Daniels v Burfield

[1994] HCATrans 463

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1993

B e t w e e n -

GRAHAM KEITH DANIELS

Applicant

and

GEOFFREY BURFIELD

Respondent

Application for special leave

to appeal

MASON CJ TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

Daniels 26/8/94

AT ADELAIDE ON FRIDAY, 26 AUGUST 1994, AT 10.12 AM

Copyright in the High Court of Australia

MR G.K. DANIELS: In pe:;on.

MR B.T. LANDER, OC:  May it please the Court, I appear with

my learned friend, MS J.E. TRACEY, for the

respondent. (instructed by Fisher Jeffries)

MR DANIELS: First, let me thank you for the opportunity to

be heard. as you can see I am not a lawyer,

however, I will endeavour to do my best to place
the submissions here before the Court without

offending or embarrassing anyone.

MASON CJ:  Mr Daniels, like the previous applicant, you need

to make application under Order 69A rule 11 for
leave to present your application in person, and

that means you have to show, in the first instance,

that this case involves exceptional circumstances.

MR DANIELS:  Fine. Can I give a little background to

what -

MASON CJ:  Yes.

MR DANIELS:  Thank you, Your Honour. It appears to me that

the Full Court appeal was lost due to one primary

factor and that being that the trial judge's

measurement of the demeanour of his preferred

witness, the respondent. I refer to page 6,

please, of my summary of argument, where

Judge King, in handing down his finding, states that:

Despite the concerns which I have felt

about certain aspects of the case I have

reached the conclusion that the learned trial

judge's positive findings as to the

credibility of the respondent are fatal to the

success of the appeal.

A bit further in line 20 where Judge Prior, in

handing down his finding, states:  The trial judge's credibility findings

are such that the appeal must be dismissed.

It would seem that, if I am going to succeed in

gaining the right for my appeal to be heard in the

High Court, I must succeed first in convincing this

Court that the trial judge's measurement of his

preferred witness's demeanour is inconsistent with facts incontrovertibly established by the evidence.

In my summary of argument, I have made reference to

eight case histories which, I believe, give weight that special leave should be granted. Allow me to

refer to one, Dearman v Dearman, 7 CLR, at 549:

Daniels 26/8/94

Although on an appeal from a Judge of

first instance sitting without a jury, it is

the duty of the Court of Appeal to reconsider

the evidence and give its judgment according
to its own opinion, yet where the evidence has

been given viva voce, and there has been a

conflict of evidence, the Court of Appeal will

not reverse the decision of the Judge on

questions of fact depending upon the

credibility of witnesses, unless it sees

clearly that the decision was wrong.

It is my submission that it can be clearly seen

that the Appeal Court's decision to allow the court

of first instance decision to stand was wrong and

that, according to Dearman v Dearman's case,

findings of credit can be reversed when they are

manifestly wrong. Further, let me quote from

page 557 of the same Commonwealth Law Report, at

the bottom of that page:

It is often very difficult to estimate

correctly the relative credibility of

witnesses from written depositions; and when
the question arises which witness is to be
believed rather than another, and that

question turns upon manner and demeanour, the

Court of Appeal always is, and must be, guided

by the impression made on the Judge who saw

the witnesses. But there may obviously be

other circumstances, quite apart from manner

and demeanour, which may show whether a

statement is credible or not; and these

circumstances may warrant the Court in

differing from the Judge.

It is my further submission, it is the duty of the

appellate court to make up its own mind on

questions of credit where other circumstances,

apart from manner and demeanour, disclose the

credibility of the statement. It is my view that

this is exactly the case as the transcript shows

and my summary of argument highlights on page 4

that the trial judge did err by acting on his

assessment of demeanour which was inconsistent with

facts established by the evidence.

TOOHEY J:  Mr Daniels, as I read the papers, the case that

you are putting to us, essentially, is that

demeanour really played no part because there was

no explanation for what happened other than some

failure to take care on the part of the respondent;

is that the way you are putting your case?

MR DANIELS:  No, it is not.

TOOHEY J: It is not?

Daniels 26/8/94

MR DANIELS:  No, Your Honour. You are referring to Dearman

v Dearman?

TOOHEY J:  No, I am not referring to any authority. I am

referring to the case that you would wish to

present to us in challenging the decision of the

Full Court. As I read it, I understood you to be

saying, "Well, the demeanour of the respondent

should have played no real part in the findings of the trial judge because the evidence was such that

no explanation was available for what happened

other than a failure to take care by the

respondent."

MR DANIELS:  I think I see your point. I would say that

demeanour does play some part, that where facts

show otherwise I believe they should be taken into

account as per the case histories; that would be

where I differ. I believe demeanour does play a

part.

McHUGH J:	Is not the real problem that you face that the theory of negligence put forward by Mr Owen would
have required the occurrence of a great deal of bleeding, and the trial judge accepted the
defendant when he said that there was no such
bleeding?
MR DANIELS:	He accepted the defendant based on his

demeanour. I believe that is the essence of the

acceptance and that is obviously the right of the

judge to do so. What I am saying is that I believe

there are facts that indicate otherwise.

McHUGH J: But, is not that critical that unless you can

persuade this Court that the trial judge could not
possibly have come to that conclusion about there

being no sign of blood, then that is the end of it,

is it not?

MR DANIELS:

No, there may not have been a sign of blood at

the instance of replacing the testis back in the

sac. The judge accepted the defendant's witness without any of the qualification of any superior

expert witnesses, which I find astounding.	We find
that I was patient No 52 of the defendant.	The

~xpert witnesses, Mr Owens that you mentioned, had

done 2500 cases at the same time. Now, for the

judge to accept a man who has done 52 cases as
being a superior qualified witness over a man who

has done 2500, I cannot equate with that.

McHUGH J: Well, numbers do not matter, do they?

MR DANIELS:  I think they do; I differ, I really do. We are

talking about a gentleman that has had expertise in

an area. If he has done one job - if numbers do

Daniels 26/8/94

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not matter - I do not believe the Court would put

that alongside of a man who has done 500 cases.

What I am giving you is a similar scenario, the

gentleman had done 52 at the time he operated on

me. The evidence that he gave was accepted far in

excess of the evidence of a more expert, who had

done 2500 cases at that time. The judge accepted

the inferior expert based on his demeanour - which

he has a right to do - but, I believe the facts are

such that demeanour alone cannot be taken as the

sole purpose for overturning a decision in this

case.

If I can go on, on the top of page 4 of my

summary of argument, starting at (c), the fact that

in a letter dated 29 October 1985 to the appellant

the respondent had admitted the cause of the loss

of the testes which was virtually identical to the

appellant's case and that such admission was made

with knowledge of the relevant facts and upon the

basis of access by the respondent for that purpose
to the hospital records and notes. I have copies

of the letters here if Your Honours would like to

have one because I would like to refer to it.

McHUGH J:  It is in the material.

MR DANIELS: Excuse me?

MASON CJ: It is in the material, we have it.

MR DANIELS:  Okay. Can I draw your attention to the bottom

of the first page of that letter, please:

It is a small artery which is not easy to

identify in scarred tissue and so there is

always a theoretical risk that in mobilizing

the vas to get the ends together in a

vasectomy reversal operation that it may be

interfered with during the dissection process

and cause subsequent embarrassment to the

blood supply to the testicle.

Now, bear in mind, this is a letter from

Dr Burfield:

It is my own view that this is the most likely

reason why the testical has subsequently

atrophied and it is quite independent of the

subsequent haematoma that developed.

From this evidence we know, first hand, three

things: one, what took place; we know, secondly,

when it took place; and, we know, thirdly, how it

took place. I believe this evidence would

certainly override demeanour.

Daniels 26/8/94

If I can refer back to page 4 point (d): fnding that the respondent had changed his

operative technique following the operation which

was a fact indicative in itself of fault. Please

allow me to quote, page 298 of appeal book II,

Dr Burfield, who was under examination, and he

says:

My experience with Mr Daniels has been a

traumatic one for me. I believe we should all

try and learn by our experiences and, as a

consequence, I have changed my technique.

It would appear that the doctor realized there was

a problem that could be improved with his

technique, and following the controversy I had in

my case and the trauma I experienced in his own

words, in his own testimony, "as a consequence, I

have changed by technique". I believe the facts

would override the demeanour in this case.

And, we go on to point (e) of my summary, and

that such finding was against the evidence and the

weight of the evidence and in particular that given

by Drs Owens, Tan and Sinclair as to the causes of

the atrophy. That is in the records, I will not go
through it now. Point (f) I have already mentioned

that Dr Owens is by far the more experienced. I

was No 52 patient to Dr Burfield, Dr Owens had done

2500 at that stage. But let me quote from the

trial judge where he said - he is referring to

evidence:

where it conflicts with any other witness.

Yet, the trial judge accepted the evidence of the respondent -

where it conflicts with any other witness.

Quote:	The defendant requires no support for me to
accept his opinion ..... where his -

that is Dr Burfireld's:

evidence conflicts with that of any other

witness I accept it.

One such major conflict was that the trial judge

found that the plaintiff was not in pain while in

hospital; that was a major factor.

I would like to refer you to page 10 of my

application book, half-way down, I believe it is

about line 14:

Daniels 26/8/94

I cannot accept the existence of severe

pain in the hospital.

That was the statement made by the trial judge, and

yet back up about five or six lines, he says:

Wife, father and mother all supported the

plaintiff's evidence of great pain.

The inconsistencies relating to the pain in

hospital that the trial judge omitted to comment on

can be found in the transcript evidence but, first,

I would like to turn Your Honours to page 12 of the

application book.

MASON CJ:  Mr Daniels, this is an application for special

leave to appeal.

MR DANIELS:	I understand that.
MASON CJ:	And, therefore, we expect you to present the case

fairly shortly.

MR DANIELS:  Yes. Do I not have 20 minutes?

MASON CJ:  You have 20 minutes, yes, but I am just drawing

your attention to the fact that there is a limit of

20 minutes.

MR DANIELS:  I appreciate that, thank you, Your Honour.

Third bottom line:

The issue of complaint of pain is very important.

They were the words of Judge Bollen.	If I can now
refer you back to page 10, line 10:

There was no sign of collaboration between the

members of the family. I am sure that each

spoke what she or he believed to be the truth.

Due to time restriction I cannot go into all the

evidence where members of my family were

interviewed, individually, and came to the same

conclusion of immense pain. If I have time at the

end I will come back to that. Under the

defendant's examination, page 325, it is recorded

that painkillers were administered in hospital.	I
would just like to draw your attention to that. Again, Dr Burfield speaking:

Well, in the light of the fact that we

know he was just given an injection of Omnopon

a quarter of an hour before, that is probably

related to the injection.

Daniels 26/8/94

Now, that is Dr Burfield saying himself that after looking at the hospital records in the court that I

was given an injection of Omnopon which, I

understand, to be an opium-based painkiller. If

you go down to line 23, Dr Burfield speaking again:

Yes, it is a No 4, nil nausea to fluids.

Next item:

Intramuscular analgesic by one for abdominal paid.

Dr Burfield speaking at trial. I believe the facts are so strong against the case as it was overturned

on appeal that demeanour has to be minimized in

this case. So, I am not only given painkillers,

but for the specific purpose of abdominal pain. findings and, in my opinion, should have been a

pivotal point for the Full Court to rely on.

In summary, "Findings of credit can be

reversed when they are manifestly wrong"; referring

to the case of Dearman v Dearman. It is my

submission that they were wrong, and I believe the

evidence overwhelmingly supports this. Two, "It is

the duty of an appellate court to make up its own

mind, even on questions of credit, where other

circumstances apart from manner and demeanour

disclose the credibility of the statement."; also

Dearman v Dearman, Commonwealth Law Report. Three,

it is my submission that the duty has not yet been

fulfilled and will only be fulfilled if the

applicant is granted leave to appeal.

MASON CJ:  Thank you, Mr Daniels. Yes, Mr Lander.

MR LANDER: This case, Your Honours, turned on its facts.

There were three complaints made -

MASON CJ: In the first instance, in turned on the evidence

that was presented to the trial judge.

MR LANDER:  Indeed, if the Court please. Three complaints

were made at the trial. The first was in relation

to the failing to give advice; the second in

relation to the surgical error; and the third in

relation to the post-operative treatment. One is

presently pursued; that is the second matter,

surgical error. In relation to that, there were

two theories put forward. The first was a theory

put forward by Mr Daniels' surgeon, Mr Owen, and

the second was a theory put forward by Dr Tan,

another surgeon, whom I will come to.

Daniels 26/8/94

As to the first theory, that was that there

was a cut or a nick of a vein or artery at the time

that the surgical procedure was carried out. That
theory carried with it inherently the fact that

there would have been a great degree of blood shown

at the time. His Honour the Chief Justice

described it, having reviewed the evidence, that

"the signs would have been spectacular".

Mr Justice Debelle said likewise. So it would have

been the case if Dr Owen's theory had been right

that there would have been a good deal of blood; a

huge amount of blood shown at the time that the

operation was carried out.

His Honour therefore had to assess

Dr Burfield's evidence in relation to that as to

whether or not he had in fact noticed anything of

that kind. He did that and he -

McHUGH J:  He had to assess that, but how else did this

incident happen? How did it happen on the

defendant's version?

MR LANDER:  If the Court goes to page 49 of the application

book, His Honour describes that. Perhaps I should

take Your Honours to the conclusion first at

page 52, line 2:

The cause of the atrophy of the testicle was

"occlusion of venous return'' suggested by the

defendant.

At page 49 His Honour the trial judge discussed how

that came about. He deals with that firstly at

line 10 with taking into account the defendant's

own evidence, then there was an exchange between

counsel and himself which is described at line 20

of page 49.

Later he expressed his opinion -

which he refers to at pages 44 and 46 -

It should be read again here.

He refers to the letter which Mr Daniels has

brought to the attention of this Court this

morning.	Then at page 50 he discusses the medical
opinion which supports Dr Burfield's opinion.	At
line 5:

Mr Tan said in substance that the opinion

of the defendant proffered a possible

explanation for the atrophy.

Mr Sinclair had an alternative theory

which acknowledged force in the defendant's

Daniels 26/8/94

theory but added something. He said that it

would not merely be pressure which caused

occlusion but pressure and inflammation in the

cord with blood tracking through it. He said

that he did not believe the pressure alone

caused occlusion. It was pressure plus

inflammation.

Then he goes on to Mr Harbison's account.

TOOHEY J:  But were those opinions inconsistent with

negligence on the part of the defendant?

MR LANDER:	Yes, if Your Honour pleases, and consistent with something that happened after discharge from
hospital, and that is the removal of a pressure
bandage which allowed for inflammation which
allowed for the venous occlusion that His Honour
spoke of. It was completely inconsistent with
negligence on the part of the respondent.
TOOHEY J:	Did the trial judge make findings in regard to that explanation?
MR LANDER:	Yes, he goes through pages SO, 51 and 52 and

then he says at line 10 on page 52:

I find that the haematoma developed after

9.30 am on Saturday, 9th March 1985. I find

that at 9 am and 9.30 on that day no more than

normal and usual ..... swelling was there. I

find that the defendant was in no way at fault

in operation nor in discharging the plaintiff

when he did.

So he found it was appropriate to discharge the

plaintiff at the time that he did. The plaintiff

then travelled to Barmera, as His Honour goes on to

say at page 52 at line 20. That was unwise because

it occasioned the plaintiff in much movement.

His Honour says:	As the surgeons explained the horizontal not
the perpendicular is what is needed before the
settling down without bleeding and oozing of
blood after the operation. And the pressure
bandage which had been on in hospital had been removed. It was not there to hold back venous
ooze.  I believe that the defendant gave the
plaintiff the advice which he customarily
gave -

So His Honour did find that there was an

explanation.

MASON CJ:  The basic finding is at page 53, is it not, at line 10?

Daniels	10	26/8/94
MR LANDER:	Yes, if Your Honour pleases.	That is the

conclusion that His Honour comes	to after
discussion that I have mentioned.	His Honour finds
an explanation for this and it was	inconsistent
with negligence on the part of the	respondent.

TOOHEY J:  And was there evidence, Mr Lander, that supported

the theory that travelling, for instance, by car

could have brought about this condition?

MR LANDER:  Yes, that was explored at length in the trial,

Your Honour, and there was evidence to support that

that could have caused - - -

TOOHEY J:  I do not want you at the moment to take us to it,

but which witnesses advanced that as a theory?

MR LANDER:  That was referred to in the evidence of Tan;

also at page 53, Sinclair. At line 4:

The other surgeons give much the same

advice ..... The movement of the body on the way

to and at Barmera could have caused the

haematoma and caused it to grow to "occlusion

11 (my expression) .

size Of the trip

Mr Sinclair, for example, said that it could

be "the significant event".

So that was explored at length, if Your Honour

pleases, in the trial.

The fact of the matter is that there were two

possible explanations, and His Honour found the

explanation inconsistent with negligence to be the

explanation that he preferred. He found that upon

the medical evidence that was offered not only by
the respondent himself, but also by the

respondent's experts who were called in support of

the respondent's case. He also did not accept

Dr Owen's theory because not only did Dr Owen

advance a case that this must have occurred in the

circumstances that it did, but Dr Owen also would

have advanced the case that the only form of

surgery that ought to be carried out in these

circumstances was microsurgery.

His Honour did not accept that either. He

found, as all of the surgeons said, that

macrosurgery, as Dr Burfield had carried out, was

surgery that was carried out by a number of

surgeons at this time and it was quite a common

form of surgery. Dr Owen in fact would have

advanced the opinion that microsurgery was the only

form of surgery that was appropriate.

In all those circumstances, the case simply

depended on its facts. It depended upon an

Daniels 11 26/8/94

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acceptance of one theory or the other. There was

evidence to support the theory that His Honour

found, and the Full Court confirmed him in it,

particularly in the reasons of the Chief Justice.

There are, in our submission, no exceptional circumstances that would justify this Court in allowing a grant of special leave.

TOOHEY J:  Mr Lander, is the argument against the injury

having been caused during the operation itself the
evidence of what would have been expected to have

been observed had there been some interference or

undue interference during the course of surgery - I

am not suggesting that - - -

MR LANDER:	I am sorry, I am not following Your Honour.
TOOHEY J:	Is that where the crux of the respondent's case

lay in relation to the proposition that some

negligence had occurred during the course of

surgery?

MR LANDER:  The respondent's case was, as was the

applicant's case, that if something had happened at

surgery, it had to be noticed. There was either

going to be massive bleeding; there was going to be

a change in the colour of the testis; it was going

to be particularly obvious to the surgeon.	The
respondent said that did not happen.	The

respondent said that when he delivered the testis

back to the sac, when he tied up, as it were, there

was no evidence of any occlusion at all; therefore

it could not have happened during the surgery. Therefore it must have happened after surgery.

There is an explanation of that and that is the

explanation that was given by Drs Tan, Sinclair and

Harbison and also the respondent, and that is the

travel to Barmera which occurred after the event.

Does that answer Your Honour's question?

TOOHEY J: Yes, thank you.
MR LANDER:	For those reasons, in our submission, no

application ought be granted.

MASON CJ:  Yes, Mr Daniels.

MR DANIELS:  I would like to respond to that if I may. know I have five minutes and I will not take any I

longer. Two theories were just put forward as to the probable cause in the other side's opinion as

to what happened. One was that a pressure bandage

was removed; the other was that damage was done

while travelling to Barmera. By way of clarity -

and the record shows - the travel to Barmera was

due to take place that day but, due to the pain and

the fact that I could not even drive, I had to go

Daniels 12 26/8/94

home and rest and postpone the trip till later that

week. The facts are in there. I did not travel to

Barmera that day of leaving the hospital. The

record will show tpat if they care to look for it.

That is one purported cause that has been put, that

I damaged it while travelling to Barmera.

Another cause as per the defendant is that the

pressure bandage was removed and in removing the

pressure bandage, it allowed bleeding within the

scrotum. Can I turn you to the same passage that

our friends pointed to on page 332 where

Dr Burfield again is speaking.	He was talking
about the removal of the pressure bandage.	The
question put to him was:	"Can I just pause there.

Could you tell us who removes that dressing? Is it

done in the hospital or at home?" The answer

Dr Burfield gave is, "No, it's done in the hospital

and it's done either by myself or the nursing

staff." If they claim that was the cause of the

bleeding on removal of the pressure bandage and if

in fact on Dr Burfield's own testimony it was done

either by himself or the staff in the hospital,

then it brings us straight back to the hospital as

the place where the bleeding occurred.

We make another point, referring back to that

letter again where Dr Burfield had admitted what he

had done, when he had done it and how he did it,

closer to the actual time of the operation and not

three years down the track.	So things were still
fresh in his mind when he wrote that letter.	He
was not under pressure to write it.

In my summary of argument I have listed eight

legal case histories which I believe show a

precedent in support of my claim. The respondent's

summary of argument refers to one legal case

history. Let me close my submission by quoting

from the respondent's case, Devries v Australian

National Railways, as I believe it also fully

supports my claim. I quote from page 472:

If the finding depends to any substantial

degree on the credibility of the witness, the
finding must stand unless it can be shown that

the judge has failed to use or has palpably

misused his advantage, or has acted on

evidence which was inconsistent with facts

incontrovertibly established by the evidence -

It is my case that that is the situation. The

appeal to the Full Court was overturned basically

on the measurement of demeanour of the defendant as

a witness. It is my argument that facts are

contrary and override that demeanour.

Daniels	13	26/8/94
MASON CJ:	Thank you, Mr Daniels.	The Court will take a

short adjournment to consider this matter.

AT 10.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.52 AM:

MASON CJ:  The Court has come to the conclusion that it is

necessary, in giving further consideration to this

application, to look at the materials that

would be contained in the appeal books that were

lodged with the Full Court of the Supreme Court.

Those appeal books will contain the evidence and

the Court feels that in the light of the arguments

presented today it will be necessary to have regard

to that material. So, accordingly, we propose to

make arrangements through our Registry to obtain the appeal books from the Supreme Court of South

Australia and we will give further consideration to

the matter in the light of that material.	In the
result, the Court proposes to stand this

application over to a date to be fixed, and that is

the order the Court will make.

AT 10.53 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Daniels 14 26/8/94

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