Hart v Herron

[1997] HCATrans 98

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S117 of 1996

B e t w e e n -

BARRY FRANCIS HART

Applicant

and

JOHN T. HERRON

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 APRIL 1997, AT 2.15 PM

Copyright in the High Court of Australia

MR C.C. BRANSON, QC:   May it please the Court, I appear with my learned friend, MS J. BURNET, for the applicant.  (instructed by Cashman & Partners)

MR P. LeG. BRERETON:   May it please the Court, I appear for the respondent.  (instructed by Blake Dawson Waldron)

MR BRANSON:   Your Honours, in view of the lengthy history of this matter I seek an indulgence at the outset to extend beyond the usual 20 minute period if that should prove necessary, as I predict it will.

BRENNAN CJ:   We can see how you go, Mr Branson, but I take it this is with a view to canvassing the evidence relating to fresh evidence, is that right?

MR BRANSON:   Yes, your Honour, because in our view it would be appropriate to refer you to certain material portions of it, although it is summarised in our amended summary of argument.  That document seeks to put before the Court all material aspects relevant to the application itself.

BRENNAN CJ:   The reason for the 20 minute rule as the guiding principle is, of course, that this hearing is intended to identify questions that justify a grant of special leave.  We certainly set our faces against the grant of special leave on factual issues.  No doubt you will bear that in mind and see how you go.

MR BRANSON:   Thank you, your Honour.  I am indebted to your Honour.

Your Honours, the application arises out of an action which took place in 1980 in the Supreme Court of New South Wales before Mr Justice Fisher and a jury.  The matters which we seek to agitate in the course of this application are essentially threefold:  firstly, it is our contention that there was a very serious miscarriage of justice in the circumstances relating to the misconduct of Dr Herron, which is threefold.  It consists of his false testimony at the hearing itself; his conduct in the preparation for the trial, in particular analogous to the facts in Quade; the concealment of relevant evidence in the course of the discovery procedure, and also his conduct with respect the administration of treatment to the applicant at the Chelmsford Private Hospital.

TOOHEY J:   When you put it that way, you seem to be going outside the question of exemplary damages and, perhaps, the question of fresh evidence in the sense that it has been canvassed in the material before us.

MR BRANSON:   Your Honour, I had hoped that, looking at the supplementary summary of argument, that the matter particularised at 1.6 ‑ and I apologise, your Honours, the document which was filed only on Monday of this week, supplementary summary of argument, supersedes much of the material that was earlier filed.  But the ‑ ‑ ‑

TOOHEY J:   It would certainly take you beyond the draft grounds of appeal.

MR BRANSON:   Yes, your Honour, and in that respect I will, if the Court is minded to grant special leave, we would have to seek a further indulgence to amend the grounds of appeal, although the draft notice does articulate the essential point as we put it.  But it is a case, if one considers it in the light of the principles that this Court had to deal with in Quade, one of misconduct on the part of a party which has prevented a trial on the merits.

BRENNAN CJ:   What order are you seeking?

MR BRANSON:   A new trial, limited to damages.

BRENNAN CJ:   Exemplary damages?

MR BRANSON:   No, damages, but particularly exemplary damages; damages generally, your Honour.

BRENNAN CJ:   On what ground, damages generally?

MR BRANSON:   The misconduct of the respondent so vitiated the jury’s award of compensatory and aggravated damages.  With respect, the compensatory damages because of the applicant’s psychological reaction generally to his treatment and with respect ‑ ‑ ‑

BRENNAN CJ:   His treatment in Chelmsford?

MR BRANSON:   Yes, in particular, and ‑ ‑ ‑

BRENNAN CJ:   In respect of what?

MR BRANSON:   In respect of the, as your Honours may have seen from the factual material, the deep sleep therapy and the electroconvulsive therapy and the aspect of consent.  Now, Dr Herron propagated at the trial ‑ ‑ ‑

BRENNAN CJ:   Just a moment, let us get this quite clear.  Compensatory damages, on what ground are you attacking the assessment of compensatory damages?

MR BRANSON:   On the basis that the jury did not have a full and complete picture of the respondent’s conduct with respect to the treatment of the applicant whilst a patient at the Chelmsford Private Hospital, his attitude towards the applicant at all material times, which was concealed from the jury.  The jury did not get a full and complete picture ‑ ‑ ‑

BRENNAN CJ:   How does that affect compensatory damages?

MR BRANSON:   Your Honour, part of the claim as particularised was with respect to the plaintiff’s grief and anxiety and there was a great deal of evidence called from expert psychologists and others as to the plaintiff’s reaction to the treatment.  But what the jury did not know was the extent of Dr Herron’s turpitude in failing to obtain consent at all.

BRENNAN CJ:   I do not understand how his turpitude affects the assessment of compensatory damages.

MR BRANSON:   It can only affect it because there is a nexus between the reaction of the patient to the absence of consent to the undertaking of any of these procedures.  His case always was at the trial, “I did not consent to any of this.”  There was a false case propagated at the trial, “I did obtain consent beforehand, in a telephone conversation, and subsequently through a male nurse.”

BRENNAN CJ:   Was that not rejected by the jury?

MR BRANSON:   It was rejected by the jury, your Honour, in the context in which the evidence was presented at the trial.

BRENNAN CJ:   Then the issue was found in your favour.  Mr Branson, you must direct your submissions, surely, to the issues that are relevant to the questions that you seek to address.  If you are addressing compensatory damages, what is the damage which your client suffered that the jury were unaware of?  Was there any?

MR BRANSON:   That the nature and extent of his psychological reaction, including his grief and anxiety at being subjected to these forms of treatment, without Dr Herron troubling at all to obtain his consent.  He did not make, as it emerges from the evidence in the Royal commission, any attempt to obtain the client’s consent, the patient’s consent.

DAWSON J:   It has got nothing to do with compensation.

MR BRANSON:   Your Honour, with respect, the jury had no clear ‑ ‑ ‑

BRENNAN CJ:   You have told us that, Mr Branson.  The jury did not ‑ ‑ ‑

MR BRANSON:   I am sorry, your Honour, I am trying to respond to the ‑ ‑ ‑

BRENNAN CJ:   But you are not responding to the questions.  The questions are related to the relevance of Dr Herron’s conduct to the assessment of compensatory damages.  How do you make that relevant?

MR BRANSON:   Your Honour, I have endeavoured to put the same point twice, and it has not been received. 

BRENNAN CJ:   What is the point?

MR BRANSON:   I will put it again, if I may.  The jury did not have before it the complete evidence with respect to the total failure of Dr Herron to obtain Mr Hart’s consent to the treatment and his reaction thereto.  Now, that was measured in the context of the false case propagated, namely Dr Herron asserting, a, that he had obtained the consent by telephone beforehand from the patient and, b, through a charge nurse.  The jury was left with the impression that Dr Herron may have thought that he had obtained consent but had not in fact ‑ they rejected the evidence that he falsely propagated; but in the context of measuring the psychological grief reaction they had but a limited picture.

TOOHEY J:   Was that argument run before the Court of Appeal as an aspect of compensatory damages?

MR BRANSON:   Your Honour, it was addressed in the course of the argument and, indeed ‑ ‑ ‑

TOOHEY J:   That is not quite an answer to the question though, is it?  Was it run as an aspect of compensatory damages?

MR BRANSON:   Yes, your Honour.  What was before the Court of Appeal were all aspects of damages, but with particular focus on exemplary damages.  I can give your Honour that assurance.  But the main thrust of our complaint is that this fresh evidence did not become available until the Royal Commission into the Chelmsford Private Hospital which was conducted between August 1988 and December 1990 and I would like to take your Honours to that briefly. 

But with respect to exemplary damages, the short point is that there was evidence from the material in the Royal Commission which would have warranted the issue of exemplary damages being left to the jury.  Now, the trial judge did not leave that issue to the jury.  He took it away on the basis that he said there was no evidence of any malice or wrongdoing on the part of Dr Herron.  That, in the light of the fresh evidence, is clearly an untenable position.

TOOHEY J:   Is that an accurate way of stating it or was it on the basis that the evidence did not disclose an awareness on the respondent’s part of the absence of any consent, whether oral or in writing?

MR BRANSON:   That is how Mr Justice Priestley characterised it in the Court of Appeal, your Honour.  Now, what, with great respect to the Court of Appeal, they did not go on to do was to determine whether or not, in accordance with the Quade test, that is to say there being misconduct, was there a real possibility that at a new trial the fresh evidence would produce an opposite result.  Now, in the context of the order we are seeking, which is a new trial limited to damages generally, the opposite result here is not a verdict for the plaintiff as opposed to a verdict for the defendant, but greatly increased awards of compensatory and aggravated damages and an award of exemplary damages.

Now, it was incumbent, with respect, upon the Court of Appeal to examine this fresh evidence in some detail and determine whether or not, having regard to it, there was a real possibility that a jury would have awarded substantially increased damages but, in particular, would have awarded exemplary damages.

BRENNAN CJ:   Would you look at page 194 of the application book.

MR BRANSON:   Yes, your Honour.

BRENNAN CJ:   This is the grounds of appeal to the Court of Appeal.  At page 194, line 30, it says:

This Amended Further Supplementary Notice of Appeal incorporates the only Grounds of Appeal now pressed -

Could you direct me to the passage in the following pages in which there is an appeal against the assessment of damages, that is compensatory damages.

MR BRANSON:   Your Honour, ground 1, the inadequacy.

BRENNAN CJ:   Where is that?

MR BRANSON:   At lines 43 to 50.

BRENNAN CJ:   I see.

MR BRANSON:   The complaint, your Honours, ventilated in the Court of Appeal was that because of the incomplete picture the awards, whilst not viewed in the isolation of the evidence at the trial could be regarded as so excessively low as to attract appellate intervention, were inadequate because the jury did not know the extent of the turpitude and the misconduct of the defendant at the trial.  Now, those issues were canvassed in the Court of Appeal, but particular focus was on the fact that the trial judge had taken away the issue of exemplary damages from the jury and therefore no occasion arose for them to consider that matter at all. 

TOOHEY J:   I have to say, Mr Branson, that on my reading of the material, at least up until the supplementary argument, the picture was one of a challenge to the decision of the trial judge to withhold exemplary damages from the jury and an argument as to fresh evidence as bearing upon the issue of exemplary damages.

MR BRANSON:   Yes, that was definitely the main focus and ‑ ‑ ‑

TOOHEY J:   No, no, not “main”, only.

MR BRANSON:   I am sorry, only.  Your Honour, it is always difficult when you are not there, but my instructions are that it was ventilated.

TOOHEY J:   No, I am just speaking of the material that was available to the Court.

MR BRANSON:   Of course, your Honour.  I do not seek to create an impression other than that the central focus - and it appears with radiant clarity from the judgment of Mr Justice Priestley was on the two aspects of exemplary damages:  one, the trial judge’s taking of it from the jury and two, whether, in light of the fresh evidence, it would be appropriate to grant a new trial so that a tribunal of fact, whether a judge and jury or a judge alone, would have the opportunity to consider that matter.

BRENNAN CJ:   Is the argument that is now advanced in relation to compensatory damages that there was a failure on the part of the Court of Appeal to consider whether the award of compensatory damages was manifestly inadequate having regard to the discovery of the evidence of the turpitude of Dr Herron?

MR BRANSON:   I do not think it was put by counsel for the appellant before the Court of Appeal as lucidly as that.  It is the argument which I have tried to articulate to your Honours here this afternoon.  But it is not the central focus of our complaint.

BRENNAN CJ:   But that is the burden of the argument?

MR BRANSON:   Yes, that is the burden of the argument, your Honour.

BRENNAN CJ:   Yes, thank you.

MR BRANSON:   Your Honours, would it be convenient to take your Honours to the supplementary summary of argument.  On the first page we have endeavoured to articulate a question of law of public importance.  If I might return to that, but in essence it consists of this, that the joint judgment of this Court in Lamb v Cotogno in 1987 dealt with the question of exemplary damages at large but left open the question as to whether it was mandatory that the victim of the tort establish that there was some mental element consisting that intent or recklessness on the part of the wrongdoer, but the particular facts in Lamb v Cotogno, your Honours may recall, were where a process server had gone to the plaintiff’s property and a fracas had developed.  The actual tortious action was the striking of the plaintiff by the defendant’s motor vehicle ‑ ‑ ‑

BRENNAN CJ:   You can have an extended period of 10 minutes.

MR BRANSON:   Thank you, your Honours ‑ but the contumelious conduct was the leaving of the victim by the roadside.  Now, the Court did not have to determine whether the victim had to prove a mental element, although the particular facts were of mere carelessness.  Your Honours, might I refer your Honours to the schedule of fresh evidence that is appended to the supplementary summary of argument.  There was evidence before the Royal commission from a Miss Sansom, a receptionist at the Chelmsford Private Hospital ‑ ‑ ‑

DAWSON J:   We have read all this material, Mr Branson.

MR BRANSON:   Yes, your Honour.  It would seem, with respect, your Honours, that the summary of argument has not been persuasive.  We have endeavoured to identify with precision what we thought was the basis of this application.

BRENNAN CJ:   Let it be clearly understood that we are here to understand precisely the basis of the application and for that reason we entertain oral argument.  Speaking for myself, there are two difficulties with the written submissions and one with the oral.  With the oral submission, I have sufficiently indicated it to you, I think, and that is that the conduct of Dr Herron does not affect the question of the assessment of compensatory damages.  In relation to the written argument, there are two questions:  one is whether there was any error on the part of the Court of Appeal in their application book of Lamb v Cotogno.  The second is whether or not there should be a grant of special leave to consider whether the discovery of the fresh evidence was such as ought to have led the Court of Appeal to ordering a retrial.  Now, if there was no error in the Lamb v Cotogno application, that goes by the board.  Then it comes to the question of the fresh evidence and the problem about the fresh evidence is, as you said at the outset, this was a trial in 1980 and it would be relevant principally to exemplary damages, the purpose of which is to inflict punishment on the respondent.

MR BRANSON:   And, as your Honour knows, there are two other purposes.  The rationale is well understood that there is no debate about that in this Court, your Honour.

BRENNAN CJ:   Yes, and that seems to be ‑ ‑ ‑

MR BRANSON:   Your Honour, may I respond hopefully in a way that is meaningful and helpful to the Court.  There can be no complaint that a fair and reasonable interpretation of what this Court said in Lamb v Cotogno was correctly applied by the Court of Appeal.  The only basis upon which this Court might be prepared to grant special leave is with respect to developing and clarifying the principles relating to exemplary damages.  Your Honours see what we have said in paragraph 11, namely as to whether what this Court said in Lamb v Cotogno is clear and succinct as to whether the victim has to establish some mental element consisting of intention or recklessness or, relevantly in this case, actual knowledge of Dr Herron to the absence of consent or reckless indifference as to its presence or absence.  I do not think I can add anything usefully to what we have said in paragraph 11.

Now, the principal complaint is that, if your Honours were to go to the application book at page 230, line 5, if your Honours please, at the top of the page, the conclusion his Honour Mr Justice Priestley came to was:

It does not seem to me that the further material relied on by the appellant could have taken the matter any further than the materials actually available at the trial.

Now, he then considers what happened at the trial, the jury’s rejection of the false case propagated as to the existence of consent, and at line 32 his Honour says it:

does not seem to me to be evidence warranting an inference of consciousness by Dr Herron of no consent at all having been given but, at most, consciousness of written consent not having been given and of the difficulties that might flow from the unavailability of that best and readiest means of proof of consent.

I therefore am not persuaded that had the material been available when Fisher J was considering whether to allow the question of exemplary damages to go before the jury, there would have been a real possibility that his decision would have been any different.

Your Honours, we have analysed the fresh evidence in the schedule to our submission and we content that, on any reasonable and rational analysis of that evidence which is summarised there in point form, and which was before the Court of Appeal, that there is abundant evidence that Dr Herron acted in conscious and contumelious disregard of the applicant’s rights and that formulation is consistent with what your Honour the Chief Justice said in XL Petroleum v Caltex.  It goes right back to the earlier case in 1920 of Whitfeld v De Lauret.  There is nothing in Uren that countermands that.  And if that test was applied to this fresh evidence then, in our submission, clearly the question of exemplary damages ought be left to a tribunal of fact at a new trial. 

Regrettably Mr Justice Priestley did not consider the evidence of the Royal commission at all in his judgment.  He did not look at it.  He did not say, “Well, what evidence could be called at a new trial by the applicant.”  There is just no reference to it except the analysis which appears at page 230 of the application book.  He says, well, I conclude it would not have made any difference, but there is, with great respect to his Honour, no analysis of the substance of the evidence and as to whether that could be correctly

characterised as the respondent acting in conscious and contumelious disregard of the applicant’s rights. 

That is our principal complaint which is the subject of this application and we ask the Court to correct that error.  It is the failure to consider the effect of this fresh evidence at a new trial, if granted.  If your Honours please.

BRENNAN CJ:   Thank you, Mr Branson.  The Court will adjourn briefly in order to consider what course it will take in relation to the balance of the hearing of this matter.

AT 2.44 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.57 PM:

BRENNAN CJ:   We need not trouble you, Mr Brereton.

The applicant seeks special leave to appeal against an order of the Court of Appeal dismissing a judgment entered upon a jury verdict finding for the plaintiff and assessing damages other than exemplary damages.  The argument in support of the application has three branches.  The first is that the assessment of compensatory damages was manifestly inadequate because the jury were not fully apprised of the turpitude of the conduct of the respondent.  The second is that the criteria of liability for exemplary damages applied by the Court of Appeal were too restrictively stated.  The third is that fresh evidence obtained since the trial ought to have led to the ordering of a new trial limited to damages, particularly exemplary damages.

As to the first point, there is no basis advanced in argument here or, it seems, in the Court of Appeal for concluding that the evidence now said to be available, if adduced at the trial, would or ought to have affected the award of compensatory damages.  Secondly, the criteria of liability applied by Priestley JA, who spoke for the Court of Appeal, were founded on the judgment of this Court in Lamb v Cotogno (1987) 164 CLR 1. There is no apparent error in the judgment of Priestley JA in this respect, nor any need in this case for further elucidation of the law relating to exemplary damages. His Honour also concluded that the fresh evidence on which the applicant relied would not have led to a conclusion which would have warranted a different ruling by the trial judge. It is not necessary for us to consider this conclusion. In the first place, special leave would not be granted simply to re-examine factual material in order to determine whether Priestley JA was correct. On this aspect of the case the applicant is not complaining about the insufficiency of compensatory damages. He is seeking a retrial, after a trial that took place over 16 years ago in order to recover exemplary damages that would be calculated chiefly to inflict punishment on the respondent. A grant of special leave for such a purpose after such a lapse of time would be a seriously erroneous exercise of this Court’s authority.

Accordingly, special leave will be refused.

MR BRERETON:   I seek costs of the application.

BRENNAN CJ:   What have you got to say, Mr Branson?

MR BRANSON:   I have nothing to say about that, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 2.57 PM THE MATTER WAS CONCLUDED