Glaxo Australia Pty Ltd v Wood

[1993] HCATrans 197

~

~ -./~·,

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No Bl8 of 1993

Brisbane

B e t w e e n -

GLAXO AUSTRALIA PTY LTD

Applicant

and

MARY ELLEN WOOD

Respondent

Application for special leave

to appeal

TOOHEY J
GAUDRON J

McHUGH J

Glaxo 1 2/7/93

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 2 JULY 1993, AT 10.52 AM

Copyright in the High Court of Australia

MR J.L. SHER, QC:  If Your Honour pleases, I appear with my

learned friend, MR A.E. LYONS, for the applicant.

(instructed by Williams Graham & Carman)

MR J.A. GRIFFIN, QC:  If the Court pleases, I appear with my

learned friend, MR P.G. CLEARY, for the respondent.

(instructed by MacDonnells)

TOOHEY J: Yes, Mr Sher.

MR SHER:  If Your Honours please, we have provided Your

Honours with a folder of authorities and relevant

legislative provisions, and an unreported decision

of the Court of Appeal of New South Wales of

Brunton v O'Bryan, with which Your Honour

Justice McHugh will no doubt be familiar.

Your Honours, there are two points which we

would contend are points of general importance that

arise in this application. The first one is

whether, under the provisions of the Queensland

statute, which are similar to New South Wales and

other States, a second medical opinion or a

reinforced medical opinion or, for that matter, any
medical opinion, can be a material fact within the

meaning of the Limitations of Actions Act.

On that issue, Your Honours, in the Queensland

Supreme Court in this litigation, Mr Justice

Ambrose said that it could not, and the thr?e other

justices either said directly or impliedly .1at it

could, whereas in the unreported decision in New

South Wales to which I will refer Your Honours, in

Brunton v O'Bryan, which was handed down on

4 August 1988, Your Honour Justice McHugh and

Mr Justice Clarke said that it could not, and the

President of the Court of Appeal, Mr Justice Kirby,

said that it could.

So there is a significant difference of

judicial opinion within the two courts and between

the courts and there is also, in our submission, an

apparent difference of judicial opinion relevant to

this issue within the High Court of Australia in Do

Carmo v Ford Excavations between, on the one hand,

Justice Wilson and Justice Deane and, on the other

hand, Justice Brennan and Justice Dawson. I will

take Your Honours to those cases very shortly.

Our contention is that a medical opinion

cannot be a material fact within the meaning of the

legislation and - - -

TOOHEY J:  Mr Sher, I do not know whether within your

collection of authorities you have had the decision

of this Court in Sola Optical Australia Pty Ltd?

Glaxo	2/7/93
MR SHER:	No, and I have looked at it but I believe, with

respect, it was not relevant to that issue,

Your Honour.

TOOHEY J: Although did it not concern a medical report?

MR SHER:  I must say I have looked at so many cases on this

topic in the last day or two that I find it hard to
recall the facts and the issues one from another,

but I did not think that it did, Your Honour.

GAUDRON J:  It was a report which assessed disability at

80 per cent, I think, rather than - - -

MR SHER:  I did not think in that case the issue had arisen

in this fashion, as to whether or not it could be a

material fact, and that the issue was a somewhat

different one.

TOOHEY J: Well, the issue primarily in that case was the

need for a relationship between the existence of a

material fact and a decision to sue, and the Court
rejected the need for some connection between the
two but, in a sense, that only points up the
proposition that might be against you, namely that
the existence of the medical report was regarded as

a material fact, the plaintiff in that case already

having made up her mind to initiate proceedings.

MR SHER:  Yes. Your Honours, in this matter before the

Court, in our submission what the Court of Appeal

did was to confuse two issues, and what they did is

to have regard to the existence of a second

stronger medical opinion from the same doctor and
another opinion from an American doctor as bearing
on the question of whether there was a material

fact of which the plaintiff did not have knowledge.

Our submission is that that issue bears upon a

decision to sue, not upon the question of whether a

material fact exists, and that, as in this case, if

you already have - might I withdraw that. In our

submission, Justice McHugh's judgment in Brunton

correctly characterizes the question. The question is not whether you have a medical opinion, but what are the underlying symptoms and the like, and that

is correct, in our submission, because there will

be almost countless instances where a lay person

will never know a medical situation. For example,

in this case, the suggestion that the myelogram

caused the arachnoiditis is something the plaintiff

would never know; it is a matter of expertise. The

best she could ever know is that somebody thought
that it was so caused.

So our submission is that the distinction that Justice McHugh made in Brunton is the correct one,

Glaxo 3 2/7/93

and that is that the applicant has to show the
facts that are likely to be within the knowledge of
the applicant, that is to say the symptoms and

signs of the condition, and that the question of

whether a medical opinion will support a causal

connection between an alleged act of negligence and

a condition, we say, might be relevant to whether

you decide to sue or not, but if all that has

changed in the meantime between getting one opinion

some years ago and then getting a second opinion

some years later is that you now have greater

grounds for being confident about your litigation,

we say that is not a new material fact and, in our
submission, the legislation properly construed
requires for there to be a new material fact

discovered before the question of extending time

can occur.

TOOHEY J:  What the Court said in Sola Optical at page 636,

Mr Sher, was this:

A fact is material to the plaintiff's case if

it is both relevant to the issues to be proved

if the plaintiff is to succeed in obtaining an

award of damages sufficient to justify

bringing the action and is of sufficient

importance to be likely to have a bearing on

the case.

On that footing, it is hard to see how a medical

report could not constitute a material fact.

MR SHER: Well, could I take Your Honours to the way in

which it is discussed in Brunton's case and,

firstly, to Your Honour Justice McHugh's judgment

at page 10 where - and this is dealing with the New

South Wales legislation obviously, but it is in identical terms.

GAUDRON J: Where do we find Brunton, Mr Sher?

MR SHER:	It is separately provided, Your Honour.
GAUDRON J: Yes, thank you.
MR SHER:	On page 10 - the question in this matter was

whether or not the plaintiff had asbestosis and his

knowledge of it depended upon an opinion from a
Dr Geddes and, at page 10 of the judgment,

Your Honours will see the words:

(at page 5) -

in the middle of the page, His Honour said this - Thus the theory of s58 is that a plaintiff who

makes a showing that he has a good cause of

Glaxo 4 2/7/93

action is entitled to apply to the court for

an extension of time if he can establish:

(1) the existence of a fact relating to his

cause of action: (a) which is a material fact

as ordinarily defined or as defined by the Act

(b) of a decisive character as defined and

(c) which was outside his means of knowledge

as defined and (2) if a reasonable person

Properly advised would not have brought the

action without knowledge of that fact.

In the courts below, the material fact of a decisive character was seen as whether the

plaintiff knew he was suffering from

asbestosis. But in my opinion that is not the

correct question. The material facts of a

decisive character relating to the cause of
action in this case are the various signs and
symptoms which are alleged to constitute the

condition of asbestosis. It is not the

suffering of asbestosis or whether the

plaintiff knew that he was suffering from

asbestosis. Whether or not the applicant has

asbestosis is one of the fundamental issues

for determination in the case. Nevertheless,

in my opinion the real question in this

application is whether a reasonable man

knowing of the various signs and symptoms of

the applicant and having taken the appropriate

legal and medical advice in respect of those

signs and symptoms would regard them as
showing that an action against the respondents

would have a reasonable prospect of success.

GAUDRON J: That encapsulates the argument you would put,

does it, Mr Sher?

MR SHER: It does.

GAUDRON J: But that, surely, is not consistent with what

was decided in Sola Optics?

MR SHER:  I must say, Your Honour, I did not think that that

was so. I thought that Sola Optics was deciding

that the question of the obtaining of a medical

opinion of a sufficient strength to justify
bringing proceedings was relevant to the question
of whether it was reasonable to bring the

proceedings, but does not determine the question of

whether getting a strengthened medical opinion is a

material fact.

GAUDRON J: But it proceeded on the basis that it was, did

it not? It may not have been in issue, but the

decision depends on it being a material fact, does

it not? And, in fact, my recollection is that it

was expressly said it was not the symptoms or the

Glaxo 2/7/93

disability as such that was important but the

medical quantification of its extent.

MR SHER: Well, Your Honours, the point has not been

specifically decided in Sola, we would contend, and
it is a point, in our submission, which has the

following aspects which are important, and they are these: that if all is required to, as it were, get

time running again, is to obtain a second medical

opinion or a more strengthened opinion from

somebody who has already expressed an opinion, then

a defendant may be at risk for, as it were, time

immemorial. It could just go on and on and on

while the plaintiff, or the prospective plaintiff,

shops around until they get something which would

then justify them suing.

A plaintiff will never know, in a case such as

this, the fact - that is to say that there is a

causal connection between the alleged negligence

and the injury - because that is a matter of

expertise. The lay person can never know something

which is a matter of expertise, in our submission.

All they can know is what an expert is prepared to say about it. In our submission, the point is

illustrated by what appears to be the difference of

opinion in Do Carmo, where Justice Wilson and

Justice Deane talked about primary and secondary

facts, and that the relevant sections were only

really concerned with primary facts, that is to say

the facts which one would expect a plaintiff to

know.

I can take Your Honours to the passages in Do Carmo which illustrate that, and I might say

that there seems to be a conflict in this Court in relation to that very issue. It is under tab 7 in

the book of cases that we have provided, and the

relevant passage in Justice Wilson's judgment

firstly appears at page 248, and this is an issue

that arises because what is happening is that a

plaintiff is having to rely upon expertise in

relation to knowledge. At page 248, the discussion

commences about a slightly different topic but it

is desirable to read it so as to understand what

follows at the top of 249. In the first paragraph,

at about point 3 of the page, His Honour said:

Nevertheless, there are serious difficulties in the way of accepting

Mr Leslie's submission. It is true that the

use of the words "the fact of the occurrence

of negligence nuisance or breach of duty" in

s 57(l)(b)(i) to describe a material fact

identifies in its application to this case

something more than the mere failure of the

employer to take steps to minimize the

Glaxo 6 2/7/93

inhalation of dust. That failure of itself

would not necessarily amount to negligence.

The "something more" that is required, namely,

the reasonable availability of appropriate

precautions, may accurately be described as a

fact and indeed as a material fact within the

meaning of s 57(l)(b)(i). But it is a fact of

a secondary nature because its significance
lies in the impact it makes on what might be

called the primary fact. In this case that primary fact is the inhalation of dust in a

working environment where no provision was made by the employer to reduce the hazard.

The question of the precautions, if any, that

were available to a prudent employer at the

material time is a question of the state of
knowledge and current practice pertaining to
the industry generally. It relates to the

general state of affairs in the industry and

only indirectly to the actual occurrence of

facts which cause personal injury to a
particular worker. Its relevance and

importance lie in the role it plays in

determining the true quality of the primary

fact, whether or not the primary fact is a

wrongful act constituting negligence or breach

of duty.

If I can leave that and then go to the next page,

Your Honours:

"Appropriate advice" is not confined to legal

advice. It includes the advice of a competent

person, qualified to advise on matters of

industrial safety in relation to excavation

work in Sydney, on the particular aspect of

the known material facts now under
consideration, namely, the absence of any

provision to minimize the inhalation of dust

during such excavation work. If it be the

fact, although unknown to the appellant prior

water hosing the area of drilling and the	to October 1979, that precautions such as
wearing of face masks were effective to reduce
the inhalation of dust and were known in the industry in 1971, then appropriate advice to
that effect would be available to the
hypothetical reasonable man. A conclusion in
favour of the institution of proceedings must
then follow. That being the case, the
appellant cannot now say that his ignorance of
that fact is relevant to an application by him
under s 58(2). It is a material fact but it is not of a decisive character.

TOOHEY J: That is not the case here, Mr Sher, is it,

though? One can understand that approach. But

Glaxo 2/7/93

here you have a plaintiff whose condition has been

diagnosed as arachnoiditis. Now, that is primary

fact. Until the plaintiff receives some sort of

advice that that condition is or may be

attributable to some form of surgery such as a

myelogram, it is clearly lacking a material fact,

namely the connection between the conduct of the
prospective defendant and the condition from which
the plaintiff is suffering. Now, if the plaintiff
then receives advice in the form of a medical
opinion that there is a connection between the two,
surely the plaintiff then becomes seized of a

material fact.

MR SHER: Well, the two answers I will give to that,

Your Honour, are these. Firstly, this plaintiff

knew in 1984 of that. She was told in the medical

report of Dr Boyce as a probability that the causal

connection existed, but she chose not to sue.

TOOHEY J: Well, there is a finding by Justice Davies, on

page 80 and again on page 83, in terms, that until

she received the opinion expressed by Dr Burton in

April 1989, the steady preponderance of opinion of a reasonable person in her position would not have

been that her arachnoiditis was a consequence of

the myelogram.

MR SHER:  But accepting that, Your Honour, all that means is

that this lack of quality in the medical advice is

relevant to what we say, "Is it a second

question?", that is, whether you ought to sue. It

is not relevant to whether it is a material fact.

The material fact was known, in so far as she would

ever know it, because she was told about it by the

doctor. And, in our submission, what has happened

here is that the Full Court has run two issues

together. They have run the question of whether

there ought to be an action with knowledge of a

material fact and, in our submission, the question

of whether one ought to bring proceedings, if it is

going to depend upon a material fact, has to depend	up on a new material fact and, in our submission,
another medical report is not a new material fact.
That fact is already known. What has to be shown,
in our submission, is that there is something else other than the same fact which justifies now suing
instead of not suing.

TOOHEY J: But if the first fact, using your terminology, is

that, "You have this condition" - you being the

prospective plaintiff - "we cannot say whether it

is in any way attributable to the surgery which you

had, may have been". That is one position. If, 12

months later, the medical practitioner says, "Well,

I've now looked at this matter more closely. I'm

Glaxo 2/7/93

of the opinion that there is a connection between

the two", is that not another material fact?

MR SHER:  We would suggest it is not. indeed, we have

authority on our side. We have got

Mr Justice Ambrose, His Honour Justice McHugh, and

Mr Justice Clarke. And the reason for that, we

submit, is because a lay person can never know

something such as a causal connection between a

diagnostic procedure and a medical condition. The
best they can know is what people are prepared to

say about it.

GAUDRON J:  Why is not what people are prepared to say by

way of expert evidence a material fact?

MR SHER:  With respect, it is not. Our contention is that

it is not. That what is relevant - the material

fact is the causal connection. The evidence by

which you prove it, we say, may bear upon your

decision to sue but has nothing to do with the

question of a material fact. Now, this prospective

plaintiff knew in 1984 that Dr Boyce was saying as

a probability that the myelogram could have caused

her condition.

TOOHEY J: Could you point us to that passage either in the

judgment of the primary judge or in the Court of

Appeal, Mr Sher?

MR SHER:  We have got a short chronology for Your Honours,

and we have listed in that book of authorities just

after the index, before tab 1, a relevant short

chronology, and Your Honour will see a reference to

page 15 of the appeal book, lines 10 to 20, and to

page 17. In the judgment of the primary judge, you

will observe that in cross examination of Dr Boyce,

at line 10, he was asked:

"However, it's the position, isn't it, that in

this case when you saw Mrs Wood in 1984 you

formed the view then that the probabilities

were that she had developed arachnoiditis by

reason of the myelogram? Yes. Well, I can't

deny that it's true and I have written it

down.

That's what you thought then as being the

probable cause?-- On the basis of

probability, yes.

And then at page 17,it emerged that what he said he

had written down was his medical report to the

solicitors. That appears in answer to Mr Kellam: Did you have a report, Mr Treston -

Glaxo 9 2/7/93

that is the solicitor -

of Dr Boyce of 20 February	1984 available on
the occasion of your first	or at least in
the early consultations with	Mrs Wood?-- I
believe I had that report.

And he then went on. And indeed I think there was evidence, Your Honours, that Mrs Wood was

threatening to sue back in the middle 1980s, but

did not choose to do so.

TOOHEY J: Is it apparent, Mr Sher, that the respondent was

told of Dr Boyce's opinion, at that stage, because

one other aspect of Sola Optical is that it is not

enough that the plaintiff's solicitor be informed,

the plaintiff must know personally.

MR SHER:  I do not believe there is any dispute about that,

Your Honour.	I believe it was established that she
knew.

McHUGH J:  I think she said it was a possible cause, did she

not, and I think if you go to page 18 at about

line 12, that question:

So did you understand at that time ..... No, I

don't think you could go that far and say the

probabilities. He indicated to me that it was

a possible cause and possibly more - - -

MR SHER:  Yes, but she certainly knew that it was possible

that there was a connection and Dr Boyce was saying

so and, in fact, his opinion was it was probable.

GAUDRON J: Well, can we take you back to what the evidence

really is, Mr Sher, at page 15. The evidence is,

at page 15, that the causal connection identified

in 1984 was with the myelogram, not with the

substance.

MR SHER:  Yes, but the myelogram was the substance, with

respect, Your Honour.

GAUDRON J: That is not exactly right because there is

evidence, is there not, from Dr Boyce somewhere,

that he had to exclude the possibility of bad

needles or bad performance, and it was only over

time that he was able to come to a position, by

reason of the further developments overseas, where

it was the substance and not the manner of its

delivery, if you like.

MR SHER:  I think the point is made clear on page 22 in

Mrs woods' evidence, Your Honour. Your Honour will

see, at line 11, the end of the line, it is said:

Glaxo 10 2/7/93

In support of this submission the respondent

relied -

the respondent at that stage was us -

upon the applicant's knowledge in 1984 and her

admitted intention to seek compensation from

the manufacturer. The applicant -

that is Mrs Woods -

gave the following evidence:-

"So that by 1984 you had medical support to

say you had arachnoiditis?-- Yes, sir.

By that time you had material which you

believed could establish that myodil or

Pantopaque caused your arachnoiditis?--	Yes,
sir, but I didn't know which one was in	my
back.

And you knew that was one of the two, but

you're not certain which; is that the

position?-- Yes, sir~

And as at 1984 - February 1984 - you were

writing to people saying that it was your

intention to claim compensation from the drug company manufacturing myodil or Pantopaque?--

If I could find out which substance I had put

in my back, sir."

She confirmed that she had such knowledge by

1986.

That is to say, she knew it was myodil.

Now, I did not think, with respect,

the parties that the plaintiff was provoked into	Your Honours, that there was any dispute between
suing in 1990 by two events. One was that before
the writ was issued she received a pre-publication
article by Dr Burton in the USA, which she
apparently read. The writs then issued and then, I
think three days after the issue of the writ, she
gets a second opinion from Dr Boyce which is
expressed in more confident terms about the causal
connection.
The facts of this case highlight, in our submission, why, with respect, what Justice McHugh
said was correct. If in fact all that is needed to
prevent time running against you is that you have not got what you regard, on proper advice, is a reasonable amount of evidence, then you can just continue on endlessly looking for that evidence

Glaxo 11 2/7/93

until you eventually find it, and then say, "Well,

I didn't know the material facts", until that

occasion arises.	Now, that could go on virtually
for ever.

TOOHEY J:  If it was apparent that that was what you were

doing, simply looking for evidence, I can see that,

and that may fall within the condition in the Act

or it may lie within the general discretion

entrusted to the court, but I do not quite see how

that is the position here.

MR SHER: Well, can I just go back to Do Carmo for a moment

with respect, this highlights what, in our	and take you to Justice Deane's judgment because,
submission, is the relevant distinction and the
importance of not allowing evidence to be regarded
as a material fact rather than the fact itself.
Now, at page 251, His Honour deals, at the bottom
of the page, with section 57(l)(c) of the New South
Wales Act and, at the very bottom, His Honour said:

Section 57(l)(c) provides that the

question whether material facts relating to
the cause of action are of a decisive
character is to be determined by reference to

the hypothetical opinion of a "reasonable man,

knowing those facts and having taken the

appropriate advice on those facts". Paragraph

(d) of s 57(1) defines "appropriate advice",

in relation to facts, as meaning "the advice

of competent persons, qualified in their

respective fields to advise on the medical

legal and pther aspects of the facts, as the

case may require". The necessary

qualifications to provide appropriate advice

on the particular facts would include

knowledge of those matters of general fact

which fall within the particular field of

expertise and the assumption that appropriate

advice has been taken carries with it an

assumption that that advice will have been

formulated with due regard to those general
matters of fact of which an appropriate
adviser would be aware. That being so, a
distinction must be drawn for the purpose of
determining whether an applicant had the
material facts of a decisive character within
his means of knowledge, between the primary or

particular facts relating to a particular

cause of action, and general or secondary

facts which are material to the cause of
action in the sense that they provide the

context in which, or by reference to which,

the significance of the particular or primary

facts should be assessed and any expert legal

or other advice should be formulated. It

Glaxo 12 2/7/93

would ~ot suffice for an applicant to show

that some general or secondary fact was not

within his means of knowledge if that fact was

a matter of common knowledge among appropriate

advisers whose advice is, for the purpose of
determining whether material facts are of a
decisive character, postulated as having
already been taken.

That judgment is drawing a distinction, in our submission, in relation to making a decision to sue

that highlights the difference between knowledge on

the one hand of the facts of which a plaintiff

could be expected to have knowledge, namely his

symptoms and conditions, and the causal connection

between those symptoms and conditions and an

earlier medical event of which you will never have

knowledge, because you are not expert enough to

obtain it. The primary facts are, we submit, that

Mrs Wood knew that she had this procedure, she

found out she had myodil injected, she had the

symptoms and conditions, what she did not know, and

she would never know, all she could know was that

somebody else thought this was the case, is that

there was a connection between the two.

She knew that in 1984. She learned nothing

new in 1989 or 1990. All she learnt then was that

she might have a better chance of success. Our

submission is that properly construed, these Acts,

New South Wales and Queensland, and for that

matter, Victoria, require that there must be some

new material fact. Not some improvement in your

is endless, just will go on forever

prospects of success, but some new material fact·. defendant faces

and ever, and bearing in mind that there is also an

obligation to make reasonable enquiries in the

meantime.

TOOHEY J: This all goes to the first of the two questions?

MR SHER: It does, Your Honour.
TOOHEY J:	I think we are seized of that submission,

Mr Sher. What is the second point which you say should attract a grant?

MR SHER:  The second point is this, and involved in it is a

subsidiary point which I think I should state

first.

When this case was argued in the first

instance, neither of two decisions which have been

given since, had been reported or even made. Those

two decisions are the decision of this Court in

Nagle v Rottnest Island Authority, which is the

Glaxo 13 2/7/93

second under tab 2, and the decision of the
Court of Appeal in New South Wales in

Public Trustee v Sutherland Shire which is under

tab 11. They are both cases involving people
diving into dangerous waters and there being a lack

of a warning sign in each instance, so that they

dived unaware of the dangers.

In each case the Court has held unanimously in the Court of Appeal in New South Wales and all the

Justices who needed to address the question in this

Court, because Justice Brennan dissented on the

grounds that no warning sign was needed, have

concluded that in a warning case, and that is what

we are dealing with here, it has to be shown that

the warning would have made a difference. In other

words, you do not get, as it were, a warning in the

air, it has to be demonstrated that the warning

would have affected the conduct of the plaintiff.

The question here is, "Would this plaintiff

have had this procedure in any event?", and the

evidence reveals that she had a suspected tumour.

There was absolutely no evidence given at any stage

from the plaintiff, and we say it does not arise by

way of inference, that if she had been warned about

myodil, it would have made a scrap of difference.

So that there is a fundamental gap in her proof.

TOOHEY J: This goes to what, the reasonable prospects of

success of the action, does it?

MR SHER:  It goes to this question, which is a broader and

more important one, and it is this: there is a lot

of authority on what has to be shown by a

prospective plaintiff. to show that they have, in

effect, evidence of a cause of action, or evidence

of a right of action. In other words: what is the
test which the court has to apply before it will

permit the action. Assuming all the conditions

precedent are met, what sort of case does a

plaintiff have to show the court? The authorities
appear to be suggesting that the test that the

court has to apply is at a lower level than the one

the plaintiff applies to themselves. But, the

question is, "Is it a prima facie case?", which is

what some of the cases say. Is it an an arguable

case as Your Honour Justice McHugh said in Brunton? Is it something less than that, namely, merely that

you need to prove the evidence exists and can be

adduced? And, secondly, by what means do you prove

whatever the test is? How do you prove it? What

is the sort of material you need to put before the

Court?

Starting in Victoria where this matter was

first canvassed, Mr Justice Kaye, in the case of

Glaxo 14 2/7/93

Smith v Browne indicated, we would submit, that it

had to be proved by admissible evidence, and his

view was not followed by Mr Justice Gowans in

Evans v Repco the following year, where His Honour

said that you have to establish that the:

evidence exists and can be adduced.

Evans v Repco was then followed in this State in

Minogue - and these cases are on the list here

which I will take Your Honours to if necessary -

followed in this State in Minogue v Bestobel

Industries by the Full Court. So far so good. But

then nuances started to develop, and in the latest
cases in this Court, and in this very case, the

suggestion is what you need is a prima facie case.

The second development has been this.

Mr Justice Brooking, in a Victorian case of

SEC v Cuthill said, "You can only establish the

necessary material by admissible evidence". Now,

the other two justices in the case of SEC v Cuthill

did not express such a view. But, Mr Justice Kaye,

already, we submit had.

In recent times in two New South Wales

cases

TOOHEY J: Just before you go to those, can I ask you: in

what respect do you suggest that the

Court of Appeal erred on this point in this case?

MR SHER:  There was absolutely no discussion in the Court of

Appeal at all, about this gap in the plaintiff's

case, that is to say, the lack of any evidence that

a warning would have made a difference. The court

concludes a warning should have been given.	We are
not quarrelling with that.	It was open on the

evidence. When we are not quarrelling with it, we

do not complain about it here, but what we do say

is that unless the test is at a very low threshold

and you can prove it, in effect, by speculation and guesswork, this plaintiff failed to prove that she futile piece of litigation.

had a case and, therefore, we are faced with a

Mr Justice Hunt in New South Wales said, "You

are allowed to speculate in relation to matters".

He said that in Martin v Abbott.

Mr Justice Thomas, of this court in Dwan v Farquhar

said, "You are not allowed to speculate, you are

not allowed to guess".

GAUDRON J: Again, it might be a matter of the issue

involved. All it is is that somebody has declined

to or has failed to ask the question that will

invariably be asked at the - if leave is granted -

Glaxo 15 2/7/93

"Would you or would you not have done such and such", and it is patently clear what answer is

going to be given. Why would you not speculate? I

mean it is different in other sorts of situations

perhaps.

MR SHER: With respect, Your Honour, it is not patently

clear. This is a woman who was faced with a

possible tumour - - -

GAUDRON J: Yes, but that is a matter of cross examination

in due course and so forth.

MR SHER: Unless one speculates, in our submission, one

cannot be assured that this whole litigation has

any real purpose, because the plaintiff, unless she

does swear that she would not have had this

procedure, notwithstanding the suspected tumour and

notwithstanding the lack of knowledge at that time

about myodil, unless she swears that, she has no

case, and there is no evidence thus far.	The point
was actually taken and appears in the material.	It
is not as though it was not asked inadvertently.
It has not been asked deliberately._

This Court at the moment is faced with this

situation, Your Honours, and we submit it is a

reason for special leave, that there is in

Australia now, in three States, differing views

about what the test is and how you go about

establishing that you have a case. In our

submission, it is important that that be resolved

and we submit that the factual circumstances of

this case provide an appropriate opportunity to do
so.

I have taken Your Honours to, without naming them, the cases that decide those matters. If

there is any quarrel about what I said being

accurate, I can take Your Honour in this list of

cases to precisely what has been said from time to

time.

TOOHEY J:  I think we are sufficiently seized of the

argument, Mr Sher, thank you.

MR SHER:  They are our submissions, if the Court pleases.

TOOHEY J: Yes, Mr Griffin.

MR GRIFFIN: 

Your Honours, the applicant over-simplifies the

issue by endeavouring to contend that there is a
separate issue here as to whether a reinforced or
stronger medical opinion from one doctor can

constitute a material fact.

Glaxo 16 2/7/93

There was, as has been identified, a very

significant fact which, amongst the concatenation

of the facts that the plaintiff had to prove, was

that there was a connection between myodil and

arachnoiditis, the condition of which the plaintiff

apparently suffers. It was not good enough,

however, to merely have a suspicion of that

connection. It would have been necessary for a

successful action for that to be capable of proof.

The legislation, in fact, quite specifically

recognizes the importance of the facts constituting

a worthwhile action by declaring that material
facts are not of a decisive character unless an
action based on them would have a reasonable

prospect of success.

The section is section 30(b). It is

conveniently found at the application book,

page 96.	I will read the parts on which I wish to
rely:

Material facts relating to a right of action are of a decisive character if but only if a reasonable man -

and so on -

would regard those facts as showing:

That an action would ..... have a reasonable

prospect of success ..... sufficient to justify
the bringing of an action on tha right of

action;

That the persons whose means of knowledge is

in question ought in his own interest and

taking his circumstances into account to bring

an action on the right of action.

Now, our learned friend's submissions totally

fail to take that section into account.	We submit
that Sola Optics is to the same effect.	The

Sola
present case, of course, goes further than thinks his condition now is worse than he thought

it was previously.

The question here is the proof of the

connection between myodil and arachnoiditis. Until

that could be proved, Mrs Wood simply did not have
a reasonable cause of action and that was only

suspected up until 1989. It is true to say that

there was an opinion expressed by Dr Boyce in 1984

that there was such a connection.

However, as it identified in the judgments,

Dr Burton, who was the United States expert, said

Glaxo 17 2/7/93 '

that such a connection could not be proved and he

only changed his view on that in the relevant year.

Dr Yelland said that Mrs Wood did not suffer from

arachnoiditis at all, and did not seem to think

that there was any connection whatsoever between

the myelograrn and her condition. A Dr Eadie

thought only that it was possible that there might

be some connection.

Furthermore, it was not long after Dr Boyce

first expressed the view that the myodil had caused

a condition of arachnoiditis that he began

recanting from it. And in particular, he recanted

from it quite specifically when questioned about it

by Mr Triston in 1985. Mr Triston was the

solicitor who took this up with him and he said, in

effect, "Well, we would never be able to prove it.

I did express that view but I do not think it would

be possible to demonstrate that". In that state of

affairs, Mr Triston specifically formed the opinion

that Mrs Wood did not have a worthwhile case. At

pages 17 and 18 of the application book the primary

judge quotes some of Mr Triston's evidence and

there he says why it was, despite the earlier

opinion that had been expressed by Dr Boyce, he

thought that Mrs Wood simply did not have a case.

So, it is the case that what occurred in the

year in question, the relevant year, in this
instance, was critical. The things that occurred
in that year were these. First of all, Dr Burton,
the United States expert, changed his opinion and
further said that further research had indicated·

that as long ago as 1944 there had been a

connection demonstrated in the United States

between myodil and arachnoiditis. Secondly, there

was a press release in England by a firm of

solicitors under the heading "Arachnoiditis: A New

Cause of Action" drawing attention to the fact that

a connection had been shown between myelograrns and

the development of arachnoiditis. That occurred in

the relevant year.

The other thing that occurred was that on

26 March 1990 Dr Boyce, no doubt having received

these other items, expressed for the first time a

very firm opinion.

TOOHEY J: But that report is something of a red herring, is

it not? That came in after the proceedings had

been instituted.

MR GRIFFIN: It is not a red herring, with respect,

Your Honour, because the court extended the

limitation period to 1 April. The report was on

26 March and if one looks at the order that the

Glaxo 18 2/7/93

appeal court made - this is at page 120 - it was

ordered:

That period of limitation extended so as to

expire at the end of one year after 1st April,

1989.

TOOHEY J: Was that done, in part, to accommodate the

existence of Dr Boyce's report?

MR GRIFFIN:  It would appear so. I was not at the appeal

court but that would appear to be the very purpose

for taking that step.

Your Honours, this then is not a case in which

the concatenation of facts known to Mrs Wood prior
to the relevant year was one, was a concatenation

of facts - I use that term because

His Honour Mr Justice Dawson has used it and used

in Do Carmo at page 258.

It is not a case in which the concatenation of

facts known to her before 1989 gave her a

reasonable cause of action. That makes the case

quite different from the Brunton case, which

Your Honour Mr Justice McHugh was involved in,

because there the plaintiff's medical practitioner

did not diagnose asbestosis as such until outside the limitation period. But the plaintiff had the relevant signs and symptoms and had worked in dust.

What Your Honour said, as I read it, is that in the

circumstances, the specific diagnosis of asbestosis

was not critical.

Furthermore, within the limitation period, the

plaintiff had been before the dust diseases board

and the dust diseases ·-board had determined that he

had asbestosis. And, again, the plaintiff's

medical practitioner seems to have been just as, or

almost as uncertain about the diagnosis of_

asbestosis outside the limitation period as he was

during the limitation period. That case is quite

different.

Here there is that question of demonstrating

the connection between myodil and arachnoiditis.

TOOHEY J:	I think we understand that, Mr Griffin.
MR GRIFFIN:	Your Honours, on the other question - I should

say this, that so far as some of the quotations

that my learned friend made in relation to Do Carmo

are concerned, they are really on the question of

whether the legal characterization of a set of

facts as constituting a cause of action is a

material fact of a decisive character. That, of

course, is something that does not arise here.

Glaxo 19 2/7/93

This is	not a case of a plaintiff knowing the facts
but not	knowing that they constitute a cause of
action.	This is a case of the plaintiff simply not
knowing	the facts.

So far as the question of the warning is

concerned, the applicant says that there is no

evidence that had there been a stronger warning the

plaintiff would have refused the myelogram. In our

submission, it is a reasonable inference that if

the warning had been strong enough she would have

refused it. But the clear answer to the contention

is that the plaintiff's case goes beyond the

allegation that there should have been a stronger

warning.

As an examination of the draft statement of claim at pages 3 to 4 of the application book

shows, only one of the allegations there is an

allegation that relates to failure to adequately

warn. The other allegations are to the effect that

the substance should not have been used in

myelograms at all and that an alternative substance

should have been used. In any event, we submit

that the assessment of the case on whether there is

a sufficient case, that that assessment is
something that does not raise any special leave

point.

Those are our submissions unless there is

anything further that we can assist the Court with.

TOOHEY J: Thank you, Mr Griffin. Mr Sher, in reply.

MR SHER:  Yes, I now realize why I did not refer to Sola

Optics. The legislation is dramatically different.

TOOHEY J:	You think it does not have the counterpart of the Queensland legislation to which you took us?
MR SHER:	It is nothing like the Queensland legislation at

all and, indeed, what the joint judgment says of

the new legislation which - the same thing happened

in Victoria, the legislation was broadened and

liberalized considerably but this legislation is

described in these terms:

Unlike the 1963 Act -

which was like the Queensland legislation -

there is no requirement that the material

facts be of a decisive character, no reference

to constructive knowledge, no obligation to

have used due diligence in seeking to discover

at an earlier time the facts in question and

no mention of seeking appropriate advice.

Glaxo 2/7/93

I had read it, Your Honours, and I could not

remember why I thought it was not relevant.	I now
recall why.

Could I take Your Honours to

Mr Justice Clark's judgment in Brunton because my

learned friend's submission seems, with respect, as

two issues. though the judgment is in the Full Court to confuse

One issue: is there a a material fact? The

second.one is, is it of a decisive character.	Now
this question of medical reports strengthened

opinions relates to the second, not the first. At

page 15 of the judgment Your Honours will see at

the left-hand side of the page the words:

(at page 5)

His Honour there said:

In my opinion Dr Geddes' belief or opinion

does not qualify as one of the material facts

of a decisive character. The structure of s57

and s58 is such as to require the court to

focus upon the facts known to the applicant at

particular times and enquire whether a

reasonable person knowing those facts and

having taken appropriate advice would have

formed the relevant belief.

The implication arising from the reference to

advice in s57(1)(c) is that the advice
concerning the appellant's condition is not a

material fact (Wilson Jin Do Carma at p 246).

Furthermore the doctor's opinion would not normally be understood as a "material fact relating to a cause of action", nor does it

fall within any of the heads of the definition

of that clause.

And then reference is made to the sections:

nature and extent of the personal injury.

Are broadly concerned with causation and the nexus is a material one. Similarly the nature of the personal injury, as that phrase is defined, is a material fact. But on no

reading of s57(1)(b) could it be said that a

doctor's opinion qualified as a material fact.

Deane J summarised the true position

succinctly in Do Carma.  He said (p 251):

"The 'material facts relating to a cause of

action' include all those facts which, in

Glaxo 21 2/7/93

combination, constitute the cause of action

and the resulting personal injury".

The relevance of Dr Geddes' opinions, which

were given from time to time, is that they

bear on the appellant's means of

knowledge ..... They do not themselves

constitute material facts but they may tend to

show whether or not the appellant had relevant
facts within his means of knowledge at
different times. They may also possibly be

relevant in particular circumstances to the

application of s57(l)(c)(ii).

And that is the decision to supervision.

Finally, Your Honours, all aspects of this

prospective plaintiff's case, other than the

warning issue, were rejected on the facts, both by

the primary judge and by the Court of Appeal, so
that the case came to be finally, in the end, a

warning case or nothing. In our submission, it is

not to the point that other allegations at one

stage were made. They have been rejected. In our

submission, it is not open to my learned friend to
justify the decision by reference to any case other

than a warning case. If the Court pleases.

TOOHEY J: Thank you, Mr Sher. We will just take a short

adjournment to consider our course of action in

this matter.

AT 11.45 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.50 AM:

TOOHEY J: The Court is not persuaded that the actual

decision of the Court of Appeal is attended with

sufficient doubt to warrant a grant of special

leave to appeal. The application is therefore

refused.

MR GRIFFIN:  We would ask for costs, if the Court pleases.

TOOHEY J: Anything to say on that, Mr Sher?

MR SHER: Cannot resist.

TOOHEY J: The application is refused, with costs.

AT 11.51 AM THE MATTER WAS ADJOURNED SINE DIE

Glaxo 22 2/7/93