CSR Ltd & Anor v Maddalena

[2005] HCATrans 875

[2005] HCATrans 875

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P36 of 2005

B e t w e e n -

CSR LTD

First Appellant

MIDALCO PTY LTD

Second Appellant

and

ARTURO DELLA MADDALENA

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 25 OCTOBER 2005, AT 11.12 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR J.G. MENGLER, for the appellant.  (instructed by Jackson McDonald)

MR B.F. QUINN:   If it please the Court, I appear with my learned friend, MR P.D. NICHOLAS, for the respondent.  (instructed by Slater and Gordon)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the reversal by the Full Court of the trial judge pursuant to the Full Court’s power and duty in an appeal by way of rehearing came down to the reversal of three elements or components of what was identified as the critical approach by the trial judge.  Critical approach by the trial judge is illustrated by the correct summary of the way in which the decision had proceeded to be found in Justice Templeman’s reasons in the Full Court commencing at page 409 of the appeal book.  In paragraph 5, his Honour notes that the psychiatric injury claim:

was based on the diagnosis of anxiety and depression made by a number of psychiatrists.  The diagnosis was founded substantially on the appellant’s history as he –

that is the appellant plaintiff –

described it.

Over the page, 410, paragraph 8, having noted the response of the three relevant experts to the video evidence at the heart of the matter, Justice Templeman notes that:

The trial Judge expressed his concern about “the absence of any objective evidence” to support the appellant’s complaints.

Those complaints would appear to be focused in particular on the history given of symptoms, feelings and incapacity upon which the psychiatrists had proceeded to make their respective diagnoses using their expert experience.  Then, having noted that the judge below had come to the conclusion that Dr Febbo had given an opinion to be preferred, an opinion the nature of which requires some elaboration, in simple terms the plaintiff had failed to prove his case, that is had failed to prove on the balance of probabilities that he suffered the psychiatric injury which had been generally claimed – it is at appeal book 2 at line 40, said to be there a “Psychological reaction”. 

While on page 2 in those particulars of injury, may I draw to your Honours’ attention that the first four items, (a), (b), (c) and (d), were also the subject of contest at trial and all four of those were dismissed at trial, that is the plaintiff failed on the balance of probabilities to make out a case to the satisfaction of the trial judge that he suffered from those to a degree that required compensation.  There were, as your Honours know from the record, some pleural plaques and some low level injury but of a kind which, according to the trial judge not disturbed on appeal, did ‑ ‑ ‑

KIRBY J:   No, we are not concerned with any suggestion that there was a now present physiological source of the symptoms.

MR WALKER:   Correct, but there is a complication.  The fourth of those items which is called there “Pain and breathlessness”, a term which is then sometimes called chest pain, that is the location of the pain generally, thoracic and breathlessness, shortness of breath, that item does assume an importance in the appellate treatment of the surviving claim in the Full Court, namely, the claim for psychiatric injury.

Having posed the issue in the way I have noted concluding at 410, what then follows in Justice Templeman’s reasons which are the reasons of the court is, with respect, correct identification of the central issue as being whether Judge O’Sullivan had erred in his assessment of the evidence which of course, it is common ground, was evidence where credibility was acritical, the central issue so as to permit the Court to reverse and to anticipate, and I hope to put it summarily, we do not complain that there is a deficiency in the notice, citation or understanding displayed by citation in the Full Court of the limitations which apply, limitations which, with respect, are well summarised by paragraph [43] in the reasons of Justices Callinan and Heydon in Pledge.

What we do complain about is that manifestly, when one goes through the steps which were taken by the Full Court well within what I will call their jurisdiction in an appeal by way of rehearing, that they erred; that they erred, in our submission, by detecting error by the trial judge where there was none and they erred as well in themselves finding that certain things were supportable on the balance of probabilities as matters of fact.

In relation to the credibility challenge and bearing in mind that the plaintiff’s evidence was at the heart of all of the claims he made, both physical and mental, and that at the heart of all of his claims was the accompanying opinion evidence expressed in varying terms by both physiological experts as well as psychological and psychiatric experts, as a preliminary it is appropriate to note the way in which the Full Court took as a given that which was not challenged in that court and which was of course based on credibility, not only of the plaintiff as a self‑historian, as a patient, but also the credibility of those who had opined about in particular his pulmonary fitness, the breathlessness, chest pain.

Page 413 in Justice Templeman’s reasons in paragraph 22 there is set out some findings by the trial judge in relation to the symptoms and the diagnoses of physical matters – you see at line 13, for example, a reference to a lack of physiological explanation for chest pain – and then the conclusion, not suffered any physical injury.  Then paragraph 23:

Those findings were clearly open on the evidence –

that is the appellate review required by their function in the Full Court included an acceptance of those findings which are obviously based on credibility, were open on the evidence and of course they were not challenged.  Then in paragraph 24, the breathlessness and chest pain enters, as I told your Honours it does:

the Judge declined to accept the appellant’s claim that he suffered from breathlessness and chest pain.  That finding is challenged in the appeal.

It may be that there is a difference or controversy between the parties in this Court as to whether the Full Court found for the plaintiff on that point and I will need to take your Honours to a rather difficult chain of references in Justice Templeman’s reasons to make good what we submit is the case, namely that though not plainly or clearly, it appears to be that the plaintiff succeeded in that challenge in a way which was integrally involved with his success on the psychiatric injury claim and I will come to that in a very short time. 

The conclusion, that having been the basic issue and the background against which it was fought in the Full Court starts or can be picked up at page 448 of the appeal book in paragraph 158.  I jump to the end because the middle is where a lot of the work needs to be done and I will take your Honours to that only once, I hope.  Paragraph 158, there is the identification of there being three significant elements of what are called and, with respect, very correctly, “the trial Judge’s credibility findings”.  Justice Templeman also correctly, with respect, points out that the findings in the trial judge’s reasons are supported by references to what are called the recorded evidence and that is a reference to the possibility of demeanour to which I will come back later and separately.

Paragraph 159, the Full Court, that is Justice Templeman, refers to his own assessment of the video recordings and I make it clear we, of course, can make no complaint, make no complaint about the fact the Full Court invited to do so, pressed with detailed argument about it, looked at the video recordings.  Then the first of the critical overturning steps is found in paragraph 159, namely what is there summarised as the:

absence of reasons given by the trial Judge to explain his view –

and that means his view of the video recordings.  We challenge that, as your Honours have seen from our written submission.

KIRBY J:   Relevant to that was the long delay, I think, in the giving of the reasons, was it not?

MR WALKER:   There was eight months between trial, the judgment being reserved and judgment being delivered which had an effect – it was held in the Full Court - on the regard one might pay to the trial judge’s use of “demeanour” but beyond that ‑ ‑ ‑

KIRBY J:   There are authorities which we have looked at in another connection that say that if a judge gives a decision quickly and decides on matters of credibility and demeanour then appellate courts will say, “Well, of course he was relying on memory which was fresh”, but the longer the judge leaves it the more suspect become the decisions made on credibility bases.  I think it is a Full Federal Court decision.

MR WALKER:   There are a number of cases in that area.  I think the parties before your Honours are not at odds about any of that aspect of matter.  In the Full Court it is of course noted that leading counsel for my client in the Full Court in effect conceded that demeanour was not critical in the determination of the credibility issues at trial although, as the Full Court very fairly notes, although it could not be, as it were, eliminated.

HEYDON J:   Your position is the same?

MR WALKER:   Yes.  We do not apprehend that there is any difference between the parties today about that or for that matter about the principles which govern.  May I just add one qualification, however, in answer to Justice Kirby’s comment.  One of the difficulties not yet, we think, explored in the authorities and this is not the case for it to be explored, in relation to that approach particularly in busy courts that do not give court judges time out of court to prepare reasons, that is they are kept sitting, one of the difficulties is knowing to what extent is it proper for parties, we would submit not at all, or for the Full Court, probably not at all, to have access to the contemporaneous notes that a trial judge makes, including of impressions formed of witnesses precisely for the ‑ ‑ ‑

KIRBY J:   But Justice Heydon knocked that on the head in ‑ ‑ ‑

MR WALKER:    ‑ ‑ ‑ precisely for the archival purpose of ‑ ‑ ‑

KIRBY J:   You expect if they do they will refer to it and even then it might be a bit suspect, depending on the length of the delay.

MR WALKER:   Your Honours, we are not at odds at this Bar table about those matters.  I would simply respectfully submit that it is not necessarily the case that all delays are equal, that is that there is a simple inexorable linear effect whereby demeanour recedes and presumably disappears by some time that an appellate court declares is too long for it to play a role.  That, in our submission, is neither the state of the law nor should it be the state of the law. 

In paragraph 160, the breathlessness matter I draw to attention is there named in the second of these three overturning steps as being the “onset of symptoms of breathlessness” which is a specific question going to the credibility of the plaintiff as a self‑historian, that is as a reporter to medical practitioners of his physical state, how he has been feeling and going.  That is not the same as whether or not he was suffering at any particular time the symptoms of breathlessness and chest pain which had been the subject of the physical injury which was still being claimed on appeal. 

In paragraph 161, the third of the three overturning steps is referred to, namely, though the word does not appear in paragraph 161, the recorded feeling of guilt which was significant for the onset or explanation of psychiatric illness supposedly reported by the plaintiff, this being hotly contested by the plaintiff, supposedly reported by the plaintiff to one or perhaps two psychological practitioners, guilt, which was in detail spelled out in that evidence, of this kind that he had introduced his stepbrother to the work at Wittenoom which had led to that brother inhaling the deadly fibres which had led to that brother dying horribly of mesothelioma, a matter which told in that fashion obviously has real cogency presumably according to the way in which the expert opinions on psychiatric injury might explain the matter.

In fact, so far as the family relations were concerned, it could only have been the other way around, that is, it was, without contest, the elder brother who had long preceded the plaintiff from Italy to Australia and who had taken him to the office for employment at Wittenoom.  In other words, the introduction had worked in the opposite direction altogether.

The evidence does not permit any further explanation of what this recorded guilt may or may not have or how it could have been given rise to in not only the notes but also in the recollections of the two, or perhaps the one practitioner in question to which I will come later.  But your Honours see that in paragraph 161 on the basis of the common ground as to the actual facts to which I have just referred and on the basis of the vehement denial by the plaintiff that he had ever said such a thing, on transcript, Justice Templeman finds that the judge’s conclusion that it had been said, not that it was true – everyone agreed it was false – was held there to have been “glaringly improbable”, those being obviously terms of art for overturning a credibility-based finding. 

HEYDON J:   Do we know why it was glaringly improbable?

MR WALKER:   Your Honour, I will take you to the evidence ‑ ‑ ‑

HEYDON J:   But did Justice Templeman anywhere explain why it was glaringly improbable?

MR WALKER:   My final answer is no, not really, that is, the explanation, we would submit, is unpersuasive but it would not be correct to say that there is no text apart from what I have just taken you to.  Can I go immediately to the matter so as to deal with it once and for all.  Page 445, paragraph 142, there is a reference to the challenge to the trial judge’s view that the appellant had:

misinformed Mr Burns –

who was the person who had made the note –

and Dr Penman when he said he felt guilty about the death of his brother, Walter.

There is a reference to how the trial judge had noted it and there are some relevant extracts in paragraphs 144 and 145.  At the foot of paragraph 145 it is to be noted that although Dr Penman is there, as it were, regarded by Justice Templeman as purely derivative from Mr Burns, the evidence does not quite support that.  We have given that reference in paragraph 33 of our written submissions.  It is not necessary that we take your Honours to it, they are on pages 155 and 156 but one needs to compare that to 159, all of which we have noted. 

Then, in paragraph 146, there is simply the reference to what the fact was, never a dispute about that and then at 147 the recording of a submission that it was “almost inconceivable”.  Now that really is saying he did not, because it was false he did not say it.  One gets that impression as well from line 7 in the same paragraph:

Indeed, in his cross-examination, the appellant made it plain that he would not have done.

One thing to be observed, of course, is the appellant was cross-examined, and with some effect obviously to judge from the Full Court reasons, to show that things he had said in court and out of court could not be right.  The Full Court, from time to time, in effect says that obviously could not be right and they have to be, as it were, read down.  They have to be treated or should have been treated as exaggerations rather than something more sinister.

So it is not surprising that confronted with something entirely and conclusively demonstrated to be false, namely, he did not introduce his elder brother to the work, that the appellant never said he did.  However, the question was not whether he had ever actually done the thing but whether, on this occasion as on other occasions, he had said something to a medical practitioner or an allied professional which was not true, whether by confusion or by lie or by self-delusion does not matter.  Reliability is the key to the credibility issue for the plaintiff not whether he was a fraud or not.  It was reliability of the assumed histories given to the psychiatrist which underlay the diagnoses that they offered as experts out of court and in court. 

There is then a submission, paragraph 147, which we have gone so far as to describe as speculative, namely some linguistic misunderstanding and, in our submission, a clue to the speculative and non‑substantiated nature of that submission and that finding, as it becomes, can be seen in the use of the word “presumably” in paragraph 147, line 10.  Then in paragraphs 148, 149 and 150 there are some references to those linguistic matters but they are far too general to provide an explanation by reference to what had been explored at a trial that took enough time to explore those things which were going to be explored.

Paragraph 151 adds a further element, that is a relative lack of sophistication of the plaintiff and then the conclusion, which is in light of that that Justice Templeman thought it inconceivable that he would have told Dr Penman, apparently alone among the doctors who examined him – there is no suggestion that Dr Penman was an unreliable conduit to the court from his records of what he had been told, that would be quite unfair to Dr Penman.

CALLINAN J:   Why is it inconceivable? 

MR WALKER:   It is not, your Honour.

CALLINAN J:   It really bolsters his case.

MR WALKER:   Quite, it is not inconceivable at all.  In our submission, and this picks up my attempt to answer Justice Heydon’s question, though there is text in Justice Templeman’s reasons which are offered as support for that conclusion, they really only amount to saying that it is glaringly improbable, that is it is inconceivable.  Why it is is not really explained apart from the uncontested fact that the thing recorded was false.  One could not say this plaintiff, and the Full Court did not say this plaintiff, that he is not the sort of person to make a false statement and I do not mean lying, I mean false, wrong, totally wrong.

So for those reasons, and I do not need to return to that matter, the third of the three overturning steps was one which, in our submission, is flawed as an exercise of the appellate jurisdiction with all the breadth that we embrace in relation to it. 

I have referred already to paragraph [43] of your Honours Justices Callinan’s and Heydon’s reasons in Pledge.  The importance of the authorities there collected and summarised lies, in particular, with great respect, in the requirement as the discharge of the appellate function to show what was wrong.  The word “error” is used not only in paragraph [43] in Warren v Coombes quotation but also in paragraph [46] to show what was wrong in the approach taken by the judge who had the capacity, unique among the four judges who have hitherto looked at this case, to get the feel of the whole case and here I am not just talking about what has been perhaps travestied as the subtle influence of demeanour, though that is not a matter for travesty.  I am talking about the whole suite where one has before you to evaluate not only the reliability of the patient being diagnosed, the plaintiff making the claim of injury ‑ ‑ ‑

KIRBY J:   But the Full Court referred to this, did they not, by quoting Pledge?

MR WALKER:   Yes, that is why I said earlier I make no complaint about misdirection.  This is a case where manifestly it was not done properly.  That is the way I put our challenge in this Court.  It obviously is never enough simply to ensure that, as it were, one cites the right admonitions to oneself as an appellate judge.  That is not sufficient to escape challenge that one has simply done that which could not, on this record, have been done or should not have been done.

KIRBY J:   Yes, but Justice Templeman quotes doctors who have been seeing this man for a very long time and lengthy passages and those passages were accepting of his symptoms and against that medical side was just one psychiatrist ‑ ‑ ‑

MR WALKER:   Can I try and deal with that in, as it were, opening that issue immediately?

KIRBY J:   You do understand the complaint about the statement that the doctors that the Full Court accepted were well known to the court and I think that is a very troubling aspect of the reasoning, but the power of the Full Court’s quotations, I have to tell you, affected me when I read what the professor and the witness who had had a long experience with the respondent had concluders against a doctor who had had a very small experience with the respondent, especially against the background of the reality of this man’s suffering with his family and friends dying around him.

MR WALKER:   This is not a case which has been put as a pathological grief reaction case of a kind ‑ ‑ ‑

KIRBY J:   I am not talking about the category.  I am just talking about the reality of a person who has been at the bedside of people who have died of asbestos-related injury.

MR WALKER:   Your Honour, our argument does nothing to challenge that truth about the case.  In my address we will not say anything to challenge that truth of the matter.  The question is whether or not the Full Court proceeded correctly in overturning a credibility‑based finding, their expression used correctly and very fairly, with respect, where at issue was something that had simply failed to attract what is called objective corroboration.  The claim here, and I am generalising but only slightly in order to answer Justice Kirby’s question, was that a combination of actual physical disease, actual physical injury, and fear of worse to come and ‑ ‑ ‑

KIRBY J:   Which the professor said could not be put out of account.

MR WALKER:   How could it possibly – that those two, plus the familial and acquaintance tragedies at the forefront of the matter, that they had combined in such a way as to explain, in terms of aetiology – and now comes the most important part – that which was reported by the plaintiff himself, the history he gave of what I will call symptoms:  lassitude, my word; lack of interest in anything, inability to do anything to use plaintiff’s exaggerations, held to be exaggerations in the Full Court, of a kind to which we will go in a bit more detail later on.

The question was simply whether or not those things were sufficiently reliable, both the aetiological factors and also the actual symptoms.  Were you unable to do anything even allowing for exaggeration of a kind that would not defeat the essential truth of the report, for example, was a question very directly asked of the plaintiff by this whole case and that was the use, in familiar fashion but very pointedly in this case, of the film.  The film was criticised because life is too short, that is the hundreds of hours filmed were not all shown.  They were all there to be picked by anybody who wanted to show something, no doubt, but the selections are important precisely because they challenged and destroyed, in terms of objective accuracy, the generalised claims of the kind which obviously impressed the psychiatrists who gave evidence in his favour.

It is the generalised claims, not the claims around times of psychiatric consultation, not the claims about the time of video episodes, it is the generalised claim when he speaks to somebody in or out of court describing whole periods in stretches of years, that it is, which was the subject of entirely appropriate questions as to the reliability of them.

Justice Kirby has asked about the matter of the two psychiatrists who were impressed.  First of all, in order to link it to the way we are presenting this argument, your Honours will note the reference in paragraph 163 on page 449 where there it is put unexceptionably, not as to the inference – we challenge the inference – but as to the judicial method.  The judge would have accepted the appellant’s evidence but for the three credibility overturning matters and in consequence Professor German’s diagnosis and prognosis.  That is an orthodox Ramsay v Watson approach.  It is for the judge, or the jury if there be one, as a tribunal of fact to find on the probabilities whether there is enough or close enough in the history given in or out of court by the plaintiff upon the basis of which there has been diagnosis and prognosis offered by experts.  Of course, near enough is close enough.  That does not become an issue in this case at all.

Paragraph 163 stands slightly differently from the way in which it is put at critical parts of the reasons to which I will now turn.  In summary they are highlighted in paragraph 79 on page 433 and this puts it in unorthodox heretical fashion, the very opposite of Ramsay v Watson.  Significantly it is a very similar context in which Justice Templeman is writing.  He says:

It is, I think, to be implied from the trial Judge’s reasons that he would have accepted Professor German’s diagnosis –

and then the critical words come in parentheses –

(and therefore -

So it follows from accepting diagnosis that you find in favour of the psychiatrist’s assessment that the plaintiff was “credible and genuine”.

In our submission, that is very much cart before horse, entirely wrong approach and giving to psychiatric evidence a status it could not possibly have.  This Court has made clear, for example, in HG in the criminal context that a proper understanding as well as an exposure of reasons of an expert is essential in order to find out that there is not the entirely illegitimate undertaking being attempted of having a supposed expert assure a tribunal of fact of the credibility or likelihood of being correct of the evidence about the events in question which are facts in issue in the case.  In our submission, that is what paragraph 79 shows as judicial approach and it bespeaks very serious error.

Could I then take your Honours, in order to try to disentangle the second of the three matters, namely the breathlessness matter, to the way in which Justice Templeman appears to have progressed the matter concerning the appellate challenge to that one physical matter.  If I could pick it up firstly where I left it off at page 413, paragraph 24, your Honours have already seen that is where the challenge was noted.  Page 415, paragraph 31, about line 15, there is a summary of the psychiatric injury expert evidence apart from Dr Febbo.  In fact one can say this at one stage included Dr Febbo as well.  He changed his mind, having seen the film and thought about it.

The essence of that diagnosis was that as a result of the exposure, traumatic effect of the death of others:

he had become so anxious about his own fate that he had developed physical symptoms to an extent far greater than –

then I interpolate our interpretation – the objective evidence from the respiratory specialists who were unanimously against him could detect.  So that is a reference to what the psychiatrists in their expert reasoning thought had happened.  It was not suggested that the psychiatrist’s view that he had developed physical symptoms is something which the Full Court could possibly say the trial judge was bound by.  The trial judge would be wrong to have taken the psychiatrist’s evidence about that except insofar as they were eyewitnesses, “I saw him breathless”, for example, “I saw him wince” perhaps in terms of the admissibility of a reflex action, but these were all about histories.  This was the psychiatrists basing their diagnosis and explanation upon the history self-reported by the plaintiff.

HEYDON J:   Is it convenient to ask you this question?  The respondent in paragraph 28 said that the real question for the experts and the judge was whether the respondent believed or perceived that he suffered from breathlessness and chest pain as distinct from whether he actually had breathlessness and chest pain.  Paragraph 31 suggests that if that was the real question, it was not the question that Justice Templeman saw or, for that matter, the question that the experts saw.  Do you ‑ ‑ ‑

MR WALKER:   I am so sorry.  Your Honour in paragraph 31 is referring to Justice Templeman’s reasons?

HEYDON J:   Yes, on page 415.

MR WALKER:   Quite.  I apologise for having to step through, on my count, about a dozen references on this but ‑ ‑ ‑

HEYDON J:   If this is an inconvenient area ‑ ‑ ‑

MR WALKER:   No, it is not inconvenient at all, your Honour.  Paragraph 24 with which I started is not about perceptions.  To put it, if I may, bluntly, it is not about delusions; it is about fact.  He suffered from, actual suffering from actual breathlessness and actual chest pain.

HEYDON J:   Paragraph 31 seems to be ‑ ‑ ‑

MR WALKER:   Paragraph 31, line 15 is not the development of delusions of physical symptoms which in fact did not exist but it is the development of physical symptoms.

HEYDON J:   Which make you anxious, as distinct from being anxious because you think you are breathless when you are not.

MR WALKER:   Your Honours, we confess real difficulty in understanding what perceived as opposed to real breathlessness is.  It is not really explored in the case.  It is very difficult to understand how a person breathing entirely naturally could think they were breathless.  It is not difficult to understand how emotion, including fear or anxiety – it is not difficult to understand and your Honours would not need expert evidence to know that that can affect the way you breathe and your heartbeat and your perspiration.  These are matters of ordinary human understanding, but this case was not fought about what I will call the nightmare effect where in fact it is not asbestos that is making you breathless, it is your fear of what asbestos might have done to you that is making you breathless.  That could have been fought but, in our submission, that is not what was the subject of the appeal – see paragraphs 24 and 31 so far in the reasons of Justice Templeman.

HEYDON J:   You join issue with paragraph 28 of the respondent’s submissions?

MR WALKER:   We have said what the real question is and we are supported by the way Justice Templeman determined it, or at least I am going to try and persuade your Honours of that by the following sequence of references.  We submit that there was not – in any event it is not a matter of questions for experts.  The question for the experts is, “On the basis of these assumed facts, what is your diagnosis or prognosis and how do you get there by the application of the relevant body of skill, experience and learning?”  It is not a question as to whether, “Do you believe this man is sincere and accurate” – and it may be that sincerity is irrelevant – “when he says ‘Last Wednesday I could hardly breathe for X hours’?” assuming hypothetically that that is the sort of thing a psychiatrist had been told.  Psychiatrists are not offering evidence about whether or not that was an accurate self‑report.  But in the paragraph to which I have drawn attention, in our submission, there is a real danger that Justice Templeman regarded the trial judge as having erred by not having taken that wrong approach.

The next reference in the tracking through of the physical symptoms of breathlessness and pain, could I take your Honours to page 420.  This is a long quotation from Dr Skerritt, one of the two psychiatrists of the three, Dr Skerritt also having been the object of a statement of a kind about which we complain at the beginning of paragraph 36.  But on page 420 in the main part of paragraph 36, you will see the quoted passages, for example, line 10:

Many of his symptoms are of a type which might be described as psychophysiological that is the several symptoms around the body, many of which are in the respiratory system –

and I have tried to approach this on the basis that that could well include this breathlessness and chest pain –

consequent on severe anxiety.

Then you will have noticed, though this does not seem to have been elaborated, on the question of breathlessness the reference to “panic” at line 12, 13.  He gets much more specific at lines 25 and following:

Breathlessness, which is ultimately due to hyperventilation, with tightness across the chest and pounding heart, are very typical symptoms of anxiety which are interpreted as features of asbestosis according to –

et cetera.  In other words, the patient had started to produce, by an erroneous belief that he had the disease to an extent which could cause a symptom, the very symptom of which he had been told in relation to the disease.  Then line 40 is an important passage because it rather draws a distinction between the actual and the perceptual:

he now finds himself in the position of complaining of massive physical symptoms –

so even that psychiatrist appeared to be understanding that the complaints may be too much –

quite out of proportion to the physical pathology.

The next one we should go to is at page 425, paragraph 47.  Dr Febbo, it is fairly noted by Justice Templeman that he was not cross-examined on this aspect of his report and that should have been regarded as a reason for the Full Court not to venture where they did.  It is said there that:

he did not at that stage consider whether the appellant’s reported –

I stress “reported” –

pain and breathlessness might have resulted –

“reported pain and breathlessness” is ambiguous perhaps.  It may mean reports of or it may mean pain and breathlessness as reported, which were reported.  In our submission, it is the latter that is intended here and that suggests again or shows again that the issue being considered by the Full Court is being done upon the basis of histories given to psychiatrists on the very issue, namely was he suffering pain and breathlessness, which the Full Court had noted was an issue on the appeal, the plaintiff having failed on it at trial.

Could I jump ahead in relation to the complaints point.  It is of significance and an added complication to the discredit of the plaintiff’s reliability as a self-reporter that the clinical records that the trial judge is criticised for having misinterpreted which contain reports of, to leave the word “complaint” out for the moment, symptoms like pain and breathlessness were for a period well before the period selected – I use that word neutrally – by the plaintiff in what I will call his claim.  His claim was, “My brother died in 1988 and it was after that that I developed these debilitating symptoms, actual symptoms”.  He did not claim delusion.

Of course, that was a claim which, for fairly commonsense – perfectly sophisticated, one would have thought – reasons of causal reasoning, wanted the temporal sequence to be precipitating event, outcome, hence causation for the purpose of attributing liability to the defendant.  That involved saying that before that time there was not pain and breathlessness.  That made important as to his reliability, to use a charitable word, as to whether there was in fact evidence as to whether he had complained or reported such symptoms in that period that he was now insisting on his oath was free of such symptoms.  To cut the matter short, the evidence clearly showed that he had so reported. 

In the Full Court issue was taken – we have described it as a semantic issue – about whether those reports could have been seen, as they were seen, by the trial judge as complaints.  I will come back to that.  So the actuality of pain and breathlessness was something that the plaintiff had put into his credibility-based claim that he had given reliable histories to psychiatrists about a disease which had been brought about because of the fear engendered and exacerbated by his brother’s death.

The next one I need to take your Honours to is on page 429.  In paragraph 67 again there is a reference to the appellant’s challenge – that is the plaintiff’s challenge – to the trial judge:

finding that “the claim that (the appellant) now suffers from breathlessness and chest pain should not be accepted”.

That is a credibility-based finding as to whether he really did suffer from those symptoms.  In paragraph 68 he refers to the timing matter that I have just noted and on page 430 for your Honours’ reference are found most of the relevant clinical notes. 

Your Honours see that the matter goes back to as early as 1968.  There is 1968, 1971, 1977, 1979, 1983, also 1987.  Those are matters which are recorded by people who presumably asked questions.  The Full Court, in our submission, had no basis for criticising the trial judge’s use of those contemporaneous records as recording earlier admissions – I will call them that – by the plaintiff – claims, if one likes – of pain and breathlessness during a period where, so he assured the court now on oath in his testimony – he did not have them.  That, in our submission, was a classic field for fair, perfectly proper testing both by cross‑examination and argument of the claims to reliability which were ultimately determined by the lay, that is the non‑expert, decision of the trial judge on the balance of probabilities, did he have the symptoms?

The irony is of course that in one sense the plaintiff complains in the Full Court that he had been held not to have actually suffered pain and breathlessness because there were records of him having claimed it during a period when he insisted to the court he did not have it.  So it is all a little tangled but perhaps there is a straightforward explanation for the tangle. 

The next reference is page 431, paragraph 69, where Justice Templeman gives three reasons for criticising, overturning that element of Judge O’Sullivan’s reasoning.  First, that the judge was not:

justified in finding that the appellant “complained” about breathlessness and chest pain before 1989.  The records of the Perth Chest Clinic do not record complaints:  only symptoms, presumably described in response to enquiry.

It is important first of all to understand that the word “complaint” in the medical context does not necessarily mean anything querulous or self‑pitying or assigning blame to anyone.  Indeed, your Honours will all have seen in medical records “CO”, which does not mean commanding officer; it means complains of.  It is the abbreviation for, “What do I elicit from the patient upon inquiry about things which are of interest to me, a clinician?”  That is all the trial judge was referring to, but it does not matter whether the trial judge should be taken as suggesting there was something with a grievance or querulous in these so-called complaints because what mattered was had he said, to use a neutral expression, to others that he was suffering from something that he now assures the court he was not suffering from at the relevant times when he said it, because if so that is grist to the mill of my, the trial judge’s, overall credibility‑based finding, “Can I, the trial judge, Ramsey v Watson style be satisfied on the balance of probabilities that the history self‑reported by this man to the experts I’ve seen and heard is sufficiently close to the mark for me then to proceed to accept the opinions which in effect treated those assumptions as true?” 

That, in our submission, was an endeavour properly carried out by the trial judge.  The attack that one sees mounted on that in paragraph 69 in Justice Templeman’s reasons is not an appropriate way in which to overturn that.  The first point, as I say, is a semantic matter about complaint. 

In paragraph 70 the second of the three reasons was that there was no suggestion that he had difficulties with work until after 1988.  The very point the trial judge was making was during a period when this man says now he was not suffering from breathlessness or chest pain, we find him telling doctors that he was.  This casts a pall appropriately over his reliability.

HEYDON J:   As to that point, he worked from 1989 to 1995, which was the period of, as it were, the core of the case.

MR WALKER:   Yes.

HEYDON J:   It rather contradicts that point.

MR WALKER:   Yes.  Paragraph 71, the third point notes in effect that the same clinical records that have these complaints or reports of breathlessness and chest pain also have notations of “keeping well or keeping fit” and the expression, “Has not suffered”.  With respect, that is scarcely a point that overturns the trial judge’s concern in relation to a matter the plaintiff had brought to the Full Court, namely can he be taken as a reliable reporter of suffering chest pain and breathlessness?

The next passage in relation to breathlessness that we would wish to take your Honours to is on page 433.  I am sorry, the whole of the passage from paragraph 69 is relevant.  Perhaps I should stop at paragraph 74 while I am here.  There is a curious statement, with respect, by Justice Templeman, noted in our written submission, at about line 53, “The lung function tests, are not significant”.  They were significant in the sense that they supported the proposition that he had not suffered lesions or physical changes, physiological matters, which, according to the current understanding of the relevant medical science – and there is more than expert to this effect – could be considered likely to produce the reported symptoms of breathlessness and chest pain.  It is of course very significant because it meant that the whole issue came down to what is sometimes called subjective self-report.  That raised a question at the heart of the whole case, as I opened the appeal today, of credibility. 

So, in our submission, although too much weight should not be put on it, that is an unfortunate expression by Justice Templeman.  On any view of it, the lung function tests were very significant.  They changed the matter from something which could be corroborated by something other than self‑report to something that really depended on self‑report.  To be fair to Justice Templeman, there are other references to which we will come later which would show that his Honour did appreciate that that was the significance in particular of Professor Musk’s opinion.

Going back to the question of the findings and whatever conclusions are to be found, one then comes to page 433, paragraphs 78 and 79, the sequence of which appears to be – and this explains our reference to an implied finding by the Full Court – against the trial judge’s conclusions.  In paragraph 78 there is the correct note that:

there was no truly objective evidence that the appellant did suffer from breathlessness and chest pain as he claimed.

It is very important to note that the issue there appreciated by Justice Templeman has nothing to do with delusion or perception, but wrong perception; it has to do with fact, actual experience of those things.

Then there is the note that obviously certain activities were presented equivocal evidence.  Paragraph 79, and I have taken your Honours to this before:

It is, I think, to be implied from the trial Judge’s reasons that he would have accepted . . . was credible and genuine) but for . . . inconsistency between the appellant’s activities . . . and as described –

That appears to be a statement that, notwithstanding the equivocal nature of the evidence, the trial judge erred on the question of breathlessness and chest pain.  That is the importance of paragraph 78.  It does not, on our reading, become much clearer than that.  At page 441 it is complicated by paragraph 125 quite considerably.  This comes at the end of a passage to which I will return for other purposes.  This is one of the passages, these two pages, where the Full Court uses in favour of the plaintiff’s appeal against the credibility‑based findings in my paraphrase that of course the plaintiff’s evidence could not be taken at face value.  It must be wrong, it must be read down.  When read down it supports the plaintiff.  I will come back to that later.

At paragraph 125 towards the conclusion of that, Justice Templeman notes specially:

It must, I think, be kept in mind that the appellant’s activities were not limited by his physical condition –

we interpolate breathlessness and chest pain are physical conditions and your Honours do not need expert evidence to know that they limit activities –

but by his perception of his condition.

That may be the reason to explain our learned friend’s reference to which Justice Heydon drew attention but, in our submission, that can do nothing to shift what the real issue was mounted by the appeal.  The passages that I have taken your Honours to show very plainly what they were.  They were about actual physical condition.

Also, paragraph 25 is in the part of the reasons which is not specifically dealing with the claim that there was actual breathlessness and chest pain.  It has to do with the inconsistency of video and self‑reported activities.  It then concluded, as your Honours have seen, where I started, namely 448, paragraph 160.  The matter is left inconclusive because, as I noted, there one does not find a statement that he did suffer chest pain and breathlessness with onset after the brother’s death.  All it says is there was a misinterpretation of the records that that goes back to this idea of there had not been complaints.

In our submission, we have now dealt with two of the three overturning stages in the Full Court’s reasons.  The first was the one one saw in paragraph 161.  The second, seen in paragraph 160, can be seen to be tied up with a matter where one would have thought, with respect, that it was a relatively straightforward appeal by way of rehearing.  What does the evidence reveal the trial judge should have held about actual symptoms of breathlessness and chest pain?  Did the plaintiff suffer them at the relevant period or not? 

In our submission, the fact that the Full Court does not come up with an answer which is reasoned by the very methods that they correctly directed themselves as to – Pledge, for example, contains it – bearing in mind the correct emphasis repeated by Justice Templeman in his reasons that this was credibility‑based, bearing in mind that the very issue was going to be subjective self‑report and its reliability on the balance of probabilities and that whether eight months intervened from reservation judgment or not, the trial judge saw and heard the treating doctors, the reporting doctors and the patient.

In our submission, there is no reason sufficient to justify what Justice Templeman concluded, assuming that paragraph 160 ought to be held to be a conclusion impliedly that there was breathlessness and chest pain during the period which started after the brother’s death.  One does not find the evidence which could possibly justify that as a substituted finding under Warren v Coombes.  So that is two of the three.

Can I then come to the last of the three which is the biggest, paragraph 159, and that is the matter of the video recordings.

KIRBY J:   This was apparently a very short part of a very long period of observation; is that correct?

CALLINAN J:   Eighty-odd minutes out of 150 hours.

MR WALKER:   That is right.  Hence my reference earlier to ‑ ‑ ‑

KIRBY J:   This was the cream of the cream of the observation and did not impress the professor very much.

MR WALKER:   Your Honour, all film evidence ought to be subject to scepticism of the kind that your Honour has just, with respect, exemplified, but that does not mean it is worthless.

CALLINAN J:   Mr Walker, was Justice Templeman not right when he said that the trial judge did not give any reasons for his conclusion that the activities on the video recordings were inconsistent with his complaints?  I am referring to paragraph 82 on 434.

MR WALKER:   Yes.  If your Honour would just ‑ ‑ ‑

CALLINAN J:   It would have been helpful if the trial judge had said “Well, on the video he was doing such‑and‑such.  He complained in evidence that he couldn’t do that or he said he couldn’t do that.”  Those would have constituted reasons and one would normally expect to find them.

MR WALKER:   Could I ‑ ‑ ‑

HEYDON J:   Paragraph 56, page 375?

MR WALKER:   Yes.  Your Honour, you have beaten me to it.  The first of the references we give in paragraph 22 of our written submissions is appeal book page 375, paragraph 56.  There are others but if I could start with that.  The answer to Justice Callinan’s question is no, Justice Templeman was not right in describing the passage which I have just cited, plus the others to which I will come, as amounting – in relation to video evidence, one does not write, as it were, a full filming script in judicial reasons.  It is not correct to say there were no reasons.

CALLINAN J:   In view of paragraph 56, it seems to be quite wrong.

MR WALKER:   Yes, your Honour, quite wrong, but paragraph 56 answers the descriptions of reasons.

CALLINAN J:   They are quite full reasons, giving examples.

MR WALKER:   Yes.  For example, line 7:

there are scenes in which he demonstrates a significant ability to engage in physical activities including lifting and digging.

Now, I have already made a comment about – well, of course, there is always room for scepticism in relation to films, but it is to be remembered that this is a case where the plaintiff – no compulsion on him.  He had advanced his claim by making very generalised claims and there is a limit, with respect, when a plaintiff advances that and fights it at trial as being reliable – and that is how he fought it.  He did not put himself forward as an exaggerator.  There are limits to what can and should be done in a Full Court by way of speculation concerning, in particular, stereotypical cultural or idiosyncratic personal propensities to gild the lily.  There is still a lily but it does not look so shiny. 

Now, it was the plaintiff who provided the forensic test of reliability upon which, because he lost the credibility‑based findings and the expert‑based findings of physical incapacity at trial, most not challenged on appeal, it is the plaintiff who posed the test then, as it were, to be re‑looked at in the Full Court.

KIRBY J:   But this was an area where the Full Court was in as good a position, was it not, as the trial judge?  It had the tape and viewed the tape. 

MR WALKER:   Quite so.

KIRBY J:   It also had the opinion of the medical witnesses who also viewed the tape and were not very impressed with it.

MR WALKER:   Some were, some were not.  Your Honour, with respect, that is an incomplete statement of the evidence.

KIRBY J:   Well, I am referring to what the professor said.

MR WALKER:   Your Honour spoke about the witnesses.  One professor was scathing about it.  The more recently graduated and trained psychiatrist, on the other hand, was very impressed by what it told him when added as an assumption for his new diagnosis.

KIRBY J:   He was the one who only saw him once or twice, was he not? 

MR WALKER:   Five times, is your Honour referring to?

KIRBY J:   How long did the professor see him?  Over a very long period of time?

MR WALKER:   Your Honour, I was talking about Dr Skerritt when I talked about a scathing exercise.  Professor German saw him for forensic purposes and for therapeutic purposes.  Your Honour, those are matters that need to be explored in a thoroughly hard fought trial, along the lines of, “Dr Febbo, you didn’t see him often enough”, et cetera, et cetera.  That cannot be done in the Full Court, particularly it cannot be done by implication or between the lines, and it certainly cannot be done in this Court.

KIRBY J:   Yes, but insofar as this is one of the underpinnings of credibility then the Full Court can put itself in the same position as the trial judge.

MR WALKER:   No, it cannot put itself in the same position in evaluating the cogency – I stress the cogency – of the experts’ opinions upon the facts which will be found by the court, not by the experts.  That is why I drew attention to the erroneous apparent deference required by the Full Court, on the part of the trial judge, to Professor German’s view of the genuineness and credibility of the plaintiff.  That was wrong and, in our submission, it would be error for that to be continued in this Court. 

So, your Honours, first of all, there is page 375, paragraph 56.  It is probably inappropriate for me to spend the time of this Court on this circuit taking you to the references which then follow in our written submissions paragraph 22, lines 22 and following.  They are all set out there.  They are in the category of the trial judge’s discussion of the effect of the video on the experts, during the course of which, of course, he refers to aspects of what is to be found on the video.  So we call in aid and in defence of the trial judge say that, together with the useful conspectus given in paragraph 56 – useful because it explains how he used the material which could not possibly be slavishly described in reasons – in the context that does not amount to the error detected on appeal of a failure to give reasons. 

Now, we do not cavil of course with the proposition that as to viewing the video, like reading a report, the trial judge has no advantage that presents any inhibition to the Full Court in relation to that material.  But they are only parts of the mosaic of evidentiary and argumentative material, as to the whole of which of course the trial judge has a well‑established advantage.

Now, the conclusion, as your Honours know, of Justice Templeman is informed by what I have called a reading down of the plaintiff’s own evidence.  Could I take you, by way of example, to page 440, paragraph 117, line 30 and following.  Dr Lee one of the respiratory specialists, is obviously there recording something told to him by the plaintiff.  That was elaborated from recollection in testimony – see about line 40 – and it was, as Justice Templeman fairly notes, “not challenged in cross‑examination”.  In other words, it was not suggested that Dr Lee was a misreporter of a patient’s report or a misrecorder.  Then it is said it is:

of doubtful value.  To say that a man is incapable of any form of physical activity is to classify him as a vegetable, which clearly the appellant was not. 

With respect, that is a travesty of what the doctor had been told and also the way the doctor had reported it.  Not being able to undertake any form of physical activity is a report of what he was told, and the tone of scorn, as it were, that one finds in Justice Templeman’s reasons is directed not at the plaintiff, but at Dr Lee. 

In our submission, that is entirely the wrong way round because, as the judge then makes clear, because of the lack of challenge, not being able to say Dr Lee had misrecorded what was told to him, against the defendant he says, of course, the plaintiff has to be read down.  But left with what, is the question.  Left with enough to provide the basis of the psychiatric diagnosis or not.  There is no method attempted in the expert evidence or in the judicial reasoning by which when one recalibrates to find the truth from plaintiff’s evidence now depicted as exaggerated, though never argued as exaggerated by the plaintiff at trial, put forward as reliable.  How, one asks rhetorically, because there is no answer in the record, do you work out what you are left with as the residual and upon which you might then make the Ramsay v Watson decision, “Have I got enough close enough to justify accepting those opinions based upon it?”

The same thing is found at page 441, paragraphs 120 through to 123.  In our submission, the approach is misdirected.  The matters that have been noticed by Justice Templeman are to the discredit of the plaintiff’s reliability, not to the discredit of the doubts felt by the trial judge.

KIRBY J:   What is the significance that the appellant was subject to 150 hours of surveillance and the sum total of the video which impressed different people in different ways was only 82 minutes?  This is in paragraph 77 of Justice Templeman’s reasons.  One of the problems with this always is that you can get a very atypical picture of people’s behaviour.

MR WALKER:   Well, that is for the evidentiary contest, your Honour:  was it typical or not?  Not only was it typical or not, when a plaintiff has said, “Look, I can’t do X”, why is it not grist to the mill in assessing reliability to show that you have done it at least once and then that could be thrown into the pot.  Everything else gets considered.  “You have told the court you have never done it, but here we are showing that you have done it”.  What is the answer to that, your Honour, “Just once”?

KIRBY J:   But your doctor says that he can have good days and bad days.  I mean, this is such a time‑worn area of operations.

MR WALKER:   It is, but it does not mean it is unreliable in terms of unfitting it to be admitted as evidence and once ‑ ‑ ‑

KIRBY J:   It depends a bit on the video tape.  Is it in Court?  I assume it is.  It was part of the record.

MR WALKER:   Your Honour, I presume the record has been transmitted but I cannot answer that.  In our submission, neither in this Full Court nor according to authority does one consign any special lack of weight to any particular class of evidence in the absence of rules about corroboration and the like.  We do not have juries here and Judge O’Sullivan cannot, with respect, be criticised for having wrongly embarked on the exercise of inquiry, “Well, when a plaintiff says something about disability in the absence of any objective corroboration and for the purposes of supporting a

psychiatric diagnosis which reasons back from the reported disability, then it is of course appropriate to look at the pointers in that which is outside the plaintiff’s own evidence as to whether that is reliable.  Now, we had, “I’d never had shortness of breath and chest pain before my brother died”, and we have the clinical notes there.

CALLINAN J:   Mr Walker, is there any practice rule that required you to disclose the whole of the videotapes to the other side?

MR WALKER:   Yes, and it was.

CALLINAN J:   It was, so that if there were, for example, 149 hours showing disability then they could have gone through it?

MR WALKER:   They could see the lot.

CALLINAN J:   Well, they could have called for it and proved it.

MR WALKER:   Yes.  We say they could see and then show the lot.  So, if there was tape that had showed him doubled up with pain after attempting something very simple, then ‑ ‑ ‑

CALLINAN J:   Later on you might give us the reference to that practice rule, please.

MR WALKER:   I think it comes from discovery, but I will give your Honour chapter and verse…..May it please your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Quinn.  We will be adjourning in five minutes time and resuming at 2.20.

MR QUINN:    If your Honours please.  Can I make some brief observations first about the forensic landscape within which the trial was fought because that is obviously relevant to seeing how the trial judge looked at the evidence and how the Full Court viewed the evidence itself on the review.  To complete the picture in terms of the pleadings, could I ask your Honours to turn to the defence, page 14?  Your Honours will see that in paragraph 5 (e) the specific plea in relation to the claim for psychological injury is contained:

further plead and object in point of law that any claim for damages by the plaintiff for psychological reaction or psychiatric injury arising out of anxiety and/or depression secondary to concern about asbestos related diseases is too remote –

et cetera.  Key words “anxiety and/or depression secondary to concern about asbestos related diseases”.  Your Honours, this was understood from the start to be a case at trial not about psychiatric injury consequent upon asbestos‑related injuries but consequent upon concern about asbestos‑related injuries.  It is a true anxiety and depression perception of physical injuries case.

KIRBY J:   I thought Professor German said that in fact time would tell whether or not your client had physiological changes going on and that that could not be put out of possibility in the light of the way mesothelioma and other such conditions develop.  Is that correct, or not?

MR QUINN:   That is correct, your Honour, but the point about all the experts’ reports – and I will take your Honours to them as briefly as I can – is that all of the experts in one way or another acknowledge the possibility that these symptoms – pain, breathlessness and the other reported symptoms – were not measurable in medical terms and there was not going to be any objective evidence of them but they may simply be something that was reported by the plaintiff.  That is the key point. 

The way in which pain and breathlessness is dealt with both at the trial level and the Full Court leads to some confusion.  It is not something that I think anyone has an answer to here, but it seems to be that the pain and breathlessness issue was disposed of at trial in relation to the physical injury claim against the plaintiff.  When it got to the Full Court, the pain and breathlessness claim was relevant then only to the psychological injury aspect of the case.

GLEESON CJ:   Was your case that he had pain and breathlessness or that he did not have pain and breathlessness, which demonstrated how seriously psychiatrically injured he was?

MR QUINN:   The case is that he perceived pain and breathlessness.  That is what he felt in his own body.  That is the case.

GLEESON CJ:   And because there was no physiological basis for that, then it must have been a consequence of psychiatric injury?

MR QUINN:   That is correct.

GLEESON CJ:   Or, perhaps more accurately, a manifestation of a psychiatric injury?

MR QUINN:    That is a generalised description of the claim, yes, your Honour.

KIRBY J:   This was because of the injury to, and in some cases death of, a member of his family and friends from the same village in Italy and other workers and people with whom he was in constant social contact at a local club.  Does that sum it up?

MR QUINN:   Can I start with the point that there were no objective facts which supported a claim of physical injury, but the second point is that there were many objective facts which supported the claim of psychological injury.  They were not objective facts of physical injury but they were objective facts.  They are the objective facts, the events and the background to which your Honour has referred.  I mean, that harrowing background is something that is recorded in both the decisions.  I do not need to take your Honours to it.  You would have read it.

The next aspect of the forensic background is the experts’ reports.  If I can just take your Honours very briefly to some references in those so that you can see how this point has developed.

GLEESON CJ:   Perhaps you had better come back to that after lunch, Mr Quinn.

MR QUINN:   Yes, if your Honours please.

GLEESON CJ:   We will adjourn until 2.20.

AT 12.33 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ:   Yes, Mr Quinn.

MR QUINN:   If your Honours please.  Your Honours, could I hand up two documents which might expedite things a little bit just in terms of bringing together some of the references that I was going to take your Honours to.

GLEESON CJ:   Thank you.

MR QUINN:   The first of the documents, the one with the staple in it, is simply a summary of the conclusions of the various experts in relation to the ‑ ‑ ‑

KIRBY J:   Mr Quinn, I have not yet got entirely on top of the evidence in this case, which is quite detailed and complicated.  This document will be of help in analysing it, but it would be helpful to me to have your submissions on the theory of the case, that is to say what you say is the answer to the complaint that the Court of Appeal had no right to jump over the credibility findings of the primary judge.

MR QUINN:   Yes.

KIRBY J:   Now, is that what these documents help you to do or ‑ ‑ ‑

MR QUINN:   They do not, your Honour.  I am coming to that point in a moment, but this is a document that is going to confine the issues that we raise on this appeal.  The theory of the case is simply this.  The four bases upon which the trial judge relied in making his credibility findings – and I use “credibility findings” in a loose sense, not in the sense of demeanour – were matters in respect of which the trial judge had no advantage over the Full Court.  That is the simple point.  That seems to be, to a large extent, conceded.

Once we reach that point, the question is, “What should the Full Court have done?”  Pursuant to the relevant statutory provisions in this State and, in particular, Order 63 of the Western Australian Supreme Court Rules, the Full Court was required to undertake a rehearing in the Fox v Percy sense.  What did that involve?  Well, because it was in the same position as the trial judge, the Full Court looked at everything, had to look at everything, had to review the four matters upon which the trial judge relied, and it did so and it did so properly.

It is not a question, in my respectful submission, whether or not the ultimate result reached by the Full Court on each of those questions was necessarily correct.  It is a question for your Honours of whether the correct approach was taken.

HEYDON J:   No, it is (a) correct approach, (b) correct result.

MR QUINN:   Your Honour, I accept the correct result obviously has to be reached but the correct approach is the key issue here, whether or not it was entitled to engage in the reasoning process in which it engaged, whether that reasoning process was a correct discharge of statutory functions.  That is the point.  The short point is that we say that it did exactly what it was not only entitled to do but required to do under the statute.  The results that it reached were correct, the conclusions that it reached were correct and it followed inexorably that the trial judge’s findings in relation to the psychiatric injury question had to be set aside and substituted.

The document that I have just handed up goes to the last point.  If I can just resolve that question first before going to each of the four issues that underpin the trial judge’s findings.  Does that provide your Honour with some context?

KIRBY J:   Yes, for the time being.

MR QUINN:   The psychiatric evidence references simply set out the diagnostic findings of the various experts.  The only one of those experts who was called for the defendant was Dr Febbo on page 2.  Just to explain it.  Next to Professor German your Honours will see that there are a number of reports listed.  That is all of the professor’s four reports.  The diagnosis that is restated in each of those reports is set out.  The appeal book reference is to the line approximately at which those diagnoses are stated.  The column “Examination in Chief” simply gives the appeal book reference to where the relevant report was discussed and tendered at trial and the summary there is what the result of that process was, whether or not the contents of the report were confirmed or whether there were some changes made to it.

Your Honours will see, for example, that in relation to Professor German’s first report, 1 April 1998, the diagnosis was significant depression.  Examination‑in‑chief, he confirmed that report.  There were no real concessions made on the significant depression diagnosis in the cross‑examination and the fact that there was no re‑examination.  Now, I only want to really go to Dr Febbo’s evidence in this regard because Dr Febbo was obviously the defendant’s expert.  Your Honours will see, if you turn to page ‑ ‑ ‑

KIRBY J:   He started out accepting that your client suffered from major depression.

MR QUINN:   That is right, your Honour.

KIRBY J:   It was when he saw the video film that he changed his mind.

MR QUINN:   That is right.  I should say that the last two experts listed in this table, Mr Burns and Dr Penman, did not see the video.  They were not asked to comment upon that.  They were simply experts who gave reports and they tendered those at trial and there was a minimal amount of cross‑examination.  The key experts are Dr Skerritt, Professor German and Dr Febbo.

Now, in relation to Dr Febbo, as your Honour Justice Kirby has correctly pointed out, we started off with a diagnosis of major depression and then ultimately there is a report of 31 August 2000 and he said that he no longer held the opinion expressed in the earlier report regarding the diagnosis of major depression after viewing the video surveillance tapes.  That was then confirmed during examination‑in‑chief.  There were no concessions made upon this. 

There was a subsequent two reports, if I could take your Honours to those.  The one of 16 April your Honours will see at appeal book 342.  If your Honours look at line 31 to 38 – this is after he has viewed the video surveillance tapes and he has been asked to provide a further report.  Now, he gives his summary and opinion and he talks about, at line 31:

From a psychiatric perspective it appears that, if anything, there has been deterioration in his mental state since late 1996.

He talks about the detailed psychiatric history.  Then line 40:

It is fair to say, from the history with which I was provided, that the severity of the depressive and anxiety symptoms would be of a nature as to be associated with a significant partial incapacity in relation to social and occupational functioning.

Now, the point of course is that these comments and these diagnoses are made subject to his earlier report which says that he cannot hold the opinion that there was a significant disorder because of what he had seen on the video surveillance tapes.  That is made clear in question 7 at the bottom of page 343 and over onto page 344.  He concludes in the second‑last paragraph:

The diagnostic statements I have made above are based on the premise that Mr Della Maddalena’s history is reliable.

Now, the point of all of this is that if not for the trial judge’s conclusion that the history provided to the various experts was inaccurate and unreliable, if not for that conclusion, all of the experts called to give evidence in the case were uniformly of the view that there was a psychiatric disorder, generally speaking in the nature of depression and anxiety.  That evidence was there. 

The consequence of that is that once the Full Court had embarked upon its analysis and determined that the trial judge had got it wrong in relation to his findings on the credit, to use that word, of the plaintiff and set aside those credit findings, then it followed inexorably that on an evidential basis there must be anxiety and depression.  That was the only evidential foundation in the case.

KIRBY J:   I would be willing to accept that, but you have to get over a not inconsiderable wall.  The wall is provided by the fact that the primary judge who had the advantage over the Court of Appeal of seeing the plaintiff and seeing the videos and hearing all the witnesses is apparently affected by the videos in a way that the doctors were not.

MR QUINN:   Your Honour, I accept that and that is what I am coming back to now.  I simply wanted to get rid of those issues so that I could focus on the four points relied upon by his Honour.  I will turn to those now.

CALLINAN J:   Mr Quinn, it seems to me that the two problems for you are these.  First, it seems that Justice Templeman was plainly wrong when he said that the trial judge had not given reasons for his reliance upon the video and the differences between what it showed and the plaintiff’s evidence.  That was plainly an error, as I think emerged clearly this morning.  That is one problem. 

The other one is, as I see it, his Honour’s preference for doctors whom he knew.  There is a natural justice point there, a very serious natural justice point.  Counsel on the other side had no opportunity to deal with that.  It was never an issue and never ever had occasion to cross‑examine on it.  It was something invented by the Full Court.  How do you get around those two matters?

MR QUINN:   Your Honour, with respect, we would take issue with the comment about invention.

CALLINAN J:   Well, invented as an issue, Mr Quinn, because there was no intimation, was there, that there was going to be a reliance upon the superior experience and the personal knowledge that the court had of the psychiatrist whom the court preferred?

MR QUINN:   There was certainly no intimation about the reliance upon the personal knowledge.  As to how the question arose in terms of general questions ‑ ‑ ‑

CALLINAN J:   You know, it is not a club.  It is not a club constituted by a few doctors and some members of the court.

MR QUINN:   Your Honour, I make this concession at the outset.  This issue is going to be dealt with discretely because it is an important issue and it is probably the important issue in the case.  The comments made by the Full Court, the use of the words “known to the court” were unfortunate.

CALLINAN J:   They are worse than that.  They would convey a very bad impression to the other side when they read them and learnt for the first time it was a relevant matter.

MR QUINN:   There is a certain context within which they must be read.  Would your Honour like me to deal with those now?  It is convenient to deal with that issue completely now.

CALLINAN J:   Whatever suits you, Mr Quinn.

MR QUINN:   Perhaps I will.  Could I take your Honours to the impugned comments themselves?  They appear at appeal book 415.  The first comment is at paragraph 32.  Your Honours will have read this:

Professor German is well known to the Court as an eminent psychiatrist of over 40 years’ standing.  That is not to say he is infallible.

CALLINAN J:   But fairly near to it.  Why make the observation otherwise?

MR QUINN:   Your Honour, the reason this issue arose – and it requires us to take a step back.  The Full Court’s comments in relation to Professor German and also Dr Skerritt, because there are similar comments there, are responsive comments.  They are responsive to two matters that were raised by the trial judge in the trial judge’s reasons.  If your Honours go to appeal book 386, this is where discussion of the significance of the videotapes commences and the views of Professor German and Dr Skerritt and Dr Febbo in relation to those are set out and then that continues.  Then at appeal book 388, paragraph 95 the trial judge makes his own assessment of the videotape evidence.  At 96 he says:

Having closely watched the video tapes I am satisfied that they demonstrate that the plaintiff is capable of a much greater level of activity than that claimed by him.  Against this background I find the views of Dr Skerritt and Professor German puzzling.

That word “puzzling”, your Honour, was cryptic, with respect to his Honour.  It was not necessary for it to be made because his Honour had undertaken the task of looking at the videos himself and comparing that to what was in the experts’ reports and it was not necessary to go further and say, “Well, I find that the comments of the comparative exercise undertaken and the conclusions reached by Professor German were puzzling”.

That led to a certain problem for the Full Court because it needed to know or needed to ascertain what weight to be placed upon that comment.  That was one comment.  The other comment was made by his Honour at the conclusion of the judgment.  If your Honour goes to page 390 of the appeal book, paragraph 106, the last two sentences:

Against this background the conclusion to which I have come is that the opinion that Dr Febbo is to be preferred.

Two issues arose from that.  It was very unclear what the opinion of Dr Febbo was.  By the time the credit findings had been made, Dr Febbo’s position then really was that there was no diagnosis that he was prepared to make.  So it was unclear.  But, more importantly for present purposes, preferred to what?

KIRBY J:   Presumably to Professor German and Dr Skerritt.

MR QUINN:   That is precisely right, your Honour.  Presumably it is the only inference that can arise from that, preferred to their opinions.  Now, going back to the way in which the trial was conducted, there was no issue at trial in relation to the credibility of Dr Febbo, Dr Skerritt and Dr German and there was no exercise in cross‑examination undermining their various credentials, their experience, their expertise.  That was because they had all reached the same opinion in terms of diagnosis.

KIRBY J:   Until the video came along.

MR QUINN:   Until the video came out, but even then, your Honour, after the video – assuming that the plaintiff’s self‑reporting to his various doctors was believed, then they all would have had the same opinion in terms of diagnosis.  That meant that the forensic exercise, the strategy that was available to the cross‑examiners at trial was not to undermine any of the credentials or the eminence of the various experts, it was to undermine the factual foundation upon which their opinions were based.  That was the way in which the trial was conducted for the obvious reason that the diagnostic conclusions would all have to be supportive of the plaintiff on the analysis that is undertaken in that table if the plaintiff was believed in relation to his symptoms. 

So I am coming about this the long way around, your Honour, but it needs to be explained this way.  What it means is that until this point, until these two cryptic comments appear in his Honour’s judgment, there is no reason to think that any of the – there is reason to believe any of the experts over others or that any of them are not eminent, any of them are not experienced.  The issue simply had not arisen.  Then these two cryptic comments arise.  That raised the question and it raised the question as to where did they go?  What did it mean? 

They could have gone to two issues.  The comments either could have gone to the question of whether or not Professor German and Dr Skerritt’s opinions in relation to the reliability of the history should be taken into account or not and what weight should be put on them or it could have gone to the ultimate issue of whether or not their opinions in terms of diagnosis of psychiatric injury should be preferred or not.

KIRBY J:   If you look at Professor German’s report at page 345, putting it quite bluntly and having looked at the 85 minutes of the video surveillance, he was just not impressed.  He said it did not cause any change in his opinion.  So presumably the Court of Appeal in order to try to resolve this difference of a factor in the evidence that had proved critical to the primary judge and it was dismissed by the witnesses, Dr German and Dr Skerritt, thought, “Well, we will have a look at it ourselves”.  When they did they were of the same opinion as Dr German and then they said, “Well, Dr German and Dr Skerritt are very experienced people and Dr Febbo doesn’t have the same experience”, which objectively is correct, “and, therefore, we prefer and think it overwhelming that the other two doctors got it right”.  Your question is, is that permissible?

MR QUINN:   Your Honour is putting it in such a way that it was a consideration, that is the “known to the court” consideration, that that was positively used by their Honours to get to the conclusion that they ultimately got to, that is to support the finding that the plaintiff was ultimately reliable in his accounts.  The point that we seek to make is that it was not used in that way; it was used in the negative sense to address these two cryptic comments that were made by the trial judge.  They were sitting there in the ether, they needed to be addressed, and that is why the issue arose.  That is the first point in relation to those comments, that they were responsive to something that was raised by the trial judge’s reasons and needed to be addressed. 

The second point is, what do they actually mean on a fair reading in any event?  The only point I wish to make here, if I could take your Honours back to the comment in relation to Dr German, at least, at page 415, paragraph 32.  The offending words are “is well known to the Court”.  The rest of that paragraph, “as an eminent psychiatrist of over 40 years’ standing”, that is supported on the evidence.  There was evidence for that and your Honours will find that evidence in the fact that he was trained as a psychiatrist from 1960 to 1965 and then was appointed to a Chair of Psychiatry.  That appears at appeal book 184 at about point 24 to 29.  The other references are appeal book 189, 30 to 51, and appeal book 194, 40 to 45.

His reports also identified him as a consultant’s physician in psychological medicine.  His qualifications were described, of course, in very, very brief form, in his post‑nominals on the letterhead to his reports.  I should say there were no curricula vitae tendered in relation to these experts.

KIRBY J:   It is probable that Professor German was well known to the court because of the fact that he was a contemporary of the judges and in a city like Perth that would be inevitable, and probably in any city.

MR QUINN:   Yes.

KIRBY J:   The question is whether he should have said that, because then there is a question of whether the other side think that, as Justice Callinan has said, that this is a club where because they know him they favour his views, as distinct from deciding the matter on the evidence.  That is the issue.

MR QUINN:   I understand that, your Honour.  The point is that I am simply seeking at the moment to confine to some extent or give a fair reading to that comment.  The offending words are “is well known to the Court”.  It certainly does not mean that the reason we know he is an eminent psychiatrist of over 40 years standing is that he is well known to the court.  The “well known to the Court” is an additional matter and, as I have said, it is unfortunate that it was said.  But perhaps the more important point is that what was the influence of these considerations on the Full Court’s reasoning?  The short point in relation to this is that it can be reasonably said that it had no influence on the ultimate resolution of the issues.

Firstly, the Full Court when it looked at the videotape evidence itself undertook the exercise of comparing that to what was in the reports and gave very, very full reasons for its conclusion that there were no inconsistencies between what the plaintiff had told the various medics and what was shown by way of his activities in the video evidence.  More importantly, the Full Court undertook the exercise that the trial judge, with respect, surprisingly did not undertake and that was the analysis of what was said by the plaintiff in the witness box about his complaints and symptoms and compared those to the videotape evidence.

That was the task that the trial judge was in the position to undertake, the best position to undertake.  He had real advantages in undertaking that task and he did not undertake it.  The Full Court did that and those two comparative exercises which were reasoned out very fully in the Full Court’s reasons, they were the foundation for the conclusion that the credit findings had to be set aside.

KIRBY J:   I notice that Justice Callinan said that paragraph 56 of Judge O’Sullivan’s reasons were very thorough reasons.  Do you challenge that conclusion by contrast to what the Full Court did with the videotape and statements of the plaintiff?

MR QUINN:   That is precisely what we do.  I do not press any submission that there were no reasons.  I would adopt what Mr Walker said, that what is said at paragraph 56 of District Court Judge O’Sullivan’s judgment is something that can be described as reasons, but that is as far as it goes.  They are reasons, they are cursory reasons and they are bound up with a statement of conclusion.

HEYDON J:   But they succeed statements from four doctors or statements which four doctors said that the plaintiff gave to them:  Dr Febbo, Professor Musk, Dr Tarala and Dr Lee.  Is there any material difference between the history recorded on page 374 and the plaintiff’s evidence‑in‑chief?  It is a bit of a dilemma.  If there is no difference, your present point collapses.  If there is a difference, it rather highlights the credibility problem.

MR QUINN:   Can I take issue with the first point, with respect, your Honour.  The present point does not collapse because the task simply was not undertaken by the trial judge and was undertaken by the Full Court.

HEYDON J:   No, I have to join issue with you on that, at least at a provisional level.  A number of phenomena are recorded on page 374 as reported to the doctors.  The judge in paragraph 56 on 375 sets out various facts.  He might not link it to a line but he links it substantively to a particular point that is to be recorded in the doctors’ histories.  Do you dispute that?

MR QUINN:   I am sorry, I missed the last line, your Honour?

HEYDON J:   Do you dispute that the analysis in paragraph 56 can be linked up to the major points recorded in the histories of the doctors?

MR QUINN:   On a fair reading it probably can.  That is the previous report.  Setting out the reports is the context for what follows but what is absent is the type of exercise in which the Full Court engaged.  If your Honours put to me, “What should the trial judge have done?” I would have to say that I could not think of anything better to do than what the Full Court in fact did.

HEYDON J:   But is there any difference between the plaintiff’s evidence‑in‑chief in this respect and the matters recorded on page 374, paragraphs 50 to 55?

MR QUINN:   There are differences in expression but in terms of the general characterisation of the complaints – breathlessness, pain, et cetera – they are in general terms the same.  Of course there are differences in the precise words used.

HEYDON J:   But no substantive difference?

MR QUINN:   No substantive differences.  It would be possible to list a number of general complaints and say that the same complaints appeared in the experts’ reports as were given in evidence, but that would not have the benefit of the precision with which symptoms are described by the plaintiff in the witness box.  So there would be differences in terms of the way in which they were expressed.

Coming back to this point of the adequacy of the reasons, the point that I seek to make is simply that this was a review that had to be undertaken by the Full Court and it set out in chapter and verse the reasons for its conclusions that the factual underpinnings for the experts’ reports were found – found to be facts. 

One task in which the Full Court engaged and in which the trial judge did not was not just asking the question, “What were the generalised complaints made by the plaintiff and were those generalised complaints somehow inconsistent with activities depicted on the videotape evidence at some period of time throughout the many years of surveillance?”  It did what was, with respect, fair and logical and it looked at the periods of videotape surveillance closest to the times at which the plaintiff had actually given his account of symptoms to the various experts.  That was a process which was liable, as a matter of common sense, to produce a much more fair and accurate assessment than the process in which the trial judge engaged.

Can I perhaps return just to finish off this question about the experts known to the court point.  I had been seeking to make good the point that at the end of the day the experts known to the court comments had no real impact upon the ultimate conclusions.  So, in terms of where it actually goes as some sort of a factor infecting the Full Court’s reasons, our submission is it goes nowhere.  It is unfortunate and, yes, reading the lines in isolation it conveys a wrong impression, a bad impression, but in terms of the outcome of the reasoning process of the Full Court it does not have any effect.  That is because the question of the eminence of the psychiatrists – comparative eminence, the relative eminence of the psychiatrists – was not relevant to the two critical processes.  Firstly, the process of looking at the plaintiff in the witness box and comparing that to the videotape evidence ‑ ‑ ‑

HEYDON J:   That is a task for the judge.

MR QUINN:   That is a task for the judge.  He did not conduct it.  The Full Court did.  That is the real point.  Your Honour can scour the reasons of the learned trial judge in relation to video surveillance and the process engaged in is the purely clinical process of looking at the accounts contained in the experts’ reports on the one hand and the video surveillance on the other.  There is no commentary about what the plaintiff said during the course of the 30 pages of transcript cross‑examination on the video surveillance tapes.  With respect, that is a remarkable thing. 

This was an attack on the plaintiff’s credit by cross‑examination and the trial judge does not discuss what was said on the videotape aspect during his cross‑examination.  None of the explanations for inconsistencies that might have been proffered by the plaintiff are canvassed.  That task is undertaken by the Full Court.  If I can take your Honours to that.  If your Honours go to appeal book 442, starting at line 127, that is where the process begins.  It goes on onto the next page and concludes at the top of page 444 and the conclusion is at paragraph 139:

My conclusion in relation to grounds 2 and 9 is that the appellant’s evidence was internally consistent and was not inconsistent with the video recordings.

Your Honours might say the Full Court was undertaking a task here where it had not seen the plaintiff give evidence in the witness box and was doing it off the transcript, but of course it was and it did not have the benefit of any credibility findings by the trial judge in relation to what was said in the witness box to assist it in that task.  It had to undertake it on the papers and it had to undertake it full stop.

KIRBY J:   If the appellant succeeded on the complaint of what Justice Callinan has called a natural justice point, that leads, does it not, to a rehearing in the Court of Appeal?  It is only if the appellant succeeds in the challenge to the role that the Court of Appeal assumed, as it were, getting over the wall of credibility findings, that this Court has to confront the issue of restoring the decision of Judge O’Sullivan.

MR QUINN:   Your Honour, in relation to the first point, yes, that if there was a finding that the court had erred and that it had some real effect on the outcome of the decision of the Full Court in relation to the known to the court experts comment, that would then go back to the Court of Appeal and presumably to a court differently constituted.  In relation to any success that the appellant might have on the other issues, with respect, the answer to that is no.  It would still, in our respectful submission, go back to the Full Court.  That follows from the fact that your Honours are looking at whether or not the function undertaken by the Full Court was undertaken properly as a matter of process.

This is an appeal in the strict sense.  Your Honours do not have the videotape evidence before you.  Your Honours do not have – that is probably the main disadvantage, but no one is asking your Honours to look at all of the evidence and decide this for yourselves.  The question is, did the Full Court err?  If it erred in approach or, as your Honour Justice Heydon has pointed out, erred in conclusion, then the matter should go back to now the Court of Appeal for the task to be done properly.

We would say that on any view of the case which involves some success for the appellant the matter goes back to the Court of Appeal.  It is not a case in which the trial judge’s findings are restored.  That perhaps jumps to the end of the case a little but that is our position on that point in terms of relief.

HEYDON J:   There is just one other aspect of this fairness to the other side.  May I just put this to you, at page 415, paragraph 32 Justice Templeman said that:

a diagnosis and prognosis given by Professor German undoubtedly carries considerable weight.

May we take it that your submissions in relation to the two sentences that precede that would apply to that as well, namely that it is not really sinister and anyway it was not determinative?

MR QUINN:   There is nothing sinister about it and the reason that there is nothing sinister in that is that your Honour will see the last line:

That is particularly so in the present case, having regard to the extent of Professor German’s involvement with the appellant.

Professor German, your Honour will recall, was the plaintiff’s treating psychiatrist as well as an expert called who had seen the plaintiff on 20 or more occasions over a period of several years.  So that explains that comment.  The references to the evidence in that regard your Honour will find in our written submissions.  They are set out in some detail there. 

Now, if you contrast that with, I suppose, the mirror comment regarding Dr Skerritt on page 419, paragraph 36.  Your Honour will see that the comment about the diagnosis and prognosis undoubtedly carrying considerable weight is not there and, in our submission, that is explained by the fact that this was not the treating psychiatrist; this was a psychiatrist who was called as an expert witness and had one or two – I think it was two – interviews with plaintiff.

HEYDON J:   That submission undermines a sort of innocent explanation of paragraph 32 though.  You could explain paragraph 32 as just – say they are just kind throwaway lines.  They are not really determinative of anything.  But by pointing to their absence with Professor Skerritt and, for that matter, Professor Febbo it makes it look as though they are determinative in relation to Professor German.

MR QUINN:   Your Honour, all it does is explain why those extra words are there in relation to Professor German:  because he was the treating psychiatrist.  The last lines:

That is particularly so in the present case, having regard to the extent of Professor German’s involvement with the appellant.

That puts him in a different category from the other two.

HEYDON J:   But apparently all diagnoses and prognoses given by Professor German carry considerable weight whether or not he has had an extensive involvement with a patient.

MR QUINN:   Your Honour, “a diagnosis and prognosis” ‑ ‑ ‑

HAYNE J:   You have the further hurdle of paragraph 38:

In contrast to Professor German and Dr Skerritt, Dr Febbo was a much less experienced psychiatrist.

MR QUINN:   Yes.  Again, your Honour, there is a factual foundation for that comment, it is true.

HAYNE J:   I agree.

MR QUINN:   We go back to the point that I made earlier, that the need for these comments – there is no need for the comments, but the need for the discussion about the relative qualifications and experience is generated by something that came from the trial judge.

The last point in relation to this question is that of precisely which jurisprudential button is being pressed here.  Now, there does not seem to be an apprehension of bias point which is clearly articulated and clearly argued.  There is a suggestion of it.  There does not seem to be a suggestion that the appellant hangs its hat on the Vakauta v Kelly or any of the like authorities and it does not seem to challenge the point made that in Vakauta v Kelly that necessity and common sense may require some recognition of the fact that judges will have some knowledge of the experience, eminence and other attributes of expert witnesses who regularly appear before them.

HAYNE J:   Well, how do we read ground 2.2(a), page 456?

HEYDON J:   And (b)?

MR QUINN:   As a ground, your Honour, which is raised but it is really not elaborated upon.

HEYDON J:   There are submissions in support of it.

MR QUINN:   Your Honour, I might be mistaken but I do not think, with respect, that the whole Vakauta v Kelly argument is run through in any detail.

HAYNE J:   There may be some difficulty about what heading you put the complaint under, whether it is acting on material that is not properly in evidence, whether it is – notions of apprehension of bias may be an inapposite heading to put it under.  The complaint is they should not have referred to those considerations in forming the conclusions they did.  You say they are simply throwaway lines.  They are not steps informing the conclusion.  That is the area for debate, is it not?

MR QUINN:   That is right.  Your Honour, it is a point that I cannot take any further.  It is simply a matter of putting it in the context that it has been put.

CALLINAN J:   Mr Quinn, can I just ask you a question, please, about some evidence at page 324, a report of Dr Lee?  He says that the video showed your client “undertaking quite vigorous physical activity” and “He was able to bend and move freely” and he was smoking a cigarette.  Was there any cross‑examination about that?  Does the trial judge refer to that?

MR QUINN:   The smoking the cigarette and the bending and vigorously – your Honour, I would have to check it.  I do not want to give your Honour an answer ‑ ‑ ‑

CALLINAN J:   It is a fairly telling piece of evidence against your client, is it not?

KIRBY J:   Is smoking a cigarette telling?  People who are addicted to cigarettes will smoke it on their dying bed.

MR QUINN:   It is a matter of making a fair comparison between the activities which are there stated – bending over and smoking a cigarette were not things that were regularly complained of by the plaintiff as things he could not do.

CALLINAN J:   No, but he was undertaking quite vigorous physical activity.  Now, was that contradicted in any way, that evidence?

MR QUINN:   It is a matter of interpretation of whether or not it was vigorous activity.  It really is, your Honour, a matter of looking at the videotape and ascertaining whether or not you think it is vigorous activity.  The videotape is not before the Court.  I have not seen it ‑ ‑ ‑

CALLINAN J:   Was smoking the subject of any examination or cross‑examination?

MR QUINN:   It was.  There was cross‑examination on the question of smoking.

CALLINAN J:   Do not take me to it, but tell me what the effect of it was.

MR QUINN:   The general effect of it was that he had smoked and was – I think it went to the question of whether or not he was risk averse or not effectively, but, again, I would have to check the smoking references.  So, your Honour, I will do that.

CALLINAN J:   Right, thank you.

KIRBY J:   Do you have any objection to the members of this Court seeing the video?  I know Justice Gummow on the special leave said that he was not going to do it, or suggested that that was not a proper role, but if it was in evidence at the trial and was seen by the Court of Appeal, it would seem to be in the record of this Court.

MR QUINN:   It would seem to be.  I could say that we would not have a violent objection to it, your Honour.  We are not inviting your Honours to do it, but we do not have an objection to it.

KIRBY J:   After all, it is only 85 minutes as against 150 hours.  Life is too short to watch 150 hours of video but 85 minutes is perhaps worth doing.

MR QUINN:   We would want your Honours to watch all of the surveillance so that it was context, not just the succinct ‑ ‑ ‑

KIRBY J:   I will fast forward I think.

CALLINAN J:   But you did not rely upon any of the other 148 hours or so, did you?

MR QUINN:   No, we did not.

CALLINAN J:   There was nothing to stop you from doing that if you had wanted to.

MR QUINN:   There is nothing to stop us doing it, no.  It was not relied upon.

CALLINAN J:   What inference should we draw from that, that there was nothing on it that would have helped you?

MR QUINN:   The inference that your Honour ought draw is that the best evidence in favour of the defendants at trial was on the videotape.  That is the only inference that can be drawn.

KIRBY J:   But they hovered and watched for 150 hours and they came up with 83 minutes, but it was 83 minutes enough for the trial judge.

MR QUINN:   Would your Honours excuse me for just a moment?  I am just checking with my learned friend in relation to what I said about the development of the submission on apprehended bias.  I said Vakauta v Kelly was not referred to.  I am told that Stead was.  So there is perhaps some reference to relevant authorities there.

HEYDON J:   Yes, Stead, Gordon Jenkins & Associates v Coleman and AOTC v McAuslan, which are well-known authorities on relying on material without notifying the parties of the fact that the judge proposes to do so, or judges.

CALLINAN J:   Plus Multi-Sport v Woods.

MR QUINN:   Yes.

KIRBY J:   I do not know why Justice Callinan has mentioned that case.

CALLINAN J:   Because it is relevant.

KIRBY J:   Salt in the wound.

HEYDON J:   Can I just ask you this?  Dr Lee deals with cigarette smoking on page 234 of the appeal book – that is examination-in-chief – and the previous pages deal with other matters.  There is no cross‑examination in the appeal book.  Do you know if the cross‑examination casts any light on the evidence‑in‑chief, in particular on the letter on page 324?

MR QUINN:   I have missed the page reference, your Honour?

HEYDON J:   That letter on page 324 to which Justice Callinan drew attention about five minutes ago, do you know if there was any cross‑examination about that?

MR QUINN:   I will have to check the references in relation to smoking.  It has not been the focus of analysis, but we will check them.  I should make one point.  I just have had a recollection in response to your Honour Justice Callinan’s question.  There was cross‑examination of the plaintiff in relation to the question of smoking and it was put to him, because the fact is that cigarette smoking and asbestos exposure work together, on one theory, and dramatically increase your chances of getting some type of – particularly lung cancer.  It was put to him did he really want to halve his chances of living or increase his chances of getting some sort of a disease, but I will find the precise reference.

Your Honours, I have dealt with the video surveillance tapes to the extent that I wanted to deal with them, subject to any other questions on that issue.  If I could deal very quickly with the question of the lung function tests.  In a passage that my learned friend took your Honours to this morning, your Honours will recall that the Full Court said that those were irrelevant to the questions that were before the trial judge in relation to the credibility findings because all they were were evidence of objective absence of any physical symptoms of which the plaintiff complained.

Now, in support of that, if I can take your Honours to the last page of the trial judge’s reasons, page 390 of the appeal book, the final paragraph.  This is a point that really has not had a great deal of emphasis in the Full Court’s decisions or during the course of today.  The first line:

In my opinion the absence of any objective evidence to support the plaintiff’s complaints in this case is a real cause for concern.

Of course that is the starting point for his Honour and the other four matters that he then refers to bolster that, but the real point is that there is no objective evidence of the plaintiff’s complaints.  When you then go to the next line, it says:

In addition, in my view, the evidence of the video tapes, the results of the lung function tests, the notes from the Chest Clinic and the evidence of the inaccuracies in the history . . . add weight to that concern.

So they are adding weight to that concern.  The results of the lung function tests were simply that the plaintiff’s lung function was within a normal range.  In other words, that is not an additional matter to the absence of objective evidence to support the plaintiff’s complaints.  That is part of that lack of objective evidence.  It just goes to demonstrate that there is a lack of objective evidence.  In its own right it was not an additional factor which his Honour was entitled to rely upon in reaching the credit findings.

The Chest Clinic records, if I could take your Honours briefly to those.  They appear at page 275 of the appeal book.  There are a number of points about the Chest Clinic records.  Firstly, of course they say nothing about what questions were asked to elicit the responses that have been recorded.  The second point is that your Honours will see just from the face of them that they are very cursory annual or every second year records or notes of what the plaintiff has apparently said to whoever was interviewing him at the Perth Chest Clinic. 

If you look at the records that his Honour the trial judge is relying upon, such as the first major record there next to 17 April 1968, you will see the comment, “Volunteer[s] because he is dyspnoeic on exertion”.  Now, of course it must be doubted that – at this stage the plaintiff had been out from Italy in Australia for some seven years.  It is unlikely, in my submission, that he is using the word “dyspnoeic” himself.  He is likely to have said something else.  We do not know what it is.  He might have said, “I get out of breath sometimes”, he might have said many things, but there is very good reason to treat these sparse records with some level of cynicism in terms of the accuracy with which they record what the plaintiff said.  The further words “on exertion”, again, your Honours, it is entirely open to interpretation.  Exertion could be a little bit of work; it could be a lengthy run; it could be a marathon.  There are many things it could have been.

The last point in relation to the Chest Clinic records is that on a fair reading of all of them there are many, many comments that indicate that the plaintiff was making no complaints and was keeping well.  If your Honours see down at 16 April 1970 on appeal book 274 the words, “Keep fit, no special complaints”.  The next record on the top of the next page, “Keeps quite well, though dyspnoeic”; 7 April 1974, “Keeps well”; 30 April 1973, “Well, no complaints”; 30 April 1975, “Keeps fit, no complaints”. 

At line 40 – I do not have the date in my appeal book – your Honours will see the words “Well.  Keeps fit”.  At about line 50, it looks like “Looks v well.  No” something “symptoms and occ[asional] chest pain”.  Those continue.  If you keep reading over the next two pages, you will continue to see that there are records of the plaintiff saying that he is keeping well and that there were no complaints.  The last record in evidence on page 277 of 31 March 1989 “Has not [suffered]”.  So that document, on the one hand, was open to ‑ ‑ ‑

HEYDON J:   “Has not attended”.

MR QUINN:   “Has not attended”?

HAYNE J:   That is how I would read the scrawl.

MR QUINN:   I assumed it was “suffered” because the Full Court had recorded it that way and I did not read it as being any different but, again, your Honours, it might say “Has not attended”.

CALLINAN J:   Mr Quinn, I see that at page 350, line 30 your client told Dr Bremner that he had stopped smoking in 1989.  Which was true?

KIRBY J:   He would not be the first smoker who has told a fib about stopping smoking.

MR QUINN:   Your Honour, again, I will have to check the evidence and get you the references on smoking.

CALLINAN J:   He told the doctor – there is no reason to believe that the doctor was not being truthful – that he had stopped smoking in 1989.

MR QUINN:   Again, your Honour, I would have to see what was said in cross‑examination to ascertain what the facts were.  I do not know what the facts are from the primary judge’s judgment in relation to smoking and that particular passage.  It was not dealt with by the Full Court.

KIRBY J:   You are planning to send us in a note on this, are you?

MR QUINN:   If your Honour pleases, yes.

CALLINAN J:   It is not a major issue, but it does not reflect well on your client’s credibility, does it?

KIRBY J:   It does not sound like a federal offence to me.

MR QUINN:   Again, your Honours, I am not going to, with respect, embark upon any lecture about the task of this Court, but it was effectively a non‑issue for the trial judge and a non‑issue for the Full Court in terms of the credit findings.  The question of smoking was not one of the matters relied upon by the trial judge and, accordingly, it was not reviewed by the Full Court.

CALLINAN J:   Why were there so many reports at such short intervals in this case?  It must have been a very expensive case in terms of expert evidence.

MR QUINN:   It was an expert evidence case.

CALLINAN J:   There seem to have been reports obtained at relatively short intervals.

MR QUINN:   Yes.  I can only assume, your Honour, that given the nature of the complaints that the plaintiff had, that there was a need to keep some tabs on what was going on with his health and his state of mind.  That is the best explanation I can give for it.  Nevertheless, that was the evidence that was led at trial and we have the record as we have it.

KIRBY J:   What is unusual in this case is the inclusion in the Full Court decision through Justice Templeman of very large segments of the medical reports.  I must say, as I said to Mr Walker, that it is when you read the detail of the evidence of Professor German and Dr Skerritt that a very significant case builds up in favour of your client, and obviously it did in the minds of the three judges of the Full Court.  The only question is whether or not (a) they had the authority in the legal principles to step over the findings of the primary judge; (b) whether by referring to the fact that they well knew Professor German and Dr Skerritt that they were imprudent in saying that.  It seems to me they are the issues we have to address.

MR QUINN:   Your Honour, can I put to one side entirely this question of what the various expert psychiatrists said about their comparison of the videotape evidence and the symptoms of which the plaintiff complained.  Can I put that to one side entirely, because on one view it was not the correct inquiry; the real inquiry was what the plaintiff said in the witness box and comparing that to the video surveillance tapes. 

The other point is that if you focus upon the reasons of the trial judge and the Full Court, the crutch upon which both relied was a comparison that they made, in the case of both, between the videotape evidence and what was reported in the doctors’ reports – not what the doctors said about that inconsistency but what they saw themselves – and, in the case of the Full Court, the comparison between the evidence of the plaintiff on the one hand and the inconsistencies on the other.

Once we put that question of what the various experts said about the inconsistencies to one side, you can relegate the comments in relation to this expert being well known to the court to a side issue and an issue which whilst – it is still unfortunate, it is still obviously not the right thing to have as a matter of linguistics in a judgment, but once you properly characterise its role in the case then it does not infect the reasoning process in terms of the ultimate decision.  I do not know whether I have explained that ‑ ‑ ‑

KIRBY J:   Yes.  What you have said I understand.  It is a bit like what Justice Scalia said to Justice Briar in a well-known interview, “I don’t mind you looking up international law and human rights.  Just don’t put it in your reasons”.

MR QUINN:   Yes.

CALLINAN J:   Mr Quinn, could I just ask you this question.  Was there any evidence before the court that Professor German had been a psychiatrist for 40 years?

MR QUINN:   Yes, there was.  The reference is ‑ ‑ ‑

CALLINAN J:   That is all right.  What about the other doctor to whom he ‑ ‑ ‑

MR QUINN:   Dr Skerritt.  There was also evidence in relation to when he commenced his practice as a psychiatrist.  That is the point that I was making earlier, that there is a factual foundation for everything, apart from the words “known to the Court”.  So the factual foundation is there.

CALLINAN J:   Yes.

KIRBY J:   But in the Workers Compensation Commission or the Dust Diseases Tribunal of New South Wales, where you would have the same old witnesses time after time, the judges would not say that but everybody would know that these witnesses are well known to the court.  It is just a question of whether it was imprudent to say it because the party on the losing end then thinks that this is a factor that has influenced the decision.  Why else would the judges say it?

CALLINAN J:   The procedures of that tribunal have not always been an ornament to due process, as we have seen in this Court.

KIRBY J:   I do not agree with that.

MR QUINN:   As Vakauta v Kelly makes plain, as a matter of practical reality there is nothing that can be done about the fact that expert witnesses are repeat players in courts in various jurisdictions and that judges will form views about their reliability from past cases.  That is just the reality.  The only question is what is said about it.  There is a strange tension between this question of holding the view on the one hand but not expressing it for the world to see in the reasons on the other and the fact that obviously the parties should be able to see from the face of the record and believe from the face of the record that they have had a proper hearing.

If the question is whether or not the defendants at trial, the appellant now, has had a proper hearing and whether or not the comments by the Full Court about the two professors affect that, I would be repeating myself but it is plain on a fair reading of the Full Court’s reasons that these comments did not infect the ultimate conclusions.  I do not seek to put that as some sort of an excuse and say it is then okay to put the comments in, because obviously perception matters, but that is a fact in this particular case.  It has not led to an error in conclusion.

Your Honours, the only other matter that I wanted to deal with briefly in relation to the credit findings is this point about the asserted evidential inconsistencies regarding the death of the respondent’s brother and the fact that the respondent’s brother died in 1988 and it was said by the plaintiff to his various expert psychiatrists that he consulted with that that is about when he started suffering his symptoms of breathlessness and pain.

Now, again, this was a matter in respect of which the Full Court was in the position that they had a bare fact, undisputed fact, that the plaintiff’s brother came out from Italy before him, so the plaintiff could not possibly have felt guilty about bringing his brother out from Italy.  That was a fact.  On the other hand, there was a line in two of the experts’ statements, Mr Burns and Dr Penman, to the effect that the plaintiff had told them he felt guilty about bringing his brother out from Italy.

Now, because we are in the position here where we are looking at an undisputed fact versus something that was said to two experts, again, it is like the videotape evidence.  It is not a question of demeanour.  It is not a question of conflicting testimony.  The same situation applies.  The principles in Fox v Percy apply just as well to this situation.  The Full Court said that it was glaringly improbable that the statement had been made.  Now, in light of Fox v Percy, in light of the fact that this is not a case in which the trial judge enjoyed special advantages, it is questionable whether that threshold had to be reached.  That is what the finding of the Full Court was, but it may not have needed to go that far.

The reasons that the Full Court located for finding that the glaringly improbability of the statement having been made were several, but one which was focused upon was the language difficulties that the plaintiff had and the possibility that there was some misunderstanding in terms of what he had told Dr Burns.  The best support of the language difficulty point comes from Dr Febbo’s report.  That is of course the appellant’s own psychiatrist.  If your Honours go ‑ ‑ ‑

CALLINAN J:   But that he might not have understood English or may not have communicated adequately in English was not something that the appellant was given an opportunity of cross‑examining about or exploring.  It is an explanation offered on your client’s behalf for the first time in the Full Court.  Now, had misunderstanding been an issue, then it would have been the subject of cross‑examination, I would have thought.  That is the difficulty about it.  It is a plausible reason which is advanced for the first time by the Full Court and in respect of which evidence could have been given but was not.  That is the other problem about it.

MR QUINN:   Your Honour, I understand the point.  All I am seeking to do is point to the evidence underpinning what the Full Court said ‑ ‑ ‑

CALLINAN J:   Yes, that may be so but that will not get you around the difficulty that I have just suggested.

MR QUINN:   Yes.  The reference, in any event, for your Honours’ purposes is to the report of Dr Febbo and that is at appeal book 248, line 50 to 249, line 10 and, again, at appeal book 398, 30 to 36.  That is for your Honours’ purposes, I do not need to take your Honours to it.  The fact is that Dr Febbo had to conduct some of his first interview with the respondent in Italian and it gives the explanation ‑ ‑ ‑

CALLINAN J:   And he was particularly experienced, was he not, in multicultural ‑ ‑ ‑

MR QUINN:   He was bilingual and, yes, he was.

CALLINAN J:   ‑ ‑ ‑ and that he had special training.  I think he had published papers on that.

MR QUINN:   He may have.  He certainly was the experienced one of the ‑ ‑ ‑

CALLINAN J:   It appears in his CV.

MR QUINN:   Your Honours, other than that, the points in relation to the plaintiff’s brother are as we set out in our written submissions.  They are from paragraph 31 on in the submissions.  That is all I wish to say on that point.  The remaining question – I have dealt with our position in case the appellants succeed in relation to the substantive issues on appeal.  An issue was also raised in relation to the question of retrial and whether a retrial should be ordered or should have been ordered.  The only point I would make in relation to this is that the orders that were made by the Full Court did not place the trial judge in any difficulty of the type that was recently explored by your Honours in the Waterways’ decision three weeks ago.  There was a remittal order ‑ ‑ ‑

HEYDON J:   Damages were split from liability, in effect, here as distinct from one little segment being taken out of the liability part of the case in Waterways.

MR QUINN:   Precisely right, your Honour.  The issue is not dealt with in our written submissions.  The distinction is very clear.  Waterways, your Honours will recall, you had questions of contributory negligence and causation intricately bound up with the same factual matrix that was required to be relied upon in relation to the finding of how the person got off the wharf, the jetty, into the water.  Here you have a full finding on liability made and the matter goes back, remitted to the trial judge, as it is in courts around this country every day, the trial judge assesses damages. 

There are no difficulties with assessing damages and particularly general damages in this case by virtue of the fact that the overturned finding was a credit finding.  These are tasks that trial judges do.  As your Honours know, there are general ranges of damages that apply in particular types of cases in particular jurisdictions.  They provide a guide.  What the trial judge now does is the forensic exercise of looking at the evidence that must be taken as being admitted, that is the evidence contained in all of the experts’ reports, both as to the fact of diagnosis and also the diagnosis of psychiatric injury and also the extent of that, because they also relied upon the same factual underpinnings ‑ ‑ ‑

CALLINAN J:   And causes.  There is still a causation question because there is a suggestion that the grief over his brother’s death may have been a contributing cause, and I do not think that that would be a compensable matter.  It is a bit like a Purkess v Crittenden point.  Perhaps the onus lies upon the defendant.  Nonetheless, it is ‑ ‑ ‑

MR QUINN:   Causation in the damages context as opposed to the liability context.

CALLINAN J:   Yes, exactly.

MR QUINN:   Yes, that is true.  However, again, the evidence is going to be there before the trial judge.  It is clear what evidence it is.  His Honour is familiar with it and these are tasks that trial judges engage in successfully and well every day.  If your Honours please. 

GLEESON CJ:   Thank you, Mr Quinn.  Yes, Mr Walker.

MR WALKER:   On the last question we rely simply on the position that we put with its alternative possibilities in paragraphs 35 and 36 of our written submission.  Your Honours, in paragraph 19 of our written submissions we made a special argument in relation to the comments about Professor German and Dr Skerritt which, as my friend has put it, were that the only successful point would justify probably only a rehearing of the appeal, but there has been a number of references to the amounts of hours of ‑ ‑ ‑

HAYNE J:   But were you to succeed in your challenge to the Full Court’s other conclusions, would it be open to us to do other than send it back to the Full Court for further hearing, given the incomplete nature of the record that is before us?

MR WALKER:   Yes.  The record before this Court is enough to justify, as we have put in paragraphs 35 and 36, reversing the result in the Court of Appeal, which results in restoration of the trial judge’s dismissal.

HAYNE J:   Let me give but one example of what troubles me.  Go to page 294, you have a report from Dr Musk, one of several, where he says, for example, at lines 30 to 40 that there are some measured consequences identified.  We do not have any of Dr Musk’s evidence in our books.

MR WALKER:   No, but what you do have is trial and Full Court determination that Professor Musk and the other respiratory physicians all joined in a way not challenged in the Full Court on the proposition that there was no physiological condition to explain the reported symptoms.

HAYNE J:   But what we have in this report is a statement by a doctor, apparently as far as we know not challenged, that he observed this man stopping work at 54 per cent of maximum predicted workload, stopping because of reports of pain in the chest when he had reached 64 per cent maximum predicted heart rate, 58 per cent maximum predicted ventilation.  Now, is the Full Court to ignore that?

MR WALKER:   No.

HAYNE J:   Well, how are we to assess it when we have no full record?  At the end, why should it not, even if you succeed, go back to the Full Court for rehearing?

MR WALKER:   Because the appellant in the Full Court, the respondent here, did not mount the case in the Full Court that Professor Musk’s conclusion was one which could not produce the result that the Full Court produced on those issues.  Your Honours will recall, of the physical injury matters, it was only the non-objectively supported self‑ reported, that is subjectively reported, breathlessness and chest pain which was the subject of appeal to the Full Court. 

That is why when I opened the appeal I referred to the fact that the background against which these credibility findings were reversed in the Full Court included the fact that there was also credibility‑based findings about the physical matters which had the objective measures of a kind including the one that Justice Hayne has drawn to attention and there was no challenge to that.  That is the answer to why Professor Musk’s material at page 294, which is by no means the entirety of the material referred to by the Full Court, does not produce stopping at the Full Court by way of order of this Court.  The Full Court should have dismissed the appeal and that is what this Court should now do, but your Honours have seen the alternatives that we put.

There have been some references to hours of surveillance and hours of film.  Lest there be any confusion, I think my friend and I have both put it, with respect, correctly, namely there were 150 hours of surveillance.  That does not mean there is 150 hours of whatever passes for celluloid nowadays.  All the film taken was available and that, with respect, is the force of a point raised for comment by Justice Callinan, namely if there was something in that video which could be drawn to attention in this Court, including on this Court’s strict appeal, by way of refutation of the material set out by the trial judge, then there was ample opportunity, starting at the trial and in the Full Court and in here, and it has not been done.

CALLINAN J:   Mr Walker, with respect to the matter that Justice Hayne raised with you, at page 397 there is a ground of appeal, I think, that the trial judge should have found that there were physical consequences, as it were – I use shorthand – as a result of asbestos exposure.

MR WALKER:   Yes.

CALLINAN J:   Well, it was an issue then, was it not?

MR WALKER:   Your Honour will recall I said of the four items of physical injury, three were dismissed at trial and not the subject of appeal, the fourth was the subject of appeal.  That is what ground 2 starting at page 397, line 45 concerns.  It is headed “CHEST PAINS AND BREATHLESSNESS” and it is a ground, the particulars of which include at 398, item a, lines 2 and following, a reference to Professor Musk.  That was the matter upon which I sought to show this Court how the Full Court either did or did not, depending on one’s interpretation, uphold that appeal.

CALLINAN J:   You are saying there are really concurrent findings of fact against that, is that correct?

MR WALKER:   Yes, but significantly not doing so on the basis of any material from Professor Musk and it seems to be common ground that there was no objective corroboration.  That seems to be still the case in this Court, common ground.  That then leads to an issue arising from an answer my friend gave the Chief Justice.  The case has been a case of physical injury plus psychiatric injury.  It has been a case which said of the psychiatric injury that it caused actual breathlessness and chest pain.  It has not been a case where imagined breathlessness and chest pain, the concept of which is quite difficult – how does one imagine pain that does not exist? How does one imagine breathlessness that does not exist?  But leaving that aside, it is not a case of a deluded, imaginary, non-existent breathlessness and chest pain being evidence of psychiatric disturbance.  It has been the other way around always.  That is why they went together to the Full Court, a physical claim, breathlessness and chest pain, plus psychiatric injury. 

One can see that, in particular, in ground 3 of the notice of appeal in the Full Court, page 398.  Ground 3 starts at about line 37.  One sees the reference there to the “psychiatric basis for the Appellant’s symptoms of chest pain and breathlessness”.  It has never been, contrary to suggestion in answer to the Chief Justice, it has not been a case of a delusion; that is non‑existent breathlessness and chest pain.  That is why it was an important matter to assess the credibility of the plaintiff in relation to whether or not he had suffered it, a matter concluded against him by the trial judge in a way not open to the Full Court, in our submission, on established authority to disturb. 

There was reference to the smoking matter.  My learned friend, with respect, is correct.  It does not play an explicit and perhaps does not play any role, depending upon how one interprets the reasons, either at trial or in the Full Court.  Justice Kirby asks whether the observed phenomenon available to this Court as to the Full Court on the videotape of smoking should not or could not have simply been seen as the response, more or less involuntary, of an addicted smoker. 

Well, this is another area where the plaintiff’s testimony leads him into fair questions about reliability or credibility and fair points by us about the limits to which exaggeration can be imputed to a man who protests he is not exaggerating in order to preserve some residuum of non-exaggerated but real experience, none of which is capable of being done on the record in this case and was not in the Full Court. 

He describes himself as a “casual smoker”, re-examination, appeal book 145, line 25.  If one then goes to other aspects of the material about smoking, he was challenged about it.  Pages 137 and 138 in the appeal book include at the beginning of the passage – 137 – answers which remind one of President Clinton, except he uses the word “swallow” rather than “inhale”.  In our submission, this was a question and 138 shows that he accepts that he told people, asking about his respiratory health, that he had never smoked.  So that there was very little, if any, comfort that could ever be gained from the observations of smoking on the videotape in relation to the credibility of this man.

The testimony about the plaintiff’s own disabilities, including the reports he had made to doctors of them, are, in our submission, thoroughly discussed in a way that answers our learned friend’s point concerning what the trial judge did not do in comparing those with the video by the passages that one finds in the reasons.  I will not go to them, I will just list them.  It starts at appeal book page 374 and follows the following paragraphs 50 to 55, 66, 70, 73, 75 and 77.

The point was made that there was no invocation of Vakauta v Kelly, but this is not a bias point, this is a procedural fairness point.  That is the way in which it has been raised, in particular, the second and third, and that is the Federal Court decisions to which we have made reference in our written submissions, made that absolutely clear as does Stead which we have cited from this Court.  That is our argument, in our written submissions, at paragraph 18. 

It is certainly not just a matter of having a grievance about seeing for the first time in the reasons something which your Honours could be forgiven thinking my learned friend’s argument is legitimately felt but better not said.  Now, if something is felt as a reason for an adjudication, it should be said and it may well be appropriate for appellate court members to notice that there is in the record evidence from an expert – a repeat performer I think my learned friend called them – where it is impossible to dissociate the esteem or perhaps the opposite of esteem that has been encountered from previous exercises in adjudication involving the same experts. 

It is a very simple and straightforward process.  One raises it with counsel.  Whether it can be dealt with or not then depends upon what is raised, how it is raised and how counsel is able to meet it.  In this case, in particular, there would have been a chance to dissuade from what is quite plainly, as we have argued in our written submission, a matter worth the notation that Justice Templeman gives it.  It is not just one passing comment, it is a matter said three times about the three experts, and there is a contrast.  That contrast is a word by which one intellectualises a preference to be formed.

Dissuasion was well and truly open as a possibility in this case.  Justice Callinan has referred to Dr Febbo’s special qualifications.  One sees in the appeal book at page 358, line 30 he occupies a position in this State in relation to multicultural mental health issues which is both, one would have thought, a matter of special expertise designed to fit him to give evidence in this case plus a mark of official establishment esteem, notwithstanding the fact that he has obviously left the educational system for doctors and postgraduate specialists more recently than the other two, not a matter which is calculated to reduce his cogency.

Penultimately, my learned friend applied the word “cryptic”, which was etymologically very sound, to the trial judge’s reference to Professor German’s and Dr Skerritt’s reactions to the videotape as being “puzzling”, paragraph 96, page 388 of the appeal book.  There is nothing puzzling about that word being used, nor cryptic.  That is an appropriate description of a trial judge having had evidence to be considered and argument pressed upon him where expert evidence is being weighed and evaluated and compared against other expert evidence.  If reasoning does not make sense, “puzzling” is a perfectly appropriate if polite way to say ‑ ‑ ‑

CALLINAN J:   It may have been a euphemism for “unconvincing”.

MR WALKER:   Yes.  He said “puzzling”.  That is not cryptic.  It is a perhaps polite but certainly plain enough way of saying, “That does not persuade me”.  The same is true of the same comment in relation to preference to which my learned friend also applied the label “cryptic”, paragraph 106, page 390 of the appeal record.  In our submission, the preference was clear.  There is nothing cryptic at all about the way in which the trial judge expressed himself.

Finally, there is, as my learned friend has pointed out, the passage in Justice Templeman’s reasons concerning a doubt as to whether there was an opinion of Dr Febbo at all, what it actually was.  In our submission, as we put in writing, that was a wrong approach by Justice Templeman.  Our argument is contained in our paragraphs 20 and 34 of our written submission.  It is very clear from the references we there give that Dr Febbo had an opinion which went in very graphic stages. 

The first stage was thus:  on these assumed facts this man has the illness that Professor German and Dr Skerritt also happen to attribute to him.  Then the assumption changes:  “Assume, Doctor, please, that this is the man depicted in this video.  Now what do you say?”  And he had the almost emotional dramatic response that is recorded by the trial judge.  In our submission, it is quite clear what Dr Febbo’s opinion was:  “Whereas I could once, on one set of assumptions, opine that this man had a disease of

a particular kind, now I can’t”.  That fitted entirely the common law method of allocating an onus of proof or persuasion on the plaintiff.  On the balance of probabilities, Dr Febbo’s opinion was that of the essential question, “Did he have the disease?” it could not be said he did.

Justice Callinan asked about the relevant practice note in relation to the taped material.  It does not emerge quite from a practice note.  It emerges thus.  In Order 26 rule 4 there is an embargo, unless ordered otherwise, on the tender of plans, photographs or models without certain minimum pretrial notice and exchange.  By decision in this State Boyes v Colins (2000) 23 WAR 123, which is noted by the learned author of Seaman on Civil Procedure - Western Australia at 36.6, 36.4.1 and 36.4.2, that same approach has been exquisitely extended to surveillance tapes in personal injury cases.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter. 

AT 3.52 PM THE MATTER WAS ADJOURNED