Dunn v Maritime Services Board

[1999] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S83 of 1998

B e t w e e n -

COLIN DUNN

Applicant

and

MARITIME SERVICES BOARD

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 1999, AT 10.44 AM

Copyright in the High Court of Australia

MR J.S. COOMBS, QC:   May it please the Court, I appear with my learned friend, MR R.F. WILKINS, for the applicant for leave, your Honours.  (instructed by Maurice May & Co)

MR M.J. CRANITCH, SC:   May it please the Court, I appear for the respondent with my learned friend, MS K. NOMCHONG.   (instructed by GIO Workers Compensation Law Department.

GAUDRON J:   Yes, Mr Coombs.

MR COOMBS:   In the papers that were filed in the Court Thursday morning, an affidavit was filed with them - - -

KIRBY J:   It came in this morning.  Is there objection to the reading of it?

MR COOMBS:   Your Honour, I have spoken to my learned friend and we do not wish to rely on the affidavit.  Mr Crannitch and I, your Honour, have agreed that I should tell the Court that if a party in the Workers Compensation Court wishes to cross-examine a doctor, the party wishing to cross-examine must subpoena the doctor or otherwise arrange his attendance and that this is not usually done in routine cases, although the procedure is clearly available.

KIRBY J:   I suppose one of the points of setting up a specialised compensation court is that the judges over the years, if they did not come to the court with it, will accumulate quite a lot of general medical knowledge.

MR COOMBS:   Indeed, your Honour.

KIRBY J:   But that in particular cases where there is a special point, then that evidence should be placed in the normal way before the court.  It is a delicate line to tread.

MR COOMBS:   That is at the heart of this case, your Honour.  Your Honours, in the present case all five of the doctors qualified said in their reports that the applicant could not climb.  Three were applicant’s doctors, two were respondent’s doctors.  All the reports were tendered by the applicant, and there was no cross‑examination of any doctor.

Now, of course, your Honours, the applicant did not know before the hearing day that film was to be shown.  The respondent had had the two films for at least 15 months before the hearing day and had ample opportunity to show the film to its own doctors and to get an opinion based on it and to call their own doctor if the opinion was different from that which they had formed on the basis of the examination of the applicant.  Similarly, they could have shown the film to any doctor in the course of cross‑examination and sought to get from the doctors a change of opinion.

In the result, her Honour rejected the medical evidence and concluded that she was uncertain that the applicant was incapacitated at any relevant time although, as she conceded, the films did not show the applicant moving in the precise manner necessary to scale ladders or climb, which is what his job required.

The applicant contends, your Honours, that her Honour erred in substituting her own medical opinion for the unanimous qualified medical opinion.  Now, in many workers compensation cases, cross‑examination of doctors will be unnecessary.  Often, the medical dispute is simply one of whether the doctors accept the applicant as truthful in the course of examination.  For example, there are cases and many cases where the doctors for the applicant and the doctors for the respondent say, “Well, we can find no objective sign.  We can find nothing other than what the applicant tells us”.  And then one group says, “But it is consistent with the kind of injury that he says he sustained that he would be having the symptoms he now complains of, and I accept him.”  The other doctor says, “Well, I find no objective signs.  I hear what he says but I don’t accept him.”  Then the matter is simply one of credit and his Honour or her Honour the trial judge can make an assessment based on their own assessment of the applicant.

GAUDRON J:   This was not simply a matter of credit.

MR COOMBS:   No, your Honour, not a case like that at all.

GAUDRON J:   No, because what had happened – what you were concerned with was opinion evidence based on an assumed state of facts communicated by the applicant for compensation.

MR COOMBS:   Yes, your Honour.

GAUDRON J:   In circumstances in which doubt was cast on the assumed state of facts and the applicant bore the onus of proof.  Now, that makes it an altogether different case.

MR COOMBS:   It does, your Honour, but it is a case where there was objective evidence.

GAUDRON J:   Objective evidence of what?  Of the ability to perform certain physical actions which did not sit comfortably with the actions that had been – with the assumed state of facts on which the doctors had proceeded?

MR COOMBS:   The doctors, your Honour, relied upon wasting, indicating lack of use, of the muscles in a particular way, as, for example, by climbing and they relied upon the X-ray changes indicating continued degeneration of the limb which they assigned to the initial injury.

GAUDRON J:   And his account of what he could and could not do; what he did and did not do.

MR COOMBS:   True, your Honour.  His account that he could not climb, and that was the crux of it.

GAUDRON J:   But it went beyond that.  His account to the doctors went beyond that, did it not?

MR COOMBS:   There was discussion of limping and pain and matters of that sort.

GAUDRON J:   And sporting activities.

MR COOMBS:   No, your Honour, the sporting activities were shown on the film. 

GAUDRON J:   Yes, but were they not discussed?

MR COOMBS:   He said that he did not run and he said that he did swim every day.  Now, your Honour, the problem with the matter, with respect, is that the question raised is of general public importance.

GAUDRON J:   What is the question precisely?

MR COOMBS:   To what extent, if at all, is a court bound to accept uncontradicted and uncross-examined expert evidence?

GAUDRON J:   But that is not really the question, is it, because you have accepted with what I said earlier, it was in circumstances in which evidence casts doubt on the factual assumptions upon which the opinion is based?

MR COOMBS:   Yes, your Honour, but it is the next step.  Certainly, there was a casting of doubt.  Can I say, your Honours, that the applicant accepted that it was him in the film and there was no attempt to deny that that was where he was but, your Honours, the question was a short one:  his reason for being unable to do the work he was doing when injured was that he could not climb, and the doctors could easily have been shown the film and asked whether, having regard to what was on the film, would they retract their evidence or change it or modify it or qualify it in some way.  But the evidence just stayed there and no evidence to the contrary; not inherently improbable, but a circumstance where an important rule of fairness, a rule in Browne v Dunn, is simply ignored.  The point is thrown up in perhaps - - -

KIRBY J:   But, surely, once the film was – looking at the real world here – running or, indeed, before the case, you would have known that that would be a real issue in the case, the question of the credit of your client.

MR COOMBS:   There was no knowledge in the applicant’s camp, your Honour, of any film until the day of the trial.  The trial took place in Port Macquarie.  The applicant cannot, at that point, get doctors to come to Port Macquarie to look at the film and say, “Well, all of that is consistent with him not to go with the client.”

GAUDRON J:   You can apply for an adjournment.

MR COOMBS:   Yes, your Honour, that is true, but the - - -

GAUDRON J:   Represented by counsel, experienced counsel in the jurisdiction.

MR COOMBS:   Yes, your Honour, but the representatives of the respondent had the obligation of having the doctors there, not the applicant.  The applicant has no notice; the applicant has - - -

GAUDRON J:   I thought you said that the applicant tendered the reports?

MR COOMBS:   Tendered the medical reports, yes, your Honour, indeed, but it was for the respondent to have the doctors there.

KIRBY J:   When things go bad in a trial and film – film was shown in the very case I ever saw in a court and it changes the whole nature of the trial.  You are then in a different ballpark to the ordinary medical case.

MR COOMBS:   Sometimes one is, sometimes one is not, your Honour.

KIRBY J:   You have to then meet that case very seriously, if you can meet it at all.  You cannot just assume it will flow on like, evincible, as just an ordinary case.  It has then just to be met very carefully.  Everybody knows that.

MR COOMBS:   But, your Honour, the rules would have required the defendant to have the doctors there for cross‑examination, if cross‑examination was thought to be necessary.  The defendant had the information.

KIRBY J:   But presumably their case was, “It all depends on the acceptance of the premises on which the doctors have given their expert evidence and knock that away and we’ve won the case.”

MR COOMBS:   With respect, your Honour, not simply one premise.  It is true, as your Honour the presiding judge points out to me, that part of the basis was the history and the presentation of the applicant but it was the objective signs that persuaded the respondent’s doctors, at least, to support the applicant’s contention that he could not climb ladders to get to his place of work.  Now, your Honours, the point is one which is in contention, not only in the Workers Compensation Commission but in all cases where facts are disputed.  Your Honour Justice Kirby will remember Levinge and Ellis, the cases where the two contrary positions are firmly put.

KIRBY J:   You have used the one Justice McHugh expressed in many a case.

MR COOMBS:   Justice McHugh said:

“The rule in Browne v Dunn prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross‑examination.  However, one exception to the rule is Browne v Dunn is the case where the evidence is inherently improbable:  cf Precision Plastics Pty Ltd v Demir…”

In Ellis v Wallsend, your Honour presided, and his Honour Mr Justice Samuels reviewed the authorities in some detail and I will simply read his Honour concluding paragraph – I will not read the whole review of the authorities, your Honour.

KIRBY J:   He did not agree with Justice McHugh’s proposition.

MR COOMBS:   Indeed, your Honour.  He said this – and this is where the point is thrown up and it is debated again and again at the end of trials at first instance what the effect of the failure to cross‑examination is.  Mr Justice Samuels said:

It is not entirely clear to me whether his Honour intended to advance a rule of law or merely to emphasise that in many cases it may be wrong, unreasonable or perverse to reject unchallenged evidence.  If the former, with every respect, I cannot regard that view as correct or consistent with Australian authority.

GAUDRON J:   But, in any event, the evidence was not unchallenged.  It was challenged by the very evidence in issue, namely, the movie, the video, because it challenged the assumptions upon which the expert evidence was based.

MR COOMBS:   No, with respect, your Honour.  It did not challenge, as her Honour specifically found, the issue of whether he could climb or not.  That was his whole case.

GAUDRON J:   But that was the opinion evidence which was based on certain factual assumptions.

MR COOMBS:   Yes, your Honour, but not just one factual assumption.

GAUDRON J:   No.

MR COOMBS:   But a series of factual assumptions including the objective signs picked up by the respondent’s doctors and the applicant’s doctors.  So that the case is a good vehicle for resolving what is a dispute in the authorities as to what the nature of the rule precisely is and what its extent is in a particular case.

GAUDRON J:   Or if there is any.

MR COOMBS:   Or if there is a rule.

GAUDRON J:   When it comes to opinion evidence based on an assumption as to facts.

MR COOMBS:   Your Honour, medical evidence is crucial, as your Honours know, in many, many cases on the issue of damage and it is critical that the community knows if it is to be here a doctor contradicted, the doctor must be contradicted.  He must be confronted with it, and not, even in a specialised jurisdiction, have the lay opinion of the judge substituted on the basis of some activity which may or may not medically preclude what is going on.    Now, your Honours, the point is short and I think I have put it.

GAUDRON J:   Thank you, Mr Coombs.

KIRBY J:   You do not press the point concerning her Honour’s observations on the witness as he approached the witness box?

MR COOMBS:   No, your Honour.  I think that has been dealt with in a precise way.  This point, your Honour, is a point that is, if I may put it in this colourful way, a bit of a running sore.  Nobody knows quite what the law is about whether you have to cross‑examination doctors or not.

KIRBY J:   I thought Justice Samuels’ view was concurred in by others in the Court of Appeal which settled the running sore.

MR COOMBS:   Well, your Honour, there are opinions both ways in the Court of Appeal as there are elsewhere.  Certainly, Professor Cross accepted the line supported by Justice Samuels but there are many that do not, your Honours.

GAUDRON J:   Thank you, Mr Coombs.  The Court does not need to trouble you, Mr Crannitch.

This application is concerned with the non-acceptance of opinion evidence in circumstances where other evidence casts doubt on factual assumptions upon which the opinion is based.  So far as concerns that issue, there are insufficient prospects of success to warrant the grant of special leave.  Accordingly, the application is refused.

MR CRANITCH:   Can I make an application, your Honour, in respect of costs?

MR COOMBS:    Nothing to say, your Honour

GAUDRON J:   The application is refused with costs.

AT 11.00 AM THE MATTER WAS CONCLUDED