer submitted that the Judge should infer from the failure of the worker to call Mr Prior that his evidence would not assist the worker's case. The Judge rejected this submission, saying: "The Jones v Dunkel inference arises when a party fails to call a witness who would have been expected to be called by that party in the advancement of its case. The respondent contends that the applicant is not to be believed in relation to the assistance he says he received. It calls no evidence to justify that submission. Mr Prior remains in the employment of the respondent. He is available for them to call. If his evidence was to be other than that which is consistent with the applicant's case, one would expect the respondent to call Mr Prior". 4 It is not clear whether the Judge drew a Jones v Dunkel inference against the employers, but he certainly declined to draw it in their favour. Mr Hislop accepts that the Judge did not err in declining to draw a Jones v Dunkel inference against the worker but submits that he did err in law in drawing a Jones v Dunkel inference against the employers. 5 The foundation for a Jones v Dunkel inference is a finding that a particular witness who was not called was, in a broad sense, in the camp of one party or the other. Absent a preliminary finding on that question against the party facing the inference, it is not appropriate to draw that inference. Mr Hislop submits that Mr Prior was naturally to be seen as in the worker's camp in view of their long association as a team working underground at the Broken Hill mines. 6 In my view, Mr Prior should not be seen as exclusively in the worker's camp. He remained in the employment of the appellants and no evidence was given that he had declined to be interviewed by his employers' legal advisers on the issues in this case. Accordingly, even if - which is not clear - his Honour did take the step of drawing a Jones v Dunkel inference against the employers because of their failure to call Mr Prior, I would conclude that there was evidence before him which enabled him to draw that inference and his Honour committed no error of law in doing so. Had Mr Prior been called in the worker's case, he, on the inference that the Judge drew, could only have corroborated the worker's evidence. If his evidence would have been inconsistent with the worker's case, one would have expected that he would be called by the employers, at least in the absence of evidence that he had declined to co-operate with them. I therefore reject the first ground of appeal taken by Mr Hislop. 7 The second ground of appeal relates to what is said to have been the Judge's failure to deal with, or even refer to, evidence given by the foreman, Mr Boyce, called in the case for the employers. In some circumstances, the failure of a trial Judge to deal at all with relevant and apparently credible evidence called by a party against whom the judgment passed, can give rise to a valid ground of appeal and an error of law. Mifsud v Campbell (1990) 21 NSWLR 725 stands as appropriate authority for this proposition. 8 In the course of that part of his reasons I have already quoted, the Judge said: "It" - referring to the employer - "calls no evidence to justify that submission". 9 Mr Hislop submitted that the evidence of Mr Boyce justified the submission referred to and his Honour had either overlooked that evidence or had, for some reason, directed himself that there was no such evidence. If those propositions were made good, there would arguably be an error of law justifying interference by this Court. 10 Properly understood, the sentence on which Mr Hislop has focussed was directed to a much narrower submission than the one he relied upon. The previous sentence in his Honour's extempore reasons was: "The respondent contends that the applicant is not to be believed in relation to the assistance he says he received". 11 This refers to the assistance that the applicant says he received from his workmate, John Prior, in carrying out overhead work. The Judge noted that the essential problem for the worker caused by his pathology was that he could not, without pain, perform heavy work with his left arm raised above his shoulder. Such work was required of a miner, when fixing mesh to the ceiling, fixing cables and conduits to the walls close to the ceiling, fixing explosive charges in the roof, or barring down the roof after detonation of charges. The worker said that he did this work infrequently, there being a permanent team assigned to these duties. He also said that after the injury to his left shoulder John Prior carried him in relation to overhead work so that, as a rule, he did not have to do this work himself. He also said: "I did do some of the work, I'm not denying that. I never said that I haven't done the work but I done it under duress, I - the pain was there". 12 The submission the Judge noted was that the worker's evidence that he was carried by Mr Prior in relation to the overhead work should not be accepted. It was in relation to that submission that his Honour noted that the employer called no evidence to justify it. 13 Mr Hislop relied on the evidence of Mr Boyce and it is necessary to consider this with some care to see whether his Honour was correct. Mr Boyce said that he would see the worker and Mr Prior underground between two and four times in every three week cycle. The worker did not complain to him about any difficulty he experienced with his arms when working above shoulder level. This is not surprising in view of the high wages available to hard rock miners at Broken Hill. A man who is being carried by his workmate because of a shoulder disability could not be expected to complain. The absence of complaint to the foreman therefore is essentially neutral on the present question. Mr Boyce's evidence continued: "When you would see him on the times of the three week cycle, would you actually spend time there watching them work?" "Yes, probably between five and 15 minutes at any one time". "Did you ever observe him to have any problems in doing his work?" "No." "And in particular overhead work?" "No." "Well do you recall specifically seeing this particular man doing overhead work?" "Yes. It used to be a function that we would (be) putting rock bolts and mesh in and I saw he and his work colleague doing that." 14 This evidence must be understood in the light of the diagrams at pp 45-48 of the appeal book which illustrate the nature of work done by a team of underground miners such as Mr Prior and Mr Gillespie. The overhead work particularly referred to, that of installing mesh and rock bolts, is illustrated at p 48, and one of the team is shown with both arms above his shoulders supporting a section of mesh while the other member of the team is operating the drilling machine which is installing the rock bolt through the mesh. The first worker has both arms above his shoulders; the second worker has his arms at shoulder height with his hands operating the drill. The fact that Mr Boyce saw Mr Prior and the worker doing overhead work does not in any sense contradict the evidence of the worker. That part of the work which required arms to be raised above the shoulders could have been done by Mr Prior while Mr Gillespie operated the drill, which did not require this. 15 Mr Boyce gave evidence about Mr Prior's fitness for work. He knew that Mr Prior had suffered two injuries, the more serious one apparently involved an injury to his left arm when it was cut by falling stone. The worker also gave evidence about this accident which he said injured Mr Prior's left arm with some laceration of the ulna nerve, described in layman's language. After Mr Prior recovered from that injury, which required an operation, he returned to work. They continued to work together and "we just went back to our same routine because he wouldn't have been back at work if he wasn't fit enough to be back at work". 16 Mr Boyce indicated that Mr Prior had suffered an injury, either direct or indirect, which had caused one of his hands to claw up. Inferentially, this was his left hand. He had seen Mr Prior at work with his hand in that condition. This evidence however goes nowhere to establish that Mr Prior was incapable of doing the above shoulder work of supporting the mesh illustrated in the diagram on p 48. It certainly does not establish that the clawing-up of one of his hands would prevent him from doing that work, and it is entirely consistent with that evidence that it would be easier for Mr Gillespie to operate the drill with two good hands than for Mr Prior to do so with one of his hands partially clawed-up. 17 I conclude therefore that his Honour was justified in saying that the employers called no evidence to justify the submission that Mr Gillespie, the applicant worker, was not to be believed in relation to the assistance that he says he received from Mr Prior in doing overhead work. It is perhaps significant on this point that in the course of Mr Boyce's evidence, after counsel for the employers had adduced evidence of the state of Mr Prior's hand and its clawed-up condition, the Judge said that he did not see the relevance of that evidence. Thereafter counsel for the employers made no attempt to demonstrate that the state of Mr Prior's hand would prevent him from doing overhead work. 18 It follows, in my opinion, that the second point taken by Mr Hislop fails, and the appeal should be dismissed with costs. 19 POWELL JA: I agree. 20 BEAZLEY JA: I agree. 21 HANDLEY JA: The order of the Court therefore is appeal dismissed with costs.

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