Freidin v St Laurent

[2007] HCATrans 251

[2007] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M25 of 2007

B e t w e e n -

DAVID FREIDIN

Applicant

and

MARIJA ST LAURENT

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 25 MAY 2007, AT 10.45 AM

Copyright in the High Court of Australia

MR D.F.R. BEACH, QC:   If the Court pleases, I appear with my learned friend, MR R.B. HARPER, on behalf of the applicant.  (instructed by John W. Ball & Sons)

MR T.J. CASEY, QC:   If the Court pleases, I appear with my learned friend, MS M.B. BYLHOUWER, on behalf of the respondent.  (instructed by Clark & Toop)

GUMMOW J:   Yes, Mr Beach.

MR BEACH:   Your Honours, this is a matter of public importance because acceptance of the respondent’s contentions as exemplified in the directions have the capacity to relieve all plaintiffs in negligence claims of the burden of proving on the balance of probabilities the defendant’s negligence was a cause of the plaintiff’s injury.

KIRBY J:   Yes, but it is a jury trial.  The issue is important, there is no doubt about that, but it is a question of how the jury decided this particular case on the basis of the instructions that were given.  If this issue that really was laid down from Justice Gaudron’s opinions and they have been followed, and I think I have followed them in some cases, is to be really tested, it really should be tested in a case where we have a reasoned decision of a judge who decides the facts and a decision of the intermediate court rather than trying to deal with it under the constraints of a jury trial.

MR BEACH:   I accept what your Honour says.  Can I say two things in relation to it.  Your Honours will have seen that Justice Nettle noted in the Shire of Wakool decision that it is, I think to use the words in that decision, “it has become commonplace in the County Court” juries for this direction to be given in negligence actions.  So it is a lot more important than just one jury or perhaps a smattering of juries. 

The second point, dealing with your Honour Justice Kirby’s point, is it has never been run by the respondent that the civil proviso had some application.  We would say, as was spoken of by Chief Justice Dixon in the Balenzuela decision, what has happened here is the charge wrongly exposed the defendant to a hazard that was appreciable and not illusory of a verdict. To use Chief Justice Dixon’s words at 101 CLR 236:

of a verdict for or against him that otherwise might not have been found . . . erroneous guidance which it is not unreasonable to regard as capable of contributing to the result.

GUMMOW J:   Just take us to the particular passage in the charge to the jury which you say is boilerplate.

MR BEACH:   Yes, your Honour.  The charge is in the supplementary application book and the passage begins at page 470 of the transcript – at supplementary application book page 13 at line 11 where his Honour said, and we do not take any exception with the first four lines, but the passage goes from there to the bottom of the page and over the page at page 471 in line 2 commences the part we complain of:

If you conclude that the wrongful omission to carry out an episiotomy results in an increased risk of injury to the plaintiff, and that risk eventuates, then you may come to the view that the defendant’s conduct has materially contributed to the injuries that the plaintiff suffers, whether or not other factors also contributed –

That is repeated further down on page 471.  What we say his Honour did was his Honour correctly tells the jury that the plaintiff must satisfy you on the balance of probabilities but then by way of explanation says that can be done by simply establishing that a risk was increased and the risk eventuated.  What we say, of course, that test reduces to in every case is all that need be shown is that the risk was increased because by definition in every case a risk is eventuated otherwise there would not be injury and there would not a claim for damages.

So, it erroneously tells the jury that if the defendant has increased the risk, however slightly, your are satisfied that his conduct increased the risk, however slightly, you can find that the negligence was a cause of the injury.  We say, as we have said in our outline, that the correct analysis is that of Chief Justice Spigelman in the Seltsam decision at paragraph 119, that when one looks at the judgment of Justice McHugh in Chappel v Hart and the judgment of Naxakis those were cases where the injury had occurred because ‑ ‑ ‑

GUMMOW J:   Wait a minute, Naxakis did not get to a jury.

MR BEACH:   No, but the facts of it were that the injury had occurred because of the negligence of the defendant.

GUMMOW J:   Justice McHugh was dissenting in Chappel v Hart.

MR BEACH:   He was but we would say that his decision in Chappel v Hart has been taken out of context and if you read the whole of the judgment of Justice McHugh what he was effectively saying was a but for test in the facts of Chappel v Hart was not sufficient.  It was not sufficient too say that but for the negligence the injury would not have happened, you had to go on and say that the negligence increased the risk and that that risk eventuated.

The passage that is always quoted out of Justice McHugh’s decision in Chappel v Hart is the passage at page 247 where he sets out some conclusions, having dealt with some facts and some hypothetical situations in the four or so pages leading up to it and then dealt with ‑ ‑ ‑

GUMMOW J:   It might have been better to concentrate on what the case decided, but anyhow.

MR BEACH:   I am just endeavouring to ‑ ‑ ‑

GUMMOW J:   Yes, I understand what you are saying.

KIRBY J:   Chappel v Hart was a very closely divided decision.

MR BEACH:   Indeed.

KIRBY J:   There were some pretty powerful dissenting opinions.  Even I have to accept that.

MR BEACH:   Indeed, your Honour.

GUMMOW J:   It was not this sort of case.

MR BEACH:   No, Chappel v Hart was not this sort of case, your Honour.  That is the very point we make but as Chief Justice Spigelman says in Seltsam, Chappel v Hart and Naxakis are fact situations where it is accepted that injury happened because of negligence and then the issue is whether there was an increased risk and the risk eventuated so for legal purposes one would find causation.  This is the exact opposite of the case.  We would say the important facts of this case can be found in paragraph 9 of our summary.

KIRBY J:   We will never know what the jury made of the facts of the case because they are as silent as the sphinx.

MR BEACH:   They are but there is no dispute between us that the evidence, at its highest, for the respondent was that it was a possibility that the failure to perform an episiotomy led to the haematoma.  Even the plaintiff’s experts were not prepared to say it was a probability.  They are set out in the facts, that part of our summary.

KIRBY J:   I am sorry, I interrupted Justice Hayne.

HAYNE J:   Before you come to the facts, just sticking with the direction, particularly at pages 13 and 14, the steps are at the foot of 13:

It is necessary for the plaintiff to establish . . . failure to carry out an episiotomy caused or materially contributed . . . 

If you conclude [certain things] . . . you may come to the view . . . If you reach that conclusion . . . you are entitled to conclude that the omission caused the injury in question, unless the defendant establishes [certain things]  . . . But if she establishes that the wrongful omission to carry out an episiotomy resulted in an increased risk of injury to  her and that risk eventuates, then you may come to the view –

Now, I understand what you would say about the way in which a jury may hear what is said, but do we not then end up parsing and analysing the difference between “you have to find causation” and “you may follow a particular path to that conclusion”.

MR BEACH:   Could I make a much more gross example of what we would say would be an error.  If the trial judge correctly said, “You must be satisfied on the balance of probabilities and you may be satisfied if you find that the defendant wore a blue shirt on the day” that is our case in a nutshell.  So the jury goes out and says, “Lots of evidence all over the place, nobody said it was actually done on the balance of probabilities but aren’t we lucky he wore a blue shirt on the day.”

KIRBY J:   I think that is a little unreal.  A jury are sitting there in a negligence action and they know that the plaintiff is claiming that your client was negligent.  That is the whole point of the inquiry.  It is not about blue shirts, it is about negligence.

MR BEACH:   No, only on the issue of causation, your Honour.  I was perhaps clumsily trying to explain that our complaint is it is all very well to tell the jury correctly that they must be satisfied on the balance of probabilities, but then, if you give them a way to do it which is below the hurdle, to use expressions of the kind used by the House of Lords in the Fairchild Case and Barker v Corus, that House of Lords now seeming to have come to the view that, whilst originally it as thought that McGhee was just a robust application of common sense, it is now recognised to be a departure from ordinary principles in exceptional circumstances and we would say ‑ ‑ ‑

KIRBY J:   Justice Gaudron’s line of authority was rooted in McGhee, was it not?

MR BEACH:   Yes, it is rooted in McGhee, it is rooted in what Betts and – we have set out the sources, your Honour and we have identified the three sources in paragraph 14 of our outline, Justice McHugh’s judgment in Chappel v Hart, the judgment of Justice Dixon as he then was in Betts v Whittingslowe and the line of authority that commenced with McGhee.  We say in essence the whole thing, with respect, has gone off the rails because if you look at the sources for this, Justice McHugh was using words that are often quoted as a factor that limited we would otherwise have found causation because a clumsy or unsophisticated application of a but for test might have otherwise established causation.

We say the judgment of Justice Dixon in Betts v Whittingslowe really has nothing to do with anything.  That is a case on its facts where the Court  held that even though the trial judge could not work out how the accident had happened, the 14‑year‑old boy had got his hand caught in the machinery, he lost his fingers and every possible inference, every possible conclusion you could draw about the accident led to one of a finding of negligence against the employer.  That is all that case stands for.

KIRBY J:   Can I ask, is there any other jurisdictions in Australia where are jury trials are held for medical negligence cases?

MR BEACH:   I do not think so.  I think you have a limited right to apply for them in some jurisdictions but the norm ‑ ‑ ‑

KIRBY J:   I do not think they are conducted.

MR BEACH:   No.

KIRBY J:   Your point is that though Victoria is unusual in this respect, the very fact that the judge has to direct the jury on the legal principle encapsulates, isolates and identifies the legal principle and in that sense tenders that to an appellate court.

MR BEACH:   Yes, it is, your Honour.

KIRBY J:   You say that this is being repeatedly applied?

MR BEACH:   Justice Nettle notes that he was told that, or the Court of Appeal was told that in the Shire of Wakool v Walters which is behind tab 5 of the materials that we have delivered to the Court.

KIRBY J:   You have offered buckets of money to have this case brought up to this Court to be determined?

MR BEACH:   That is one way that it could be put, your Honour, yes.

KIRBY J:   I have never seen such an offer.  I mean, I am not saying it is wrong and in fact it is a prudent one in the circumstances of this case, but it certainly is unusual.

MR BEACH:   We would say it is a very important issue highlighted by the fact that ‑ ‑ ‑

GUMMOW J:   What is the significance of Wakool?

MR BEACH:   At paragraph 45 of the judgment of Justice Nettle he notes being told, and there does not seem to be any dispute and I do not apprehend there will be any dispute today, your Honour, that since Chappel v Hart it has become commonplace in County Court civil juries to be charged on the basis of Justice Gaudron’s dicta that it is enough for the plaintiff to establish causation for the plaintiff to show the defendant’s breach of duty resulted in an increased risk of injury and that that risk eventuated.  Indeed, if one goes to our learned friend’s summary in response, at paragraph 15, that is effectively what they say.  I take your Honours to paragraph 15 of our learned friend’s summary at application book page 51.  They say:

Once the plaintiff has produced evidence that a negligent act or omission has probably increased the risk of a particular type of injury and that particular type of injury actually occurs then, according to the laws of evidence, an inference can properly be drawn that the negligence was a cause or materially contributed to the injury.  That accords with common sense.

KIRBY J:   Your opponent says that really we will run into the very same issue as loomed like an iceberg in Naxakis, that it is really a factual matter.

MR BEACH:   It is really put by us on this basis; it is a wrong direction and it is a direction which clearly had the capacity within Balenzuela type terms, and having that direction, if being given, as commonplace in the County Court, is expanding the possibility of successful claims by plaintiffs who do not prove on the balance of probabilities that the negligent act or omission was a cause of injury.

KIRBY J:   If there is some evidence on which the jury could reach its conclusion by the application of the proper standard, would that not be sufficient to carry the day for the plaintiff in this Court?

MR BEACH:   It might be.  It should not carry the day, even if there was, for this reason, there will be lots of cases around the margin where it might be said there is enough evidence just to get the plaintiff over the line of balance of probabilities – it was a cause.  By definition, a percentage of those cases that will be decided in the favour of the plaintiff will be decided not because there was that evidence or not because that evidence was accepted.  In fact, the jury may have utterly rejected it but a percentage of those cases where the plaintiff will succeed will succeed because the direction has been given and even though, as your Honour Justice Kirby says, we just do not know what was in the mind of the jury, we do know if one runs enough cases that almost anything will be in their minds in any particular cases and there will be cases where causation will be established only because this direction, commonplace to be given, is in fact given.

HAYNE J:   Mr Justice Gillard at pages 14 and 15 amplified the qualification he had entered, namely, that things are different if the defendant shows that the failure had no effect at all or that the risk would have eventuated and resulted in injury in any event.  In this case, was there any such competing possibility?

MR BEACH:   Yes, the defendant called two witnesses who both said positively it had nothing to do with the cause of the haematoma.

HAYNE J:   That being so, is this not a case which ultimately turned on the way the jury regarded the competition in evidence?

MR BEACH:   No, because the jury result tells us two things.  First of all, they rejected the applicant’s experts.  The applicant’s experts said “absolutely no causation”, thumped the table “no causation”.  The jury obviously rejected that, so you can put the applicant’s experts to one side.  You are left with the respondent’s experts who each say, “We can’t tell you it probably would have made a difference.  It possibly would have.  It increased the risk.”  That is the state of the causation evidence.

HAYNE J:   Because, reading the charge as a whole seems to me to convey to the jury, “If all you know is, that is, from what you accept, if all you know is that the risk is increased and the risk happens, you may draw that inference.”

MR BEACH:   Yes, and that reduces to, “If all you know is that the risk is increased” because it is common ground.

HAYNE J:   You may draw that inference, not you must.

MR BEACH:   Yes.  No, you may, yes.  We would say that is wrong, it simply sets a lower bar than balance of probabilities and that Chief Justice Spigelman in paragraph 119 of the Seltsam Case, followed by successive full courts in Queensland and South Australia is right and that the basis for distinguishing Chief Justice Spigelman’s decision simply does not have any logic at all.

GUMMOW J:   What is the gist of Chief Justice Spigelman’s approach?

MR BEACH:   We have set out the relevant paragraph.  It is all in paragraph 119, set out on page 57 of the application book, your Honours.  He says:

“There is a tension between the suggestion that any increased risk is sufficient to constitute a ‘material contribution’, and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes.  The latter is too well‑established to be qualified by the former.  The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialized.  The ‘possibility’ or ‘risk’ that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X.”

We say that neatly encapsulates ‑ ‑ ‑

GUMMOW J:   I thought that was a point made by Justice Gaudron in Naxakis actually.  I may be wrong.

MR BEACH:   Not in terms, we would say, with respect, and that is what gives rise to the problem.  If we were all on the same page saying, yes, what Justice Gaudron said is meant to apply only to cases where it is undisputed that Y had happened because of X, then this charge could never have been given because it would not have been relevant to do so.  It would have been simple enough to say, “Do you, the jury, find on the balance of probabilities that the negligence was a cause of the injury and if you do you do not need to go on and talk about esoteric questions of increasing risk and risks eventuating” and the like.

KIRBY J:   Now, remind me, did your side object to that part of the structure?

MR BEACH:   Yes, we did.  We did both before it was given and after it was given and that is footnoted in our outline, your Honour.  If the Court pleases.

GUMMOW J:   Yes, thank you, Mr Beach.  Yes, Mr Casey.

MR CASEY:   If the Court pleases.

KIRBY J:   Mr Casey, it is rather ungracious of you to reject all this money that the applicant is bringing to Court trying to buy its way into the High Court of Australia.

HAYNE J:   The plaintiff would rather obtain the verdict.

MR CASEY:   We have not seen any buckets yet, your Honour.

KIRBY J:   But they do say that this is a matter that is being fought out in cases of this kind and that it really encapsulates the legal point by the direction given to the jury that it is an important point of general significance and that they will safeguard you in your costs below and in this Court and therefore that it is an appropriate occasion for us to look at it.

MR CASEY:   Your Honour, we say to that a number of things but, firstly, what has already been agitated and that is the direction given by the trial judge and the particular circumstances of this case was we say undoubtedly correct.  The appellant argues that the principle establishes in a case where it is only possible that a failure to cut an episiotomy materially contributed to the injury.  If that is enough, then it converts a possibility into a probability, in essence.  We say to that two things.  Firstly, the negligence in this case was a negligence of omission, so it is not unsurprising that the doctors who were called could not say with any degree of certainty that the damage would have occurred, in any event.

The evidence of the two experts which the respondent called was to the effect that the failure to cut the episiotomy probably increased the risk of the development of the haematoma.  That is set out in paragraph 22 of the Court of Appeal’s decision at application book 20 where Justice Chernov after visiting Seltsam in a number of paragraphs then distinguishes Seltsam by pointing to the evidence which was acceptable to the jury as to the increase of risk.  It was open to the jury to accept these pieces of evidence.

KIRBY J:   So this really is a Naxakis type issue then?  You say that there was evidence on which the jury could by an application of a more stringent probability test have found in favour of the respondent?

MR CASEY:   It could have done so, your Honour.  In fact, three possibilities were put forward as to the cause of the damage.  There was firstly the compression of the head of the foetus during its passage down the birth canal of which there would be no negligence, secondly, increased pressure upon the vein during the rotation of the baby’s head after the forceps had been applied and, thirdly, increased pressure upon the vein during the actual delivery of the baby by forceps.

The second and third circumstance, which was found to be a negligent omission, would be sufficient on even the traditional view but there was the first element, the compression of the head of the foetus during its passage.  It was said, essentially, nobody can choose between the first and the second and the third events.  In those circumstances, it being a case of omission, we submit that the Naxakis principle is an applicable principle, so that increase of risk followed by the actual damage can lead to an inference of causal connection between the two.

So, the charge was appropriate.  The jury had the evidence.  The jury obviously accepted the evidence of the plaintiff’s experts, as it was entitled to do, and simply applied the principle and drew the inference that his Honour had said they were entitled to draw.  So far as the case of Wakool is concerned, one assumes that County Court judges read judgments of the Court of Appeal.  What his Honour had said in that case was:

In the ordinary run of case, however, if one is satisfied on the balance of probabilities that a risk which has eventuated would not have occurred but for the defendant’s breach of duty, it is open to conclude that the risk eventuated because of the breach of duty.

Batiste, Van Den Heuvel and the Shire of Wakool Cases, they were cases where there was direct evidence of cause of injury.  They were not cases where reliance upon entrance as to cause of injury arose.  In all three cases it was recognised that the principle was not attracted.  In Seltsam there was no direct evidence that any asbestos fibres had reached the kidney. The needle biopsy was negative.  The only established facts in that case from which inferences were sought to be drawn were the epidemiological studies. 

Chief Justice Spigelman analysed the evidence of those studies and said, essentially, that they did not do more than create conjecture as to the link between asbestos exposure and the development of renal carcinoma.  That is the point of difference between Naxakis and Seltsam and this case and Seltsam.  His Honour towards the end of the judgment said if a fibre had been found in the renal biopsy it would be quite a different case, but here the principle simply could not work because there was not any evidence on the balance of probabilities that there was an increase by asbestos exposure of the development of renal carcinoma and so the principle simply was not attracted.

Our submission is that the particular facts of this case do attract the principle and the jury, therefore, were properly directed and it can be concluded that their verdict was open, in the circumstances.

GUMMOW J:   Yes, thank you, Mr Casey.  Yes, Mr Beach, anything in reply?

MR BEACH:   Yes, your Honour, just one matter.  In terms of what Chief Justice Spigelman said in paragraph 119 of Seltsam it is probably arid to say that, in our submission, there was no proper basis for distinguishing the cases but could I just make two other points.  One is, what he says in paragraph 119 is of general application and does not depend upon the facts of the individual case.

KIRBY J:   The only problem is that that was an appeal from the Dust Diseases Tribunal of a judge sitting alone who gives full reasons and Justice Davies, Acting Judge of Appeal, went for about 30 or 40 pages analysing the matter.

MR BEACH:   Indeed.

KIRBY J:   That is not something that would arise in this case because we would just been looking at what was available to the jury.

MR BEACH:   Your Honour has put that to me before.  I do not know whether your Honour wants me to say any ‑ ‑ ‑

KIRBY J:   No, I know what you say but I have sat here in cases that were propounded to us as the great test cases on important issues and they ended up being little test cases on well‑established principles of restraint in reviewing appeals from jury decisions.

MR BEACH:   Just before I come to my final point, can I just address that by saying this, your Honour, if this case does no more than resolve for County Court judges whether they should have these words in the charge in an unqualified way, then this case will have done a lot.  The final point I wanted to make, your Honour, was it is not logical, we say with respect, to say that Chief Justice Spigelman’s judgment is correct for cases where the increased risk is only proved as a possibility as compared to there probably being an increased risk because that leads to the proposition that if there are very weak cases, the weakest case, where the increased risk is only proved as a possibility you would put a more stringent hurdle to get over and for the stronger cases where the increased risk is proved as a probability, if our learned friends are right, you take away that requirement, you make life easier for those plaintiffs.  There is just no logic in such a proposition.  Unless there are any other matters that I could assist the Court with, those are our submissions in reply.

GUMMOW J:   Yes, thank you, Mr Beach.  We will take a short adjournment.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.13 AM:

GUMMOW J:   The immediate question which the applicant seeks to agitate in this Court, were special leave granted, is whether the trial judge’s instructions to the jury about causation were correct.  Those instructions indicated that a particular chain of reasoning was open.  We are not persuaded that the indicated chain of reasoning was not open.  Whether in the particular circumstances of the case that reasoning was adopted or correctly applied tenders no issue suitable to a grant of special leave.  Special leave is refused, with costs.

We will adjourn to permit the establishment of a video link to Adelaide.

AT 11.17 AM THE MATTER WAS CONCLUDED