Falasca v Morrissy

[2000] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Registry  No C8 of 1999

B e t w e e n -

LELIO FALASCA

Applicant

and

MARGARET MORRISSY

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2000, AT 10.42 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:   May it please the Court, I appear with my learned friend, MS G.K.Y. WONG, for the applicant in this matter. (instructed by Messrs Peter R. Glover)

MR L.M. MORRIS, QC:   May it please the Court, I appear with my learned friend, MS C.E. ADAMSOM, for the respondent. (instructed by Abbott Tout Harper & Blain)

HAYNE J:   Yes, Mr Tilmouth.

MR TILMOUTH:   May it please the Court, I have three matters to put to your Honours in the ‑ ‑ ‑

HAYNE J:   I thought you were going to say you had three matters in the list, which I understood to be the position.

MR TILMOUTH:   That is true as well, your Honour.

HAYNE J:   Yes.

MR TILMOUTH:   Your Honours, the first matter is this, and what we submit has happened here in this case is that the finding which led to the rejection of the expert reports, based on the fact that there had been a previous complaint of neck pain, was made on the basis of a medical report as against the sworn evidence of the applicant that there was no such occasion, in effect.

Now, in our submission, the important question arises whether a finding can be made on the basis of a medical report, a finding of fact against the sworn evidence of the applicant and, in any event, even if it could there is no process in the Master’s reasons where he indicates why he prefers the medical reports over the sworn evidence of the applicant.

HAYNE J:   But is the problem as sophisticated as that, or is the problem a rather more fundamental one of whether the plaintiff proved his case?

MR TILMOUTH:   Well, they are both intertwined, if the Court pleases.  But, essentially, he did not prove his case because it was held that the basis of the opinions which supported it fell and that, in turn, depended upon the finding that there had been a previous complaint of neck pain.  Now, can I show your Honours quickly where ‑ ‑ ‑

HAYNE J:   And that is a finding of fact, is it not?

MR TILMOUTH:   Yes, it is.

HAYNE J:   Raising what point of principle that should warrant our attention?

MR TILMOUTH:   If the Court pleases, whether it is proper to find a fact on the basis of a medical report when a plaintiff has got into the box and denied what is presented in that report about what he said to the doctor when that doctor is not called.  That is the point, if the Court pleases.  Your Honours, can I quickly demonstrate ‑ ‑ ‑

HAYNE J:   Just pausing there, would it be open to a tribunal of fact, faced with sworn evidence, uncontradicted, from a plaintiff, not to accept that uncontradicted evidence?

MR TILMOUTH:   Only if the court had disbelieved the plaintiff in the first place.

HAYNE J:   If that is so, why cannot the tribunal of fact refuse to believe the sworn evidence of the plaintiff where there is some material founding the contradiction?

MR TILMOUTH:   Well, it could but the Master never did that.  There is not one reference, if the Court pleases, as the first Full Court noted, where the plaintiff was disbelieved, or anything of that kind.  There was nothing that adversely affected his credit, and this is the point.  If the Court pleases, let us assume that Dr Rumore had given evidence that, “Yes, the plaintiff did complain of neck pain”, and the plaintiff said “No, no, I thought it was in my arm”, then there would be a clear factual dispute for the court to resolve and it would be unappealable.

Now, what has happened in this case, instead of Dr Rumore giving evidence, his report has been tendered – it is page 12 by the way, if the Court pleases.  He was not called by the respondent.  That report was put to the plaintiff and, essentially, he did not agree that he had made the complaints.  That crystallises the point.  But if your Honours look at the report carefully, it barely gives rise to a finding anyway that there was complaint of neck pain.  The best of it, if the Court pleases, is page 12:

This patient first attended physiotherapy on the 23rd December 1991.  He presented with bilateral cervico‑thoracic and interscapulare pain and right posterior shoulder and arm pain of six weeks duration.

And further down, your Honours, line 11:

On his initial examination an increase in thoracic spine kyphosis was noted and painful restriction of all cervico‑thoracic movements to 75 per cent –

now, one can quibble, I suppose, as a matter of anatomy, but, at best for the respondent, all of those are in relation to the lower neck.

If the Court pleases, at the bottom of page 12, the Master noted that the applicant was cross‑examined on that report, and the applicant’s evidence was – at the top of page 13, first line, your Honours:

I don’t recall the neck.  I believe I had problems with my left arm –

and that is partly supported by the report, of course, or arm anyway:

it was a pinched nerve or something.

Then he went on to say he did not recall the restriction as recorded.  He then said, at line 8:

I remember that I was impeded in doing – in movement, but I don’t remember it was 75%.

And then at line 13, the question was put:

Well if this – it was a most significant impediment, wasn’t it? – It was painful, yes.
And you couldn’t move freely at all, could you? – No, for those – those – that period it was painful yes.
And you couldn’t move your neck without pain?-I could move – on certain positions, yes, I had pain.

And at line 20, your Honours, it seems evident, in my submission, that the pain was “sharp pain down my arm.”  Now, to put it as finely as I can, the only two bases upon which the Master could have reached the conclusion, which he did on the following page, page 14:

I conclude from this material that the plaintiff presented to his physiotherapist in December 1991 and made complaints of pain –

could either be Dr Rumore, page 12, and as I have endeavoured to explain, that barely gets there, although on a wide reading it might.  But it can never get there, if the Court pleases, on the basis of any alleged admissions in the passage in the smaller font at page 13, and that crystallises my point, if the Court pleases.

If the Master had said, “Well, look, I have a problem here, the plaintiff has really denied the basis of the report.  The doctor was not called.  How do I resolve this?”, but nevertheless resolved it against the applicant on a proper basis, we may be out of court.  In a normal case, of course, as I have said, if Dr Rumore had been called, it would be a classic fact finding.

But in this case, if the Court pleases, that finding at page 14 has been made, in my submission, on no proper basis and the report of Dr Rumore could not be evidential of the truth of the fact that there was a complaint of neck pain.

CALLINAN J:   Why could it not be?

MR TILMOUTH:   Under section 60 of the Act, it might be, but the ‑ ‑ ‑

CALLINAN J:   It does not need to be.  You do not need that section.  It could be an admission against interest.

MR TILMOUTH:   That is true, but you would really have to call Dr Rumore to prove it.

CALLINAN J:   No, but Dr Rumore’s evidence was before the court.  It simply was not oral evidence, but it was written evidence by agreement between the parties.

MR TILMOUTH:   Well, in my submission, it would be a big step to find that way, but if the Court pleases, the better point, perhaps, is his Honour never went through that analysis.  He just said ‑ ‑ ‑

CALLINAN J:   He does not have to, it is just evidence.  Mr Rumore’s report is evidence before the Court and it contains an admission against interest by your client, on one view.

MR TILMOUTH:   Assuming that, with respect, it is still a big step as a matter of natural justice, with respect, to make that finding without an analysis.  But in any event, I submit that properly looked at, the complaint ‑ ‑ ‑

HAYNE J:   Well, you say to make that finding without an analysis though, and the point was put to the plaintiff, was it not?

MR TILMOUTH:   It was, it was and that comes in a page 13.  I am not making Browne v Dunn point or anything akin to that.  It is something more fundamental.

HAYNE J:   No, the plaintiff had his opportunity to answer and the Master was unpersuaded.

MR TILMOUTH:   That is what the respondent would put for the reasons I have put to your Honours.

CALLINAN J:   And the plaintiff was very much on notice that this was an issue because he was cross-examined on it.  He was still in his own case and if he wanted to bolster it up he would then have been able to call such evidence as might have bolstered it up if it were available. 

MR TILMOUTH:   That is true.  That is true, if the Court pleases.

Your Honours, the second point is this, and it relates to another aspect of the alleged injuries which the Master did not deal with, as the Full Court acknowledged, and it best appears at page 40 of the application book, your Honours, and at line 5, in the quoted section, is a report by Dr Adler.  Now, in the first paragraph, your Honours, at line 5, Dr Adler refers to:

Mr Felasca has an injury to the upper cervical spine affecting the left C1/2 and C2/3 –

Now, that injury was not dealt with by the Master, the upper neck injury.

The second paragraph, your Honours, relates to the injury which was the focus of the trial which was the injury as there indicated at line 9:

There is evidence of injury to the cervicothoracic junction and upper thoracic spine –

now, that injury was commonly referred to in the evidence, C5, C6, and clearly that would be so if it was near the thoracic spine.  But the point to make here was the plaintiff’s case was pitched on two injuries, paragraph 1, upper neck injury, paragraph 2, lower neck injury.

Now, if the Court pleases, the Full Court acknowledged at page 44 - this is the first court, your Honours - perhaps line 3, but certainly from line 6, that this area was not dealt with by the Master, and they proceeded to deal with it themselves.  Page 44, your Honours, line 6, paragraph 41:

Nonetheless, it was in our view incumbent upon the Master to consider whether any incapacity had been caused by the injury to the upper cervical spine.

This is the first paragraph of Dr Adler:

Dr Adler did not give evidence orally.  The Master made no finding as to whether he accepted Dr Adler’s evidence as to the existence of that injury –

and so on.  They purport then to analyse it afresh, if the Court pleases.  But what they conclude is this, if the Court pleases, at page 45.  Perhaps I should read the last line of 44:

Having regard to this evidence and to the limitations in Dr Adler’s report, we think that the plaintiff has failed to prove that his neck pain was attributable to an injury to the upper cervical spin rather than the onset of symptoms associated with the degenerative cervical spondylosis.

Now, if the Court pleases, the fault there is that the degenerative cervical spondylosis never ever, on any of the evidence, related to the upper neck injury or the level of C1 and C2.  It only ever related to the lower neck injury of C4, C5 and so on.  So all of the findings of the Master depended upon the issue of the degenerative condition which led to a finding against the plaintiff may have been good with respect to the lower neck injury, but had nothing to do with an upper neck injury at all.  The level C1, C2 and C3, on nobody’s evidence, was affected by spondylosis or any earlier underlying degenerative condition.  In my submission, then, the Full Court, by saying at 45 that it could be attributable to the onset of symptoms associated with degenerative cervical spondylosis, made the error of confusing the two injuries and attributing both of them to degeneration, and that what was wrong.

HAYNE J:   Now, whether that is error or not would depend, would it not, upon a close analysis of the way in which the trial was conducted and the way in which the proceeding had been pleaded?

MR TILMOUTH:   Yes, but there is no doubt, your Honours, that that injury was part of the case, and the Full Court ‑ ‑ ‑

HAYNE J:   Yes.   Where lies the special leave point warranting the attention of this Court to that kind of issue?

MR TILMOUTH:   Your Honour, I pitch this argument solely on the basis of individual miscarriage under section 35A(2).

HAYNE J:   Yes.

MR TILMOUTH:   But, your Honours, can I demonstrate how the confusion between the two injuries translated itself into the Full Federal Court, the second Full Court, at page 59.  They adopted, in effect, what the first court had said at line 3:

A fair reading of Dr Adler’s report indicates that he relied to a significant degree on the erroneous history given to him by the plaintiff.  For example, he said, under the heading of “Summary and Assessment” that:

“Mr Falasca has since [the accident] experienced neck pain [and] headaches…There is no evidence to suggest that degenerative changes were present –

Now, if your Honours go back to page 40, what has happened is your Honours will see that they have concertinaed in that quotation the first line from the report of Dr Adler with respect to the upper neck injury, together with a reference from the second paragraph, third to last line, related to the lower neck injury which was partly due to the degenerative condition.

Now, the point I made, as the first Full Court applies here as well.  The neck injury to the upper spine was never ever one relating to degeneration, and the second court has moved the two and confused the two by concertinaing the two passages, and that is ‑ ‑ ‑

HAYNE J:   I must say I read that as simply discussing presence or absence of pain.

MR TILMOUTH:   Well, in any event, if the Court pleases, there was never any evidence of prior degeneration of C1 and C2 related to the lower neck, and the reason why Dr Adler’s report about the upper injury has been rejected was the basis of degeneration, which never applied to that part of the anatomy.

Now, the third point, your Honours, is the Watts v Rake point, and can I put it simply this way.  The Master and the other courts said that Watts v Rake really did not apply to change the onus of proof – whether it is a shifting onus or legal onus I put aside – because there was no evidence.  The reports fell because of the neck pain issue. 

Now, if the Court pleases, what that overlooks, though, is the evidence of the plaintiff, which I have been at pains to point out, his Honour, at first instance, had not rejected.  The plaintiff gave evidence, your Honours, that he had the accident, and that day and that night he had stiffness around the upper neck and so on.  He called corroborative evidence from another witness to support that fact.

Now, quite apart from the medical evidence, there was evidence from the plaintiff himself which gave rise to a prima facie influence because of the proximity of the complaint and the accident that the two were causative.  The rejection of the Watts v Rake point was based solely on an analysis of the medical evidence, but not on the primary evidence of injury, and, of course, the medical evidence is only ever as good as the primary evidence in the first place and that, in my submission, is the fundamental error in relation to the application of Watts v Rake. 

Can I point out as well, your Honours – although it is not in the papers – the initial complaint to Dr Black some days later was pain in the upper cervical region, rather than the lower one where the degenerative condition was and that gave force to the argument I put on the second head about the importance of dealing with Dr Adler.

So, if the Court pleases, in my submission, there are those three errors as outlined and they warrant the grant of special leave in the particular circumstances of this case, and the order we would seek, if the appeal was allowed, that the matter be remitted to the Master for rehearing.
If the Court pleases.

HAYNE J:   Yes, thank you.  Yes, we need not trouble you, Mr Morris.

The matter raises no point of general principle warranting a grant of special leave.  In any event, we are not persuaded that the conclusion of the Full Court of the Federal Court of Australia is attended by doubt.  Special leave will be refused.

Mr Morris?

MR MORRIS:   I make an application for costs, your Honour.

HAYNE J:   Can you resist, Mr Tilmouth?

MR TILMOUTH:   Only to repeat what is at page 76 of the appeal book, if the Court pleases.

HAYNE J:   Yes.  Special leave will be refused with costs. 

Yes, the Court will adjourn to 10.15 on Tuesday, 23 May at Canberra.

AT 11.00 AM THE MATTER WAS CONCLUDED