Australian and Overseas Telecommunications Corporation Ltd v McAuslan

AUSTRALIAN AND OVERSEAS TELECOMMUNICATIONS CORPORATION LTD v. MARGARET
GALLOWAY ALSTON McAUSLAN
No. ACTG74 of 1992
FED No. 958/93
Number of pages - 37
Appeal - Negligence - Evidence - Justices
(1993) 47 FCR 492

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT(1), MILES(2) AND FOSTER(3) JJ

CATCHWORDS

Appeal - personal injuries - negligence - damages.

Negligence - doctrine of res ipsa loquitur - whether there was want of reasonable care.

Evidence - whether improper rejection of medical evidence - whether permissible for trial judge to refer to psychiatric reference document DSM-III-R, not in evidence, but the subject of oral evidence - whether findings of fact not based on the evidence.

Justices - natural justice - whether procedural irregularity amounts to procedural unfairness sufficient to warrant a new trial - whether a denial of natural justice, by rejection of expert medical evidence.

Justices - bias - whether trial judge exhibited actual bias.

Kilgannon v. Sharpe Bros Pty Ltd and Others (1986) 4 NSWLR 600

Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155

The Council of the Shire of Wyong v. Shirt and Others (1980) 146 CLR 40

Gordon M Jenkins and Associates Pty Ltd and Another v. Coleman (1989) 87 ALR 477

Cavanett v. Chambers (1968) SASR 97 at 101

Ainsworth and Another v. Criminal Justice Commission (1992) 106 ALR 11

Annetts and Another v. McCann and Others (1990) 170 CLR 596

Broussard v. Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472

Stead v. State Government Insurance Commission (1986) 161 CLR 141

Laxy v. IBM Australia Limited (unreported, Full Court of the Federal Court of Australia, 2 April 1992)

Government Insurance Office of New South Wales v. Bailey (1992) 27 NSWLR 304 at 316

Vakauta v. Kelly (1989) 167 CLR 568

Chamberlain v. The Queen (1984) 153 CLR 521 at 526

The Commissioner of Police v. Tanos (1958) 98 CLR 383

Kirkpatrick v. Commonwealth of Australia (1985) 9 FCR 36

HEARING

CANBERRA, 7 April 1993 #DATE 16:12:1993

Counsel for the appellant: Mr. J.A. McCarthy QC

with Mr. PS. Jones

Solicitors of the appellant: Australian Government Solicitor

Counsel for the respondent: Mr. F.J. Purnell

Solicitors for the respondent: Snedden Hall and Gallop

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

BURCHETT J In this appeal, I agree, for the reasons prepared by Miles J, that the arguments advanced by the appellant in respect of the decision against it upon the issue of liability must all fail. I would only add to those reasons some very short observations. The location and surroundings of the manhole cover in question themselves justified the conclusion, to which the learned trial judge came, that the appellant should have appreciated the likelihood of heavy vehicles traversing it from time to time. In that position, in the middle of the city, it must have been apparent to anyone who looked that access was invitingly open for trucks to leave the road and pass over the paved area which lay around the manhole cover. The likelihood of damage to the cover itself eventuating, and the numbers of people regularly passing over that very spot in the happy assurance that a footpath in the city's centre would be safe to walk upon, are factors which make this case very different from Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155, upon which the appellant relied. At all events, that case, although it involved the application of a principle of law, was in the final analysis dependent upon a conclusion of fact. In the present circumstances, I reach a different conclusion.

The argument upon the issues relating to damages raises more difficult questions. At the outset, I wish to express my respectful agreement with Miles J on the matter of bias. There is, of course, nothing to show actual bias. But the argument was pressed very strongly that an appearance of bias had been demonstrated, so as to necessitate a new trial. The law on this matter is to be found in Vakauta v. Kelly (1989) 167 CLR 568. There, Brennan, Deane and Gaudron JJ referred (at 571) to the "ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice". The trial judge in that case had used language in his judgment suggestive of the holding of a fixed view adverse to the acceptability of particular medical witnesses. Brennan, Deane and Gaudron JJ (at 573) made it plain they nevertheless considered the judge would not have been biased in fact, but they held (at 573-574) that his comments "were such as to cause 'reasonable apprehension' on the part of a lay observer that the judgment itself was, 'in the end', affected by bias".
The present case is to be contrasted with this. None of the eight reasons given by the trial judge for rejecting the opinions of Dr Roberts, reasons which Miles J has listed, is concerned with any previous evidence given by the doctor, or with any a priori view of his Honour about the doctor. Indeed, when, in cross-examination, counsel for the respondent put to Dr Roberts that his conclusions about the respondent were the same as his conclusions about "all the other plaintiffs that you assess in this Territory", the judge made it plain, counsel for the appellant having objected, that there was "no evidence of the doctor's diagnoses in other cases" and that it was "not appropriate to make ... a suggestion of (that) kind". In fairness to Dr Roberts, I should add that he had replied, despite the objection: "(M)y assessments are impartial and I have diagnosed positive(ly) on numerous occasions".
Like Miles J, I cannot agree with all of the trial judge's reasons, as expressed by him, for rejecting the evidence of Dr Roberts. However, the general thrust of his comments to the effect that the doctor had somehow been seduced into a departure from scientific objectivity, and into an adoption of the mantle of advocate for the appellant, was a view that was open to his Honour. If that view was expressed with incautious vehemence, the temper of the ultimate conclusion cannot be equated with some pre-existing bias. In my opinion, this case is not within the principle stated in Vakauta v. Kelly. Nor would it fall within the test of "a real danger of bias" or "a real danger of injustice", which is now accepted in England: Regina v. Gough (1993) AC 646 at 670, 673.
What has given me concern is his Honour's use of the publication known as DSM-III-R, which I understand to be a diagnostic manual published by the American Psychiatric Association. This was not in evidence. Not only was the manual not in evidence; the question of its tender was expressly raised during the hearing, and the appellant declined to tender it. Nor did the respondent do so.
I respectfully agree with the passage from the judgment of Bray CJ in Cavanett v. Chambers (1968) SASR 97 at 101 which was cited in the joint judgment of Sheppard, Beaumont and Hill JJ in Gordon M. Jenkins and Associates Pty Ltd v. Coleman (1989) 23 FCR 38 at 48, and which is also relied upon by Miles J In Gordon M. Jenkins, the joint judgment (at 48) applied the reasoning of Bray CJ to certain practice notes said to have been prepared by the Royal Australian Institute of Architects as general guidelines for architects, which had not been tendered in evidence, but to which the trial judge had nevertheless referred. The joint judgment comments (at the same page):

"The rules of natural justice require that the material should have been disclosed to the parties if it were to be taken into account by the judge, albeit that the extent and result of such usage may be called into question. It appears that some use of the material was made by the judge. It must follow that the rules of natural justice were not observed."

Reference was then made to what the position would have been if the matter upon which the parties had been denied the opportunity to make submissions had been a pure question of law. That was not the position in Gordon M. Jenkins, nor is it the position here. The joint judgment continued by referring to a passage in the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ in Stead v. State Government Insurance Commission (1986) 161 CLR 141 at 145-146, which includes the following:

"Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ... It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."

Commenting upon this passage, the Full Court in Gordon M. Jenkins (at 49) referred to the limitations inherent in an appeal stricto sensu, as distinct from an appeal by way of re-hearing. Lest that reference be misunderstood, it should be added that, as Gibbs CJ and Mason J said in Chamberlain v. The Queen (1984) 153 CLR 521 at 526:

"It is clear that the appellate powers of the Federal Court are not limited to the hearing and determination of an appeal in the strict sense, and the grounds upon which it may allow an appeal therefore cannot be restricted to those which govern the determination of a strict appeal."

Their Honours' observation, of course, in no way qualifies the subjection of the principles upon which this Court should exercise its powers to the limitation stated in Stead, which applies also to the High Court itself.

The rule in Stead is a very strict one. That is only to be expected, seeing that what is in question is the obligation of a court to observe one of the fundamental principles of justice. In the leading case, The Commissioner of Police v. Tanos (1958) 98 CLR 383, Dixon CJ and Webb J said of the principle of natural justice (at 396): "It is hardly necessary to add that its application to proceedings in the established courts is a matter of course." In Gordon M. Jenkins (at 46- 47), the Full Court referred to decisions in which a judge's taking into account of material not made available to the parties was held to have struck at the very root of the judicial process. These cases should be contrasted with the taking of judicial notice of uncontroversial matters ascertainable from reference works, dictionaries and the like: see Kirkpatrick v. Commonwealth of Australia (1985) 9 FCR 36 at 41-42, but note also that this case is concerned with the Administrative Appeals Tribunal which is expressly empowered by s. 33(1)(c) of its Act to "inform itself on any matter in such manner as it thinks appropriate".
The joint judgment of the High Court in Stead applied with rigour the principle it had asserted. The court granted a new trial, after stating:

"All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result."

In my opinion, it is no answer to this principle that the trial judge advanced reasons for rejecting Dr Roberts other than the powerful reason he thought he had perceived in DSM-III-R, nor is it any answer that the trial judge was impressed by the respondent and accepted her evidence. For it simply cannot be said that the other reasons would necessarily have proved persuasive, to the same extent, had the appellant been able to show that DSM-III-R lent them no support. And as to the trial judge's acceptance of the plaintiff, there are two answers. On the one hand, he might have been less disposed to accept the whole of her evidence if he had had less reason to reject that of Dr Roberts. On the other hand, a less adverse reaction to Dr Roberts might have produced an acceptance of the doctor's own characterization of his evidence as not requiring an outright rejection of all the symptoms claimed by the respondent:

"What I have assessed is whether an illness has developed, that is my function. Things such as minor, non-significant mood changes fall short of psycho-pathology. Minor sleep disturbances that are not a reflection of psycho-pathology and other things to which you are alluding may well have occurred, but all that I am stating in my report is that ... the three conditions under consideration, namely, a post-traumatic neurosis or stress disorder, an anxiety neurosis, or a chronic pain syndrome, in my view cannot be diagnosed, that is all I am saying."

The use made by the trial judge of the diagnostic manual, which was not properly before him, struck directly at the heart of this piece of evidence. There is, then, no sufficient basis for a finding that some part, at least, of the proposition the doctor was putting forward could not possibly have been accepted had the appellant been given an opportunity to explain the true significance, according to its expert advice, of the diagnostic manual. Particularly is that so in a case in which conflicting evidence was not led from anyone with qualifications entitling him to analyse the concepts on which the manual depends (it is, after all, a work intended for use by professionally trained persons); and in which there was no evidence from any psychiatrist to contradict the opinion of Dr Roberts upon his own ground of psychiatry.
Accordingly, I think it is an inevitable consequence of the recognition of the denial of natural justice involved in the use made, in this case, of the diagnostic manual that the appeal must be allowed upon that issue, and a new trial must be ordered, limited to the question of damages. On the basis that the appeal succeeds to that extent, but fails on the issues of liability and bias, I would order the respondent to pay one half of the appellant's costs.

JUDGE2

MILES J This is an appeal against a decision of the Supreme Court of the Australian Capital Territory (Higgins J) in which the respondent was awarded damages for personal injuries resulting from the negligence of the appellant. The appeal is against the finding of negligence and the award of damages.

The respondent was injured at about 7.30 Pm. on 6 November 1987. She was walking with her husband on an area of pavement on London Circuit, Civic, a few metres north of the intersection with Allara Street. She stepped onto the cover of a telecommunications access pit set in the pavement. The cover of the pit collapsed under her and she fell straight down.
Evidence was given by a cleaner employed in a nearby building that before the day of the respondent's injury he had noticed trucks driving over the area in which the pit was situated and had also noticed employees of the appellant frequently visiting the pit, although he could not say how long before the accident the last attendance had been. His Honour accepted that evidence as he was entitled to do.
The trial judge made no findings as to the exact measurements of the pit or of the cover. However, according to photographs which were in evidence, and from a standards manual, Exhibit 9, published in 1984 and produced from the custody of the appellant (in which such a pit is referred to as a manhole), the cover was a standard 1.8 metres by 1.2 metres in overall measurement. It consisted of six independent metal plates which sat side by side, three in one direction and two in the other. Each plate was about 600 mm by 600 mm. They were held in place by a locking device and the whole arrangement was supported by a frame consisting of two cross-bars over the manhole and two end members and two side members around the edge of the manhole. Although his Honour stated that the cover was made of steel, the standards manual suggests that such plates were made of cast iron. However, no issue was raised on behalf of the respondent that, if the plates were of insufficient tensile strength, then that was due to inappropriate materials being used in their design or manufacture.
The manhole and the cover had been installed sometime before the respondent's injury. The trial judge made no precise finding about how long before the respondent's injury the installation had been made. Again, documents produced from the custody of the appellant (Exhibit 10) suggest that the installation was many years previously. His Honour found that, at some time after the installation of the manhole and cover, the area around the manhole had been paved with concrete paving blocks. His Honour also found that for "some period of time" before the respondent's injury, trucks were driven over the paved area, including the covered manhole, by furniture removalists and cleaning operators wishing to gain access to nearby office buildings. His Honour further found that employees of the appellant visited the manhole "frequently". It is impossible to be more precise about the period of time during which trucks were driven over the paved area or as to the frequency of such occasions, or as to the frequency of the visits of employees of the appellant. However, these primary facts were all open to his Honour and are sufficient to support his Honour's finding by way of inference that, when the employees of the appellant visited the manhole, they gained access to it by removing one or more of the plates, and to support his Honour's further finding by way of inference that the appellant by its employees knew by the time of the respondent's injury that the manhole cover in question was subject to the likelihood of the passage of vehicles, including loaded trucks.
According to the standards manual, proper siting of manholes required that they be kept "clear of driveways, property entrances and other locations where they may be crossed by vehicular traffic". That requirement was sufficient justification for his Honour's further finding by inference that the manhole covers were not intended to withstand the impact and weight of the vehicular traffic to which they were likely to be subject at the time of the respondent's injury. Hence there was a real risk that the passage of such vehicles would damage and weaken the manhole cover with the attendant danger that it would collapse under the weight of a pedestrian.
The minimum depth of a manhole (according to the standards manual) was 1.1 metres and this meant that the injury likely to be sustained by such a pedestrian (and hence the seriousness of the risk) could be substantial. The incidence of risk was increased by the fact that the manhole in question was in the central business district of Canberra, close to theatres, restaurants and cinemas, and hence subject to substantial pedestrian use at all hours of the day and well into the night.
There was no finding by his Honour as to the state of the light in the area at the time of the respondent's injury. If darkness had already fallen, it is likely that the area was well lit by street lighting. There is no suggestion that the respondent should have been aware of any defect in the manhole cover prior to the collapse of the plate under her.

The plate onto which the respondent stepped split into at least two pieces, one of which was later found at the bottom of the manhole. Photographs taken by and on behalf of the police show a distinct crack in an adjacent plate, across approximately one half of that plate. His Honour stated in his reasons for judgment that the plate on to which the respondent had stepped was presumably cracked at that moment.
Although his Honour did not expressly say so, the evidence supports a conclusion that until the time of the installation of the manhole and its cover, whenever that was, the area around it was not subject to use by vehicles. There is no evidence that it was subject to use by vehicles prior to being paved with concrete paving blocks. There is no evidence that the paving was carried out by the appellant, although as his Honour observed, it must have been obvious to employees of the appellant that such paving was being carried out or had been carried out. There is no evidence one way or the other as to any change in the nature of the kerbing and guttering and the existence or otherwise of driveways to nearby buildings prior to the installation of the paving. By the time of the respondent's injury, as the photographs show, the relevant area was distinctly divided from the road surface by kerb and guttering construction, and it was necessary for any vehicle proceeding on to the paved area to mount the kerb.
After the respondent's injury, a distinctive railing, painted yellow, was erected with the obvious intention of preventing vehicles on the pavement from being driven over the manhole cover. It also had the effect of diverting pedestrians around the manhole cover, although any pedestrian who wanted to walk on or across the manhole cover could do so easily enough. Whether it was erected by the appellant or by some other authority is not clear. It is likely that if it was not erected by the appellant then it was erected after the incident involving the respondent had been drawn to the attention of whoever it was who erected it.
The appellant had no system for inspection of the manhole cover in question, or of similar manhole covers. No inspection of it had ever taken place. There was no evidence that similar manhole covers had cracked or collapsed under any circumstances, or that they were subject to inherent weakness brought about by deterioration.
In his reasons for judgment, the trial judge referred to the doctrine of res ipsa loquitur, and stated as a broad proposition that "a failure of a static component such as a pit cover would raise an inference against a statutory authority which has responsibility for design, supply, installation and maintenance of such covers that either it failed to install a properly designed pit cover or failed to inspect such pit covers as would reasonably be required to avoid deterioration". It is submitted on behalf of the appellant that his Honour wrongly applied the doctrine of res ipsa loquitur and that the broad proposition just stated fails to address the essential question of want of reasonableness in the conduct of a defendant against whom negligence is alleged.
However, it is clear from his Honour's judgment that he addressed the question of want of reasonable care quite independently from the doctrine of res ipsa loquitur. His Honour found the cause of the respondent's fall to be the collapse of the cover under her. His Honour further found the collapse to be explained by the fact that vehicles were driven over a manhole cover not designed to withstand the weight and impact of such vehicles. Further, his Honour stated that he found want of reasonable care on the part of the appellant to consist in the knowledge of the appellant through its employees that by the time of the respondent's injury, vehicles were from time to time driven over the manhole cover and the failure of the appellant to consider protection of the pit from "incursion by vehicular traffic" until after the respondent's injury. His Honour also stated in an earlier part of his judgment that "it would have been obvious to any reasonably attentive technician using or inspecting the pit that the covers, or some of them were, or had become, defective".
Although his Honour did not expressly say so, it is implicit in these remarks that had the appellant done what his Honour found it negligently failed to do, that is to say, to give attention to the consequences of vehicles driving over the manhole cover, then it would have been a natural and simple further step to take a practical measure which was likely to avoid the risk of injury to pedestrians. That step was to have erected a railing such as was subsequently erected. It is also implicit in his Honour's judgment that he considered that once it became known or should have become known to the appellant that the manhole cover was subject to vehicular traffic, then the appellant should have conducted regular inspection of the manhole cover.
These findings on the part of the trial judge indicate that his finding of want of reasonable care on the part of the appellant did not depend upon an application of the principle of res ipsa loquitur nor upon the broad proposition he enunciated relating to the liability of a statutory authority for the failure of a static component for which it has responsibility. It is not necessary to express a view on the correctness of the broad proposition so expressed. As to the application of res ipsa loquitur in the circumstances of the case, it is necessary to comment only briefly. Although it is no longer the case in Australia that a plaintiff who tenders evidence of the explanation of an event is precluded from relying on the principle, acceptance of that evidence by the tribunal of fact makes the principle superfluous. In any event, the effect of the principle is merely to prevent the plaintiff from facing a non-suit. It does not create a presumption of negligence, or shift the onus of proof to the defendant, or turn a case of alleged negligence into a case of strict liability: see Fleming on Torts 8th ed, at 324.
In Kilgannon v. Sharpe Bros Pty Ltd and Others (1986) 4 NSWLR 600 at 624, Hope JA said:

"The doctrine may be relied on although the plaintiff also seeks to establish a specific case of negligence: Anchor Products Ltd v. Hedges (1966) 115 CLR 493. If applicable, the doctrine assists the plaintiff's case, but does not change the onus of proof; it leaves it open to the tribunal of fact to decide for or against the plaintiff: Mummery v. Irvings Pty Ltd (1956) 96 CLR 99; Griffith District Hospital v. Hayes (1962) 108 CLR 50 at 54. The doctrine does not apply if the precise cause of the accident is established by the evidence to the satisfaction of the tribunal: Mummery v. Irvings Pty Ltd; Anchor Products v. Hedges. In Anchor products (at 497-498) Windeyer J described this principle in this way: '... when their Honours spoke of a plaintiff adducing evidence of the cause of the accident they were referring to his adducing evidence which shewed what was the cause of the accident, that is to say which established what acts, omissions or events had caused it to happen. If the precise cause of an occurrence be fully revealed by evidence which is accepted, the occurrence ceases to speak for itself. The question then becomes whether having regard to the now known cause, the defendant was negligent.'"

It was submitted on behalf of the appellant that his Honour failed to apply the law as it was recognized by the New South Wales Court of Appeal in Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155. His Honour gave consideration to that decision, but rejected it as not determinative of the issues he had to decide. In my view, he was quite correct in doing so. That case turned on its own facts. It was concerned with a telephone inspection pit situated in a nature strip outside the plaintiff's residence in a suburban area. The inspection pit had been installed for some ten years. The cover was made of concrete, which at the time of the plaintiff's injury was broken, not entirely in place, and obscured by grass. A neighbour had fallen into it four days before the plaintiff's injury.
Priestley JA, with whom the other Judges of the Court of Appeal agreed, expressed the view that the level of risk to persons like the plaintiff was so low that it would be imposing too high a standard to oblige the defendant to periodically inspect the pit. That opinion relates to a different factual situation from the present case where the manhole cover was subject to the frequent passage of trucks and constant use by pedestrians in a busy city location. The manhole itself was at least 1.1 metres deep (according to the standards manual), and possibly as much as 3 metres deep (according to an eyewitness).
Carrying out the balancing exercise to which reference was made in The Council of the Shire of Wyong v. Shirt and Others (1980) 146 CLR 40, I think that the trial judge in the present case was correct in finding that, although the exact time and nature of the damage to the manhole cover prior to the respondent's injury was not known, the incidence and seriousness of the risk, taken in conjunction with the relatively simple and inexpensive alleviating measures available, were such that the failure to erect a barrier, or the failure to inspect, or both, constituted a failure to take reasonable care on the part of the appellant. It does not matter, in my view, that there was no evidence about how long any crack on the plate onto which the respondent stepped, or any other plate in the manhole cover, would have been visible on inspection. The fact is that the crack on the adjacent plate was apparent immediately after the respondent's injury, and by inference is likely to have been apparent for some undetermined time prior to the injury. It is not necessary to decide whether his Honour was correct in his conclusion that similar cracking would have been at least as obvious in the plate which collapsed under the respondent. A regular system of inspection would have been likely to alert the appellant to the crack in the adjacent plate, and in that state of alertness, the need for the appellant to take some step to keep vehicles from being driven over the manhole cover and to divert pedestrians around the manhole cover was all the greater.
For the foregoing reasons I am of the view that the appeal against the finding of negligence must be dismissed.
The appeal on damages is against the whole of the award. The total award was $147,933.50, made up as follows:

General damages $ 32,000.00 Interest thereon $ 2,000.00 Past loss of earnings $ 31,500.00 Interest thereon $ 10,000.00 Future loss of earning capacity $ 40,000.00 Loss of value of superannuation

benefits $ 9,000.00 Past out-of-pocket expenses $ 6,233.50 Future medical and pharmaceutical

expenses $ 13,000.00 Household assistance past and

future $ 4,200.00 Total: $147,933.50

Whilst a number of grounds of appeal were argued, the major thrust is against the findings relating to the evidence of Dr Roberts, a consultant psychiatrist who furnished a report and gave evidence on behalf of the appellant.
His Honour's findings as to injury were essentially that as a direct result of the fall, the plaintiff suffered an injury in the nature of a whiplash injury resulting initially in neck and shoulder symptoms, exacerbated by her work as a keyboard operator in the Public Service, leading to a post-traumatic stress disorder and resulting finally in chronic pain syndrome continuing up until the time of hearing. His Honour accepted that there was no identified organic basis for the plaintiff's continuing symptoms but found that there were psychological factors reacting upon the initial symptoms and that those factors led the respondent to a perception of pain which was disabling and not likely to resolve to any significant extent, at least until after the litigation was finished. The respondent called witnesses to attest to her complaints of pain over the years, her changed pattern of behaviour and her difficulties with work and household activities. She called medical and other expert evidence as to the nature of her condition and its relationship to her injury. The appellant relied on the evidence of Dr Gillies, a neurologist, as well as that of Dr Roberts, the psychiatrist. His Honour found that the evidence of Dr Gillies was consistent with that presented on behalf of the respondent. However, his Honour totally rejected the opinion of Dr Roberts that there was no evidence as to any psychiatric or psychological disability or any other medical condition that could be related to the respondent's fall. Dr Roberts expressed the further opinion that the plaintiff had deliberately misrepresented her condition. His Honour considered that this further opinion was outside the realm of Dr Roberts' professional expertise and rejected it also.
The respondent was born on 2 December 1930. She had, as his Honour found, no significant previous medical history except to the extent that she had experienced neck and arm pain in 1975 and neck and shoulder pain in 1986. These prior symptoms were relevant to the extent that they indicated a possibility that even without the injury in question the respondent may have come to experience pain of a similar nature some time before the end of her working life. However, the possibility that such pain would be disabling was not a strong one.
There was another earlier matter of some potential significance. The respondent had fallen over in a pedestrian crossing and injured her ribs in April 1987 but had fully recovered by the time of the injury about a month later. The relevance of the previous fall is that it may have predisposed the respondent towards the psychological sequelae that were alleged to have followed the injury and which became a crucial part of the respondent's case on damages.
His Honour found that the fall into the manhole was "a terrifying event". A member of the Australian Federal Police who attended the scene wrote in a report that she "was shaking continuously similar to (a condition of) a nervous shock". The depth of the manhole was estimated by a witness to be more than three metres, although the respondent does not appear to have been aware of this at the time she fell. Her husband, who had a heart condition, was not able to assist her out of the hole, where she remained suspended by her armpits or elbows. An ambulance and police were summoned. The respondent was taken to Royal Canberra Hospital. She was discharged later that night, no evidence of fracture being detected. She consulted her general practitioner, Dr Marion Evans, on 9 November 1987, complaining of a stiff neck. When it did not improve she was referred to a physiotherapist, Ms. Sally Hanrahan.
On 3 December 1987 the respondent returned to her work part-time and on 4 January 1988 resumed full-time duties. She continued to see Dr Evans, who found her "stressed" on 2 March 1988. On 30 May 1988 Dr Evans found the respondent fully recovered, but advocated continuing "exercise programs". The respondent continued to have physiotherapy once every six weeks or so.
At about this time the physiotherapist, Ms. Hanrahan, considered that the respondent had made a good recovery, largely due to her approach to her injuries and her diligent attention to exercise and work programs, but that from time to time the symptoms were exacerbated by pressure of work.
Exactly what occurred during the rest of 1988 and early 1989 is not clear. The respondent did not consult Dr Evans, although she continued to receive physiotherapy once or twice a month. By the end of September 1989 the respondent applied to be placed on part-time work duties, and by the beginning of 1989 she had ceased full-time work.
In February 1989 a statement of claim was filed on her behalf in the Magistrates Court claiming damages for the injury sustained on 6 November 1987.
On 18 September 1989 the respondent complained to Dr Evans of the previous neck and shoulder pain. Dr Evans, however, considered that she was at that time "symptom free with no residual disability". The respondent returned to Dr Evans on two occasions between then and 20 December 1989 when Dr Evans reported to the respondent's solicitors that the condition had "relapsed" and that "the physical symptoms of neck and shoulder pain with muscular spasm were definitely worse". Dr Evans thought that even at that stage the "protracted legal proceedings" were aggravating the physical symptoms.
Dr D. Kraus took over the management of the respondent in February 1990. Dr Kraus did not give evidence, but her reports were tendered. The trial judge considered that in view of the lack of cross-examination he should accept any statement of fact in the reports, but be careful before accepting any expression of opinion therein. Dr Kraus reported on 12 February 1991 that the respondent was suffering from a variety of symptoms: hypertension, stress, neck and upper body pain, headaches and panic attacks. She considered that some of these symptoms indicated a "subliminal stress disorder" and that the respondent was unfit to continue to work and unfit for some household duties. Dr Kraus considered that the symptoms were due to the injury in November 1987.
The panic attacks which Dr Kraus mentions were first recorded on 27 November 1990 by a psychologist, Ms. Patricia Williams, to whom Dr Kraus referred the respondent. Ms. Williams saw the respondent on several occasions when the respondent spoke at length of her injuries and her feelings about them. Ms. Williams wrote on 27 November 1990 that the respondent's descriptions of her feelings and behaviour at the time of injury and afterwards indicated "a diagnosis of Post-traumatic stress disorder", although in a report soon afterwards of 17 December 1990, she said that it was Dr Kraus who diagnosed post-traumatic stress disorder. In the earlier report, Ms. Williams referred to the respondent identifying "cue" situations which were likely to cause her to re-experience "panic feelings". In the later report of 17 December 1990 she wrote of the respondent continuing to have "panic attacks", and in the same report she expressed the view that the respondent had developed chronic pain disorder which was a psychological condition, although its cause was a medical question on which she would not comment. She summarised her views as follows:

"In summary, Mrs. McAuslan was an active and controlled lady who functioned well in normal daily life prior to her accident. The psychological and physical trauma she sustained in the accident seriously disrupted her life. Her personality and experience of life have been such that she did not have the emotional and mental resources to integrate, or cope with the shock and pain of the accident at the time. With treatment, she is slowly learning to deal with it, but there will always be a certain amount of anxiety and insecurity remaining which will cause her distress and effort to overcome."

On 8 March 1991 the respondent, aged 60 years, retired from work. When she gave notice of retirement she made no mention of the injury or any symptoms or incapacity. About a month after her retirement she managed a trip to the United States (she had had a holiday in Thailand the previous November). However, her condition did not improve. In June 1991 she was referred by her solicitors to Dr Gillespie, an orthopaedic surgeon. She complained to Dr Gillespie mainly of on-going pain in the lower part of the cervical spine, radiating into the right shoulder. She complained also of chest pain. Dr Gillespie found that there was reduction of movement in the lower part of the cervical spine and right shoulder and spasm of the lower cervical muscles. Cervical x-rays were unremarkable. Dr Gillespie considered that the respondent was suffering from a "chronic strain of the cervical para-spinal muscles and associated right trapezium muscles" and that her "inability to continue in her normal occupation has arisen at least in part (in response) to the injuries and disabilities described". Dr Gillespie stated that he made no comment on stress or other psychological factors.

On 21 December 1991 Dr Kraus found the respondent worse than when last seen in September, with increased pain and restriction of movement in the neck and right shoulder and at this time with sensory disturbance in the right arm and hand. She referred the respondent to Dr Colin Andrews, a neurologist. However, despite his initial assumptions that the fall was responsible for the respondent's problems, Dr Andrews could not find a satisfactory explanation. Dr Andrews' evidence did not really add to the case for the respondent. A similar assessment could be given to the report of Dr Gillies, the neurologist, tendered in the appellant's case.
The case for the respondent was not strongly supported by the medical evidence. There was little or no evidence of an orthopaedic or neurological nature to support a case for on-going symptoms based on anything of a physical or organic nature, except for the somewhat vague opinion of Dr Gillespie in June 1991 that the respondent was suffering from recurrent muscular strain. Dr Evans had expressed the view in May 1988 and again in September 1989 that the respondent had fully recovered. There was no evidence at all on the respondent's side from any psychiatric source to provide an explanation of the respondent's condition. On the other hand, there was the evidence in the reports of Dr Kraus, the general practitioner, that from the beginning of 1990 the respondent had been suffering from assorted disabling symptoms, ranging from neck and shoulder pain to hypertension and panic attacks. The opinion of the general medical practitioner was supported by the evidence of the physiotherapist that the respondent had made continuous complaints of neck and shoulder pain throughout the period and also by the evidence of the psychologist relating to chronic pain syndrome and panic attacks.
In those circumstances, it was hardly surprising that the appellant, or those advising the appellant, did not concede at the hearing that the respondent had suffered a serious injury in the fall, and did not concede that, if she were locked into a disabling chronic pain syndrome, the fall was a cause of it. The appellant sought advice from a consultant psychiatrist and for that purpose Dr John Roberts was chosen.
Dr Roberts practises at Burwood and at Roseville Chase in Sydney. His degrees are in medicine and surgery from the University of Sydney. He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists. His letterhead also shows that he practises in the field of "schizophrenia, depression, psycho-geriatrics, hypnosis and medico-legal psychiatry". At the commencement of his evidence he stated that he had practised in psychiatry since 1971 and as a consultant psychiatrist since 1971, that he had held honorary positions at St Vincent's Hospital and Canterbury Hospital and currently held positions at Westmead Hospital and the Masonic Hospital. He said that he ran primarily a private psychiatric practice dealing with major psychiatric disorders and substance abuse problems as well as medico-legal work. He was not challenged on what appear to be substantial professional qualifications to give evidence of a psychiatric nature.
Dr Roberts saw the respondent on one occasion only, 12 May 1992, for a period of about one hour. He furnished to the appellant's solicitor a closely typed report of nine pages with a pathology report annexed (Exhibit B). The report was in evidence and Dr Roberts gave sworn testimony. The trial judge took an adverse view of Dr Roberts' attitude, methodology and opinions. His Honour concluded that the evidence of Dr Roberts was of such little weight that it might be "taken as confirmation of Ms. Williams' opinion(s) (in) that no better opinion than his could be put forward to challenge them". In summary, his Honour's reasons for rejecting Dr Roberts' opinions were as follows:

1. Dr Roberts showed lack of balance in concluding that the respondent contradicted herself by stating that she "felt well" in the face of the "litany of disabilities" alleged by her.

2. Dr Roberts was unfair to the respondent in concluding that it was untrue for her to say that she had no previous health problems, when there was undisputed evidence that she had experienced neck pain and other symptoms on occasions prior to her injury.

3. Dr Roberts gratuitously mentioned that the respondent told him that an ambulance man told her at the scene of the injury, "You won't have to work again". His Honour observed that mention of this matter was not put to the respondent in cross-examination and he concluded that it was relevant only to the creation of unfair prejudice, and had no place in a professionally compiled expert report.

4. Dr Roberts deliberately misrepresented what the respondent had told him about a drug contributing to an oesophageal reflux.

5. Dr Roberts so misstated the standards set out in the reference work "Diagnostic and Statistic Manual of Mental Disorders (DSM-III-R 309.89)" that he was "either so incompetent that he cannot understand it properly, or he was deliberately attempting to deceive the Court".

6. Dr Roberts' description of the respondent's complaints of neck and back pain distribution was at such variance with that elicited by skilled neurologists and neurosurgeons that it is impossible to say whether the error is due to deliberate exaggeration or to lack of competence.

7. A number of tests used by Dr Roberts to ascertain whether the respondent was genuine in her complaints of pain were not "validated or corroborated" and no weight could be placed on them.

8. Dr Roberts subjected the respondent to a drug screening test which was of no possible probative value and which was entirely inappropriate.

There are two major submissions directed against his Honour's rejection of the opinions of Dr Roberts. The first is that his Honour failed to consider the evidence of Dr Roberts with the degree of impartiality necessary to a proper discharge of his judicial function. The other is that the document DSM-III-R, to which his Honour referred in his reasons for judgment, was not in evidence and should not have been taken into consideration at all, let alone used as a basis for an injudicious attack on the doctor's competence or integrity. The two grounds are not dissociated and it is convenient to deal with the latter first.
It was common ground in the appeal that DSM-III-R is a standard reference work published by the American Psychiatric Association, commonly accepted as such by psychiatrists in Australia, and often used in forensic evidence of a psychiatric nature. However, there was no agreement and no evidence that it is the only standard work of its type and it was not submitted on behalf of the respondent that judicial notice may be taken of its contents.
In his report, Dr Roberts discussed an hypothesis which assumed that psychological sequelae had resulted from the respondent's injury. He wrote that such sequelae would necessarily fall into one of three categories in order to be of any relevance. Those categories were:

. Post-Traumatic Stress reaction (which required major external "stressors");

. Adjustment Reaction (which would last no more than six months); and

. Reactive Anxiety Depressive State (which would follow "significant" injuries).

Dr Roberts' report added that, in order to come within any of those three categories, the patient would have to show clinical symptoms of heightened anxiety.
It should be noted that the report stated that abstracts from DSM-III-R containing definitions of the first two categories were appended to the report, but in fact they were not so appended.
When he came to be cross-examined, Dr Roberts spoke of the "stressors" which indicate post-traumatic stress syndrome (or post-traumatic stress reaction) and he referred to a passage from DSM-III-R in order to emphasise that the "stressors" must be "major", and that the "key thing ... is a threat to one's physical integrity of the magnitude as set out in the definition". To a question whether a belief in imminent death was "an indicia of significance", he answered that it was "one of a number of features that are a pre-requisite for the development of the disorder". Dr Roberts added that the sole pre-requisite of the definition was that there must be, at the time of trauma, "a very significant threat".
In re-examination, Dr Roberts read some fifteen lines from DSM-III-R which contained examples or illustrations of stressors which might produce post-traumatic stress disorder. His Honour asked counsel for the appellant if he wanted to "tender the book", but counsel declined to do so.
In his reasons for judgment, his Honour said that the standard did not suggest, as he implied Dr Roberts had, that secondary symptoms such as some of those of which the respondent complained, were necessary accompaniments of post-traumatic stress disorder, nor that the absence of such secondary symptoms contradicted the presence of the disorder. His Honour continued:

"A perusal of the reference work referred to by Dr Roberts indicates that the plaintiff unquestionably meets the standard criteria including three of the "persistent symptoms" of which only two are conventionally required. I also note that she exhibited and complained of five of the 'avoidance' indicia of which three are sufficient. It is, accordingly, surprising that an experienced psychiatrist should so seriously misstate the very standard upon which he placed reliance. I cannot believe that Dr Roberts was unaware of the terms of that standard. If he was, then he is either so incompetent that he cannot understand it properly, or he was deliberately attempting to deceive the Court. I am not able positively to find which of these alternatives represent the truth of the matter. In either case, I am persuaded that his opinion must be rejected."

There were attached to his Honour's reasons for judgment five pages marked Annexure A, being an extract from DSM-III-R. DSM-III-R appeared in the list of authorities accompanying the catchwords on the front page of the reasons for judgment. Clearly his Honour read and accorded considerable importance to Annexure A. Annexure A bears a heading "309.89 Post-Traumatic Stress Disorder" and discusses such matters as "stressors", "traumata", "persistent avoidance of stimuli", "persisting symptoms of increased arousal", and "diagnostic criteria". The diagnostic criteria are five in number. Persistent symptoms of increased arousal are included in the criteria, and six symptoms are listed. Persistent avoidance of stimuli associated with the trauma is another one of the diagnostic criteria; seven indicators of such avoidance are listed. His Honour did not identify which two of the six symptoms of increased arousal or which five of the seven avoidance indicia he found proved.
It is common ground that DSM-III-R was not in evidence in the sense that it was tendered and admitted into evidence in the ordinary way. Nor did it somehow get into evidence by an informal method which entitled one party or the other to rely on it. On the other hand, the record shows that counsel for both parties had access to DSM-III-R during the hearing, but does not show how his Honour obtained access to it. It was not suggested on behalf of the appellant that it was inadmissible. Dr Roberts had used it clearly as a basis for the formation of his opinion and counsel for the respondent was entitled to cross-examine on it and entitled, but not bound, to have it put into evidence. It is not so clear that the whole of Annexure A was admissible in re-examination if tendered by counsel for the appellant. What was admissible in re-examination, if it had been so tendered, was that part of Annexure A which dealt with the "stressors" upon which Dr Roberts had been cross-examined. It was admissible in re-examination so that his evidence on that precise issue could be clarified and made complete. The reading by Dr Roberts from Annexure A during re-examination appears to have been so confined. That reading did not open up new issues of persistent symptoms of increased arousal and avoidance indicia.
Whether it was permissible for the trial judge to give consideration to those parts of DSM-III-R which were not the subject of oral testimony, and which were not addressed in argument, depends on a choice between two competing principles. The first is that litigation is to be determined only on lawfully received evidence given orally in open court or in written form tendered and accepted into evidence in open court. Evidence thus received is available for scrutiny and testing by the parties or their representatives by cross-examination and by submission and argument. It is open also to scrutiny and inspection by members of the public, the public aspect of the litigation process being an important feature of it. The other principle is that a tribunal operates on a fund of common knowledge and may refresh that knowledge by reference to dictionaries and other works. That course maybe taken and is frequently taken so that the tribunal may understand the evidence, particularly evidence of a technical nature.
These principles were considered by a Full Court of this Court in Gordon M Jenkins and Associates Pty Ltd and Another v. Coleman (1989) 87 ALR 477, a case where the primary judge decided a question of alleged negligence relating to a building project by reference to the Practice Notes of the Royal Australian Institute of Architects (RAIA). The Practice Notes were not in evidence and were not mentioned during the course of argument or indeed at any other stage of the hearing before the primary judge. It does not appear from the report what it was that led the primary judge to look at them or how he obtained them. In its judgment on appeal, the Full Court at 485-6 approved the following passage of Bray CJ in Cavanett v. Chambers (1968) SASR 97 at 101:

"It is one thing to use (a legislative provision enabling the Court to refer to 'such published books ... as the Court considers to be of authority on the subject(s) ...') for the purpose of discovering or verifying objective facts or figures about which there can be no real dispute, such as historical or geographical data of an uncontroversial nature or mathematical tables of life expectancy or interest calculations ... though even there I think ... the parties should be given notice of the Court's intention and an opportunity to be heard on the result of its researches. It is quite another thing for the tribunal of its own motion to seek to inform itself out of court on a question of fact or opinion vital to the issue and by no means free from controversy. This is, of course, doubly objectionable if done without the parties having any opportunity to state their views on the specific authorities consulted. But in my view, even if they are offered this opportunity, the Court should not embark on such investigations except by consent. It would be preposterous to suppose, for example, that in a claim for damages or workmen's compensation where divergent medical opinions have been expressed by expert witnesses on each side, the Court should be at liberty without consent to pursue independent inquiries of its own on the point through medical journals or text books not referred to by the witnesses."

Although the principles are clear, their application will vary according to the case. For the purposes of the present case, it could not be said, and it was not submitted, that DSM-III-R was so notorious that a court could act upon it without proof. On the other hand, part of it was in evidence to the extent that Dr Roberts read aloud the fifteen lines relating to the significance of "stressors" in the condition of post-traumatic stress disorder. Counsel for both parties had access to the whole of the document and appeared to have some acquaintance with it.
Two questions may be asked. The first is whether the reference to DSM-III-R by the trial judge was simply an irregularity which did not amount to a breach of the requirement of procedural fairness. The other is, if there was a breach, whether it was sufficient to justify the course of setting aside the considered judgment of the court below and ordering a new trial.
The answer to the first question begins with a recognition that, in his Honour's judgment, he raised and decided issues which went well beyond those ventilated in the courtroom. The reference to and use of DSM-III-R in the courtroom was confined to the discussion of stressors in the development of post-traumatic stress disorder. His Honour's judgment took into consideration questions of persistence of symptoms and avoidance indicia which had not been mentioned in the courtroom at all and which could not be said to be matters beyond dispute or incapable of argument by counsel for the appellant. The transcript suggests strongly that counsel for the appellant would have wished to attempt to argue such matters if aware that the trial judge was likely to take them into consideration, and hence that there was a degree of procedural unfairness in depriving counsel of the opportunity of presenting such argument.
However, it is not every case of procedural irregularity that amounts to unfairness sufficient to justify a new trial. In Gordon Jenkins there was no evidence of negligence except by reference to the standards set out in the RAIA practice notes. In contrast, in the present case, his Honour advanced several reasons why he rejected the evidence of Dr Roberts, some of which were quite independent of the material in DSM-III-R. The question whether the irregular consideration of DSM-III-R in itself justifies the course of setting aside the award of damages is one that needs to be looked at in the light of all the evidence. It should also be looked at in the light of the other major ground of appeal.
The grounds of appeal have at their centre the contention that the trial judge denied natural justice to the appellant by his rejection of Dr Roberts as a credible witness. This contention proceeds from two basic propositions on which the appellant relies. The first is the wider proposition that his Honour's judgment as to the competence and integrity of Dr Roberts was reached without affording the party who called him the opportunity of meeting such strong, trenchant and unexpected criticism. The second is the narrower proposition that, where the personal and, more particularly, the professional reputation of a person is likely to be affected by the finding of a tribunal, procedural fairness requires that the person or that person's representative be given full and fair opportunity to show why an adverse finding should not be made.
To support the criticism, reference was made to such decisions as Ainsworth and Another v. Criminal Justice Commission (1992) 106 ALR 11, Annetts and Another v. McCann and Others (1990) 170 CLR 596 and Broussard v. Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472. However, the first two of those decisions are hardly to the point. They were concerned with statutory tribunals having power to make decisions of a specific nature and with the requirement of procedural fairness to be observed by such tribunals before exercising the power to make decisions about persons likely to be affected by such decisions. Annetts was concerned with the rights of parents of the deceased to address a coroner on the evidence given in an inquest before the coroner made any findings adverse to the parents or to the deceased. Ainsworth dealt with the requirement of procedural fairness to be observed by a criminal justice commission before it published a report damaging to the reputation of a person under investigation. In neither case was the person whose reputation or interest was to be affected in any sense a party to the decision-making process. In Broussard, a decision which may have more relevance, a critical issue on which the administrative decision was likely to have turned, was the absence of corroboration of claims and assertions made by the applicant. Gummow J held that there was a need to bring that critical issue to the applicant's attention. However, it was the failure to bring the issue itself to the applicant's attention which constituted the unfairness. The nature and effect of the administrative decision (whether to grant or refuse permanent resident status) was never in doubt.

Given that his Honour accepted the respondent as a witness of truth who suffered the symptoms that she said she suffered and described them without exaggeration, the case for rejecting the opinions of Dr Roberts was very strong, almost overwhelming. It would have mattered not whether DSM-III-R was taken into consideration or ignored. Moreover, no argument was put in this Court about how further questioning of Dr Roberts on DSM-III-R by counsel for the appellant would have strengthened his evidence in any way, or how any further address to the trial judge might have led to a finding that Dr Roberts' opinion should be accepted and the respondent found not to be a witness of truth who had on the balance of probabilities made out her case on damages as well as on liability. Overall, the sum awarded was not excessive in the light of the facts found. The appeal on damages, as on liability, fails.
I would propose that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.

JUDGE3

FOSTER J I have had the advantage of reading in draft form the reasons for judgment of Burchett and Miles JJ I agree, for the reasons expressed by their Honours, that the appeal on the issue of liability must fail. I also agree that the appellant has failed to demonstrate the existence of actual or ostensible bias on the part of the learned primary judge Higgins J against the witness Dr Roberts. It is abundantly clear that he formed an adverse view of the doctor's evidence. However, there is nothing to indicate, either in his Honour's reasons or in the transcript of the proceedings, that he held any preconceived views as to the doctor's competence or credibility. Indeed, when it was being suggested in the course of a fairly hostile cross-examination that the doctor was biased against the respondent and "all the other plaintiffs that you assess in this Territory", his Honour stated that there was nothing to support such a suggestion and that it was inappropriate to make it.

However, in the present case, his Honour came to the view that he should reject the doctor's evidence. In so doing, he had regard to material in the diagnostic manual DSM-111-R published by the American Psychiatric Association, which material was not in evidence before him. It is acknowledged, on behalf of the respondent, that the criticisms made by his Honour of the doctor's evidence, based upon this material, were criticisms that the doctor had been given no opportunity of answering. Although he had been cross-examined with some vigour on a number of matters, he had not been specifically questioned about particular portions of the manual relating to the diagnostic entity, post-traumatic stress disorder. Those portions provoked the passage in his Honour's judgment upon which particular reliance has been placed by the appellant. That passage is set out in the judgment of Miles J and I will not repeat it here.
It may be accepted that, regrettably, a breach of the rules of natural justice occurred in so far as the quite serious criticism made of the doctor by his Honour in this passage was based upon material not in evidence and in respect of which the doctor had had no opportunity to respond. So far as other matters raised in the appeal are concerned, I am in agreement, for the reasons given by Miles J, that they do not require any appellate interference with the judgment of Higgins J I am satisfied that the only question determinative of the outcome of this appeal is what should be the result of this breach of the rules of natural justice. Should the breach result in the setting aside of the judgment and the ordering of a new trial restricted to the question of damages?
The question is not whether the passage complained of in his Honour's judgment was unfair to Dr Roberts. It may be accepted that it was unfair at least to the extent that he was afforded no opportunity of explaining, if he could, why the passages in DSM-111-R, which were not in evidence, did not support a diagnosis that the respondent was suffering from a post-traumatic stress disorder. What must be decided is whether the denial of that opportunity robbed the appellant, whose witness the doctor was, of the possibility of obtaining a significantly better result in the litigation.
The respondent's case fell into a not uncommon category. She had had a most unpleasant accident involving considerable emotional shock. The physical damage inflicted by the accident was not, apparently, great. She experienced, however, pain in the neck and right shoulder area which persisted beyond the period during which it might ordinarily have been expected to abate. Neurological and orthopaedic specialists were unable to establish conclusively the existence of any underlying physical cause for continuing pain and disability in those areas. Conversely, as I read the evidence, they could not exclude such a cause. Instead of decreasing, the pain increased over the years. Discomfort and disability were experienced in the context of long drawn out litigation, which was acknowledged by the respondent to be a source of annoyance, frustration and depression. Psychological bases were advanced for the persistence of the symptoms. A psychologist, Ms Williams, and a general practitioner provided a diagnosis that the respondent was suffering from post-traumatic stress disorder and chronic pain syndrome.
There was thus presented the not uncommon picture of a plaintiff in long drawn out litigation claiming to have persistent painful and disabling symptoms for which little or no organic basis could be demonstrated in circumstances where it was alleged that psychological factors were playing a significant part in the exacerbation and maintenance of her complaints. As is, again, not uncommon in such cases evidence was called in opposition to the claim seeking to demonstrate that there was no true basis for the alleged psychological reaction and that the case was one of malingering rather than genuine psychological or psychiatric disturbance. The thrust of Dr Roberts' evidence was that the respondent was not telling the truth. Her complaints were false or exaggerated. She was not suffering from any psychiatric disorder that could properly be described as a post-traumatic stress disorder or a chronic pain syndrome. There was, therefore, an issue whether the respondent was suffering genuine psychological consequences from the accident or was merely faking or at least severely exaggerating her physical and emotional problems.
Higgins J referred to the question in these terms:-

"The major point of Dr Roberts' thesis ... was that the emotional symptoms of which the plaintiff complained, together with her complaints of pain, did not warrant the conclusions deposed to by Ms Williams. To some extent, Dr Roberts was engaging in a debate as to the proper label to be assigned to the plaintiff's experience of pain, anxiety and, sometimes, panic. It has significance, however, in terms of the likely longevity of the plaintiff's symptoms and, perhaps, as to whether her subjective account of experiencing those symptoms should be accepted."

After a consideration of Dr Roberts' evidence, which included the passage complained of, his Honour said:-

"In short, Dr Roberts' report is of such little value that it may be taken as confirmatory of Ms Williams' opinions that no better opinion than his could be put forward to challenge them."

His Honour went on to make the following findings upon which he based his award of damages:-

"I am satisfied that, in the fall on 6 November 1987, the plaintiff suffered physical injury resulting in neck symptoms similar to a whiplash injury. The effects were exacerbated by a return to key boarding and the effects of a post-traumatic stress disorder. This has resulted in a chronic pain condition. Without those exacerbating factors, the neck and shoulder symptoms might have cleared uP It is not possible to conclude that the minor lower back symptoms after or during long walks are related to the fall. Nor indeed, is the oesophageal complaint contributed to by the effects of the accident.

The accident did force the plaintiff to retire early although there was a chance that she might have done so in any event, for other reasons, including her husband's state of health.

I also accept that the pain is exacerbated by the stress associated with preparing for this litigation. Once that stress is removed, I consider there is likely to be an improvement in the plaintiff's well-being generally."

His Honour then assessed general damages in the sum of $32,000, apportioning from that sum $20,000 for past pain and suffering. Having regard to the fact that his Honour was awarding damages in November 1992 for the persisting consequences of an accident occurring in November 1987, it is reasonable to remark that this was a fairly modest award. It certainly could not have reflected any finding by his Honour that the respondent was suffering from a serious psychiatric illness of indefinite duration. It undoubtedly gave effect to his Honour's view that improvement in the respondent's condition could be expected after the end of litigation.
The fact remains, however, that his Honour arrived at this result after the rejection of Dr Roberts' testimony in circumstances where the breach of the rules of natural justice had occurred. The appellant asserts that a new trial should, for this reason, be granted. In support of this, reliance is placed upon the passage in the joint judgment of Mason, Wilson, Brennan, Deane and Dawson JJ in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146 where their Honours state as follows:-

"Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. ... It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."

There can be no doubt that this rule is a very strict one. However, it is not to be applied automatically. The overriding question must always remain whether the breach had any bearing on the outcome of the case. No doubt the party seeking to uphold a decision claimed to have been vitiated by such a breach must shoulder a heavy burden. He must satisfy an appellate court that the result of the trial would necessarily have been the same notwithstanding the breach.
In this area it is almost inevitable that opinions will differ. I have read and considered the whole of the evidence including matters of comment that passed between bench and bar during argument. I trust that by so doing I have been able accurately to gauge the atmosphere of the trial. I am satisfied that at least so far as this case was concerned, Dr Roberts' credibility was being called in question on the basis that he was said to have exhibited some bias against the respondent. The nature of the attack is referred to in the other judgments and there is no need for me to repeat it here. Insofar as it amounted to an assertion that the doctor was generally biased against plaintiffs, the attack failed. However, insofar as it suggested that the doctor had adopted an unfair approach to this particular plaintiff, it succeeded.
His Honour had before him an extensive body of evidence supportive of the respondent's case. He had before him material which he was entitled to and obviously did accept which demonstrated that the respondent had fallen without warning into a pit when the manhole cover collapsed and that she had suffered a terrifying experience. His Honour found that, as she said, she thought she was about to die. She undoubtedly experienced painful injuries to her neck, shoulder and other parts of her body in this fall which was arrested only by the instinctive placing of her arms on either side of the hole. She had to be lifted from this position and was in a highly agitated and emotional state which persisted for some time. This was amply attested to.
It would appear that Dr Roberts heard at least some of this testimony when it was given in Court. It was, however, his opinion that the incident was a fairly minor one and not likely to have been productive of any serious emotional consequences. As I read his report and his evidence a large part of his opinion is predicated upon his view that the accident could not be regarded as being a particularly significant experience for the respondent. In my view, the mere acceptance by his Honour that the accident was a highly significant emotional experience was, in itself, a sound basis for discounting the value of Dr Roberts' testimony. The doctor had examined the respondent for only one hour and, necessarily, would not have had the advantage of the full exposition of the facts of the accident that his Honour had received from the respondent and her husband, who was present when it happened, and other witnesses who came to the scene to render assistance.
Moreover, his Honour had ample evidence of significant changes in the respondent's personality after the accident. This evidence, which was quite detailed and came from sources whose credibility was not impugned, was obviously most persuasive. The respondent from being an outgoing happy type of person became moody, depressed and anxious. She persistently made complaints of pain in the area of her neck and shoulder. Her enjoyment of life and ability to cope with the requirements of daily living were shown to have been significantly impaired. She began to suffer panic attacks in respect of which she was referred to the psychologist Ms Williams, not for medico-legal purposes but for therapy. She had, also, regular physiotherapy treatment for the affected areas of her neck and shoulder and she regularly sought help from her general practitioner who referred her to neurological and orthopaedic specialists. There was, indeed, a strong body of evidence placed before his Honour, and obviously accepted by him, to the effect that the respondent had suffered a most distressing accident the physical and psychological effects of which had persisted.
Furthermore, she was supported by her employer in her claim that she progressively found her work as a secretary and stenographer difficult to perform to the point where she retired earlier than had been her intention. The fact that no firm diagnosis could be made of the physical cause of her persisting pain did not, of course, require that his Honour find that the pain did not exist. It was not necessary that he be able to ascribe any particular cause physical or psychological for its existence. There was clear evidence before him that it arose from the accident and persisted thereafter despite the treatment that the respondent sought and was given. Indeed, this treatment included the injection of medication into the affected areas, a procedure which, in my opinion, she would have been unlikely to have undergone if she had not hoped for some relief from pain.
Higgins J made a number of criticisms of Dr Roberts' evidence which were founded upon material which was before him. They have been referred to by Miles J in his judgment. In my view, they were valid criticisms and indicated, as the trial judge found, a lack of balance in his testimony. His report was capable of conveying and obviously did convey to the trial judge the impression that he was seeking reasons why the respondent's claims should be refuted or discounted rather than attempting to weigh up those claims objectively. Certainly he would have been entitled to take reasonable steps to satisfy himself as to the respondent's veracity in her recounting of her symptoms and complaints. However, his Honour was entitled to take the view that he had, in effect, set his face against her. I agree with respect with Miles J that the performance of the drug-screening test without explanation to her and without her consent was something that should not have been undertaken. Higgins J was entitled to accept and clearly did accept the respondent's assertion that she had in fact taken the drugs in question whether or not they were perceived to be present in the test. These were all matters which Higgins J could and obviously did take into account in determining whether he should prefer the other evidence in the case to that of Dr Roberts.
I have come to the conclusion, not without some hesitation because of the strictness of the principle in Stead, that this is a case where it can properly be said that the result would have been the same if the breach of the rules of natural justice had not occurred. I am of the view that there was ample material in the case upon which Higgins J could have and would have concluded that he preferred the testimony favouring the authenticity of the respondent's injuries and resulting disabilities as against Dr Roberts' countervailing views, without his needing to have recourse to considerations based upon the passages from DSM-111-R which were not in evidence before him.
Accordingly, I am of the opinion that this appeal should be dismissed with costs.

[1993] FCA 958

16 DECEMBER 1993