Bakovic v Rosebridge Nominees

[2000] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P32 of 1999

B e t w e e n -

NADA BAKOVIC

Applicant

and

ROSEBRIDGE NOMINEES PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST MAY 2000, AT 3.11 PM

Copyright in the High Court of Australia

MR I.L.K. MARSHALL:   Your Honours, I appear for the applicant.  (instructed by S.C. Nigam & Co)

MR L. CHIAT:   May it please the Court, I appear for the respondent.  (instructed by Hammond King Touyz)

GUMMOW J:   Yes, Mr Marshall.

MR MARSHALL:   Thank you, your Honours.  This is a case where the matter was resolved by the trial judge against the applicant on the basis of her credibility and normally I would not trouble your Honours with a matter of that nature.  However, as you will have seen from the submissions and from the papers, the Full Court identified three areas at page 45 of our application book in the judgment of Justice Ipp at line 19 and he identifies three errors made by the learned trial judge in coming to her finding on the adverse credibility of the applicant.  The first one was not as significant as the second two.  The second matter which appears in the last paragraph on page 45 refers to the fact that there had been a finding that:

the appellant had “either been coached or had obtained information from other people as to symptoms relating to a sympathetic mediated syndrome”, as these matters were never put to the appellant.  In my view this submission is justified.  It was inappropriate to make such a far reaching finding without there being any direct evidence to support it ‑ ‑ ‑

GUMMOW J:   Now, what do you say about page 68, point 3, ground 3, paragraph 3, the sentence beginning, “The Applicant seeks”?

MR MARSHALL:   Yes.  What we say about that is that the medical evidence was that there was a sympathetic mediated syndrome and overlaid by psychiatric consequences.

GUMMOW J:   Yes.  Then what do you say about paragraph 4 on page 69 in the respondent’s submissions?

MR MARSHALL:   Yes, that submission was – that concession was made by senior counsel.  The medical evidence – and I do not want to go it in any great detail – essentially was that there was this sympathetic mediated syndrome akin to a reflex sympathetic dystrophy where she got – her leg was cold and there was paiN as well, but all that, as I say, was overlaid by this psychological problem.

Your Honours, just to get back to the thread of my argument.  It is, indeed, a very serious finding to make that someone has either been coached or had obtained information from other people as to this sympathetic mediated syndrome, not put to her that she had been coached or obtained such information, and that impacts on the finding of credibility in the same way as on page 46 in the paragraph headed “Thirdly”.  The learned trial judge said, “the appellant was ‘adept at fabrication’” and, as Justice Ipp points out, it is a very extreme finding to make and he agrees that there is force in that submission.

He goes on to say that great care needs to be taken before concluding that the appellant was feigning her symptoms and giving false evidence about it.  Added to the first criticism, at line 30:

it was submitted that it was wrong to say that the appellant’s description of the nature of her pain and the effect on her lifestyle was not persuasive “as it lacked detail and consistency”.  I am inclined to accept this submission.

HAYNE J:   Mr Marshall, are any of these three matters any more than inappropriate and unnecessary elaborations or embroidery on the fundamental finding of the trial judge, “I do not believe the plaintiff”?

MR MARSHALL:   Your Honour, I think one would characterise them not so much as incidental, as rather essential, because if you say someone is adept at fabrication, you say they are an adept liar, and that, to me, is a most serious thing indeed.  To say someone is being coached or obtained information from others and putting forward a false story, you can see how it is that the learned trial judge got it wrong on the question of credibility.  What happened from there, when it came to the Full Court, having identified what I would say are serious errors, his Honour Justice Ipp did not take that next step and allowed the appeal and sent it back to the District Court for relitigation.

The importance of the credibility finding goes further because it impacted on the value of the medical evidence because this was a case where, quite unusually, the trial judge accepted the evidence of the psychiatrist, Dr Mustac, in preference to two other psychiatrists and an enormous number of other doctors, not all of whom were treating specialists, and it was on page 47 where Justice Ipp deals with the way in which it was dealt with by the trial judge who essentially found that the doctors who had been treating were not objective and were not critical of the applicant.  He took the view – and I am looking at page 15 – he firstly deals with how frequently a long-standing relationship between medical practitioner and patient and that is line 3 on page 47 and I accept that doctors and patients can have such a relationship and I set it out in my submission.  I also accept that doctors are professional and objective and those that are competent can ascertain whether someone is indeed feigning or if someone is putting on an act for secondary gains.  Justice Ipp at page 47, line 10, talks of how there can be a:

close relationship between doctor and patient –

which –

will result in the medical practitioner being so subjectively influenced that the opinions…..will be regarded as les reliable than those expressed by a more objective expert.

None of these doctors were cross-examined about their lack of objectivity.  None of these doctors were cross-examined on the basis that they have a very subjective view about the matter, that they are people who could not give a professional opinion about the matter.  Indeed, not all the doctors, and there were seven of them, at least, were treating doctors.  Some gave evidence from a medico-legal point of view, a review just giving an opinion.  They were not necessarily treating doctors.  So, to consign or be dismissive of the doctors called on behalf of the applicant was simply wrong.  But where Justice Ipp – we would say the Full Court made two mistakes:  one, not identifying the fact that these were serious errors made in arriving at an assessment of the credibility of the applicant; but, two putting the medical evidence into the latter category, which is at the beginning of the first full paragraph on page 47:

On a close examination of the learned Judge’s reasons I consider that her Honour’s decision that Dr Shannon’s assessment –

he was a psychiatrist, your Honours –

was affected “because of his role as a treating psychiatrist” fell into the latter category.

That is, less reliable than a more objective expert.  Well, that is demeaning of Dr Shannon.  It was not even put to Dr Shannon, as I have said, that he was someone who could not be objective about his patient.

My respectful submission is that his Honour Justice Ipp, in putting Dr Shannon’s evidence into that category, there is simply no basis for it.  That is why I have said in my submissions that the adversary system has somewhat failed because if we have a doctor such as Dr Mustac, who habitually gives evidence for insurance companies, what you do is you put to him that fact and that he is, essentially, the executioner for the insurance company in the same way as it could be put to a doctor who is perceived to be subjective about a patient, that he is not capable of being subjective due to the long relationship, et cetera, et cetera.  Sometimes it exists when there is a GP of long standing.

But in this case the adversary system, as I have said in submissions, usually sorts it out.  In this case, it did not, and we have the Full Court coming to a conclusion that Dr Shannon fell into the latter category.  Now, here is Dr Shannon and the other doctors tainted by a finding that they were not capable of being professional, not capable of being objective about the case, and all we have standing is the evidence of one psychiatrist from the insurance company and all the other medical evidence has been dismissed.

So, your Honours, as I say, normally on a matter of credibility I would not trouble your Honours, but here is a case of glaring error in the way in which this matter was dealt with by the learned trial judge erroneously making those findings on the basis of not a shred of evidence, the ones I have adverted to, and the Full Court not taking that on board even though Justice Ipp made the findings.  The consequence of those findings should have been that the appeal was allowed.  To have the whole medical evidence being discounted on the basis, “Well, the plaintiff did not have credibility, therefore, what she told the doctors could not be relied on.  Therefore, that medical evidence should all be dismissed”.

Now, surely, doctors worth their salt have methods of assessing whether someone is genuine or not and, really, this finding that has been made implicates the doctors and effectively says, “Well, you are not professional.  You are not capable of adjudicating”, and lumping them all together when some, as I say, were not treating doctors, they were doctors called for medico-legal purposes.  The treating doctors were Dr Ukalovich, the general practitioner, and Dr Shannon, the psychiatrist, Dr Harper, Dr Anderson – Dr Harper has a qualification from Harvard; he is extremely experienced - and people like that simply wiped when very experienced and competent doctors.

So, your Honours, that is the special leave point.  This matter should be granted special leave and, in fact, the grounds which would be important are the ones at page 58.  I do not need to pursue all the grounds but, certainly, 4, 6 and 8 and 9 are ones which would enable this Court to look at the question with a view, ultimately, to return the matter to the District Court where a trial, accordingly to law, can be held, because at the moment we have an applicant who has been told that he has no credibility on the basis of findings which were not open on the evidence and we have doctors in respect of whom findings have been made, none of whom have been

asked about it and, really, fairness demands that if you make adverse findings against people, at least they should be given the opportunity to answer.

To come out in a judgment simply to say that the doctors are less than objective, or the doctors are subjective, and to rely on someone who habitually gives evidence for an insurance company, does not treat, but just simply gives evidence along those lines, you could hardly say that that person is an objective person either.

I admit that there was no cross-examination of Dr Mustac on the basis of he being an insurance company doctor who regularly gives these.  In going into things like, “the plaintiff is a malinger” – making decisions of that nature.  All he needs say is, “Well, look, I am a psychiatrist.  She has got no identifiable psychiatric disorder” but going further and making the findings that he did, usurping the function of the court saying that the plaintiff was a malingerer.  That is a final question for the court.  So, your Honours, for those reasons, we say there should be a grant.  Thank you.

GUMMOW J:   Yes, thank you, Mr Marshall.  We do not need to call on you, Mr Chiat.

Having regard to the course taken by this litigation at trial and in the Full Court, to the findings made by the trial judge with respect to credit, and to the absence of any point of general principle, this is not a case for the grant of special leave.  Accordingly, special leave is refused and refused with costs.

AT 3.26 PM THE MATTER WAS CONCLUDED