Beattie v Ball
[1999] VSCA 227
•9 December 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 8320 of 1994
JILLIAN BEATTIE & ANDREW BEATTIE
Appellants
v
DAVID BALL
Respondent
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JUDGES: BROOKING, CHARLES and CHERNOV, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 9 December 1999 DATE OF JUDGMENT: 9 December 1999 MEDIUM NEUTRAL CITATION: [1999] VSCA 227 ---
EVIDENCE – Credibility of defendant's evidence – Alleged discrepancy with case put to plaintiff in cross-examination – Jury to determine whether breach of rule in Browne v. Dunn.
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APPEARANCES: Counsel Solicitors For the Appellants Mr W.R. Ray, Q.C. Slater & Gordon Mr J.J. Noonan For the Respondent Mr J.H.L. Forrest, Q.C. Tress Cocks & Maddox Mr D.J. Martin BROOKING, J.A.:
On 1 June 1990 Jillian Beattie gave birth to a girl who suffered from spina bifida. She had been a patient of a general practitioner at Mooroopna, whom she had consulted in October 1989, when she was about seven weeks pregnant with the child. In 1994 she and her husband sued the doctor for damages, alleging that his negligence had caused them the loss of an opportunity to terminate the pregnancy. The existence of a duty of care to both plaintiffs was admitted. Mrs Beattie and her husband had a family history of spina bifida and it was the plaintiffs' case that she had told her doctor of this at the first consultation, on 23 October 1989. The doctor denied that she had given him that information. At the trial the parties conducted their cases on the basis that negligence should be found if, but only if, the plaintiffs proved that Mrs Beattie did tell the doctor of the family history of spina bifida before an ultrasound examination which was performed on 18 January 1990, and which was reported to disclose no foetal abnormality. It was common ground that, if the family history had been disclosed to the doctor before that ultrasound examination, he was negligent in not specifically requesting those concerned with the examination to be on the lookout for spina bifida and this negligence deprived the plaintiffs of the opportunity to terminate the pregnancy.
The plaintiffs' case was that at the time of the first consultation they were aware of a family history of spina bifida in that they knew that one of the wife's sisters had died from a meningocele when only six days old and that Mr Beattie's father's siblings had all lost their first child owing to various problems, one of which was thought to be possibly spina bifida and was referred to as a sac on the back of the baby's head. Mrs Beattie's evidence was that before the first consultation she wrote down on a piece of paper the family history with regard to medical conditions, one side of it dealing with her own family history and the other side with her husband's, and that this piece of paper mentioned the particular matters to which I have just referred. She said that at the first consultation, when she and the doctor started talking about the family history, she took the piece of paper from her wallet and put it on his desk, that the doctor looked at it and that they talked about it, discussing the fact that there was spina bifida on her side of the family and a suspected spina bifida on her husband's side. She added that he told her that ultrasounds would be done later in the pregnancy for the purpose of seeing whether spina bifida existed. She said that she left the piece of paper with the doctor, and that he had not made any notes when she gave him the piece of paper and they discussed its contents.
The trial was by jury, in the Supreme Court. It began on 12 May and concluded on 27 May 1998, when the jury answered the first question - that concerning negligence - in the negative. Judgment was given for the defendant accordingly. The plaintiffs' notice of appeal, dated 10 June 1998, contained three grounds. There was no complaint about misdirection or anything else done or omitted to be done by the judge, and although three grounds of appeal were expressed it is clear that the only complaint was that no reasonable jury properly instructed could have failed to find negligence. Pursuant to leave given on 11 June 1999 an amended notice of appeal was served. This preserved the ground that no reasonable jury properly instructed could have failed to find negligence and added the following three grounds.
"2.
The learned trial Judge failed to give adequate directions to the jury in relation to a breach by the respondent's counsel of the rule in Browne v. Dunn in his cross-examination of the appellant, Jullian Beattie.
3.
The learned trial Judge erred in directing the jury that it should determine whether the respondent's counsel was in breach of the rule in Browne v. Dunn having regard to the manner in which he cross-examined the appellant, Jillian Beattie, and in the light of the evidence given by the respondent both in evidence-in-chief and in cross-examination.
4.
The learned trial Judge erred in failing to direct the jury that counsel for the respondent was, in fact, in breach of the rule of Browne v. Dunn having regard to his cross-examination of the appellant, Jillian Beattie, and in the light of the evidence given by the respondent both in evidence-in-chief and in cross- examination."
At the instance of the Court, the appeal book was supplemented by the addition of 21 important pages of transcript containing discussion of the Browne v. Dunn point in the absence of the jury. That well-known decision is reported in (1893) 6 R. 67.
Not surprisingly, the ground attacking as unreasonable the jury's finding on the issue of negligence has not been pursued. In addition, although ground 2 alleges a failure to give adequate directions in relation to a breach of the rule in Browne v. Dunn, the principal complaint made on the hearing of the appeal is that contained in grounds 3 and 4, namely, that instead of leaving it to the jury to determine whether there had been a breach of the rule in Browne v. Dunn the judge should have instructed them that there had been a breach.
The appellants say that important evidence of the respondent, given in cross- examination, was not foreshadowed by being put to Mrs Beattie in the course of her own cross-examination and that the judge erred by leaving it to the jury to determine whether there was what has been called a discrepancy between the respondent's evidence in this regard and his case as put to Mrs Beattie instead of instructing them that the discrepancy did exist. No criticism is made of the directions given to the jury about the possible drawing of inferences if they accepted that the alleged discrepancy did exist.
Cases like the present raise the aspect of Browne v. Dunn which concerns not fairness but the weight or cogency of evidence, as Newton, J. said in Bullstrode v. Trimble [1970] V.R. 840 at 848 in a passage endorsed by Hunt, J. in Allied Pastoral Holdings Pty Ltd v. Commissioner of Taxation [1983] 1 N.S.W.L.R. 1 at 18; compare R. v. Costello, unreported, Court of Criminal Appeal of New South Wales, 15 December 1995, per Hunt, C.J. at C.L. at p.4; White Industries (Qld) Pty Ltd v. Flower & Hart (1998) 156 A.L.R. 169 at 221 per Goldberg, J.. The alleged breach of the rule in Browne v. Dunn here was the suggested failure of the defendant's counsel to put to the female plaintiff in cross-examination that the defendant had asked her whether there was a family history of defects or abnormalities and that she had replied in the negative. It was submitted on the plaintiffs' behalf that the defendant's evidence was that this had taken place and that, having regard to the cross-examination of the female plaintiff, the jury might infer that the defendant's evidence on the point was an invention. (In fact, plaintiffs' counsel said to the jury that there were two possible explanations of the omission to put the matter in cross-examination. The first was that the defendant's counsel had been aware of his client's case on the point and had regarded that case as so ludicrous that he was not prepared to put it in cross-examination. The second was recent invention. Plaintiffs' counsel thrice told the jury that he or they "would never know" which explanation was correct.)
Where the rule in Browne v. Dunn is invoked in consequence of a suggested omission to put in cross-examination something of which a witness called by the cross- examining party later gives evidence, the first question is whether there has been the suggested omission. Where the trial is by jury, is this question one for the judge or for the jury? It is easy to be led astray by an unexpressed and misleading notion that the rule in Browne v. Dunn is a rule of law and that it must always be for the judge to decide whether a rule of law has been observed. The answer to the question who is to decide whether there has been a breach of the "rule" must depend on the nature of the sanction sought for the supposed breach. The possible sanctions are discussed in Cross on Evidence, Australian ed., para. 17460 and in Waight & Williams, Evidence - Commentary and Materials, 5th ed., pp.350-1. We are not presently concerned with the doubt which there is about the existence or scope of some of the sanctions. It is enough to say that where the sanction invoked requires some order or direction from the judge (I do not include in this a direction to the jury in the course of the charge about the evaluation of evidence), it must be for the judge to determine whether there has been a breach of the rule in Browne v. Dunn. On being satisfied that the rule has been broken, the judge may adopt a number of courses, including permitting the reopening of a case to enable a witness to deal with a matter not put in cross- examination. Other courses are open to the judge by way of the making of an order or the giving of a direction in the nature of an order, but the question of the extent of the powers in this regard need not now be considered. Where the judge is asked to deal with a breach of the rule in Browne v. Dunn by making an order or giving a direction in the nature of an order, then it must be for the judge to decide whether the rule has been broken.
In the present case this was not the kind of sanction sought by the plaintiffs. Their counsel made no application to the judge in consequence of the suggested breach of the rule, but simply in the final address invited the jury - at best - to disbelieve the defendant on the basis that he had recently invented something that had not been put by his counsel to the plaintiff. (I say "at best" in view of the "we will never know" passage in the address.) thus the only sanction invoked by counsel for the suggested breach of the rule was the recognition of its effect on the credibility of the defendant. The jury were being invited to have regard to a suggested significant discrepancy - a convenient word - in evaluating the evidence, as the matter was put by Dunn, J., speaking in effect for the Court of Criminal Appeal in R. v. Robinson [1977] Qd.R.387 at 394, in a passage which may be said to have received the approval of the South Australian Court of Criminal Appeal in R. v. Lander (1989) 52 S.A.S.R. 424 having regard to what was said by Matheson, J. at 436. Where this is the suggested use of a breach of the rule in Browne v. Dunn, it must be for the jury, whether the case is civil or criminal, to consider the matter as part of their function as judges of the facts, and this consideration must extend to the question whether a breach of the rule has taken place, in other words, whether the suggested significant discrepancy exists. The jury are considering what Newton, J. Called the weight or cogency of evidence. In a case like the present, the jury are being told by the judge - and there is no need to refer to the rule in Browne v. Dunn in terms - that the law recognises that, as a matter of common sense and logic, if there is a significant discrepancy in the sense of a failure to put a party's own case in cross-examination, a possible - but not the only - inference is one that reflects adversely on the credit of the witness called in support of that case. But the role of the jury as the finders of fact is subject to the controls imposed by the law. So, if the trial judge considers that no reasonable jury could take the view that the supposed discrepancy between the case put in cross-examination and that disclosed by the evidence exists, then there is no discrepancy for their consideration and, if counsel has invited them to act on one, the judge should instruct them that there is nothing on which they may act. At the other extreme, it may be incontestable that a discrepancy exists, so that the only question for the jury is what inference, if any, they are prepared to draw from it. In such a case, the judge does not trespass upon the jury's function by referring to the undoubted discrepancy, and then giving appropriate directions about the possible drawing of an inference. For in telling the jury that the discrepancy exists the judge is simply drawing their attention to the undoubted state of the evidence and course of the trial as opposed to telling them what view they should take on a question that is for them.
That the question whether there is a discrepancy - in the sense in which I am using that term - between the cross-examination and the evidence of a witness called by the party cross-examining is one for the jury where the discrepancy is relied on as affecting credibility is shown by R. v. Manunta (1990) 54 S.A.S.R.17. The appellant had been tried in the Supreme Court and the trial judge, having said to the jury, "You may be satisfied that it is clear that neither of these two matters were put to any of the three police officers", reviewed the defence case and the cross-examination of the police officers and then told the jury that it was for them to determine whether the passages in cross-examination put the nature of the defence case sufficiently to each of the police officers. He added, "Just the same, it is for you to determine what, if any, consequences adverse or otherwise might flow against the accused if you decide that it was not put to the police officers correctly". The charge was held by the Court of Criminal Appeal to be unexceptionable. King, C.J. Said at 23:
"It is, I suppose, a matter of impression and interpretation as to whether what counsel put to the police officers sufficiently conveyed the substance of the evidence subsequently given by the appellant and Aldous. The learned judge read the relevant passages to the jury and left it to their judgment. I cannot see much substance in the point but it was a matter for the jurors who heard the evidence and the cross- examination. I do not think that the learned judge can be criticised for leaving it for their consideration."
Legoe, J. said at 26:
"What the learned trial judge did was to give a full and detailed explanation as to the rule of practice and the issues that arose in the case out of the three particular matters which he had isolated by topic. In my judgment, the learned trial judge did not misstate any fact. He accurately put the matters upon which there had been cross- examination of the police officers, and those upon which there had been no cross-examination. In that he emphasised certain aspects and indicated the importance of those matters so far as the jury's deliberations were concerned, was to do no more than assist the jury in their essential task of assessing the evidence and how to fit those matters into the jury's fact-finding function."
Legoe, J. observed at 28 that he could not detect any error in the charge. He added, "That the learned trial judge may have emphasised certain matters as being of importance was to say no more to the jury than merely to draw their attention to their very important task of determining the facts." Bollen, J. concurred in the judgment of the Chief Justice.
This was a criminal case. In criminal cases caution is required in the application of Browne v. Dunn. But I find nothing in the decided cases, and see no reason in principle, why the answer to the question with which we are presently concerned should not be the same in criminal and civil litigation. Glissan & Tilmouth, Australian Criminal Trial Directions, para 4-700-31-1, treats the question of "discrepancy" as one for the jury.
"If the jury is satisfied that material allegations were later made by an accused which were not put to the relevant witness, that failure does not compel the jury to any particular conclusion and does not relieve the prosecution of its obligation to prove the ingredients of the charge.
In the case of a glaring and obvious omission the jury might ask whether such matters indicated recent invention of those material allegations by the accused (or his witnesses)." (My emphasis)
The view that "discrepancy" is a jury question where it is relied on as affecting credibility is not inconsistent with the decisions that the question whether in the circumstances the rule about "recent invention" has rendered admissible a prior consistent statement is one for the judge: Nominal Defendant v. Clements (1960) 104 C.L.R. 476; Transport and General Insurance Co. Ltd. v. Edmondson (1961) 106 C.L.R. 23. In the second of these cases McTiernan, Taylor and Menzies, JJ., at 29, cited in in support of their conclusion Dawson v. R. (1961) 106 C.L.R.1, holding that it was for the trial judge to decide as a question of fact whether the conduct of the defence involved imputations that evidence had been fabricated in ruling on an application by the Crown for leave to cross-examine the accused about his previous convictions. In Dawson's case itself Taylor and Owen, JJ. at 21 took the analogy of the role of the judge in finding the facts where a confession was said to be inadmissible. In all these cases the judge is dealing with the admissibility of evidence, and it is for the judge to find the facts necessary for the purpose of a ruling on admissibility: Wendo v. R. (1963) 109 C.L.R. 559 at 572 per Taylor & Owen, JJ. This explains why it will be for the judge to decide, where recent invention is alleged, whether the facts are such as to render a prior consistent statement admissible, but it will be for the jury to decide whether a discrepancy bearing on credibility exists between the conduct of a party's case and the evidence led by that party. For the latter question concerns, not the admissibility of evidence, but its evaluation.
In the present case the judge treated the existence of the suggested discrepancy as a jury question. The transcript added to the appeal book shows that there was some discussion about Browne v. Dunn before the judge began his charge. Before considering the course of evidence, I shall summarise the positions taken up by counsel, both in submissions in the absence of the jury and in final addresses, on the Browne v. Dunn point. The evidence out of which the point arose was given by the defendant in the course of a cross-examination which occupies only one and a half pages of transcript. There was no re-examination. The Court rose a little early on the day on which the defendant gave evidence, he being the last witness called that day. That was on 20 May. Some further evidence was called by the defendant and on Friday, 22 May, senior counsel for the defendant made his final address. He did not refer in terms to a possible Browne v. Dunn argument that might be put by his opponent. He referred to the defendant's evidence in cross-examination that he asked Mrs Beattie about family defects or abnormalities and that she said there were none and went on to submit that from other evidence it was clear that the defendant did ask her about family history and noted anything relative to defects. Later the same day senior counsel for the plaintiffs began his final address; he concluded it on the following Monday, 25 May. In his address on 22 May plaintiffs' counsel said that the defendant had sworn in cross-examination that he had asked Mrs Beattie whether there were any congenital abnormalities in the family and that she had replied that there were not; he went on to say that this had never been suggested to her by defendant's counsel. He asserted that this was a "horribly gross falsehood" invented by the defendant on the spur of the moment in the course of his cross-examination. But then he went on to say that the jury would never know whether the explanation of the defendant's counsel's conduct was, on the one hand, recent invention by the defendant or, on the other hand, that the defendant had told his counsel what he claimed had been said and counsel had decided that the suggested conversation was so ludicrous that he would not put it to the plaintiff. In concluding his address on Monday, 25 May, the plaintiffs' counsel dealt only with damages.
The transcript which has been added to the appeal book shows that, before counsel resumed his address on the Monday, the judge asked, in the absence of the jury, how he should charge the jury in relation to matters raised during the addresses. One of these was the Browne v. Dunn point. As to this, his Honour began by posing the question what the jury should be told about inferences having regard to the fact that the defendant's case had not been put to Mrs Beattie in cross-examination. Counsel for the defendant responded by submitting that his opponent should not have invoked the rule in Browne v. Dunn in his address, since there had been no failure to put the defendant's case in cross-examination. There followed a discussion extending over about seven pages between his Honour and counsel for the defendant in which the course of the evidence was reviewed. As a result of this discussion his Honour accepted that it would be wrong for him to tell the jury that the defendant's case had not been put to the witness, in that his Honour said:
"I think then what I need to say to the jury is for the defendant it is argued that in fact that did not constitute a new version, that those answers did not in fact constitute a departure from the defence case, and that's really ultimately the critical thing."
His Honour was here speaking of the evidence given by the defendant in cross- examination and dealing with the submission on his behalf that it was not a new version as opposed to the version put to Mrs Beattie. Counsel for the defendant then said that he accepted that the judge should proceed as he now proposed, and the discussion turned to what the jury should be told in relation to possible inferences if they took the view that the defendant had in cross-examination given "a new version". At the end of this discussion defendant's counsel made the complaint that his opponent had not put to the defendant that he was lying when he gave the evidence which was said to amount to a new version. He complained that his client had been called a liar without being accused of it in cross-examination. After all this discussion the judge asked counsel for the plaintiffs whether he wished to say anything, and counsel then said nothing by way of questioning the directions which the judge intended to give based on Browne v. Dunn. In particular, he did not suggest that the judge should not leave it to the jury to determine whether a new version had been given by the defendant in cross-examination as opposed to directing the jury that a new version had been given. The only matter raised by plaintiffs' counsel in response to the judge's invitation was to deal with defendant's counsel's complaint that he had not put it to the defendant in cross-examination that he had just made something up. As to this, plaintiffs' counsel said that he had by his conduct in sitting down immediately shown the jury that his attitude towards the defendant was one of "you can't believe a word he says". He added that it had been open to the defendant's counsel to re-examine his client. In the course of submitting that it had not been necessary for him to put expressly to the defendant an allegation of recent invention, counsel for the plaintiffs asserted that what the defendant said in cross-examination had not been put to the plaintiff in cross-examination: it was not "in that fudgy area of family history". But this was by way of challenging the defendant's counsel's contention that his client's case had been adequately put to the plaintiff. Counsel for the plaintiffs was, so to speak, joining issue on whether there was a "discrepancy" or "new version" and was acquiescing in the judge's proposal that he should tell the jury that it was for them to decide, in the light of the evidence and the arguments, whether there had been a discrepancy or new version. It has not been suggested before us that we should not take this view of counsel's conduct. Counsel had been distinctly told by the judge that he would be leaving that question to the jury and he never suggested that this should not be done. Moreover, no exception was taken to the charge when the judge gave the jury the directions he had foreshadowed.
His Honour dealt with the Browne v. Dunn point in a long passage in his charge occupying about eight pages. The whole of this should be read; I give only a brief summary. The judge began by referring to the attack made on the credit of the defendant and said that the plaintiffs contended that counsel for the defendant had failed to put to Mrs Beattie that his client had specifically asked her whether there was a family history of defects or abnormalities and that she had said there were none. Plaintiffs' counsel contended, the judge continued, that this had never been put to Mrs Beattie. The judge then told the jury something about the rule in Browne v. Dunn and something about the possible inferences that could be drawn if there was what I have been calling a discrepancy between the defendant's evidence and his case as put in cross-examination. He repeated that it was the plaintiffs' counsel's contention that what ought to have been put to Mrs Beattie had not been put to her. His Honour then said:
"Now, of course, the first question is was that version of the facts put to Mrs Beattie, that is that Dr Ball expressly asked her about birth defects and in response she said there were none."
He then referred to the evidence and again to the plaintiffs' contention that there was a discrepancy. Then he referred to the defendant's contention that there was no discrepancy and to evidence which had been relied on by the defendant in support of that contention (in the discussion in the absence of the jury). After reviewing the evidence and arguments at some length, his Honour said once again:
"As I say, your first question is to determine whether in fact the case put to Mrs Beattie differed from the case revealed in that last answer of Dr Ball."
The judge then went on to deal with the inferences which the jury might draw if they were satisfied that there was a discrepancy.
When the judge broke off his charge and sent the jury home for the day late on 25 May, he first raised and discussed with counsel a number of questions concerning damages. Then his Honour asked whether there was anything else that should be dealt with. Counsel for the defendant submitted, as regards Browne v. Dunn, that the jury should have been told that there was some degree of common ground with regard to what had been said about family history and abnormalities and asked the judge to say something further about the evidence by way of mentioning the common ground. This submission extended over about six pages. There was in the course of it considerable reference to the state of the evidence bearing on the Browne v. Dunn point. The judge declined to say anything more to the jury about the evidence, observing:
"It is ultimately a question for the jury as to whether they take that as a different case from the one that had otherwise been presented up to that time."
Counsel for the defendant then dealt with other matters. At the end of this junior counsel for the plaintiff raised "two very minor matters" of evidence unrelated to the Browne v. Dunn point. The following morning, 26 May, senior counsel for the plaintiff took up again two matters in relation to damages that had been discussed the previous afternoon after the jury went home. Other questions were then discussed by counsel with the judge but none of them related to the question with which we are now concerned. His Honour then concluded his charge. He thereupon asked if there were any exceptions. The only ones taken related to damages.
Thus it is clear that plaintiffs' counsel were well aware that the judge intended to leave to the jury the question whether there was a discrepancy, and tacitly accepted that this was the appropriate course, and it is equally clear that, this course having been taken by the judge, no exception was taken on behalf of the plaintiffs either during or after the charge. In these circumstances, even if I thought that the judge had erred in treating the question of discrepancy as a jury one, I would not be satisfied that there has been a substantial wrong or miscarriage in consequence of the judge's failure to direct the jury that there was a discrepancy: r.64.23(2); Balenzuela v. De Gail (1959) 101 C.L.R. 226; General Motors Holdens Pty Ltd v. Moularas (1964) 111 C.L.R. 234; University of Wollongong v. Metwally [No.2] (1985) 59 A.L.J.R. 481. But I consider that the judge was right in telling the jury that the question whether there was a discrepancy was for them. The case was not a clear one in which it was indisputable, when regard was had to the evidence, that what was said by the defendant in cross- examination had not been put to the female plaintiff.
The female plaintiff said of the first consultation:
"He then started asking things like family history - things like, sorry, name and address and date of birth and any allergies, went on to some family history, my own personal history, and when we started talking mostly about the family history, I pulled out my piece of paper ...".
She said that she put the piece of paper on the desk and said, "This is the family history". In her letter to the Health Service Commissioners the plaintiff wrote, "Dr Ball asked me about family history, which I knew was of paramount importance." This may be compared with her evidence-in-chief mentioning his asking her about family history. It was put to her in cross-examination that she told the defendant nothing about a family history of spina bifida at the original consultation. It was also put to her in cross-examination that the defendant specifically asked her about her family history.
The defendant's evidence was that in the course of the first consultation he filled in a form headed, "Obstetric Summary", which was put in evidence. This form had a
section as follows:
"FAMILY HISTORY CHECK: Tuberculosis Yes/No
Diabetes Yes/No Large babies Yes/No Hypertension Yes/No Twin Yes/No
Other Notes: _________________________________
________________________________________________
________________________________________________".
In this section either the Yes or the No had in each case been struck out and in the "Other Notes" notations had been made to relate "tuberculosis" to "in-laws" and "hypertension" to "mother". In evidence-in-chief the defendant was taken through the making by him of these and other entries on the form in the course of the consultation. He was then referred to the female plaintiff's evidence that she had handed him a slip of paper containing a detailed family history and that he had discussed with her what was on it and told her that ultrasounds would be done later in the pregnancy for the purpose of ascertaining whether spina bifida existed. He disputed her evidence on these points. He said that if she had produced the piece of paper mentioned in her evidence he would have retained it, gone through with her the items of family history one by one, discussed with her their significance for her pregnancy and made a note himself of the family history she had given him. (The female plaintiff accepted in her evidence that he had filled in the "Obstetrics Summary" at the first consultation.)
The cross-examination of the defendant was very short. The witness first assented to the suggestion that if he had been given "a family history of spina bifida" that would have been a matter to take into account. The cross-examination then proceeded:
"It is correct, is it not, doctor, that where you have a new patient that would be a critical matter with which to obtain instructions about?---What, the family history you're saying?
Yes?---Yes.
And indeed it is correct to say, is it not, that if she hadn't told you about this family history and you were carrying out a routine first interview you would normally ask a new patient about any abnormal history or genetic defect?---Yes.
Did you ask her?---Yes, I did.
You did ask her?---Yes.
I see?---Yes.
And what, she said there were none?---She must have. She didn't tell me.
She what?---She didn't tell me there was a family history.
You asked her whether there was any family defect or abnormality andshe said to you there was none?---Yes."
It is relevant to note the varying phrases used in the course of the cross- examination. The question immediately preceding the passage cited referred to "a family history of spina bifida". In the answer to the first question in the passage cited, the doctor spoke of "the family history". In the next long question reference was made to "this family history" and "any abnormal history or genetic defect". In the second last answer the doctor spoke of "a family history" and the next question referred to "any family defect or abnormality". These variations do not assist the suggestion that what I have been calling the suggested discrepancy was indisputable.
On the whole of the relevant material I think it is clear that it would have been wrong for the judge to tell the jury that the state of the evidence was such that the existence of a discrepancy was indisputable. The question whether there was a discrepancy was rightly left to the jury.
The failure of plaintiffs' counsel to seek a direction that there was a discrepancy bears on the view that may be taken of the evidence, in other words, on whether it was open to the judge to consider that the suggested discrepancy was not so clear as to require that the jury be told that there was one. Indeed, it was not until a year after the verdict that application was made to amend the notice of appeal to allege misdirection. I am disposed to think also that we are entitled to give some weight to the judge's view that "discrepancy" was in the circumstances of this case a jury question (in the sense that it was not, having regard to the state of the evidence, indisputable). But I would conclude that the question of discrepancy was in this case one for the jury even without regard to these considerations.
I have said that the principal complaint made on the hearing of the appeal is that the judge should have instructed the jury that there had been a breach of the rule in Browne v. Dunn. An alternative argument, raised fairly briefly, indeed, in the outline of argument, and put to us, was put under ground 2, namely, that, while nothing said by the judge to the jury in charging them on the question of discrepancy was wrong, the charge did not go far enough in that it did not assist the jury by elaborating upon the nature of the suggested discrepancy by making plain to them the distinction between a case that the female plaintiff simply failed to mention the family history of spina bifida, and a case that she was expressly asked by the defendant whether there was any family history of birth defects or abnormalities and answered, "No".
I think there is nothing in this point. The plaintiffs' counsel's final address drew this distinction clearly and this distinction was made very clear in the charge. The judge mentioned that plaintiffs' counsel's submission was that the rule in Browne v. Dunn required the defendant to put in cross-examination that the doctor "had specifically asked her whether there was a family history of defects or abnormalities, and that she had said that there was none". A little later his Honour told the jury that the first question was whether the version had been put to Mrs Beattie, "that is, that Dr Ball expressly asked her about birth defects and that in response she said there were none". Very shortly after this his Honour summarised the plaintiff's contention as being that the defendant's case had, prior to the cross-examination of the defendant, been that the female plaintiff had failed to mention the defects, "whereas Dr Ball's answer ... would have her going further than that, it would have her saying, in answer to a specific question, were there any birth defects in the family history, her saying, no, there were not".
Later again, his Honour referred to the argument that the doctor had not put a case that he asked the female plaintiff about birth defects and was in fact told by the patient that there were none, and said this immediately before telling the jury that it was for them to determine whether the case put to the female plaintiff differed from the evidence given by the defendant in cross-examination.
No exception was taken to the charge to raise the point that I have just been discussing, and rightly so, since the charge was perfectly adequate in this regard.
What I am about to say has nothing to do with the proper outcome of the appeal but I feel bound to say it in the interests of the proper administration of justice. The final address made by senior counsel for the plaintiffs at the trial was highly objectionable as containing immoderate and offensive language and blatant appeals to sympathy and prejudice. I hope we shall not see its like again. (It should be made clear that Mr Ray did not appear for the plaintiffs on the trial.)
The appeal must be dismissed.
CHARLES, J.A.:
I agree that this appeal must be dismissed for the reasons given by
Brooking, J.A.
CHERNOV, J.A.:
I also agree.
BROOKING, J.A.:
The appeal is dismissed with costs.
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