Briant v Allan

[2003] HCATrans 780

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 2002

B e t w e e n -

MELANIE JOYCE BRIANT

Applicant

and

DR JOHN ALLAN

First Respondent

UNITING CHURCH IN AUSTRALIA PROPERTY (Q)

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 11.53 AM

Copyright in the High Court of Australia

MS M.J. BRIANT appeared in person.

MR S.C. WILLIAMS, QC:   May it please the Court, I appear with my learned friend, MR G.W. DIEHM, for the first respondent.(instructed by Flower & Hart)

GLEESON CJ:   Just before you begin, there is a certificate from the Deputy Registrar that the second respondent in this matter, the Uniting Church in Australia Property Trust, who was not an active party to the appeal in the Court of Appeal, will not be appearing in the hearing of this application.  Yes, Ms Briant.

MS BRIANT:   Your Honour, this is a case where the Court of Appeal were dissatisfied with the process by which his Honour found that the defendant had knowingly used on the plaintiff a contaminated vaginal instrument.  Your Honours, if I may begin with the Full Court’s finding at page 34 paragraph [23] where they find:

his Honour looked around for other evidence to confirm the testimony of the plaintiff –

et cetera.  It is my submission that such a finding clearly amounts to a finding that the trial judge did not attend to the evidence impartially and such a finding is unsupported by any evidence and no reasons by the Full Court are given as to how and why that conclusion was reached.

It is my submission that the Full Court has a duty to give adequate reasons to support their conclusions as to the function of due process and, therefore, of justice and that such a finding is required to be proven by the application of the established test as outlined in Johnson v Johnson which appears at page 53.

The evidence in question in fact strongly supported the plaintiff’s case.  That appears at page 15 line 23 where the trial judge found that no staff:

whose duties included the cleaning of instruments worked on that weekend.

It is my submission that such evidence cannot legitimately be disposed of in this way.  In fact, it may have been, as established in Warren v Coombes, that the trial judge may have preferred one possible view of the facts as being, in his opinion, more probable.

Your Honours, it was the appellant’s submission at the hearing of the appeal as stated in the judgment of the court below at page 31 paragraph [7] and page 36 paragraph [27] - I will read from the finding on page 36:

that the evidence had been rationalised to fit a conclusion of negligence already reached by the learned judge based on the coincidence of time between the treatment and the infection.

Your Honour, the trial judge’s finding that the plaintiff’s infection was caused by the defendant’s treatment is an established fact that was not challenged at appeal.  There is no coincidence in time.

In regard to the submissions by the appellant which amount to submissions of prejudgment and judicial bias in not attending to the evidence impartially such submissions or complaints were brought into the appeal under the guise of complaints and deficiencies in the trial judge’s fact‑finding process and had not been particularised as a ground for appeal as required by the Rules.  The Rules are the Uniform Civil Procedure Rules, Rule 747 which states that issues complained of must be “specifically” particularised in a notice of appeal.

The Full Court, by allowing such admissions to be heard, imposed a disadvantage on the respondent who was unprepared to respond to such allegations and consequently the appeal was heard in an unjust manner.  The Full Court’s answer to such submission at page 36 paragraph [7] of whether or not that is so, is, with respect, a failure by the Full Court to answer allegations of judicial bias with a consistency and certainty required by law by the application of the established test as outlined in Johnson v Johnson at paragraph 11 which appears at page 53 of the application book and a failure in their duty to defend the purity of the administration of justice as also stated in Johnson v Johnson at paragraph 41.

Your Honour, the transcripts of the appeal hearing reveal these submissions by the appellant.  In our submission, at the end of the day his Honour had a strong suspicion that the specula was involved and it is our submission that the donor semen was more likely than this specialist would reuse a speculum.  Your Honours, expert evidence at trial clearly established that the donor semen was highly unlikely to be responsible for the plaintiff’s infection.  In fact, evidence‑in‑chief by Dr Whitby, called by the defendant, indicates that the semen was in fact incapable of active cross‑infection.

Your Honour, that evidence appears at page 49 where Dr Whitby said in‑chief that:

“The fact that the virus was not cultured from the donor semen that was used in Mrs Briant’s insemination is not surprising and is consistent with my conclusion that freezing and thawing inactivates it”–

He was asked:

“That’s still what you consider today?

And he replied:

“Yes I do.”

The trial judge’s finding regarding the donor semen was consistent with this compelling evidence where the trial judge finds at page 3 that the donor semen was an unlikely cause.  The Full Court, however, concluded that the donor semen remained a viable possible explanation for the plaintiff’s infection at page 35 line 15.

Your Honours, at the end of the day the appellant rightfully submitted his Honour did have a strong suspicion that the specula was involved because such a conclusion was strongly supported by the evidence and his Honour’s assessment of the credibility of the defendant.

The Full Court found that the critical findings made by the trial judge were based on inference rather than credibility.  That appears at page 36.  However, to so find, their Honours ignored the trial judge’s finding which was based on direct evidence by the defendant.  At page 14, paragraph [33] the trial judge states that the defendant:

was adamant that the specula used on the plaintiff had been through the usual –

et cetera, cleaning process, as he outlines there.  On that issue there was direct evidence from the defendant which he actually stated that he was absolutely 100 per cent certain.  This evidence was clearly rejected by his Honour at page 18, paragraph [41].

His Honour in his assessment of this specialist found he knowingly used a contaminated instrument during his treatment of the plaintiff, regardless of the risks.  This finding by the trial judge could not be ignored by the Full Court given the principles of Appellate Court intervention on credibility findings as established by the High Court in such cases as Devries v Australian National Railways which I have referred to at page 49.

The trial judge’s conclusions were neither inconsistent with the evidence nor glaringly improbable.  The Full Court also had differing views regarding the trial judge’s finding in relation to the evidence of the plaintiff regarding the existence of a metal surface.  The Chief Justice at page 30 line 30 clearly states that in his opinion the trial judge accepted this evidence, whereas their Honours McPherson and Williams find at page 34 paragraph [21]:

It is a curious feature of the case that nowhere in his reasons did the trial judge say that he specifically accepted the evidence of the plaintiff . . . Had he done so, such a finding might have been difficult to displace . . . Instead, his Honour appears to have based his conclusion on this issue entirely on matters of inference.

During their review of this matter the Full Court formed their own views and opinions on credibility issues and on the probabilities of the case and ignored the trial judge’s assessment of the evidence preferring to view all issues favourably for the appellant.  Your Honours, the Full Court in doing so went well beyond the boundaries of the evidence to speculate as to what, in their opinion, the appellant would more likely do in the circumstances.  At page 34 line 36 their Honours find:

Even if he intended to re‑use it, one would have thought it more likely that he would have placed it in the bucket of sterilising fluid . . . By virtue of his training and experience, he was acutely conscious not only of herpes –

virus, et cetera.  Your Honours, this finding is contrary to the trial judge’s assessment of the conduct of the defendant where credibility issues must be considered as a substantial factor.  The Full Court, also contrary to the evidence, find a more plausible explanation for the defendant having placed the speculum under running water.  At page 33 line 35 their Honours find that:

Having regard to the part of her anatomy . . . and the fact that it was June, it would not have been at all surprising if, to avoid the discomfort or shock of a cold instrument –

Basically, he had run it under the tap to warm it.  In fact, your Honours, at trial the defendant argued that there was no basis upon which it was necessary that the speculum be warmed up because the defendant’s rooms were appropriately air‑conditioned to avoid the cold of June.

Your Honours, the Full Court formed opinions on the trial judge’s conclusions by relying on evidence that does in fact not exist.  At page 35, paragraph [24] their Honours find that:

The plaintiff said that patients were being seen at five to 10 minute intervals, which the defendant described as almost a physical impossibility.

Your Honours, this evidence simply does not exist.  In fact, on the defendant’s evidence, he admitted to seeing up to 10 patients in this 90 minute period from 7 am to 8.30 am which, on his own evidence, he is seeing patients at nine minute periods.  The trial judge formed the view that patients were seen in rapid succession, which was not inconsistent with the evidence on this issue.

Your Honours, at the same paragraph [24] on page 35, their Honours find the evidence from the defendant that he “had roughly 30 speculums available”.  This finding by their Honours ignores the evidence of the defendant’s receptionist who was primarily responsible for cleaning the specula.  Mrs Walsh gave evidence as outlined in his Honour’s reasons at page 16 line 25 and over the page.  She was asked:

So how many speculums (sic) would there be before you would need to sterilise them so there would be more?  Would it be – approximate ….

“A.  Probably half a dozen.”

This evidence indicates that there are about six specula available and that she would sometimes need to sterilise them twice daily to meet requirements.  There was evidence on that issue, your Honours, that she was some days required to sterilise them twice a day.  His Honour states at paragraph [36] on page 16:

It was relevant for the plaintiff to investigate how many specula there were available at the practice to get some idea of how many, if any, cleaned and sterilised specula may be available –

Your Honours, clearly, considering the trial judge’s conclusions at page 17 line 4, used specula would accumulate “over the weekend” and:

There is no evidence that as a matter of routine someone would ensure all of the specula were sterilised and available –

It is clear that the evidence by the defendant that he had 30 specula was rejected.  The Full Court found that the plaintiff had failed to discharge the onus of proof on the balance of probabilities.  However, in so finding their Honours decided that:

In the absence of compelling evidence of each of these matters –

That appears on page 36,your Honours.

Your Honours, although these matters were supported by evidence the Full Court erred in law by applying a standard or degree of proof higher than required as the balance of probabilities does not require compelling evidence of each matter as the question is answered on the whole of the evidence.  The Full Court, in its review, attacked isolated strands of evidence and failed to appreciate or respect the acknowledged advantage of the trial judge’s position in seeing and hearing all the evidence and the impact of the evidence viewed in its entirety.

The Full Court applied the principles of Rhesa Shipping SA v Edmunds (1985) in determining that the respondent had failed to establish the probable cause of her infection.  Rhesa Shipping was a case in which there was no direct evidence and the conclusion by the House of Lords was that the only inference that could properly be drawn from the primary facts was that the probable cause of the occurrence was in doubt.

The Full Court erred by applying the principles of Rhesa Shipping because this was not a case where there was no direct evidence, nor was this a case where the only proper inference was that the cause of the plaintiff’s infection was in doubt and contrary to the principles of Rhesa Shipping the trial judge’s conclusions were not improbable.

Your Honours, the Full Court should have applied the principles as established by this Court in Jones v Dunkel (1959) which says – I think that appears on page 52 of the book, your Honours:

“you need only circumstances raising a more probable inference in favour of what is alleged” –

and if their Honours had done so the proper conclusion would have been that on the totality of the evidence there was sufficient evidence adduced to affirm the trial judge’s conclusions.

Your Honours, the Full Court failed to give any weight to the trial judge’s reasons entirely from page 5 paragraph [15] to page 11 paragraph [23].  This evidence, as outlined by his Honour regarded the defendant’s refusal to disclose documents regarding other patients he had treated on the three days relevant to these proceedings.  His Honour notes that the defendant argued:

that the patient cards were not directly relevant to an issue . . . but would only go to credit -

That appears at page 6 line 14.  Clearly, during the evidence, the defendant did regard such documents as relevant to the question of how the plaintiff contracted the disease.  At page 7 his Honour finds:

Dr Allan at relevant times obviously regarded them to be relevant to the question of how the plaintiff contracted the disease because in cross‑examination he said –

and, in fact, the defendant admits that that:

the next thing that I would have been concerned about was that if there had been any patients with active herpetic lesions.

On the next page, line 4, he repeats this admission:

but clearly knowing the modes of transmission of herpes I was concerned that there may have been other patients . . . who may have had herpes.

This evidence by the defendant raised the question, why would he be concerned that there may have been a patient with active herpetic lesions, as without negligence on his part cross‑infection could not occur.  The trial judge’s finding at page 10 paragraph [22] indicates his Honour’s conclusion that such documents were not disclosed because they would be unlikely to support what the defendant now says in evidence.

These matters and this evidence were available to his Honour in his considerations of the totality of the evidence on which his ultimate conclusions were based.  The Full Court failed to properly review all of the evidence and consequently failed to identify important issues that assisted his Honour in his conclusions.

GLEESON CJ:   Thank you, Ms Briant.

In this matter the Court of Appeal overruled the decision of the trial judge on factual issues.  The case does not raise any issue of legal principle suitable for a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant or that there are sufficient prospects of success of an appeal to warrant a grant.

The application is refused with costs.

AT 12.13 PM THE MATTER WAS CONCLUDED