De Groot v The Nominal Defendant

[2005] NSWCA 61

NEW SOUTH WALES COURT OF APPEAL

CITATION:      De Groot v The Nominal Defendant [2005]  NSWCA 61

FILE NUMBER(S):
40998/02; 41166/03

HEARING DATE(S):               07-10/3/2005

JUDGMENT DATE: 15/12/2005

PARTIES:
Daniel Rory De Groot - Appellant
The Nominal Defendant - Respondent

JUDGMENT OF:       Giles JA Bryson JA Gzell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          2012/01

LOWER COURT JUDICIAL OFFICER:     Gibb DCJ

COUNSEL:
L. King SC, P. McGuiness, J. Priestley - Appellant
J. Poulos QC and J. Morris - Respondent

SOLICITORS:
Conroy & Stewart - Appellant
Abbott Tout - Respondent

CATCHWORDS:
NEGLIGENCE - Motor Vehicle - The plaintiff aged 4 as passenger was injured by wheel cleat from unidentified vehicle travelling in opposite direction - challenges to DCJ's findings on negligence and on extent and nature of injury and continuing disabilities - numerous factual issues on liability and damages - consideration of - mitigation of damages MAA s.39 where infant's treatment decided by parent - allowance under s.45 of MAA for sums paid by insurer where payments exceeded damages assessed - claim for special order for costs under Calderbank offer - claim for order for costs against plaintiff's legal representatives.

LEGISLATION CITED:
Civil Procedure Act 2005 (NSW) s 98
District Court Act 1973 (NSW) ss 127(1)(c), 148B, 148E
District Court Rules 1973 (NSW) Pt 39A r 14
Motor Accidents Act 1988 (NSW) ss 39, 45, 70A, 79; Sch 4 Pt 7 cl 17 (7A)
Motor Accidents (Amendment) Act 1989 (NSW) No. 47
Motor Accidents (Amendment) Act 1995 (NSW) No. 66
Supreme Court Act 1970 (NSW) s 75A

DECISION:
(1) Appeal dismissed with costs
(2) Upon the Summons for leave to cross-appeal
     (a) grant leave to cross-appeal with respect to liability
     (b) direct that Notice of Cross-Appeal be filed and served within 7 days
     (c) save as aforesaid, dismiss the Summons
(3) Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40998/02
DC 2012/01

GILES JA
BRYSON JA
GZELL J

15 December 2005

DANIEL RORY DE GROOT (an infant by his tutor Arlena Van Oosten) v THE NOMINAL DEFENDANT

Judgment

1. GILES JA:  Subject to the following additional observations, for the reasons given by Bryson JA and Gzell J orders should be made as proposed by Bryson JA.

2. In his consideration of Ground 4, Bryson JA refers to Professor Werry’s opinion to the effect that the neuro-psychological testing purporting to show the appellant’s pre-accident ability was unreliable.  The judge accepted that opinion. 

3. Professor Werry said that the testing was designed primarily to measure current function and ability, although accepting also pre-injury ability “in part”.  He did not consider that great reliability could be placed on the wide-ranging tests administered by Ms Packer, describing one of them as “quick and dirty”.  He said that the more comprehensive Weschsler test administered by Dr Boon was “subject to considerable error”, that it did not permit deduction of “pre-morbid” ability with 100 per cent accuracy, and that “the closer it gets to average, the more difficult it is to make that distinction”.  He said of that test that it was of “limited sensitivity and specificity, and is subject to the problem that human intelligence is not a unitary thing.  People have different abilities.”  He said that the test “may be 50 per cent accurate, which means its got 50 per cent error in it.”

4. Professor Werry maintained his position under a testing cross-examination.  He was highly qualified.  While there was a body of evidence demonstrating that some neuro-psychologists saw reliability in deducing from the neuro-psychological testing the appellant’s pre-accident ability, there was scant reasoned explanation for that position or rebuttal of Professor Werry’s reasons for discounting the reliability to the point of unhelpfulness. 

5. I draw attention to these matters, in amplification of my agreement with Bryson JA in this respect. 

6. It being unnecessary to do so in order to dispose of the appeal, I would prefer not to express a view as to attribution to the appellant of the decisions of his mother in relation to his treatment (Ground 19(a)).

7. I respectfully do not concur in Bryson JA’s observations (Ground 22), which do not affect the determination of the appeal, upon the reference by Senior Counsel for the respondent to possible conflict of interest between the appellant’s tutor and his legal representatives.  When coming to submissions upon the application for a costs order against the legal representatives, the judge raised in strong terms with counsel for the appellant that she did not have evidence from the tutor to the effect that the tutor did not support such an order but opposed it.  Whether the judge was right or wrong in that respect, it seems to me clear that there was present to her mind the possibility of a conflict of interest between the tutor and the legal representatives in relation to the making of the order.  I am not prepared to regard it as inappropriate that, albeit it seems without an invitation for a submission, the respondent’s counsel made known the respondent’s position as set out by her Honour.  The judge was thereafter provided with information which satisfied her concern, but I consider it understandable that counsel for the respondent reacted to the judge’s then unsatisfied concern in the manner he did.  That is not to endorse inany way the unsatisfactory manner in which the application for a costs order against the legal representatives was made. 

8. Finally, I would take a slightly different path to refusal of leave to cross-appeal in relation to the application for a costs order against the legal representatives.

9. The effect of the judge’s decision in relation to the Calderbank offer was that the respondent had to pay the appellant’s costs to a time on 5 December 2001 but not thereafter. The application for a costs order against the legal representatives was that the respondent’s costs from 5 December 2001 be paid in whole or in part by the legal representatives. Neither s 148E(1)(a) nor s 148E(1)(b) could found an order that the legal representatives pay costs to the respondent, and, since the application was restricted to costs other than costs which the respondent had been ordered to pay, neither could s 148E(1)(c) – there were no relevant costs payable by the respondent against which the legal representatives could be ordered to indemnify.

10. To this extent, the judge was correct in saying that she had no power to make the order. Where her Honour erred, in my opinion, was in apparently overlooking s 148B, which had sufficiently been raised in the submissions in support of the application. It gave a wide discretion (see Knight v F P Special Assets Ltd (1992) 174 CLR 178), which could well have extended to a power to make the costs order against the legal representatives.

11. It is not necessary to decide this. If s 148B were a source of power to make the order I respectfully agree with Bryson JA that the judge erred in her reasons why she would not have made a costs order against the legal representatives. I do not, however, think in the circumstances leave to cross-appeal in that respect should be granted. As Bryson JA has noted, the cross-appeal would involve an appraisal of the manner in which the legal representatives conducted the litigation. The respondent simply did not provide evidence to the judge appropriate for the conclusion that they had so misconducted the proceedings that, in the exercise of the discretion under s 148B, liability for the costs in question should fall upon them. The tutor’s contentment with the conduct of the proceedings was relevant in that respect, although not determinative; like Bryson JA, I am not satisfied that the proposed cross-appeal would have any real prospects of success.

12. BRYSON JA:      Daniel Rory De Groot, the plaintiff in the District Court, appeals against the judgment of her Honour Judge Gibb. The Notice of Appeal claims that the assessment of damages be set aside; and the Court of Appeal is asked to assess damages or alternatively to remit the proceedings to the District Court for reassessment of damages.  There is also a challenge to orders for costs made by Judge Gibb.

13. These reasons do not deal with the application made by the respondent, defendant in the District Court, for leave to cross-appeal from Judge Gibb’s decision in favour of the appellant on the issue of the respondent’s liability to pay damages.  For reasons which appear in the judgment of Gzell J, with which I agree, the respondent has failed to demonstrate that her Honour erred in concluding that the driver of the truck was negligent.  For reasons stated by Gzell J, the proposed cross-appeal as to liability should not succeed for that reason, leave to cross-appeal on liability should be granted, and the cross-appeal should be dismissed with costs. 

14. The appellant was born on 2 July 1990.  His mother Ms Arlena Van Oosten is his tutor in the proceedings, and she was by far the most important lay witness.  Much of her evidence was challenged and Judge Gibb took an severely adverse view of her credibility and of her evidence.

15. The appellant then aged four years and eight months was injured in what Judge Gibb spoke of as a freak accident on the Pacific Highway at Ulmarra in the Clarence River district of New South Wales on 3 March 1995.  A wheel cleat became separated from the wheel of an approaching semi-trailer and was propelled through the windshield of the vehicle in which the appellant was travelling.  The cleat struck him on the head and he sustained serious head injuries.  The other persons in the vehicle at the time of the injury were the driver Mr Milczarski, who was then in a personal relationship with Ms Van Oosten, and Ms Van Oosten who was seated next to the driver.  The appellant was seated on the front bench seat adjacent to the passenger door next to his mother.  The accident happened at about 2.00 or 2.15 pm.  Mr Milczarski drove the appellant to Grafton Base Hospital where the records show that he arrived at 14.45 hours.  Medical notes of Grafton Base Hospital show that the appellant initially had a Glascow Coma Score of 15.  While at that hospital he suffered two focal and one generalised seizures, and these were followed by reduction of the Glascow Coma Score to 13.  An x-ray showed a depressed skull fracture.  A CT scan was reported on by Dr Karunanithy, Radiologist as showing “a depressed comminuted type fracture … to the right posterior parietal bone associated with overlying soft tissue swelling consistent with a prominent scalp haematoma” (and there were further observations).  The appellant was then transferred by air to the Royal Children’s Hospital at Brisbane where he was admitted at 23.14 hours.  Dr Frank Tomlinson operated on him that night for elevation of depressed right parietal skull fracture.  The report made on behalf of Dr Tomlinson was to the effect that the appellant made a good post-operative recovery showing no effects of his injury, that  he was discharged home on 10 May 1995, and that he returned on 25 May 2005 for a CT head scan “…which revealed that the fracture had healed nicely and there was no underlying cerebral abnormality evident.” 

16. Judge Gibb’s judgment published on 30 September 2002 (Red 1/22) occupies 250 close-set pages and is distinguished for its close examination of contentious issues.  A later judgment of 29 November 2002 (Red 1/2/274) dealt with costs and other matters in 35 pages.  The Amended Notice of Appeal specifies 19 grounds upon which the judgment on liability is challenged, and also several grounds on which the judgment dealing with costs is challenged.  Judge Gibb assessed the appellant’s damages at $18,344.45 by allowing general damages of $17,440.00, the appropriate award under the MotorAccidents Act 1988 where the injuries constituted 14% of the most extreme case, together with $904.45 for past out-of-pocket expenses. The assessment was based on findings to the effect that the appellant recovered fully by November or December 1995, that is within nine months; that his physical recovery was rapid, that he may have suffered some shock and some post-traumatic stress and that there were no long term sequelae other than some very minor scarring. Judge Gibb rejected many claims for the inclusion of elements in the assessment of damages, including some claims for past out-of-pocket expenses for past medical treatment and other out-of-pocket expenses; claims for future medical and past economic loss, past domestic care, future domestic care, future educational needs, funds management, future economic loss; and made some observations on failure to mitigate loss and on s 39 of the Motor Accidents Act 1988.

17. There is no room to doubt that the appellant is a person with disabilities; what is to be decided is whether these disabilities or some of them were caused by the injury which he suffered on 3 March 1995.  He has a condition referred to as Attention Deficit Disorder and sometimes as Attention Deficit Hyperactivity Disorder (ADD or ADHD).  The appellant put this forward as one of the sequelae to his head injury; the respondent sought to show that this was a pre-existing condition.

18. Judge Gibb rejected by far the major claims in the appellant’s case on damages, claims that he suffered many continuing sequelae of his injury of 3 March 1995; the rejection related both to causation and to the existence and extent of many of the alleged disabilities.  It was the appellant’s case that he suffered severe continuing disabilities, cognitive deficits and behavioural changes, which were caused by his injury and arose from brain damage, a lesion in the right parietal region with subtle damage to the frontal system, and to some extent the right parietal system and temporal lobes, through general diffusion of shock waves through the brain.  No means of objectively observing physical signs of brain damage of that kind are available.  Expert evidence relating to existence and causation of continuing disabilities caused by brain injury on behalf of the appellant was principally the evidence of Dr Buckley, Professor Broe and Dr Johnson, and on behalf of the respondent the evidence of Professor Werry and Dr Jones.  The expert opinions depended, of course, not only on observations of the appellant made by the expert witnesses themselves, but also and most significantly on the actual existence of facts which were given to experts as history and which had, or could have had significant influence on the formation of opinions.  The Trial Judge regarded Ms Van Oosten as a very unreliable witness.  Her Honour did not accept the expert views of Professor Broe and Dr Johnson on the appellant’s condition and its causation, and gave acceptance to views of Professor Werry and Dr Jones. 

1. Senior counsel contended that it was no part of the appellant’s medical case that his injury resulted in any motor abnormalities or neurological deficits; and hence that a normal observation on a routine examination at the physical and neurological level by a general practitioner, occupational therapist or physiotherapist does not gainsay the presence of the type of brain damage that the appellant was contending for.  It was contended that the Trial Judge did not have a full or firm grasp of the nature of the appellant’s contention; and that this was illustrated by her treatment and acceptance of the contention that there had been a good recovery, of which Senior counsel observed that on the appellant’s case good recovery of a motor kind was irrelevant. 

2. The hearing before Judge Gibb was very lengthy, according to transcript headings taking 45 days, seven days in December 2001, five days in March 2002, 9 days late in April and in May and a long more or less continuous session from 3 June 2002 until 11 July; there were other hearing days.  There were several thousand transcript pages of evidence and submissions and 1860 pages of exhibits.  The trial was conducted in a highly combative way and issues were explored to a degree which retrospectively is not always easy to understand.  The combative and even confrontational nature of the hearing is sometimes observable in exchanges between the Bar and the Bench.  The narrations I have given in an attempt to outline the issues could well be regarded by one or other of the parties as open to contention in some ways. 

3. The nature of the issues naturally led to close examination of whatever indications were available of the condition and abilities of the appellant before he was injured.  As well as the evidence of Ms Van Oosten, which the Trial Judge found to be very unreliable, there were other sources, but although they had inherent importance they were very difficult to assess, largely because the appellant was only four years and eight months old when injured and there were very few sources of objective information or professionally trained observation of his abilities so early in life. 

4. At all times on appeal, as at first instance, it is necessary to keep it clearly in view that the onus of proof, on the balance of probabilities, of the facts upon which the damages claim rested lay upon the appellant. 

5. It is also necessary to keep in view the duties and the responsibilities of the appellate Court in an appeal against findings of fact at first instance.  The responsibilities of this Court when deciding an appeal by way of rehearing under Supreme Court Act 1970 (NSW) s 75A have been considered a number of times in the High Court of Australia, most recently and significantly in Fox v Percy (2003) 214 CLR 118. The principal judgment (and the High Court was unanimous as to the outcome) is that of Gleeson CJ, Gummow and Kirby JJ, who considered the powers and functions of the Court of Appeal in a passage at 124 [20] to 129 [31], and pointed [25] to the obligation of the appellate Court to conduct a real review of the trial and of the judge’s reasons and to its duty to decide on the proper inference to be drawn from facts which are undisputed or have been established by other findings, and referred to Warren v Coombes (1979) 142 CLR 531 at 551 and other authorities.

6. In Fox v Percy their Honours referred to decisions later than Warren v Coombes which contain statements or restatements of the need for appellate respect for the advantages of trial judges, especially where decision might be affected by the judge’s impression about the credibility of witnesses. Their Honours said (at 127 [26]) of Jones v Hyde (1989) 63 ALJR 349 at 351-2, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483:-

   The decisions were simply a reminder of the limits under which appellate Judges typically operate when compared with Trial Judges.

7. Their Honours said, while not derogating from the obligation to perform the appellate function, that the three decisions remained the instruction of the High Court to appellate decision-making.  The instruction included, in Devries v Australian National Railways Commission, the statement by Brennan, Gaudron and McHugh JJ at 479:-

   More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact [3. See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167]. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his [or her] advantage’ [4. SS Hontestroom v SS Sagaporack [1927] AC 37, at 47] or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ [5. Brunskill (1985) 59 ALJR, at 844; 62 ALR, at 57]’.

1. In Fox v Percy their Honours also said (128 [28]):

   However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

   [29] That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.  (46  eg, Voulis v Kozary (1975) 180 CLR 177; SRA (1999) 73 ALJR 306; 160 ALR 588; cf Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 349-351.) In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

2. Their Honours went on (at 129 [30] and [31]) to make observations, which in the present context are cautionary, about the force of the assessment of the appearance of witnesses and the danger of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.  Their Honours said:

   [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (eg  Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348, per Samuels JA.). Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):-

   "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."

   [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances…Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses

   The issues in the present appeal bring her Honour’s observations of witnesses under attention.

3. There are cases where demeanour and a decision to place confidence in the account of one of two or more witnesses who give conflicting evidence is an adequate and satisfactory means of reaching resolution of disputed issues of fact and of explaining the basis of the decision to the parties; but that is not commonly the case where there is a conflict on a matter of opinion between properly qualified experts.  Recent case law was reviewed and its effect explained in Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127 at 135 – 139 by Ipp JA. It is usually, indeed almost always necessary to give reasons which go beyond expressing reliance on demeanour when resolving differing views of expert witnesses, by furnishing an analysis of the basis of the findings. In Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FLR 17 209 ALR 568 at 572 [67], the Full Court of the Federal Court of Australia (Carr, Emmett and Gyles JJ) referred to the difficulties of accepting the ability of judges or anyone else to tell truth from falsehood accurately on the basis of the appearance of witnesses and said:-.

   Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses and to reach conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events:

4. The differing expert views which were before Judge Gibb for adjudication were not to be resolved by an attempt to tell truth from falsehood, and on a reasonable basis required evaluation of the opinions expressed and the bases for them, including the factual bases. 

5. The object which struck the appellant was a wheel cleat, a metal object forming part of the structure of the wheel of a semi-trailer which was travelling in the opposite direction to the vehicle in which the appellant was a passenger; the cleat became separated from the wheel of the semi-trailer, was propelled through the windscreen of the vehicle in which the appellant was travelling and struck him on the head.  That a metal object of this kind, said to weigh 350 to 400 grams (and the object itself was not available to go into evidence) should strike a child under five years old and cause a depressed parietal skull fracture is a significant event which must come under consideration as a cause of later disability.  Senior counsel for the appellant pointed to various elements in the facts which he said supported on a commonsense view of causation, finding that disabilities which the appellant now has were caused by his head injury.  To my mind the ordinary lay interpretation that there could well be a causal connection between the injury and the present disabilities is an available and important line of reasoning, but in a case so full of medical opinion also bearing on causation, it is necessary to look much further.

6. As well as the evidence of Professor Broe a consultant neurologist and of Dr Johnson a paediatrician, the appellant relied on the oral evidence of Dr Buckley a consultant physician in rehabilitative medicine, of Mr Mark Ravagnani a Consulting Psychologist, of Ms Suzanne Ravagnani an Occupational Therapist (and these witnesses were cross-examined) and of seventeen other doctors and medical professional persons who gave evidence in written reports and were not cross-examined; these included a Consultant Neurologist, a Clinical Neuro-psychologist, a Consultant Neuro-physician, Professor Buchanan who dealt with epilepsy, Neuro-Psychologists, Paediatricians, General Practitioners and others.  Hospital notes were tendered from Grafton Base Hospital, the Royal Children’s Hospital Brisbane and the New Children’s Hospital Sydney and there were some treating rehabilitation notes in evidence.  The appellant also tendered all school reports which were available up to the time of the trial.  The respondent put in evidence the reports and oral evidence of Dr Jones a paediatric neurosurgeon and Professor Werry a psychiatrist; and they were cross-examined.  The respondent had available to it evidence from five other medically qualified persons who examined the appellant; but did not serve their reports or call their evidence.  These included a Paediatric Neuropsychologist, a Paediatric Psychologist and two Paediatric Psychiatrists.

7. In a passage of the judgment headed “Introduction” (Red 1/29-30) the Trial Judge referred to a number of matters which were not in evidence and said -- "… The case is characterised as much by what it lacks as what it covered."  These included that the Trial Judge did not see nor hear evidence from the appellant who was then 12 years of age, nor from his father; that she had not seen a report from a pre-accident treating doctor; that she had not seen a report from any doctor who treated the appellant after the accident which supported the claim that he sustained "... a relevant brain injury as distinct from a head injury"; that she had not seen a single treating doctor or received a comprehensive report from any treating doctor; that she had not seen any preschool reports predating the accident, or any school reports later than mid-year 2001.

1. An array of submissions sought to contend with these statements, but they are all defensible for their simple accuracy.  None was irrelevant, and as she saw them as relevant it was appropriate of the Trial Judge to refer to them.  Written submissions made a number of other combative or otherwise adverse comments on passages in the Trial Judge's Introduction, but I do not attach any significance to these.  Many things which the Trial Judge said attracted adverse comments; it would seem that the submission was framed on the basis that anything in the judgment which did not accord or did not fully accord with the state of facts for which the appellant contended or had ever contended was to attract an adverse comment.  Advocacy of this kind was voluminous, but not uniformly useful. 

2. Although I discuss the grounds in the Amended Notice of Appeal one by one, they cannot really be considered in isolation from each other and I do not attempt to assign clear boundaries between them.

3. Ground 1 in the Amended Notice of Appeal is :  The Trial Judge erred in finding that the appellant’s case rested directly and indirectly on his mother’s evidence.  This ground relates closely to Ground 3 and 10.  Ground 3:  The Trial Judge erred in rejecting the evidence of the appellant’s witnesses as to the appellant’s condition before and after the accident.  Ground 10:  The Trial Judge’s findings as to the credit of the appellant’s mother were perverse.

4. In a passage in the judgment which is headed “Findings on credit” (Red 1/68) the Trial Judge said, as the opening sentence of a lengthy exposition, “In the end, the plaintiff’s case rested directly and indirectly upon the evidence of his mother, Ms Arlene Van Oosten, both as to Daniel’s condition before the accident and in respect to the events unfolding thereafter.”  For reasons which her Honour stated the Judge said (Red 1/68U-I):

   I…find that Ms Van Oosten was a witness of virtually no credit, upon whom it was impossible to place any reliance.”

   Judge Gibb also said (Red 1/69A):-

   The opinions of each of the plaintiff’s medico-legal specialists rested upon what was told to each of them by Ms Van Oosten.  The opinions of the plaintiff’s medico-legal specialists rested upon the very unreliable foundation of Ms Van Oosten’s history.  That shaky foundation undermined their value and impaired their weight.”

   Judge Gibb also said (Red 1/70M):-

   If the plaintiff’s lay witnesses be believed, before the accident, Daniel was a highly developed little boy with an incident free childhood…The sole source for that version of events is Daniel’s mother, although various witnesses (such as Daniel’s sister), whom I find were dependent upon her for their information, narrated a similar story. 

5. Information given by or attributable to Ms Van Oosten about the appellant's condition both before and after his injury is referred to and relied on not only by the appellant's principal medical experts but by many other witnesses; the proofs offered in support of the appellant's case are suffused with information emanating from Ms van Oosten.  As later discussed, history traceable to Ms Van Oosten influenced the opinions of the medical experts and the Trial Judge did not accept the opinions of experts on which the appellant relied, and so there is some significance in her Honour’s saying that ‘in the end’ the appellant’s case rested directly and indirectly upon the evidence of his mother.  I see no error in the Trial Judge having said that the appellant's case rested directly and indirectly on her evidence.

6. Her Honour referred to a number of statements by lay witnesses about the appellant’s state of development; mostly by Ms Van Oosten and also by Ms Johanna Van Oosten, Daniel’s maternal grandmother, by the appellant’s elder sister Krystal and his cousin Mr Aaron Young.  The Trial Judge did not find their descriptions of the appellant’s pre-accident development credible and did not accept their evidence on that subject; the stated reasons for this conclusion included reference to Professor Broe’s statement: “If I assumed that information is accurate that is a highly developed boy;” and the Trial Judge referred to contemporaneous records which in her view showed that the appellant was not a highly developed boy.  The Trial Judge referred to indications of the appellant’s pre-accident ability in pre-school records, and in later history given by Ms Van Oosten, and to anomalies in the lay witnesses, whom the Trial Judge regarded as unduly affected by communications with Ms Van Oosten – (Red 1/72 W) “…her version of events had demonstrably affected that of each of the family members and Mr Milczarski.”  The Trial Judge made an extended statement of references to the evidence of lay witnesses which in her view supported this conclusion.

7. In my view the evidence of the lay witnesses to which her Honour referred does not strongly or clearly show that before his injury the appellant had the abilities which Ms Van Oosten’s evidence would show that he had; in view of the adverse view which the Trial Judge formed of Ms Van Oosten’s credit, for which there were ample grounds, there was a reasonable basis for the Trial Judge to discount any real support from any other lay witnesses.

8. The condition and abilities of the appellant before his injury are obviously of basal importance for findings on whether and to what extent his disabilities were caused by the accident.  They are also basal to most relevant medical evidence.  The sources are the evidence of Ms Van Oosten, the appellant’s mother, the evidence of four lay witnesses who were called in the appellant’s case, and some material, extremely sparse, from medical records and records of the pre-school relating to the appellant in the short period of his life from his birth on 2 July 1990 to his injury on 3 March 1995 at the age of four years and eight months.  The Trial Judge’s rejection of the credibility of Ms Van Oosten was comprehensive; the reasons were stated at great length and the rejection has implications for fact finding at many different points.  From the terms of the judgment overall it must be understood that the rejection of Ms Van Oosten’s evidence has a number of bases.  The tone as well as the terms of her Honour’s observations show that a strongly adverse view of Ms Van Oosten’s demeanour as a witness was a prominent part, and there are many passages where the Trial Judge’s observations on passages of Ms Van Oosten’s evidence show anomalies and improbabilities and inconsistencies in many ways.  These findings expressly were significantly affected by a view about the credibility of Ms Van Oosten which the Trial Judge had advantages over an appellate Court in forming, and no matters were referred to which I regard as supporting credibility with incontrovertible facts or as making the Trial Judge’s conclusions very improbable or contrary to compelling inferences.  It remains for me on appeal, whilst remembering the special advantages of the Trial Judge and applying appellate restraint, to come to a view on Ms Van Oosten’s credibility, as on other factual matters; see Fox v Percy at 127-128 [25] to [29].

9. Ms Van Oosten gave an account of the appellant’s pre-accident condition in her evidence-in-chief which, as described by the Trial Judge, was so serene and flawless as itself to excite scepticism (Black 2/365-366).  In that account the appellant was happy, forward in development, quick to learn, quick to pass developmental milestones, never in trouble, well behaved, attentive, tidy, even in mood, happy, and never presented any hyperactive behaviour or anything un-natural.  In the Trial Judge’s finding this was a rather romantic version of the appellant’s pre-accident development.  (Red 1/72U). 

10. It was contended that the Trial Judge had not paid proper regard to corroboration in contemporaneous records of the evidence of lay witnesses.  In support of this proposition the written submission referred to a number of records which relate to observations of the appellant made later than his injury.  In fact there are very few records from earlier times, and the Trial Judge dealt with them in a careful way.  (Red 1/100-104).  Ms Van Oosten herself maintained a written record of his development, referred to as a personal health record.  The names of treating doctors were listed in this record.  The medical records from this period which are in evidence, as reviewed by her Honour, did not appear to show anything of great significance.  Most records relate to attendances on general practitioners, principally Dr Thakur; some relate to hospitals or to the Grafton Community Health Service.  There was a hospital attendance in February 1995 when the appellant drank some turpentine from a bottle at his father’s home; this does not seem to have had any severe adverse consequence.  Dr Thakur’s notes, and evidence about an enquiry of him by Professor Broe, show, in relation to a visit on 25 November 1991, that Dr Thakur was then given a history that the appellant was off food, and Dr Thakur’s note (with emphasis that he was an active child) that his mother reported a personality change.  Ms Van Oosten also spoke in evidence of concerns about the effects of food colourings, preservatives and artificial flavourings, particularly red dye in cough medication.  There were other minor ailments and attendances on Dr Thakur.  There was an attendance at Maclean Hospital on 7 March 1992 after the appellant had ingested a small quantity of local anaesthetic and hospital notes record “some hyperactivity but otherwise normal child.”  There was no basis for interpreting this note so as to understand what hyperactivity was referred to; the Trial Judge said that this was a matter of real speculation (Red 1/104M).  There are some records of his attendance at Yamba Pre-school where he was enrolled on 1 February 1995.  There were no records which cast any light on his ability.  The contention that contemporaneous records have some bearing on the assessment of the evidence of the lay witnesses, and that the Trial Judge made some error in her treatment of such material, appears to me to have no substance. 

11. It was contended that for all the four lay witnesses’ observations there were a number of matters of objective corroboration of their observations that the appellant’s concentration span had been affected and that he had become inattentive.  Many notes and records of school teachers and school counsellors were referred to in support of this submission.  Counsel also referred to observations in the reports of occupational therapists, of speech therapists and in records of the Royal Brisbane Children’s Hospital.  The Trial Judge adverted to these records and dealt specifically with most of them; perhaps with all of them.  None of them provide any real corroboration of evidence about the appellant’s pre-accident condition; except in respects which the Trial Judge regarded, reasonably, as open to be influenced or as actually influenced by inaccurate history furnished by Ms Van Oosten. 

12. The Trial Judge gave extended consideration and carefully stated reasons for the views she took about the significance of the lay witnesses referred to.  Her Honour dealt with the evidence of Krystal Van Oosten De Groot, the appellant’s elder sister (about three years older than him) (Red 1/73-74).  Her Honour said (Red 1/73E):-

    In some respects her description of Daniel bore an eerie reflection  of her mother’s words.  Krystal was extremely confused about a number of historical events…

    Her Honour exemplified this statement by extensive reference to evidence.  After referring to a number of instances of confusion, her Honour said (Red 1/74 I-J):-

    Without reflecting upon Krystal’s honesty (about which I make no criticism), I am not satisfied that she has any independent recollection of the events.  I have not accepted her evidence about Daniel’s development and progress either before the accident or in the years following the accident.

    Her Honour was in a good position to come to this view, and counsel’s submissions did not refer to anything which I regard as an objectively clear indication that the finding was not correct.

1. The Trial Judge dealt with the evidence of Ms Johanna Van Oosten, the appellant’s maternal grandmother (Red 1/74-76).  Her Honour reviewed evidence bearing on Ms Johanna Van Oosten’s opportunities to make observations of the appellant, and indications in her evidence of the quality of her recollection of significant events.  Her Honour set out passages from Ms Johanna Van Oosten’s evidence which illustrate that she had difficulty of recollection even of significant events.  She also made observations on Ms Johanna Van Oosten’s style in delivering evidence: (Red 1/75 O-Q)

   [her] evidence was given in a rather recited style, with long pauses as she sought to recall events…her delivery style left me with the strong impression that she lacked any immediate, first hand, relevant knowledge of Daniel’s condition in the mid 1990’s, and had scant recollection of his development before the accident, other than in a rather idealised recollection of a perfect baby…

2. Her Honour was aware of and referred to what was shown in video film of family gatherings before the accident at which Ms Johanna Van Oosten, the appellant and Mr Young were shown as present.  Her Honour gave reasons for not accepting Ms Johanna Van Oosten’s evidence.  There are findings to the effect that her evidence was reflective of some of Ms Arlena Van Oosten’s exaggerations, that she had virtually no independent recollection of events, and that with limited exceptions she was dependent on what she had been told by Ms Van Oosten.  In the circumstances there is no basis on which I should conclude that the Trial Judge was in error in the treatment of her evidence.

3. The Trial Judge considered the evidence of Mr Aaron Young, who is the appellant’s cousin; Mr Young is about sixteen years older than the appellant.  He had opportunities to observe the appellant before the accident, as he lived in or near Yamba for some periods before and also after March 1995.  Her Honour commented on limitations on Mr Young’s opportunities to make observations of the appellant after the accident, and referred at length to evidence bearing on that matter.  Her Honour found (Red 1/78C):-

   Mr Young had very little independent recollection of Daniel’s behaviour before the accident or his condition afterwards.  That which he did recall was contradicted by contemporaneous medical records.

4. Her Honour found that Mr Young’s evidence about the appellant’s development and progress reflected Ms Van Oosten’s influence and that there were contradictions with contemporaneous records; which her Honour preferred.  Her Honour’s findings were based on careful consideration of Mr Young’s evidence in circumstances where her Honour was in a position of advantage; no significant observation has been made which could tend to show that the findings were wrong.

5. Mr Robert Milczarski was found by the Trial Judge to be a reliable witness as to details of the accident (Red 1/79K).  Her Honour found that his recollections of Daniel before and after the accident were unreliable, vague and heavily influenced by Ms Van Oosten’s reports (Red 1/79M).  Her Honour found that:-

   Despite his episodic relationship with Ms Van Oosten, Mr Milczarski maintained a distance from the children….

   and did not accept his evidence about Daniel’s development and progress. 

6. As with other lay witnesses, submissions went no further than rehearsing reasons favouring the acceptance of Mr Milczarski’s evidence which were available for consideration by the Trial Judge, and in most cases were considered expressly by her Honour.  I see no reason for concluding that the Trial Judge erred in rejecting Mr Milczarski’s evidence, to the extent that she did reject it.

7. It was also contended that the Trial Judge was in error in the view which her Honour took of the evidence of the appellant’s mother and tutor Ms Arlena Van Oosten.  The submission was supported with references to a number of matters in evidence which it was contended supported acceptation of Ms Van Oosten’s evidence in various ways.  The Trial Judge’s consideration of the evidence of Ms Van Oosten, and statements of reason for her adverse view, are very extensive.  They are found in many parts of the lengthy judgment.  It is not often that so full or so clear a statement is made of the bases for rejecting a witness’s evidence.  The judgment shows clearly that the rejection was based on detailed addresses to what her Honour regarded as anomalies and improbabilities, and also on indications of the witness’s demeanour which the Trial Judge saw as indicating that her evidence was unsatisfactory.  I regard such a comprehensive rejection on such clearly stated grounds as beyond all recovery on appeal. 

8. In my opinion Grounds 1, 3 and 10 have not been made out.

1. Ground 2:  The Trial Judge should have found that the appellant suffered from the traumatic and not the congenital form of ADHD. 

2. The terms in which Ground 2 is cast do not appropriately reflect the matter for decision by the Trial Judge, which was whether the appellant’s ADD was caused by the injury which he suffered on 3 March 1995.  The written submissions in support of Ground 2 included extended attacks on opinions of Dr Jones and Professor Werry which were generally adverse to the appellant’s suffering from any continuing disability relating to brain injury.  It was for the appellant to establish and obtain a finding that his ADD or any other disability was caused by brain injury.  The Trial Judge found (Red 1/229V) “only one matter was ultimately not of controversy in this case: that Daniel had Attention Deficit Disorder….the real issue is what is the source of that Attention Deficit Disorder.  Professor Broe attributed the Attention Deficit Disorder to brain injury and described it as one ‘secondary’ to brain injury, as did Dr Johnson.”  Her Honour also found (Red 1/232 C-D):

   Daniel no longer suffers from hyperactivity, although his attentional difficulties continue. He suffers from Attention Deficit Disorder.”

   Her Honour said (Red 1/234L-V)

   Did Daniel sustain a relevant brain injury in the March accident?  Daniel sustained a severe head injury.  The real issue is whether he also sustained a significant brain injury, and whether there are any long-term sequelae other than the 6mm scar which various specialists detected on CT scans and MR images … The plaintiff contends that Daniel sustained a significant brain injury, and relied upon the opinions of Professor Broe, Dr Buckley and Dr Johnson.  For the various reasons discussed in this judgment, I reject the opinion of each in this respect”. 

   Her Honour’s consideration, which was extensive, of the effect of the evidence, principally the medical evidence, led to the following dispositive findings (Red 1/246 A-E):

   Conclusion re injury and disabilities. 
   I find that Daniel sustained a severe head (as distinct from brain) injury in the March 1995 accident.  The head injuries were a blow causing some cuts, bruising and a fractured skull.  The immediate sequelae included hospitalisation for a week (Grafton Base Hospital and air transfer to The Royal Children’s Hospital, Brisbane) and an operation to repair the depressed fracture.  The effects included a convalescent period and a period of 3 months when Daniel suffered adversely from the effects of Dilantin intoxication.  In addition, Daniel has some small residual scarring, a healed fracture of the skull and a healed scar (gliosis) of some six millimetres on the parietal area of the brain.  He also has some minor facial scars.  I find that Daniel sustained what various specialists called a mild or trivial brain injury, with minimal resulting permanent damage to the brain, and no relevant sequelae.

3. The Trial Judge’s statements of reasons was full and was in terms which show that it was fully considered.  It might have been thought to be too long, if one had not heard and read submissions contending that it did not say enough.  The reasons included lengthy  passages reviewing the evidence of each significant medical witness, the history available to the witness, the use made of the history, and the opportunities of the witness to obtain history and to make observations.  Her Honour’s disposition of this issue depends on findings on the evidence of Professor Broe and Dr Johnson as least as much as it depends on findings on the evidence of witnesses called by the respondent.

4. Her Honour reviewed the evidence of Dr Stephen Buckley, a consultant physician in rehabilitation medicine, called by the appellant.  Her Honour said to the effect (Red 1/214E) that it was Dr Buckley’s opinion that “one must assume” that the brain injury caused the appellant’s problems, because there had been a head injury.  He detected no neurological abnormality on examination and found no evidence on the Magnetic Resonance Image.  Observations by her Honour adverse to accepting Dr Buckley’s opinion include observations to these effects.  There were flaws in Dr Buckley’s reasoning in that he had regard to difficulty in dressing or apraxia but he found no apraxia, and in that he had regard to deficits of higher cognitive function and behaviour which he said were not contested, whereas in the Trial Judge’s view there was great controversy about them.  Dr Buckley had selective inaccurate history and incomplete medical records, in particular he did not have the records from the Royal Brisbane Hospital; and the lack of that material severely impaired the weight of his assessment and opinion.  He drew on reports which rested on very inaccurate histories provided by Ms Van Oosten; in the Trial Judge’s view that history was inaccurate and incomplete; these views were based on extensive consideration and findings elsewhere in the judgment.  The history given to Dr Buckley was crucial to his opinion; her Honour reviewed and quoted extensively from Dr Buckley’s evidence when challenged in cross-examination; this review showed the significance of events in the history which Dr Buckley regarded as material but the Judge found elsewhere to be inaccurate.  Among other matters, the Judge found that there was no post-traumatic amnesia and found (Red 1/2160):

   Dr Buckley’s examination of Daniel in December 1999 revealed no significant problems: he had a completely normal neurological examination and development consistent with his age of nine to ten years.

   Dr Buckley had had no further examination or review since December 1999 followed by his report on 31 January 2000. 

5. Her Honour reviewed (Red 1/217-218), and obviously regarded as unsatisfactory, evidence of Dr Buckley about the interpretation of Dr Mullen’s report of the Magnetic Resonance Image dated 27 November 2000.  Dr Buckley gave an interpretation of that MRI scan in January 2001 including:

   The changes observed are minimal.

   I do not think that the MRI scan provides significant confirmatory evidence for the traumatic brain injury.

   However, in a report in June 2002 Dr Buckley spoke to a different effect:

   Acute changes, consistent with oedema on the early CT scan performed at the time of injury, have resolved, leaving atrophy and scarring when viewed on the MRI, strongly suggesting the occurrence of acute brain injury, distant from the site of impact, in the initial incident.

6. Her Honour described this as a volte-face and commented that in this as elsewhere in his evidence, Dr Buckley tended towards advocacy in his testimony; she set out passages in the evidence which support the description “volte-face”.  Her Honour also stated the effect of Dr Jones’ opinion about the interpretation of the early CT scan and the MRI scan; Dr Jones disagreed comprehensively with all aspects of Dr Buckley’s interpretation which might have supported a conclusion that there was a brain injury.  The Trial Judge preferred Dr Jones’ evidence to that of Dr Buckley where they were in conflict.  In my view there were sound grounds for her doing so. 

7. It was said that the Trial Judge misinterpreted the effects of Dr Buckley’s evidence in that the judgment did not mention that Dr Buckley in oral evidence explained that he leaves testing for cognitive abnormalities to neuro-psychological assessment and for behavioural assessment to those who see the patient in a longitudinal context particularly teachers and others (Black 9/1661K-R).  The passages which Judge Gibb quoted from Dr Buckley’s reports of 31 January 2000 and June 2002 are correctly quoted and plainly inconsistent.  Judge Gibb made a review of Dr Buckley’s opinions on information which became available to him later than 31 January 2000, particularly a report on an MRI of 27 November 2000 and Dr Buckley’s views on Dr Jones’ report on that MRI.  After a review of evidence of Dr Buckley and Dr Jones about the significance and interpretation of the MRI scan the Trial Judge concluded (Red 1/218L):-

   I prefer Dr Jones’ evidence to that of Dr Buckley where they were in conflict.

   This conclusion was based on consideration and analysis of evidence which to my reading was not deficient, and shows that the Trial Judge had a reasonable basis for preferring Dr Jones’ evidence.  The circumstance that Dr Buckley leaves some testing and assessment to others has no real impact on this conclusion.

8. It was submitted that the Trial Judge’s finding (at Red 1/215D) relating to Dr Buckley was in error.  The passage commences:-

   The history given to Dr Buckley was crucial to his opinion.  He has the benefit of no radiological confirmation. 

   It was contended that this was an error of fact in that Dr Buckley regarded it as a fact that there was contusion in the underlying brain; this was the sum of his interpretation of the CT scan of 3 March 1995 which he regarded as showing swelling in the brain; I refer elsewhere to the dispute whether the CT scan in fact showed swelling in the brain.  The Trial Judge’s statement:  “He has the benefit of no radiological confirmation” was not produced by any misunderstanding of the facts, but reflects a finding against Dr Buckley’s evidence of what the CT scan showed. 

9. Counsel referred to the Trial Judge’s finding (at Red 1/217L):-

   Dr Buckley’s report was dated 31 January 2000, when upon normal neurological and developmental examination Daniel was seen to be completely normal, and Daniel’s development was consistent with his then age of 9 to 10 years. 

   Counsel made contentions (Orange 49/1.16) against the Trial Judge’s finding (Red 1/235T):-

   At its highest the only symptoms identified are those that are characteristic of attention deficit disorder. 

   This submission was supported by an array of considerations, most of them calling for consideration under other grounds of appeal, which were said all to have aided a differential diagnosis of head injury rather than congenital ADD/ADHD.  It may well be that they do, but that does not show any error in the Trial Judge’s finding that the identified symptoms are characteristic of attention deficit disorder.  At this point, as at many other points, the submission and arguments in support of it can be clearly seen as showing that findings of fact different to those made by the Trial Judge were available; but this is not a showing that the facts which the Trial Judge found were found wrongly and should be corrected on appeal. 

10. Written submissions also reviewed a number of passages from the evidence of treating doctors in support of a contention that the Trial Judge showed misunderstanding when she found (Red 1/31H):

    Unlike Daniel’s treating doctors, Dr Buckley says that Daniel sustained a relevant brain injury.

    This written submission was followed by five quotations from reports of treating doctors none of which is a positive statement  that the appellant sustained relevant brain injury.  The submission was misdirected and unhelpful. 

11. There were similar contentions about other expressions of the Trial Judge dealing with Dr Buckley’s evidence, but those expressions have not been shown to be erroneous.

12. The Trial Judge considered extensively the evidence of Professor G. A. (Tony) Broe, whom she found to be “a highly skilled consulting neurologist, geriatrician and consultant in rehabilitation.”  Her Honour set out some significant facts relating to Professor Broe’s career which show that he was very highly qualified in neurosciences and rehabilitation medicine, in relation to children and young adults early in his career, although for many years, from 1985 onwards, in geriatric medicine.  Her Honour found (Red 1/218N):-

    He was a rather strange choice of expert for a child plaintiff who has been diagnosed with Attention Deficit Disorder, whatever its cause.  He does not treat children with Attention Deficit Disorder.

13. Professor Broe expressed his conclusions (Blue 2/338-339):-

    Conclusions

    Daniel De Groot suffered significant and permanent brain injury in the motor vehicle accident on the 3rd of March 1995 when he was struck in the right parietal area by a metal cleat travelling at significant speed.  He has sustained a focal right parietal cortical injury, however he has also undoubtedly sustained more widespread or diffuse brain injury as a result of the impact and pressure waves through what is semi-fluid brain substance contained in a rigid box with numerous internal protuberances, particularly in the inferior frontal region above the orbits and in the anterior temporal regions in the middle cranial fossie.  In my opinion the frontal systems impairments (outlined in the body of this report) can be explained on a combination of his right parietal focal defect and more diffuse involvement of brain networks observing frontal systems functions of attention concentration, planning, speed of information processing, initiation and motivation and behavioural control as well as frontal memory.

    The persistent deficits outlined in the neurological history taken form his mother and in the school reports are in my opinion the result of traumatic brain damage as outlined in the neuropsychological assessments.  There is no good history of significant preceding developmental delay or true attention deficit hyperactivity disorder.  There is no history suggesting to me significantly poor parenting or frontal systems disorder due to social or emotional disadvantage.

    Importantly, as outlined by Jacqueline Boon, further development delay is likely with advancing years in the presence of traumatic brain damage at four to five years of age.  Good initial frontal systems function is important for future brain development even with minimal frontal systems function.  The neuropsychological assessments indicate much more than minimal deficits and Daniel De Groot’s developmental milestones are likely to be further delayed between the ages of eleven and fifteen years.

    It is extremely important that Daniel De Groot receives every assistance in terms of schooling and learning in this developing period between eleven and fifteen years of age.  Furthermore it is my opinion that we will not be able to make a prediction of the ultimate outcome in terms of employability or the need for home support systems until Daniel De Groot has completed his schooling and has attempted to enter the workforce or live independently.

    However based on the current clinical picture, I would predict that he will be essentially unemployable due to frontal system impairments and that he may well require an ongoing case manager and support in personal care and instrumental activities of daily living.  This will be considerably more likely if his current school and developmental needs are neglected.

14. Professor Broe in his oral evidence (Black 8/1451) referred to the “minor low attenuation scar,” which was referred to in the Report of the CT scan carried out at Royal Brisbane Hospital on 25 May 1995, part of exhibit K in these terms:-

    Minor bony irregularity at the site of the previous fracture.  No residual depression.  Minor low attenuation scar.  Ventricle normal.  No other focal intracranial abnormalities seen.

    Professor Broe said to the effect that the reference to the minor lower attenuation scar meant brain damage.  Underlying the point where the fractured skull occurred  Professor Broe said:-

    “…that scar is in an area of the brain known as the right parietal area” (1451) and “I believe this boy has had a more diffuse injury, but I also believe that his right parietal injury is very significant to the outcome.” (1454).

1. Professor Broe treated the neuropsychological assessments as part of the basis for his conclusion that the appellant had suffered a brain injury; after referring to the Reports of Sue Packer and Jacqueline Boon (Blue 2/335-336) and much other material Professor Broe reached the conclusion (at Blue 2/338-9) which I have set out.  However Professor Broe also said (at Blue 2/338) in a context which shows its importance:-

   There is no good history of significant preceding developmental delay or true attention deficit hyperactivity disorder.”

   Professor Broe also referred to the neuropsychological testing in his oral evidence (Black 8/1422, 1423, 1429, 1432).

2. His conclusions set out by her Honour (at Red 1/219) included conclusions to the effect that there was:

   Clinical evidence of more diffuse and permanent brain damage which is causing marked cognitive and behavioural difficulty six years post-trauma.  Daniel De Groot manifests cognitive and behavioural symptoms at home and in school that have been persistent or unremitting over a period of six years with marked deterioration in his developmental milestones immediately post-trauma, which has persisted up until the present day.

   Her Honour found (Red 1/219J):-

   Professor Broe rested much of his opinion upon a very uncertain and inaccurate history provided to him by Ms Van Oosten.

3. As the case was presented on appeal, the evidence of Professor Broe was said to have a claim to attention and an importance which outweighed the evidence of any witness on behalf of the respondent because of the importance for the appellant’s case of an interpretation of the radiological and neuropsychological evidence by a competent neurologist; it was said to the effect that Professor Broe was the only and essential source of such an interpretation, the respondent having called the evidence of no neurologist (although the respondent had had the appellant examined by a neurologist).

4. Her Honour observed on aspects of the history given to Professor Broe which she found elsewhere to be inaccurate, and on extensive aspects of the appellant’s actual history and experiences which Professor Broe was not given as history.  His evidence showed at least contemplation that poor parenting may have had adverse effects on frontal lobe development; he accepted that family disturbances can cause frontal lobe problems but regarded the history which he was given as showing that the appellant had been treated with good parenting skills.  This was inconsistent with findings in the judgment which led her Honour to find (Red 1/222P):

   Professor Broe’s history of the family and domestic relationships was inaccurate to the point of grossly misleading in the context of Ms Van Oosten’s lengthy complaints about Mr Rick De Groot, his absences from the home during the marriage, domestic violence and his influence upon Daniel. 

5. Insofar as the appellant’s case rested on the evidence of Professor Broe it did not rest directly upon the evidence of Ms Arlena Van Oosten.  History narrated by Ms Arlena Van Oosten was an important source for Professor Broe’s conclusions, but it was not the only source, and Professor Broe also had other and significant reasons for his views; these included results of neuropsychological testing, which the Trial Judge did not accept for reasons with which I deal elsewhere.  At other points there were bases for views expressed by Professor Broe which could not be said to rest indirectly on the evidence of Ms Arlena Van Oosten.

6. The Trial Judge regarded Professor Broe as having been given inadequate history and as having paid inadequate regard to adverse elements in parenting, family and domestic relations; her Honour’s reasons for seeing matters that way were stated extensively (Red 1/222-224).  Professor Broe was given a history of the events of 3 March 1995 which the Trial Judge also found was inaccurate in significant respects, in particular that the appellant did not lose consciousness or suffer fits before he reached Grafton Base Hospital (Red 1/224F); that he was not delusional at the Royal Children’s Hospital, Brisbane (Red 1/224U); and found that history furnished to Professor Broe was inaccurate in other respects. 

7. Her Honour’s conclusions included these (Red 1/225B-K):

   Professor Broe postulated damage to Daniel’s frontal lobes.  He identified no such damage by examination or radiology.  Dr Jones….found no directly relevant abnormality (or damage) to the frontal lobes…I have preferred the evidence of Professor Werry to that of Professor Broe in respect of Attention Deficit Disorder and Dr Jones to that of Professor Broe in respect of paediatric neurology. 

8. Professor Broe’s observations based on the neuropsychological testing and reports greatly enhance the importance of the issue relating to the Trial Judge’s treatment of them; see Ground 4 below.  There was also evidence from Dr Jones and Professor Werry supporting the view that the CT did not show swelling or oedema  (Black 10/1956N); this interpretation was challenged in cross-examination.  Professor Werry said in his Preliminary Psychiatric Report of 10 February 2002 (Blue 6/1379P):-

   There is no evidence to support generalized or frontal area injury except the psychological tests and his behaviour - neither of which is specific enough to diagnose head injury (ADHD is a better diagnosis).

   His oral evidence said that the psychological test provided weak evidence of generalised or left side brain damage (Black 13/2536B).  This material further shows the importance of the neuropsychological testing. 

9. Related to an earlier contention was a contention (Orange 46) relating to the Trial Judge’s finding (at Red 1/219W):-

   Professor Broe was not told about the matrimonial and domestic stresses during Daniel’s childhood.

   Counsel observed to the effect that various of the domestic circumstances were put to Professor Broe in cross-examination and his opinion remained that the appellant’s cognitive difficulties could not be caused by such factors, and that behavioural problems may be exacerbated by but not caused by such factors.  However the Trial Judge’s finding last quoted was correct, and it was relevant to the matter the Judge was considering that Professor Broe formed his opinion without being told of the matrimonial and domestic stresses.  It was appropriate for the Trial Judge to refer to this matter in an exposition of reasons for not accepting the opinions of Professor Broe.  From the point of view not of an expert witness but of a person finding facts on the basis of an appraisal of the evidence, the domestic and emotional circumstances of the appellant have a simple and obvious claim to be brought under attention and addressed, in much the same way as the fact that the appellant suffered a depressed skull fracture when stuck by a heavy flying object calls for consideration; the way in which an expert witness deals with facts which have claims on attention like that obviously calls for consideration when finding the facts.  It would not be appropriate to allow a non-expert person’s sense of the significance of factors like that to outweigh the views and evidence of experts; but the Trial Judge is not to be criticised for treating the subject as important. 

10. The appellant also called the evidence of Dr Sandra Johnson who examined the appellant in March 2002, after the commencement of the trial; the Trial Judge regarded the contemporaneity of her report as valuable (Red 1/225L).  Dr Sandra Johnson is a consultant developmental paediatrician.  Her Report dated 10 April 2002 (Blue 5/1269) shows in its terms that Dr Johnson had many sources of history, including copies of 34 Reports relating to the appellant.  Her report opens (Blue 5/1271-72) with an extensive history obtained from Ms Van Oosten.  In the consideration of her diagnosis that the appellant “…has significant learning difficulties and attention deficit hyperactivity disorder (ADHD) of the combined type, secondary to the head injury sustained 3 March 1995” (Blue 5/1276 see C & D) Dr Johnson said, in the context of studies which suggested that developmental ADHD was a hereditary disorder: “There is no family history of learning difficulties or attention problems in Daniel’s family” followed by comments based on reading school reports of Mr Rick De Groot, the appellant’s father.  This does not dispose of the overall significance of history given by Ms Arlena Van Oosten.  This is far from being the only source on which Dr Johnson relied, and she relied on many reports and also on her own observations and knowledge.  The favourable account of the appellant’s pre-accident development and behaviour given in that history was plainly important for Dr Johnson’s conclusions.  In oral evidence-in-chief Dr Johnson was asked to comment on the statement by Professor Werry that:  “There must be objective demonstration of injury through examination, organ imaging and neurological deficits” and said (Black 10/1746M): “Well, in my opinion, the objective demonstration of injury through examination is supported by the neuropsychological tests that show that Daniel has information processing problems and short-term memory problems, which in my opinion is secondary to his injury.”  She also referred to the initial CT scan and to “the fact that he had a seizure within the first 24 hours following the injury” as showing some neurological deficit.  This answer does not show the basis of Dr Johnson’s conclusion that ADHD was secondary to the traumatic injury.  In re-examination (Black 10/1891) Dr Johnson agreed that there was material in neuropsychological reports which indicated that the appellant had slowness of information processing; and she also referred to tests which she had carried out herself.  Counsel for the appellant referred to some other material, but none of it shows that Dr Johnson’s conclusions do not rest on the basis of the history given to her by Ms Van Oosten. 

11. The Trial Judge accepted Dr Johnson’s opinion that the appellant suffered from Attention Deficit Disorder, a finding also supported by Professor Werry’s evidence.  It was Dr Johnson’s view that the Attention Deficit Disorder was secondary to brain injury; this differed from the view of Professor Werry that the Attention Deficit Disorder was congenital.  The Trial Judge reviewed extensively the evidence dealing with this.  Her Honour referred to the views of each as a thesis, which indicates their bases in interpretation rather than objective observation.  In the Trial Judge’s finding Dr Johnson’s opinion proceeded on very inaccurate history: (Red 1/30Y):-

    On the basis of the very inadequate and inaccurate history given to her, Dr Johnson concluded that Daniel’s attention deficit disorder was secondary to a traumatic brain injury. 

    For the reasons discussed elsewhere I do not accept Dr Johnson’s conclusion as to the genesis of Daniel’s attention deficit disorder, but I accept her diagnosis of the existence of the condition. 

    Her Honour also referred to some factual errors arising from review of documents and minor mistakes on examination.  Her Honour commented  (Red 1/226J):

    The history upon which Dr Johnson proceeded was flawed and incomplete, and she had not had access to all the relevant medical and case work material….Dr Johnson was taken by surprise by much of the information about Daniel’s history which was put to her in cross-examination….

    Extensive passages from cross-examination were set out in the judgment and illustrated that this was so.  In a passage which followed indications, supported by evidence but known to Dr Johnson for the first time from the questions in cross-examination, that the appellant had a rather turbulent family background, she acknowledged (in evidence quoted at Red 1/228G):

    Emotional maladjustment can certainly present with many of the behavioural features that we see in Attention Deficit Disorder, and consequently they would need to be taken into account. 

    Dr Johnson also accepted (Red 1/228S-T) that the conflict over Christmas 1995 was significant for the development of Enuresis, and was more likely than not the explanation for its development.  A misreading of a description of the appellant’s seizures at the Grafton Base Hospital caused Dr Johnson to postulate a contrecoup injury on which she rested certain conclusions, which the Trial Judge rejected, correctly (Red 1/229N).  The Trial Judge regarded this as having significant consequences for Dr Johnson’s attribution of Attention Deficit Disorder to brain injury.  This was a reasonable view to take.  The Trial Judge’s conclusion was (Red 1/229U):

    Dr Johnson[‘s] reasons for attributing Daniel’s problems to the head injury sustained in the accident are demonstrably based upon misapprehensions and an inaccurate history.

12. The appellant’s counsel made contentions (Orange 14/1.14) to the effect that the Trial Judge was wrong to find (at Red 1/229N) that Dr Johnson had postulated a contrecoup injury on the basis of a misreading of a description of the appellant’s seizures at the Grafton Base Hospital, and was wrong to reject the interpretation that there had been a contrecoup injury.  Cross–examination obtained Dr Johnson’s agreement that if (as seems clear) the appellant had a focal left arm seizure, that would indicate a lesser likelihood of a contrecoup injury to the left side of the brain opposite the side of the fracture, although it would not necessarily indicate that there was no contrecoup injury to the left side.  In my view the Trial Judge expressed a reasonable basis for rejecting the analysis that there had been a contrecoup injury.  The Trial Judge’s basis for not accepting the views of Dr Johnson appears at Red 1/229; the conclusion was based not only on a finding that the appellant did not have the contrecoup injury postulated but also on a finding that Dr Johnson’s opinions were based on history which was not accurate.  The inaccuracy of the history was a large subject, which her Honour had determined elsewhere.  On the basis of that determination, the reasons given for not accepting Dr Johnson’s opinions appear to me to be quite reasonable; the Trial Judge’s conclusion has not been shown to be wrong.

13. A related body of submissions (Orange 47-49/1.15) dealt with several matters relating to the appellant’s father Rick De Groot which it was suggested to Dr Johnson in cross-examination showed that there was a family history of learning difficulties or attention problems, a necessary element in Dr Johnson’s view for there to be developmental ADHD, a hereditary disorder; it was suggested that on the whole of the evidence the supposed facts relating to Mr Rick De Groot which were put in this cross-examination were not established.  Dr Johnson did not accept, on the basis of those suggested facts, (whether or not they were true) that there was a genetic basis for the appellant’s ADHD.  In my opinion the correctness of the supposed facts about Mr Rick De Groot and the validity of the Trial Judge’s findings about reliance on Dr Johnson’s evidence are not interdependent; always remembering that the onus of proof was on the appellant, the fact (if it is a fact) that some cross-examination was ultimately ineffective is not a demonstration that the Judge’s decision against accepting Dr Johnson’s evidence was incorrect. 

14. The Trial Judge dealt (commencing at Red 1/234) with the question whether the appellant sustained a relevant brain injury in the accident of 2 March 1995.   The Trial Judge referred, correctly, to the fact that none of the treating doctors observed any radiological indications of significant brain injury.  (Red 1/234M).  Her Honour said that the appellant relied on the opinions of Professor Broe, Dr Buckley and Dr Johnson, and that (Red 1/234U):

    For the various reasons discussed in this judgment, I reject the opinion of each in this respect.

15. In the following passage the Trial Judge again referred to the evidence of Dr Buckley and the evidence of Dr Jones; Dr Jones gave evidence to the effect that loss of consciousness is an essential ingredient for diffuse axonal injury; that there were other forms of diffuse brain injury; that axonal brain injury does not show up on MRIs per se in the acute phase but that in the chronic phase, some months or years after the injury, diffuse axonal injury will show up on MRI as areas of increased signal.  (Red 1/235H-Q).  Her Honour commented:

    None was detected on the MRI image taken in November 2000 more than five years after the accident.

16. Her Honour referred to the fact, found elsewhere, that the appellant suffered no traumatic amnesia, that his lowest Glascow Coma Scale reading was 13 and only fleetingly so, that there was no radiological confirmation of any brain injury or of diffuse axonal brain injury and made the finding that, at its highest, (Red 1/235T):

    The only symptoms identified are those that are characteristic of Attention Deficit Disorder.

17. Her Honour reviewed the opinions of Professor Broe, and also Dr Jones and Professor Werry, to the effect that the appellant did not suffer secondary brain injury after the initial injury (Dr Jones) or that the appellant has a healed brain injury (Professor Werry) (Red 1/236N-P).  The Trial Judge went on to refer at some length again to evidence of Dr Jones, Dr Johnson and Professor Werry on the subject in terms which show that she accepted Dr Jones and Professor Werry.  However, this reference does not take the form which the terms of Ground 2 of the Notice of Appeal might suggest, that the Trial Judge departed from consideration of the case on the basis that the appellant bore the onus of proof.  Favourably impressed though her Honour plainly was by the views of Professor Werry and Dr Jones, her conclusion rested on her not accepting the evidence for the appellant, on whom the onus of proof rested.

18. Written submissions in support of Ground 2 went in detail through the grounds on which it could be urged that the evidence of Dr Jones and of Professor Werry bearing on whether or not the appellant suffered from the traumatic form of ADD (or ADHD) should not be accepted.  There was a considerable body of factual material adverse to acceptance of their evidence, but it is plain that the Trial Judge was not convinced by it.  She expressed positive findings upholding the views of Dr Jones and Professor Werry on this matter, although not indeed on all matters.  Written submissions reviewed what were said to be credit issues relating to Dr Jones.  There were several matters significant to his credit.  One was that when, in the course of examination-in-chief he was shown an example of a wheel cleat, he made a comment which seems to mean that he doubted whether the appellant’s injury had been caused by his being struck by a wheel cleat of that kind  -  (Black 10/1947).  Dr Jones said to the effect that his comment on the photographs was that the windshield of the van seems to have been indented but not completely ruptured, but when referred to a photograph he said that there was a hole at the bottom of a saucer shape depression in the windscreen, and he also said:

    The object was quite large and the laceration on the child’s scalp…was 2cm long which is very – ¾” in the old scheme – and it is very small when one considers the size of that cleat. 

    (Black 10/1947U-X).

19. The views which underlay this were explored at painful length in cross-examination, although what Dr Jones said on this subject was not part of the respondent’s case, which did not dispute the appellant’s injury or in broad terms how it happened, although there was much address to matters of detail.  Written submissions also referred to evidence in cross-examination  which showed limits on Dr Jones’ knowledge of ADHD and which showed weaknesses in his view that the appellant suffered a congenital abnormality, or that congenital abnormalities were responsible for his symptoms.  The cross-examination could reasonably be seen as having achieved considerable success, so that it would be difficult to obtain or to sustain positive findings on the basis of Dr Jones’ evidence that the appellant’s disabilities were caused by a congenital abnormality; a high point being (Black 11/2213 G-J) this passage:-

    Q.  You have made it clear, have you not, in your evidence today that you’re not prepared to take the step of suggesting that there’s any basis upon which any of these developmental features that you’ve referred to should be regarded as the cause of the symptoms from which this child has suffered since the accident?
    A.  That is correct, yes.

1. On the 29th hearing day, Tuesday 11 June 2002 Dr Buckley was about to give evidence in chief.  Mr Poulos informed the Trial Judge (Black 9/1573) that Professor Werry had rung and indicated that he was not available in the next week, and that Professor Werry was "on his way and cannot be stopped".  Mr Poulos said he wished to interpose Professor Werry's evidence on the Wednesday or Thursday and Friday of the current week.  Mr McGuinness was asked his attitude, and he asked for time to inquire about Dr Buckley's availability "beyond the timeframe that we anticipated he’d be required for”.  Mr McGuinness then informed the Trial Judge that Dr Buckley was not available on the Thursday and Friday of the current week but was available on Monday of the next week.  There followed several pages of recorded discussion in the course of which the Judge said: (Black 9/1575E)

   In that case, it looks like Dr Buckley's back here on the 17th.  So here today and resuming on the 17th, subject to Mr [sic] Werry … .

   There was some discussion of how long Dr Buckley's evidence might take, but Mr McGuinness did not indicate dissent from the position that Professor Werry would be interposed and, subject to how long his evidence to, Dr Buckley would return on the Monday of the following week.

2. At the conclusion of the sitting day on 11 June the Judge asked:- (Black 9/1662A)

   Right gentlemen, what are we doing to-morrow morning?

   POULOS:              Prof Werry will be here to-morrow your Honour

   Mr Poulos QC went on to ask that the evidence of Professor Buckley (who was called by the appellant and who had been examined on the Voir Dire on his qualifications to interpret CT scans for most of the day) continue on the following day, and that Professor Werry then be interposed.  Senior counsel for the appellant said that this put him in a very difficult position and said (Black 9/1662S):-

   SHAND:               There’s more to it than that, your Honour.  Our next witness is in fact Sandra Johnson.  She is available Friday and Monday.  She’s available tomorrow, but we would certainly protest about being put in a position where in fact we can’t complete her evidence.  Now, if Prof Werry is to start up and charge into Thursday--

   POULOS:              And Friday.

   SHAND:               And Friday – then her time is going to be eaten away and we’ll be in a position of losing her as a witness whom we very certainly want to make sure we call.  We’re in our case now so in our submission we shouldn’t be placed in any such situation, as I’ve just indicated..

3. This was followed by some discussion.  Her Honour seems to have directed (Black 9/1664M) that Professor Werry be called on 12 June but not before 2.00pm.

4. Professor Werry was called to the witness box at 2.21pm on Wednesday 12 June 2002 (Black 9/1704).  When Professor Werry’s evidence had proceeded very little distance Senior counsel for the appellant asked (Black 9/1706):-

   SHAND:  …that this witness should not be allowed to be called at this stage.

   and contended that the case could not be presented efficiently and fairly while being interrupted by a witness such as Professor Werry.  Her Honour responded (Black 9/1707) to the effect that on the previous day Mr McGuinness, Junior counsel for the appellant, had agreed with this course, or acquiesced in it.  The Judge adhered to the arrangement she had directed the previous day. 

5. Trial Judge made a statement as follows (Black 9/1732J-Q);-

   HER HONOUR:  In that case, having regard to change in course, Mr Poulos, when I admitted Dr Johnson, she was on the basis of reply.  It seems to me however she’s in, so she now becomes in chief.  Notwithstanding that there is a costs consequence of that, I do not propose to remove her.  So tomorrow morning I gather it’s Dr Johnson.  I appreciate that Mr Shand does not consider that there was acquiescence in this course.  However, my understanding of what was discussed yesterday morning – particularly pages [Black 9/1573 to 1576] was an acquiescence in the course of substitution.

   As of this afternoon, that acquiescence is obviously gone.  Mr Shand tells me that he is not in a position to deal with this witness without having first heard Dr Johnson in chief.  That being so, at the cost I will permit him to do so.

   This was followed by exchanges in which Senior counsel for the appellant made his dissatisfaction clear, with lapses of civility.  Professor Werry’s evidence did not on that occasion go beyond evidence-in-chief and it appears that he returned to New Zealand.  The hearing was adjourned to Friday 14 June 2002 because counsel for the appellant wished to go to the evidence of Dr Johnson who was not available till then; no evidence was taken on Thursday 13 June 2002.  At the close of proceedings on Wednesday 12 June the Trial Judge indicated that she would make a costs order in respect of costs thrown away by this course.  Dr Johnson gave evidence on Friday 14 June and on Monday 17 June 2002 when her evidence was concluded.  Professor Werry’s evidence resumed on the 39th hearing day, Wednesday 3 July 2002 and was concluded on Friday 5 July.

6. So far as the transcript shows, the Trial Judge was strictly in error to state that Mr McGuinness had agreed to the course directed; it was her Honour's interpretation that he had acquiesced in it, and it was not based on any recorded statement by Mr McGuinness.  However, there was a reasonable basis for her Honour's understanding in the pages at Black 9/1573-1576 to which she referred.  In my opinion, the Trial Judge could justifiably have understood that Mr McGuinness acquiesced in the interposition of Professor Werry should it be that Dr Buckley had not completed his evidence by the time Professor Werry arrived.  Whether or not that be correct, the Trial Judge clearly indicated that Professor Werry could be interposed.  At that time there was no question of calling Dr Johnson, the indications given by Senior Counsel for the appellant when Dr Johnson's report was tendered being that her evidence was to be given in reply to Professor Werry's evidence.

7. I accept that it was a surprise to the appellant’s counsel that Professor Werry was interposed at the time he was, but the wish to give Dr Johnson’s evidence before cross-examining Professor Werry was a departure from the course indicated when Dr Johnson’s report was tendered, and the view that costs occasioned by Professor Werry’s having to attend twice should be the subject of a special costs order was a view reasonably open to her Honour.  I would not uphold Ground 21.

8. Senior counsel for the appellant obtained leave to add Grounds 23 and 24 to the Amended Notice of Appeal by a further amendment.

9. Ground 23 – Her Honour failed to give adequate reasons for her decision.

10. The appellant provided a detailed written submission identifying medical issues as to which it said there was no analysis, or in adequate analysis, by the Trial Judge.  The respondent provided a detailed written submission in reply.  I do not intend disrespect to the appellant's submissions in saying that in my opinion the Trial Judge’s reasons were fully exposed and there is no substance in Ground 23.

11. Ground 24 – Her Honour denied natural justice to the appellant in failing to inform the parties that she proposed to make use (Red 1/126 P-R) of her not having heard any noise made by the appellant outside her courtroom in December 2001. 

12. I earlier dealt with her Honour’s observation by way of Introduction (Red 1/29-30) about the appellant’s not having given evidence or been seen by the Court.  At a much later point in the judgment (Red 1/126) the Trial Judge dealt with hyperactivity and among other things said (Red 1/26H):-

    Dr Johnson says that if Daniel did suffer from hyperactivity or motor difficulties, he no longer does.  That is demonstrated by Daniel’s conduct when he attended at Court (but not in the courtroom) for the hearing of this matter.

13. The Trial Judge then set out a passage from the evidence of Ms Van Oosten in cross-examination about the appellant’s activities during the first days of the hearing, in which Ms Van Oosten said:-

    A.  I’d say he was pretty restless but, yeah, he tried to keep with us most of the time.

    The Trial Judge then said (Red 1/126 P-R):-

    Silence prevailed outside my courtroom in December 2001 when Ms Van Oosten says Daniel was outside.  The sound proofing of the courtroom in which these proceedings were heard is such that it is rare not to be acutely conscious of the presence of children when they are in the foyer outside the courtroom.  But for Ms Van Oosten’s evidence about Daniel’s attendance, I had no indication of his presence outside the courtroom in December.

14. As far as I can understand the force of these observations, they relate to the subject of the appellant’s no longer suffering from hyperactivity or motor difficulties.  The Judge’s comment was to the effect that, at a time when evidence showed that the appellant was outside the courtroom, no noise emanating from him indicated his presence.  I am unable to see that this observation worked adversely to the appellant’s case, or that there was any colour for a suggestion of denial of natural justice, or that there was any sufficient basis to bring Ground 24 forward.  There could be no question of a denial of natural justice unless the Judge’s observation relates to something which was contentious and also important. 

1. In my opinion the Court of Appeal should dismiss the appeal with costs.

2. The Summons for leave to cross-appeal in relation to costs was further supported by submissions in support of a proposed cross-appeal against  dismissal by the Trial Judge of an application for an order that the opponent’s (that is, the plaintiff’s) solicitors pay the costs thrown away by reason of the examination of (what ultimately turned out to be) irrelevant medical issues.

3. The Trial Judge’s refusal of the application appears to be principally based on her finding (Red 2/308C):-

   I infer  -  and find – that the plaintiff’s legal representatives acted in accordance with the instructions as and when given, and gave advice as and when required.  There is no basis on which I may reach any finding as to the conduct of the legal representatives, about whom no complaint is made by the tutor (Ms Van Oosten) or child plaintiff (Daniel De Groot). 

   The application was based on s 148E of the District Court Act (to which the Trial Judge referred at Red 2/302) and the submissions in support of the application also referred to s 148B of the District Court Act and Pt 39A r 14 of the District Court Rules. The Notice of Motion did not identify the legal representatives against whom the order is sought, and no particular persons were named as prospective respondents in the application for leave to appeal.  The submissions in support of the proposed cross-appeal went to great lengths, not extending to naming the persons who were to be affected by the proposed order, but maintaining an argument the principal burden of which was to the effect that the legal practitioners ought to pay costs thrown away in the resolution of medical issues by cross-examining experts on documents which the legal practitioners representing the appellant had not shown to them.  There is no proposal to join the legal representatives supposedly affected as parties to the appeal, or to serve any process on them. 

4. The Trial Judge considered the power to order a legal practitioner to pay costs in s.148E of the District Court Act 1973. The application for an order that the legal representatives of the appellant pay the costs of the respondent also fell within s 148B(1)(b). (Sections 148B and 148E were repealed by the Civil Procedure Act 2005 and provision to similar effect to s.148E is now made by s 98 of the later Act). Section 148E(1) relevantly provided:

   (1)          The Court may, at any stage of an action, make one or more of the following orders in respect of a legal practitioner whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, the action:

   (a)          disallow the whole or any part of the costs between the legal practitioner and his or her client;

   (b)          direct the legal practitioner to repay to his or her client the whole or any part of the costs which the client has been ordered to pay to any other party;

   (c)          direct the legal practitioner to indemnify any party other than his or her client against the whole or any part of the costs payable by the party indemnified.

5. The Trial Judge's reasons (Red 2/303) show that in her Honour’s opinion she had no jurisdiction or power to make any order for costs against the appellant’s legal representatives in circumstances where the tutor had been ordered and was liable to pay the respondent's costs by reason of the Calderbank letter, and where the tutor made no application for an order (such as s.148E(1)(b) would authorise) that those legal representatives repay to the appellant costs which the appellant had been ordered to repay to the respondent. With respect, these circumstances show no reason why there was no power to make an indemnity order under section 148E(1)(c).

6. The Trial Judge made further observations (Red 2/303 to 308) which appear to be directed to the way in which the discretion to make such an order should have been exercised if the power had existed. As her Honour had held that the power did not exist, these observations cannot be seen as an exercise of discretion. In these reasons the Trial Judge gave great weight and seems to have treated it as determinative that, as evidence showed, the tutor made no complaint against the legal representatives but said she had no problems with her solicitors and was quite happy with the way they had conducted the case. With respect, the attitude of the tutor could not correctly have been seen as determinative or even as important at all for the exercise of the discretion to make an indemnity order under s.148E(1)(c).

7. In the proposed cross-appeal it would be necessary to make an extremely detailed examination and appraisal of the manner in which the appellant’s legal representatives managed the adduction of medical evidence and their communications with and furnishing of information to expert medical witnesses.  There are large procedural shortcomings in the process by which the respondent raised this claim.  Notwithstanding what I see as shortcomings in the Trial Judge’s disposition, this is not a matter on which I regard it as appropriate to grant leave to appeal.

8. In the proposed cross-appeal there would be an overall appraisal of the manner in which the legal representatives of the plaintiff conducted the litigation with respect to the medical evidence (which was a very large part of the whole litigation).  The manner in which litigation is conducted by solicitors is a subject for which solicitors are answerable to their clients, but only according to the overall relationship including constraints relating to the availability of funds, time and other resources.  The relationship between the solicitor and the client is the primary focus for determining the solicitor’s duty.  The proposed appeal would relate to costs only, and leave to appeal on costs is not granted readily, and is usually obtained where some question of principle is involved.  I do not see the appraisal in detail of a large array of factual matter and conduct over an extended period as a suitable subject for leave to appeal on costs.  The Court should be on guard against incorporation of attacks on legal representatives of opponents into the forensic armoury.  Even if the procedural difficulties to which I have referred had been attended to and the proposed respondent to the proposed appeal had been identified in some application to the Court of Appeal, the proposed cross-appeal would in my view have few prospects of success. 

1. The end result of all the orders made by the Trial Judge is that the appellant has not recovered anything, and as the reasons of Gzell J show that the proposed cross-appeal on liability should not succeed, I am of the view that leave to cross-appeal as to orders for costs should not be granted, the claim in the Summons for leave to cross-appeal dated 11 December 2003 should be allowed so as to grant leave to cross-appeal on liability, but otherwise should be dismissed.  The Court should direct that Notice of Cross-appeal be filed and served within 7 days.

2. The Court of Appeal should make these orders:

   (1)          Appeal dismissed with costs;

   (2)          Upon the Summons for leave to cross-appeal,
                  (a)          grant leave to cross-appeal with respect to liability,
                  (b)          direct that Notice of Cross-Appeal be filed and served within
     7 days,
                  (c)          save as aforesaid, dismiss the Summons.

   (3)          Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal.

3. GZELL J:             These reasons address The Nominal Defendant’s summons for leave to cross appeal against the entry of a verdict against it by her Honour Judge Gibb. The application for leave to cross appeal against her Honour’s refusal to order the legal representatives of Daniel Rory de Groot to pay costs has been addressed in the reasons for judgment of Bryson JA.

4. Leave is required because the verdict was less than $100,000 (District Court Act 1973, s 127(1)(c)).

5. Daniel was an infant travelling in the front seat of a motor vehicle. A prime mover with trailer passed in the opposite direction. Daniel was struck on the head by a wheel cleat that came off the trailer, penetrated the windscreen of the motor vehicle and struck him on the head. Her Honour awarded Daniel damages of $18,344.45.

6. The application for leave was based upon the high level of costs incurred in the matter. It proceeded before her Honour on 46 days and was recorded in over 3,000 pages of transcript.

7. In my view leave should be granted. The Nominal Defendant has a reasonably arguable case for challenging her Honour’s finding of liability. Although the damages assessed by her Honour are modest, a much larger claim was made and high levels of costs were incurred by The Nominal Defendant in meeting that claim.

8. For the reasons that appear below, however, I am of the view that the appeal should be dismissed.

9. A wheel cleat is a cast iron object weighing about 450 grams. It is part of a system securing an inner hub of the outer of the dual wheels of a heavy truck or trailer to the outer rim that carries a tyre. A wheel cleat is roughly triangular in shape and has a hole through it. It is passed over a wheel stud tapped into the hub or “spider”. A nut is threaded onto the stud. When the nut is tightened the wheel cleat exerts pressure on the rim thus holding it tight up against the spider. The prime mover and trailer were not identified.

10. Her Honour found that the cleat became detached from a wheel of the trailer. That finding was not challenged by The Nominal Defendant.

11. Her Honour analysed the possible causes for the detachment of the cleat. One possibility was a manufacturing defect in a stud.

12. John Jamieson was a master of engineering science, traffic and transportation from the University of New South Wales. Her Honour noted that Mr Jamieson had conceded that a stud could fracture as a result of a manufacturing error.

13. Mr Jamieson also gave evidence that wheel cleats were secured by a single nut and were thus vulnerable to work loose or come off if the securing nut had not been done up properly. Nuts were vulnerable to work loose if they were insufficiently tightened when installed. Mr Jamieson explained that nuts worked loose, typically, because they were either damaged, stripped through over-tightening or they were insufficiently tightened and were unable to withstand dynamic loads from a rotating wheel on a rough surface. He could not say whether a nut that may have been stripped or a nut that may have been insufficiently tightened was the more likely occurrence.

1. Grant Johnston held a bachelor of civil engineering degree in transport engineering and engineering construction from the University of New South Wales. Her Honour noted that Mr Johnston had, on one occasion, retrieved a cleat and a stud.

2. Mr Johnston also said that cleat detachment could occur in one of two ways. First, by not properly tightening the wheel nut so that it worked loose from the retaining stud. Secondly, the stud could fail in a shear type failure, most likely from fatigue loading, as cleats were generally protected in their inward position from direct impact.

3. Mr Johnston had given other evidence on imputed impact speed and the probability of head injury from such an impact. Her Honour placed little weight on the report and opinions of Mr Johnston. She found him to be an unreliable and intemperate witness of very limited expertise. She completely disregarded any opinion he expressed on matters medical on the basis that he lacked relevant skill and qualification.  

4. Dr Peter Sweatman held a doctor of philosophy in mechanical engineering - vehicle dynamics and a bachelor of engineering honours degree from Melbourne University. A report of his was in evidence.

5. Her Honour noted that Dr Sweatman had said that many years of experience in the manufacture and use of the spoke-cleat system had resulted in high reliability in an engineering sense. She noted the submission that stud failure was far less likely a cause than a loose nut. Her Honour said that, nonetheless, stud failure was a real possibility on the evidence before her.

6. Dr Sweatman’s report also stated that an intact wheel cleat might come loose because of gross failure correctly to attach the dual wheels. He said the action of all cleats was interdependent and it would be virtually impossible to leave one cleat loose without all or most cleats also being loose or gross misalignment occurring. Another possibility was damage to the cleat. He said this would be obvious during wheel mounting and would make the entire securing process difficult. He said cleats were extremely robust and immune to damage once they were correctly in place. The third possibility was the failure of the attachment stud or thread. He said this would require significant over-tightening during fitment together with over-stress caused in service. Finally he said the cleat attachment nut might work loose. He said this possibility was unlikely because once the attachment nuts were tightened, the cleat acted as a tensioning and locking method.

7. Her Honour then discussed the issue of maintenance. She noted Mr Jamieson’s evidence that nuts were vulnerable to work loose if they were insufficiently tightened when installed. She accepted Dr Sweatman’s evidence that wheels and tyres should be checked at least weekly including a visual check and checks of the presence and tightness of wheel nuts. Dr Sweatman had said that experience showed that it was possible for wheel nuts to come loose but this normally caused increased vibration that might be noticed by a driver. With respect to this latter opinion, her Honour preferred other evidence.

8. Philip John Scott, an automotive engineer, had been employed in the Australian army engineer corps over a three year period, initially as an operator of heavy vehicles, but subsequently with the responsibility for the maintenance of heavy vehicles including ensuring that drivers maintained their own vehicles properly. Many of the vehicles were fitted with spider wheel systems. Mr Scott then worked for a year at Mount Newman where he was involved in the maintenance of exceptionally heavy road transport vehicles fitted with spider wheel systems working off-road. Mr Scott was then engaged in dealerships at Wagga Wagga and on the central coast of New South Wales. He performed service calls on heavy vehicles fitted with spider wheel systems. Following a nine year period during which he taught at the Department of TAFE, training mechanics in proper maintenance practice in relation to heavy vehicles, he entered a consultancy business involving inspection of heavy vehicles and reviewing failures of vehicle system components.

9. Her Honour accepted the evidence of Mr Scott that, in practice, a driver might not be aware that a cleat was missing. Her Honour also accepted Mr Scott’s observation that wheel nuts and cleats might become detached from vehicles despite the best care and standard having been applied.

10. Mr Scott had also said that on many occasions during his service in the army he noticed that cleats were missing. Whilst not a daily occurrence, it was sufficiently frequent to make it necessary to carry a supply of replacement cleats and nuts. In the majority of cases where a cleat was missing, the retaining wheel nut was also missing. On comparatively rare occasions, he estimated one in six, a stud was either fractured or missing. Mr Scott said that whenever a nut was missing, the cleat was also missing.

11. At Mount Newman, Mr Scott said the incidence of vehicles returned to the workshop missing a cleat was somewhat higher than his experience in the army, but the same pattern emerged: in five out of six cases, the stud would be there but the nut and cleat would not.

12. During his subsequent engagement in service calls on heavy vehicles, Mr Scott observed missing cleats and nuts with the occasional missing stud. As a consultant, he said he continued to find a similar incidence of missing cleats, nuts and studs in roughly the same proportions.

13. Her Honour then addressed a truck driver’s maintenance obligations. She noted Mr Scott’s concession that a driver might not observe a latent defect or an over-tightened nut. She accepted his evidence of the steps a driver should take.

14. Mr Scott had said that proper maintenance of spider wheel systems required wheel studs to be inspected for any visible impact damage to threads and for any bending of studs. The thread of the stud and nut had to be clean. Wheel nuts had to be tensioned to manufacturers’ specifications. The design of the wheel nut had to suit the cleat being used on the wheel. When mounting a wheel onto a hub, care had to be taken to ensure that the wheel rim did not impact on the stud. That might result in damage to the thread of the stud and cross threading of the retaining nut. Wheel nuts had to be progressively tightened in the correct sequential order, alternating to opposite sides of the wheel. After each progressive step, the wheel had to be rotated to check for any run-out of the wheel. Wheel nuts had to be re-tensioned after initial use. This usually occurred between approximately 50 kilometres and approximately 350 kilometres.

15. Her Honour accepted Mr Scott’s statement that in his experience, vehicles maintained carefully had a significantly lower incidence of missing cleats and nuts and also of stud failure.

16. Mr Scott had also said that on the road, drivers carried a wheel brace and a pipe to fit on the wheel brace to increase pressure when loosening nuts to change a tyre. Nut tightening by a wheel brace was a matter of subjective perception by the driver. Air-driven tension wrenches on which an appropriate torque might be set, were confined to the workshop. Mr Scott said it was possible for a driver to over-tighten or under-tighten a nut on the road without being aware of it. Over-tightening might cause a nut to break. Over time, vibration from a heavy load on a rough road might affect a nut. Mr Scott had the experience of checking the nuts on the wheels of a trailer yet finding a nut and cleat missing when checking again after about 120 to 150 kilometres.

17. If a driver tested a nut and found that it was tight, Mr Scott agreed the driver had no idea if it was over-tightened. It was also possible that a nut might have a manufacturing defect not discoverable by visual inspection. A wheel nut that appeared to be sufficiently tightened, might work loose as the wheels flexed under load and vibration worked the nut loose. It was possible that this might occur if a truck travelled along a section of rough road.

18. Her Honour noted that the relevant section of the roadway where the incident occurred was very rough and the possibilities open by way of explanation of the cleat detachment included the roughness of the road surface.

19. Her Honour then set out the various causes of cleat detachment that might arise:

    “Even with the exercise of due care, a wheel nut and cleat may come adrift. There are various explanations open: manufacturing error/defect; spontaneous fracture; the condition of the road surface; speed (of which there is no acceptable evidence); failure to correctly tension the nut/stud; over-tightening; a cross threaded nut; metal fatigue due to the age of the stud or nut; a combination of any of these; or an act or omission by someone other than the defendant.”

20. Her Honour then asked herself the question whether it was open to her to draw the inference that the detachment of the cleat occurred by reason of some act or omission on the part, either of the driver of the prime mover, or the owner of the trailer. She referred to Nominal Defendant v Haslbauer (1967) 117 CLR 448. That was a res ipsa loquitur case. The plaintiff was a passenger in a stationary vehicle hit from behind by an unregistered vehicle with defective brakes. She received an award of damages from a jury. On appeal she failed in her submission that in the absence of evidence of knowledge by the driver of the defective vehicle of the condition of the brakes, negligence could be inferred from the fact of the collision. Her Honour referred to passages from the judgment of Sir Garfield Barwick including the following, at 452, on the inference that might be drawn:

    “To make a prima facie case in a claim based on the defendant’s negligence, a plaintiff may be content to rely upon such inferences as can be drawn from the fact of the occurrence which he claims to be due to the defendant’s negligence. An inference of such negligence may be drawn where, in the ordinary course of human affairs, such an occurrence is unlikely without want of care on the part of a person in the situation of the defendant. In such a case, the occurrence itself may be said to bespeak the lack of care. Or if his pleadings are wide enough, a plaintiff may rely both upon such an inference and upon evidence, beyond that of the occurrence itself, of specific acts or omissions of the defendant indicating a want of care.”

21. Her Honour must have been thinking of drawing an inference from acts or omissions of the driver or trailer owner beyond the fact of the occurrence, because she had already noted that the plaintiff did not rely upon res ipsa loquitur and the principle was not open where the cause of an occurrence  was determined. Her Honour had quoted that proposition from Schellenberg v Tunnel Holdings Pty Ltd (1999-2000) 200 CLR 121 at [42] to [45].

22. Her Honour went on to state that she drew the inference that the cleat detached because the nut was not correctly secured, the driver of the prime mover failed properly to check the tensioning of the nut and a proper check would have revealed the deficiency:

    “Notwithstanding the range of possible explanations for the detachment of the wheel cleat (sic) (and therefore the cleat), I draw the inference that this cleat came adrift from the wheel of the approaching semi-trailer because the nut was not correctly secured and tensioned; and that, ultimately, the responsibility for checking the security of the wheel nuts rested with the driver of the vehicle. I infer that the defendant - the driver - failed properly to check and ensure that the nut was properly tensioned; and that had a proper check been made, the deficiency could and would have been identified and rectified.”

23. Her Honour did not explain why she reached this conclusion as distinct from other conclusions that were open to her. Her train of thought has not been revealed. 

24. It was submitted that her Honour misdirected herself with respect to the evidentiary test in Luxton v Vines (1952) 85 CLR 352 at 358 that in civil proceedings circumstances raising a more probable inference in favour of what is alleged is sufficient.

25. Her Honour was aware of this principle. She set out the passage in her reasons for judgment. And she had regard to the discussion on reliance upon inferential reasoning to prove negligence in a case to which res ipsa loquitur did not apply in Schellenberg.

26. In my view it is a fair reading of her Honour’s judgment that what she meant by drawing the inference that the cleat came adrift in the way she specified was that she concluded, on the balance of probabilities, that the cleat coming adrift in the way she specified was the more likely explanation. Mindful of the principles in the authorities which she cited, her Honour must be taken to have concluded that the case was not one of competing causes of equal likelihood.

27. Although her Honour did not reveal her train of thought, and drawing an inference is often not readily susceptible to precise explanation, I consider that her Honour’s conclusion was open and, on the evidence, was correct.

28. From the evidence of Dr Sweatman and Mr Scott, there was a high probability that the cleat detached because of loosening of the nut rather than because of stud failure, including failure due to over-tightening the nut. As a broad measure of that probability, Mr Scott’s experience was of stud failure as a one in six occurrence. Dr Sweatman’s evidence of the general reliability of the system underlined the high probability that the incident occurred because of the loosening of a nut rather than gross failure correctly to attach a wheel.

29. What then had to be taken into account was the probability of negligent failure initially to tighten the nut or, perhaps more significantly, negligent failure to check the tightness of the nut, as distinct from the nut working loose despite initial proper tightening and proper checking, as Mr Scott recognised could happen. This probability was to be assessed in light of Mr Scott’s experience that carefully maintained vehicles had a significantly lower incidence of missing cleats and nuts as well as of stud failure. In this respect, it was not only a case of re-tensioning 50 to 350 kilometres after initial tensioning, or after an earlier inspection, as stated by Mr Scott, but also of checking at least weekly as stated by Dr Sweatman and accepted by the Trial Judge.

30. These probabilities must be combined in arriving at the probability that negligence caused Daniel’s injury (see Hodgson, The Scales of Justice: Probability and Proof in Legal Fact-finding (1995) 69 ALJ 731 at 746-750).

31. It would be unrealistic to ascribe numbers to the probabilities and, mathematically, compute a probabilistic conclusion. Judicial fact-finding in circumstances such as the present is not a mathematical operation.

32. In my opinion, the evidence established, on the balance of probabilities, that negligence did cause Daniel’s injury. If it be a different thing, her Honour was entitled to infer that the cleat became detached because of a loose nut, the tightness of which was not properly checked and rectified.

33. As a check upon the process of inference, an 80% probability of a loose nut rather than some other problem with the attachment of the cleat and a 65% probability of failure in checking would result in a 52% probability of negligence. Numbers of that order appear to me to be warranted on the evidence.

34. In my view The Nominal Defendant has failed to demonstrate that her Honour erred in concluding that the driver of the truck was negligent.

35. I agree with the orders proposed by Bryson JA. I agree with his Honour’s reasons save insofar as Giles JA has departed from them. I agree with the reasons of Giles JA and join him in respectfully diverging from the reasons of Bryson JA in the limited circumstances discussed by his Honour.

**********

LAST UPDATED:               16/12/2005