Duong v Tran - [2010] NSWCA 280

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Duong v Tran [2010] NSWCA 280

FILE NUMBER(S):
2010/19264

HEARING DATE(S):
1 October 2010

JUDGMENT DATE:
2 November 2010

PARTIES:
Eric Duong (by his tutor Van So Dang) - Appellant
Thi Tram Anh Tran - Respondent

JUDGMENT OF:
Giles JA Sackville AJA Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 244/05

LOWER COURT JUDICIAL OFFICER:
Robison DCJ

LOWER COURT DATE OF DECISION:
21/10/09, 22/10/09, 23/10/09

COUNSEL:
S Norton SC & M Fraser - Appellant
K P Rewell SC & M A Cleary - Respondent

SOLICITORS:
Brydens, Liverpool - Appellant
Dibbs Barker - Respondent

CATCHWORDS:
APPEAL - procedural fairness - apprehended bias - in pleading ruling, indication of "surprise" at submission that counsel "surprised" by opponent's contention - whether apprehended bias shown - no apprehended bias. APPEAL - procedural fairness - observations of appellant - observation relied on in judgment - issue and observations raised in addresses - whether denial of procedural fairness - no denial of procedural fairness. DAMAGES - torts - negligence - personal injury - whether brain damage shown - whether error in evaluating conflicting evidence - no error shown - no question of principle. PROCEDURE - civil - adjournment - appellant injured when 16 months old - alleged brain damage - adjournment until age 11 sought in order to test brain function - adjournment refused - whether evidence misapprehended or given inappropriate weight - whether acted on wrong legal principle - whether so unreasonable must be error - no error shown.

LEGISLATION CITED:

CASES CITED:
Angaston & District Hospital v Thamm (1987) 47 SASR 177;
Re Association of Architects of Australia; Ex Parte Municipal Officers Association of Australia (1989) 63 ALJR 298;
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577;
Government Insurance Office of NSW v Bailey (1992) 27 NSWLR 304;
House v The King (1936) 55 CLR 499;
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2006) 221 ALR 823;
Jobst v Inglis (1986) 41 SASR 339;
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488;
Kassem v Crossley [2000] NSWCA 276; (2000) MVR 179;
Lindsay v Health Care Complaints Commission [2010] NSWCA 194;
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274;
Minigall v Ayres (1966) SASR 151;
Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 222;
Vukmirica v Betyounan [2008] NSWCA 16.

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2010/19264
DC 2010/19264

GILES JA
SACKVILLE AJA
HARRISON J

Tuesday 2 November 2010

DUONG V TRAN

Judgment

GILES JA: On 29 March 2003, when the appellant was 16 months old, the respondent (the appellant’s mother) was reversing her motor vehicle in the driveway of the family home. She noticed that the front door of the house was open. She stopped the vehicle and saw that the appellant was under the vehicle. The appellant was lying beside the wheel on the driver’s side with his head close to the wheel and the rest of his body under the car.
In January 2006 the appellant by his tutor brought proceedings against the respondent, claiming damages for negligence. The injuries particularised included head injury. The disabilities particularised included “pain and discomfort to head”. A claim was made of diminution in earning capacity through disadvantage on the open labour market when the appellant attained working age.
At some point liability was admitted. In October 2009 the proceedings came on for hearing as an assessment of damages.
The appellant’s injuries had been assessed as not exceeding the threshold for damages for non-economic loss (Motor Accidents Compensation Act 1998 (“the MAC Act”), s 132), and his claim was for past and future out-of-pocket expenses and future economic loss. The claim was for $265 for past out-of-pocket expenses, a sum agreed upon by the parties; $10,000 for future tutoring and counselling expenses; and $200,000 for future economic loss.
The judge, Robison DCJ, was told in the opening of counsel for the appellant that “the issue in the case is the extent of the head injury which the plaintiff suffered in the accident”. Although it was not clear from the particulars, the appellant’s case was that he had suffered brain damage in the accident, causing cognitive and memory deficits and personality problems which would require tutoring and counselling (the $10,000) and diminution in earning capacity for which a “buffer” should be awarded (the $200,000).
The judge accepted that the appellant had suffered a fracture of the clavicle and abrasions and bruising, but was not satisfied that he had brain damage or any impairment which might be productive of financial loss. He declined to award damages other than the $265. Despite the small award, he ordered that the respondent pay the appellant’s costs.
A ground of appeal on a pleading question was abandoned. A ground of appeal on admission of the reasons of the medical assessors for their determination under the MAC Act became a complaint of the weight given to the reasons. The other grounds of appeal came down to complaint of -
the judge’s refusal to disqualify himself (ground 2);
refusal of an adjournment application (ground 3);
use of the judge’s observations of the appellant (grounds 11 and 12); and
failure to find that the appellant had brain damage (the remaining grounds).
The disqualification application
An appellate court confronted with allegations of bias or apprehended bias, coupled with other discrete grounds of appeal, should first deal with the issue of bias (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55;(2006) 229 CLR 577 at [117] per Kirby and Crennan JJ; Nicholls v Michael Wilson & Partners Ltd [2010] NSWCA 222 at [316] per Lindgren AJA). The issue logically comes first, and the party making such an allegation should be put to an election on the basis that success on the ground of bias will result in a retrial, irrespective of possible findings on other issues (ibid). Where the ground is sustained, the appellate court should say nothing in relation to the other grounds of appeal that may cause embarrassment on the re-trial.
The pleading question, although abandoned as a ground of appeal, underlay this ground. At an early point the respondent indicated that she would be submitting that, by force of s 61(2) of the MAC Act, the determinations of the medical assessors were binding and conclusive for all purposes as to the injuries suffered by the appellant. The appellant objected, submitting that the respondent was obliged to plead that matter because it was one that might take the appellant by surprise (UCPR 14.14(2)(a)). The judge ruled against the objection.
The submissions of counsel for the appellant, Mr Lidden SC, did not in terms include that he was surprised. He submitted only that a matter that might take the opposite party by surprise should be pleaded. He did, however, complain that he had not been forewarned by opposing counsel, and that his solicitors, Brydens, had not been forewarned by the respondent’s solicitors, of reliance on s 61(2). In the course of his reasons for the ruling the judge stated that “[p]rincipally, Mr Lidden SC complains that he is surprised at the position enunciated by the defendant today”. This was an understandable impression from Mr Lidden’s submissions, and in the application that the judge disqualify himself Mr Lidden asserted that he had said that he and his solicitors were caught by surprise, see [12] below.
Relevantly to the disqualification application, shortly after the above statement the judge said in his reasons -
“I ask myself, given the experience of a firm such as Brydens, and in particular the lengthy experience Mr Lidden has had in such matters over the years, how this could in effect take the plaintiff by surprise. I am entitled to take judicial notice of the fact that Messrs Brydens have been involved in acting for plaintiffs over many years, and certainly Mr Lidden has appeared before me on many occasions over the years. There is in my view a clear inference that this court can draw that there must be a wealth of knowledge vested within the firm acting for the plaintiff, and in particular Mr Lidden SC.
I am therefore surprised that it has taken Mr Lidden by surprise, given what must be his knowledge of the law. It is of course incumbent upon all practitioners to keep up to date with the law. In any event, even if I accede to the proposition advanced on behalf of the plaintiff … ”.
Immediately after the ruling the appellant applied for the judge to disqualify himself. The transcript records -
“LIDDEN: Well, I must say I think your Honour has just disbelieved me when I’ve said that I was caught by surprise and so were the plaintiff’s solicitors and that you should disqualify yourself.
HIS HONOUR: Now that is with the greatest respect a submission that just cannot be maintained. The application cannot be maintained, I am not going to argue -
LIDDEN: It can your Honour, you’ve just said that ---
HIS HONOUR: I have said that I am surprised that you have been surprised, I do not disbelieve you, things can be overlooked, I accept that. I’m not making any aspersions on your professional experience at all, nor Mr Bryden. I’ve determined the outcome of the matter here ---
LIDDEN: Well, I’ll have on the record that I ask you to disqualify yourself, apprehended by us, and that anybody sitting in the back of the court would think that those remarks are critical of me and the solicitors and they shouldn’t have been said in the first place.
HIS HONOUR: I did not intend to be critical of you, Mr Lidden. I’m sorry if you feel that way. In any event ---
LIDDEN: I do though and I feel as though Mr Cleary can do whatever he likes in as unprofessional a way as he’s done it ---
HIS HONOUR: I must say, I have to say this, it would have been helpful if it had been pleaded. But at the end of the day I’ve decided the outcome of the application and I ---
LIDDEN: [Mr Lidden proposed to continue with the appellant’s case]

HIS HONOUR: Just before you go on please, perhaps I should deal with your application for me to disqualify myself. I decline to do so, the application has no merit whatsoever. Thank you. Now, if there are other aspects of the claim I’m happy to hear further from you Mr Lidden by way of opening at this stage if you wish.”

In this Court the appellant accepted that Mr Lidden had asserted apprehended bias. Although the judge did not enunciate the established inquiry for whether there is reasonable apprehension of bias, that was not the appellant’s complaint. The appellant invoked the established inquiry, and submitted that the fair minded lay observer might reasonably have apprehended that the judge might not bring an impartial and unprejudiced mind to the determination of the issues (for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]). He said that it may have been thought that the judge had little or no confidence in assertions made by the appellant’s legal representatives, and that this was compounded by the judge’s comment that the application that he disqualify himself had “no merit whatsoever”.
I do not accept the submission. As he immediately pointed out, the judge did not say that he disbelieved Mr Lidden. Rather, he expressed surprise that Mr Lidden was taken by surprise, and recognised that matters could be overlooked. He made clear that he was not intending to be critical. The judge’s surprise was in the light of the recognised experience and knowledge of Brydens and Mr Lidden. In effect, the judge thought (with surprise) that Homer had nodded.
Mr Lidden was perhaps over-sensitive to the lack of forewarning, and to the judge’s remarks to which his pleading objection led. The judge’s rejection of the application to disqualify himself, although made in emphatic terms, did not travel beyond a legitimate description of the lack of force in Mr Lidden’s submission. I do not think that the circumstances approached reasonable apprehension of bias.
The adjournment application
Senior counsel for the appellant described this as “the most important” of the grounds of appeal and “the major thrust of the argument today”.
In the opening of counsel for the appellant at the trial, the judge was told that there were “conflicting medical views as to the extent of this head injury”, and that “the conflict seems to be between Dr Teychenné, the plaintiff’s medico-legal neurologist and a Dr Whan, who has been retained on behalf of the defendant who appears to be a paediatric psychiatrist”. (In fact there were more medical opinions than this.) His Honour was told that Dr Teychenné would be giving evidence that afternoon.
The appellant’s father was called and gave evidence in the appellant’s case. The respondent was then called and gave evidence, also in the appellant’s case. Dr Teychenné was interposed during the respondent’s cross-examination.
When Dr Teychenné was called, counsel for the appellant said that “either before or after the doctor’s evidence … I’m going to make at least a formal application that the matter be adjourned”. The stated reason for the adjournment was to allow testing when the appellant was aged 12 “as Dr Teychenné says is required”, so that “a firm conclusion could be reached as to any brain injury”.
The judge expressed understandable concern that the issue of adjournment for that reason had not been raised earlier. After some debate, the judge said that he would take the evidence of Dr Teychenné, who was already present.
Dr Teychenné’s reports were tendered, and he was examined and cross-examined. The cross-examination included putting to him, as had been put to the respondent, school reports broadly to the effect that the appellant was doing very well. His evidence included his opinion, as could already be seen from the reports, that the appellant (who was then a few weeks short of 8 years old) should have formal psychometric testing when aged 11 or 12.
On the next day the cross-examination of the respondent was concluded. A report of Mr Anthony, clinical psychologist, was tendered and admitted in the appellant’s case. The adjournment application was made. It was for adjournment “to a stage where this plaintiff can be adequately assessed which seems to be at its earliest, given Dr Teychenné’s evidence, an age of 11 years, 11 or 12 he seems to say is the time when maximum developmental growth is reached”. It later became an application for an adjournment for 3 years.
For the purposes of the application, the respondent’s medical reports (including the medical assessments under the MAC Act) were tendered and admitted. They comprised reports of Dr Antony (consultant paediatric neurologist) and Dr Whan (child and family psychiatrist) and the certificates and reasons for medical assessment under the MAC Act of Dr Bowers (assessing physical injuries) and Dr Moore (assessing psychological injuries).
The judge briefly reserved, and then gave ex tempore reasons. He refused the adjournment.
His Honour fully recognised Dr Teychenné’s evidence, which he summarised as that the appellant “should be assessed when he reaches his maximum age of what would otherwise be an appropriate level of cognitive ability in order that he be tested accordingly”. It is plain that the judge was very conscious of the importance of his decision to the appellant making out his case. He acknowledged the correctness of the appellant’s submission that there had been “no indication of any prejudice”.
But the judge said that there were “other matters that need to be taken into account”. The other matters had been mentioned earlier in his reasons. In summary, they were -
that Dr Antony had said that the appellant’s condition had stabilised and he had returned to his normal self, and that she did not believe that any further assessment was needed;
that Dr Whan had said that he was satisfied that the appellant had suffered no brain injury in the accident, and had not displayed any recognised psychiatric disability other than enuresis which he said was almost certainly unrelated to the accident; and
that he had been taken to “certain portions of the views” of Drs Bowers and Moore and in the case of Dr Bowers it was clear he had taken into account the views of Dr Teychenné.
The portions of the views of Drs Bowers and Moore were not stated, but in the case of Dr Bowers his views included that on examination short term memory was normal, the appellant was developing normally for a boy of his age, it was “unlikely that in the future any cognitive or behavioural deficits would be identified which would result in his exceeding the threshold level of a 10% WPI”, and there was no requirement for review by a psychiatrist. Dr Bowers concluded -
“The following injuries WERE NOT caused by the motor accident:
Traumatic brain injury – verbal cognitive defecits [sic]”
In the case of Dr Moore, she concluded that there was no evidence that the appellant suffered more than a “mild transient response” following the accident, and that no post-traumatic stress disorder had been caused by the accident.
No ground of appeal complained of inadequate reasons, in failing to identify the relevant portions of the views of Drs Bowers and Moore or otherwise.
The nub of the judge’s reasons was that -
“ … when I step back and look at all of these where it is relevant to the application I can only form one view and that is this, that it is entirely speculative as to the outcome of any testing which may occur in three years time. Entirely speculative. There are possibilities, yes I accept that but at the end of the day when one looks at the material which has been placed before the court and the effect of that evidence having regard to the nature of the application it would be inappropriate to accede to the application for the adjournment having regard to those matters that I identified in this judgment.”
Adjournment of proceedings is a discretionary decision (see now Civil Procedure Act 2005, s 66(1)), and error of the kind described in House v The King (1936) 55 CLR 499 must be shown. In Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [45] Heydon JA said of discretionary decisions on matters of practice or procedure, in that case dismissal of proceedings for default in complying with an order or direction -
“Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker:
(a)made an error of legal principle,
(b)made a material error of fact,
(c)took into account some irrelevant matter,
(d)failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more “final” date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described. See House v R (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627. These principles are applied to a wide range of discretionary judgments … ”.

The appellant submitted that error was to be found first, because in a number of alternative respects the judge had misapprehended or failed to give appropriate weight to evidence; secondly, because he had proceeded on a wrong legal principle; and thirdly, because his decision was so unreasonable that there must have been an error.
The principal submission on the first basis for error was directed to the judge’s view “that it is entirely speculative as to the outcome of any testing that may occur in three years time”. It was submitted that this was not an accurate characterisation of Dr Teychenné’s evidence.
The submission rested on a misunderstanding of the judge’s reasons. His Honour did not say that it was Dr Teychenné’s opinion that the outcome of any testing was entirely speculative. The judge was expressing a view upon stepping back and looking at “all of these”, meaning all the medical reports. They included Dr Antony’s opinion that no further assessment was needed and there was no reason to suspect that a brain injury had occurred; Dr Whan’s opinion that no brain injury had been suffered and the appellant did not display any recognised psychiatric disability other than enuresis; and Dr Bowers’ conclusion of no traumatic brain injury and no verbal cognitive deficits, and opinions that it was unlikely that in the future any cognitive or behavioural deficits would be identified resulting in exceeding the 10 per cent threshold and there was no requirement for review by a psychiatrist. Both Dr Antony and Dr Whan referred to reports of Dr Teychenné, and it is clear in the case of Dr Whan and to be inferred in the case of Dr Antony that he and she were aware of Dr Teychenné’s views. Dr Bowers had specifically referred in his reasons to Dr Teychenné’s suggestion that there be further psychiatric testing at about the age of 12 years.
The judge meant that on all of the materials before him he was of the view that it was speculative that testing in three years time would reveal brain injury deficits caused by the accident. This was well open to the judge. It was supported by the opinions of Drs Antony and Whan, given in the light of Dr Teychenné’s views. While not expressly mentioning that Dr Bower’s opinion related to the 10 per cent threshold level, it is clear from the judge’s reasons that he was conscious of the nature of the assessments made by Drs Bowers and Moore for the purposes of the MAC Act. That affected their weight in the particular inquiry, but they remained relevant.
It may be added that, although Dr Teychenné remained firm in his view that there should be full psychometric testing, through the whole spectrum of cognitive function including memory testing, on his evidence as a whole it is far from clear that he considered that the testing would reveal brain injury. When asked in cross-examination to consider the school reports, Dr Teychenné agreed that there were good indications of cognitive capacity but said that there could still be memory deficit. He said that as he had taken further history after an early report in which he said he “suspected” traumatic brain injury, he had “come to the conclusion he most probably did have a traumatic brain injury” and the issue was “the apparent cognitive deficits that he may have and the extent of his deficits”.
The “most probably” and “that he may have” left it open that the psychometric testing might show no cognitive or memory deficit. Even a perhaps unwise further question still left this open -
“Q. You remain uncertain is that a fair summation of your position as to whether there is any level at all of brain injury in this case?
A. No I believe this boy has a memory deficit, I would like to seek formal psychometric testing to assess frontal lobe – exactly frontal lobe function.
Q. Your early reports is the concept of may have sustained an injury [sic], your more recent reports you use the phrase
probably ---
A. Perhaps as I have obtained more detailed history that appears to be the situation.
Q. And the history has come from the parents?
A. Yes that’s correct.
Q. And you know from having seen the school reports that in many respects that history is incorrect?
A. I wouldn’t say the history is incorrect, I don’t see anything in those school reports that indicates that his memory function is intact.”
On Dr Teychenné’s evidence as a whole, the belief in a memory deficit (also expressed as “that appears to be the situation”) was far from a firm expectation that the psychometric testing would reveal brain injury.
The subsidiary submissions on the first basis for error were essentially directed to the weight given to the views of the other doctors. It was said that Dr Antony’s evidence was given too much weight, particularly because she did not have access to the later reports of Dr Teychenné and did not conduct any testing of her own. In relation to Dr Whan, it was said that the judge did not realise or did not seem to realise that Dr Whan had accepted the difference between verbal and non-verbal (which arose out of Dr Teychenné’s evidence); and that in any event, Dr Whan was not a neurologist or a neuro-psychiatrist and his evidence should have thus been given less weight, particularly in comparison to Dr Teychenné’s. It was said that the judge did not take into account the fact that Dr Bowers was not a neuro-psychiatrist, and that his reports were in response to a referral in relation to whether the appellant met the requirements for traumatic brain injury as set out in the medical assessment guidelines, not whether he had a brain injury per se. It was said that the judge did not seem to have factored in that Dr Bowers acknowledged that it was unlikely that injury would be found exceeding the 10% threshold, rather than that injury simply was not there.
As I have said, the judge was plainly conscious of the nature of the assessment made by Dr Bowers. He specifically adverted to Dr Bowers’ use of the guidelines. The weight of Dr Bowers’ evidence was less because he was not addressing the same issue as was Dr Teychenné, but there is no reason to conclude that the judge failed to appreciate that fact. Drs Antony and Whan were not cross-examined, and it was well open to give weight to their opinions. The weight given to conflicting evidence in
the exercise of a discretion is seldom House v The King error, and in this case in my opinion no error has been made out.
The second basis for error came at the heel of the hunt. It was submitted that error of legal principle was to be found in the judge applying a practice in relation to adjournments. The passage in his reasons was -
“The parties would be aware of my practice over many years where I do not adjourn cases unless there are exceptional circumstances. From time to time that has occurred and all of that depends on the facts and circumstances of course in every matter. The interests of justice must always be served and that is clearly a matter that should be borne in mind at all times. The interests of justice is not a one sided concept, it applies to all sides in this litigation.”
If the judge meant that exceptional circumstances were necessary for an adjournment, he would be in error. If he applied a practice so conditioned, he would be in error. I do not think, however, that he meant or did either of those things. In the balance of the passage he clearly recognised, and applied, that the particular facts and circumstances governed according to the interests of justice. The reasons were given ex tempore, and in this and other respects were rather discursive. I do not think that the judge meant more than that an adjournment was not to be had for the asking, and that he followed that approach. He was not incorrect in either respect.
The submissions that the judge’s decision was so unreasonable as to show discretionary error emphasised the significance to the appellant of an assessment of his injury on less than the best evidence. It was said that the best evidence would not be available until he was aged 12 (in fact, as the adjournment application was put, aged 11), and that the decision must have been the result of the judge failing to account for the prejudicial effect it would have on the appellant’s case at trial, as he would not be able properly to adduce evidence in relation to brain damage. It was said that this was particularly the case given that it was not costly to adjourn the proceedings and there would be no prejudice to the respondent, and that the judge cannot have applied the correct balancing test with appreciation of the core issue for decision in the proceedings.
However, as I have said the judge was very conscious of the importance of his decision to the appellant making out his case. There was evidence to the contrary of Dr Teychenné’s opinion, even taking it to be a firm opinion that there was brain damage and psychometric testing was necessary to ascertain its extent. The decision to refuse an adjournment was well within a proper exercise of his Honour’s discretion.
Observations of the appellant
The appellant was almost eight years old. He did not give evidence and was not otherwise presented before the judge. However, it appears that at least for some periods he was in court.
The judge’s reasons included, after reference to evidence of the appellant’s father to the effect that the appellant got upset easily, and got agitated and screamed and could not control himself -
“I pause to reflect upon that evidence. The plaintiff has from time to time been seated in this courtroom, I have watched him come and go, in fact he is sitting down now next to his mother as I am delivering this oral judgment. He has been extremely well behaved, he has been extremely courteous in the court and I must say it has been a pleasure having him here in this courtroom. He is certainly a well behaved young person from my observations here in this courtroom, so I am a little surprised at the overall tenor of the evidence of his father having regard to the number of times that the young plaintiff has been sitting in this courtroom. I am entitled to take that into account.”
Considerably later in the reasons the judge said, as part of an overall assessment of the evidence -
“I agree with Mr Cleary’s [counsel for the respondent] submission when he says that he was a well behaved boy in court, he was bright, healthy and a happy little boy. I agree with that and that has been my observation and indeed in many respects supported by other evidence.”
The appellant submitted that the judge’s observations of the appellant and his surprise at the tenor of his father’s evidence had not been put to the father. It was said that the judge’s observations of the appellant were limited, and that it was unfair to use the limited observations in the manner the judge did when the intended use had not been brought to the attention of his lawyers. Although it was not clear, I take the submissions to refer to use beyond comparison with the father’s evidence – the judge went further in the later passage.
There had been reference to the judge’s observations of the appellant in the course of addresses.
Counsel for the respondent addressed first. He placed considerable emphasis on the favourable school reports, arguing that they diminished the force of Dr Teychenné’s opinion. His submissions included that although the appellant was shortly to turn eight, “one might have thought that this Court would have been given the opportunity of making its own assessment of the plaintiff … allowing the court the opportunity of engaging directly with the plaintiff”. This brought the exchange, initiated by the judge -
“HIS HONOUR: It has to be said that I saw him in court on a number of occasions.
CLEARY: Well your Honour I was going to move on to that.
HIS HONOUR: He has appeared to me to be very well behaved. I think he even bowed a few times as he left the court, so I was impressed with him.
CLEARY: Your Honour, my advice is, because he’s obviously behind me at all relevant times, is that he was meticulous in his courtesy to the court. Whenever he came through that door in either direction he stopped and respectfully bowed to the court. He was at all times a very well behaved boy, he wasn’t making a noise, he wasn’t being disruptive. Your Honour, consistent with the school reports. This is a bright, healthy, happy, little boy. And your Honour in the absence of the opportunity to ask questions directly, your Honour is entitled to take into account the observations of the plaintiff in the court room.”
When counsel for the appellant thereafter addressed, the only submission was -
“My friend made a somewhat unusual suggestion that the plaintiff could have been called. Assumedly so that he could make his own assessment. That’s not something that this court would entertain.”
Nothing was said about the judge’s observations of the appellant, volunteered by the judge and taken up by counsel for the respondent, or about the asserted entitlement to take them into account.
Regard to observations of the demeanour of parties or witnesses is well travelled territory. From a line of South Australian authority, Minigall v Ayres (1966) SASR 151; Jobst v Inglis (1986) 41 SASR 339; and Angaston & District Hospital v Thamm (1987) 47 SASR 177, the consideration in this state has included Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304; Kassem v Crossley [2000] NSWCA 276; (2000) MVR 179; Vukmirica v Betyounan [2008] NSWCA 16; and more recently Lindsay v Health Care Complaints Commission [2010] NSWCA 194.
A judge’s observations of a party or witness in court, but out of the witness box, can be taken into account. But this is subject to procedural fairness, succinctly stated in Minigall v Ayres at 156 in the terms that “the parties should know or be informed of what [the judge] has noticed, and have an opportunity of answering or dealing with it”.
Being a matter of procedural fairness there is no strict rule, and as was said in Lindsay v Health Care Complaints Commission at [237] -
“237 The authorities have emphasised that the general rule is flexible and based on commonsense. Furthermore, as Kirby P observed in GIO v Bailey, at 314, sometimes there will be a very fine line between conduct that is proper and that which is improper. As his Honour pointed out, where the line is drawn will depend on the circumstances of the case, including the opportunity available to the parties to respond to the Court’s observations, the significance of the observations for the decision under challenge and the apparent importance attached by the court to any undisclosed material. Where the observations are of conduct outside the sight of counsel (for example, where the party being observed is at the back of the court), the duty to draw attention to the observations may be more onerous: Stojanovski v Gheiti (NSWCA, unreported, 14 May 1996), per Priestley JA (with whom Sheller and Cole JJA agreed).”
In Re Association of Architects of Australia; Ex Parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 Gaudron J said -
“As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 procedural fairness requires only that a party be given ‘a reasonable opportunity to present his case’ and not that the tribunal ensure ‘that a party takes the best advantage of the opportunity to which he is entitled’. And it is always relevant to enquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue.”
Quite apart from the exchange in addresses, it is unlikely that the appellant’s counsel or solicitors were unaware that the appellant was in court and within the judge’s observation, or that he was well behaved and would have appeared to be a bright, healthy and happy little boy. His behaviour would have been a matter of interest to them, if only lest he disrupt the proceedings.
Albeit in addresses, the judge volunteered and identified his impression of the appellant. He was invited to take his observations of the appellant in the courtroom into account. In my opinion, it would have been obvious to the appellant’s counsel that the invitation was likely to be taken up unless a submission to the contrary were made. The judge had initiated the exchange and had not responded negatively to counsel’s submission that he could take his observations into account.
No submission was made to the contrary. Nor was anything said to seek to deflect that the appellant presented as a well behaved or “a bright, healthy, happy little boy”, by submission or by application to call evidence such as that the appellant was under strict parental instruction to be good and was acting abnormally.
In Jobst v Inglis the judge’s observations of the plaintiff in court in a personal injuries case were drawn to counsel’s attention in the course of addresses, as observations which did not coincide with the inferences the plaintiff sought to draw from other evidence. Matheson and Johnston JJ considered that procedural fairness required that the observations be raised earlier. Jacobs J considered that sufficient had been done.
In Kassem v Crossley during addresses counsel invited the judge to take account of courtroom behaviour, opposing counsel urged the judge not to do so, and it was held that there had not been the reasonable opportunity of which Gaudron J spoke because (at [28]) “the appellant was denied the opportunity to meet the point by reason of the trial judge’s silence as to her intention to rely on her observations until they were disclosed in the reserved final judgment”. In Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; (2006) 221 ALR 823 it was said (at [13]) that the majority view in Jobst v Inglis “may be a counsel of perfection” because of current greater flexibility in allowing reopening, but the Court was not satisfied that the judge made it clear that he proposed to take the relevant incident into account in deciding the case, so that counsel could determine whether or not to lead evidence or make submissions concerning it.
I respectfully concur that current greater flexibility in allowing re-opening bears upon the difference of opinions in Jobst v Inglis. Had counsel for the appellant sought to re-open to lead evidence concerning the appellant’s good behaviour in court, it is scarcely conceivable that the judge would not have acceded to the application. The appellant relied particularly on Kassem v Crossley and Inghams Enterprises Pty Ltd v Timania Pty Ltd, but in my view the facts were materially different. The judge did not expressly say that he would take into account, in coming to his decision, the observations as volunteered and taken up. But, unlike Kassem v Crossley and Inghams Enterprises Pty Ltd v Timania Pty Ltd, that he was likely to do so would have been obvious, giving rise to the reasonable opportunity of which Gaudron J spoke. I do not think the judge had to make it any more clear than he had done by volunteering his observations, in response to a submission to the effect that he should have been given an opportunity to make his own assessment of the appellant and of engaging directly with the appellant.
Each case depends on its own facts, and in the present case I consider that the appellant did have the opportunity to respond to what the judge said about his observations and to the submissions concerning the appellant’s demeanour proffered by counsel for the respondent.
Finding brain damage
The complaints in the various grounds, as expounded in written and oral submissions, may be summarised as –
(a)giving inadequate weight to the evidence of the appellant’s mother, described as admissions, because she was the defendant, because they were admissions and because of her advantage in giving evidence of the appellant’s functioning and behaviour. (Since the accident the appellant’s parents had become estranged, and his father was not in the same position);
(b)placing undue weight upon the report of Dr Whan and the reports of the medical assessors;
(c)preferring the evidence of Dr Antony to that of Dr Teychenné and Mr Anthony; and as part of (c)
(d)erring in a number of respects in relation to the weight to be given to Dr Teychenné’s evidence.

The judge’s reasons were quite lengthy, and were not so structured that the complaints are readily referable to identifiable parts of the reasons. The judge’s summation, leading to the view that he could not find impairment which might be productive of financial loss, was that while there was the accident as described by the respondent and the fracture of the clavicle and abrasions and bruising -
“ … I have asked myself, are there persisting effects of all this beyond perhaps a year or so? I have looked long and hard for the evidence about that and I have been unable to identify any evidence at all which would satisfy the onus cast upon the plaintiff, notwithstanding the very firm views of Dr Teychenné and the views expressed by Mr Anthony. But that has to give way to the bulk of the other evidence which clearly points to the contrary.”
This came after a canvassing of the evidence of the appellant’s parents and the evidence of the doctors and Mr Anthony, in the necessary task of weighing and evaluating many and often conflicting considerations in order to come to a finding. The judge did not mean that there was no evidence which could satisfy the appellant’s onus, but by the words which would satisfy the onus was saying, in ex tempore reasons, that he was not satisfied that the appellant had established that he had suffered brain damage in the accident.
The appellant’s mother and father gave evidence broadly of observed difficulties in his functioning, particularly in comparison with his elder brother. Their evidence, and the opinion of Dr Teychenné, were affected by his achievements recognised in the favourable school reports. Contrary to one of the grounds of appeal, the judge did not err “in preferring untested hearsay evidence in school reports to expert evidence of Dr Teychenné”. That is not a correct description of the judge’s fact-finding. The school reports were evidence properly open to be taken into account, amongst other evidence on which the judge came to his findings, in evaluating the evidence of the parents and the medical opinions. They were put to the appellant’s mother. They were put to his father, although he said that he knew little of the appellant’s schooling because he was separated from the mother.
The submission concerning admissions can not have been made seriously. All evidentiary admissions are items of evidence the weight of which must be assessed, and in the circumstances the evidence of the appellant’s mother gained no additional weight from the fact that she was the defendant. The judge balanced the mother’s (and the father’s) evidence with regard to the school reports, and the medical records of the general practitioner. There was no error in his approach to fact-finding.
It is not correct that, as another ground of appeal asserted, the judge was obliged to accept the histories on which the reports of Dr Teychenné and Mr Anthony were in part based because they came largely from the appellant’s parents and were not significantly challenged. The histories were materially challenged, and in any event the medical and related opinions had to be considered in the light of the evidence as a whole. It included that a different history had been given by the respondent to Dr Antony.
It was submitted that Dr Antony’s evidence should not have been “preferred” when the different history given by the respondent had not been put to the respondent and she (Dr Antony) did not have the benefit of psychometric testing carried out by Mr Anthony. Other submissions were a reprise of the considerations material to the adjournment application. However, Dr Antony was not cross-examined, and the difference in history was effectively raised in what was put to the appellant’s mother.
It was submitted that Dr Whan was “something of an advocate for the respondent”, a submission which in my opinion has no basis in his report and should not have been made: the more so when he was not cross-examined. Criticisms were made of Dr Whan’s report on the basis that it was mainly criticism of the opinions of others and in parts went beyond his expertise. This also was without the benefit of cross-examination of Dr Whan, and is not an accurate description of his report, which detailed Dr Whan’s examination and review of other documents and expressed his own conclusions. It was said that an apparent contradiction seen by Dr Whan in Dr Teychenné’s reports had not been taken up with Dr Teychenné and, for example, that a comment concerning number repetition as an indicator of a memory problem was outside Dr Whan’s expertise when he appeared to have no qualifications as a neurologist. No basis was laid for such a restriction on psychiatric scope.
In assessing the weight to be given to the opinions of Drs Bowers and Moore, the judge took into account that they could not be required for cross-examination. He recognised that their assessments were different from the opinions of the other doctors, including that they were governed by the medical assessment guidelines, and accepted that “considerable care has to be taken in reviewing what they said having regard to the area upon which each was engaged”, but said that they should be given “appropriate weight”. The appellant submitted that they were entitled to “very little weight”. There is no indication that they were given excessive weight.
I do not think it necessary further to detail the submissions made under these grounds. It is far from clear that like submissions were made to the judge.
The essential question for the judge was whether, on the whole of the evidence, it had been established in the appellant’s case that he had suffered brain damage in the accident. Not untypically, there were differing medical opinions, the differences turning in part on the materials before the doctor (history, examination, tests and so on). Again not untypically, some of the doctors were not cross-examined. It may be accepted that the medical assessments of Drs Bowers and Moore were of less weight, but the opinions of Drs Antony and Whan can not be dismissed in the manner attempted on the appellant’s behalf. His Honour carefully went through the evidence, and having considered all the submissions I am not persuaded that error has been shown in the task of weighing and evaluation by which he came to his conclusion.
The notice of contention
I have referred at [9] to the respondent’s foreshadowed reliance on the determinations of the medical assessors as binding and conclusive for all purposes. The judge accepted that the reasons of the medical assessors were part of the certificates, but did not accept that the reasons were conclusive “when it comes to the issue that I have to decide”.
Under a notice of contention, the respondent submitted that the certificate of Dr Bowers was conclusive evidence that “traumatic brain injury-verbal cognitive defects” were not caused by the accident. It is not necessary to deal with that matter. The invitation to do so in any event should be declined. The submissions were less than full, adding to the undesirability of unnecessary dicta.
Orders
I propose that the appeal be dismissed with costs.
SACKVILLE AJA: I agree with the orders proposed by Giles JA and with his Honour’s reasons.
HARRISON J: I agree with Giles JA.
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LAST UPDATED:
2 November 2010