Malec v J.C. Hutton Pty Ltd

[1990] HCATrans 10

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B21 of 1989

B e t w e e n -

JOZE MALEC

Appellant

and

J.C. HUTTON PTY LTD

Respondent

BRENNAN J
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Malec(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 FEBRUARY 1990, AT 10.18 AM

Copyright in the High Court of Australia

C212/l/CM 1 15/2/90

MR H.G. FRYBERG, QC:  May it please the Court, I appear with

my learned friend, MR D.O.J. NORTH, for the

appellant. (instructed by Carter Capner & Co.)

MR C.E.K. HAMPSON, QC:  If it pleases the Court, I appear

with my learned friend, MR A.J. WILLIAMS, for

the respondent.(instructed by Dowling & Dowling)

BRENNAN J:	Mr Fryberg.
MR FRYBERG:	May it please the Court, may we hand up our

outline of argument.

BRENNAN J: Yes,Mr Fryberg.

MR FRYBERG:	Your Honours will have seen that relevantly the findings of fact were made for the first time by
the majority in the Full Court and we have set
out in paragraph 1 what seemed to us to be the
material findings in the majority judgment. The
dissenting judgment, we have given Your Honours the page references to a summary by Mr Justice Carter
of what he saw as the basis upon which fact ought
to be found, and I will not take Your Honours to that part of his judgment. There is not a lot of difference between them, but there are some
significant differences. The majority findings
amount in short to holding that there was a chance
that the plaintiff would have suffered a totally disabling neurotic decompensation in any event, apart from the brucellosis, and also a chance that
his earning capacity would, in any event, have been
destroyed by degeneration of his back. The majority
found that it was likely that these events would
have occurred in 1982, independently of the
brucellosis.  We point out in paragraph 3 of our
which seemed to then be inconsistent with that. outline some of the steps in the majority judgment
There is an amount of some $4500 -odd that even the trial judge had allowed, which somehow got left
out of the majority judgment and there is an
inconsistency in the award of paid and suffering as
well and that is set out in the attached table.
The first proposition of law that we seek to put before Your Honours is that in paragraph 4 of
our outline and the leading authority for that
propos.ition, we would submit, is DAVIES V TAYLOR ,
(1974) AC 207. May we refer Your Honours specifically
to the passage in the judgment of Lord Reid, at
page 212 A, line 4:  ·

(Continued on page 3)

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MR FRYBERG (continuing):

Admittedly the injury must be of a financial

character.

It was a Lord Campbell's claim -

In the ordinary case where the spouses were

living together on the husband's earnings what
the widow loses is the prospect of future

financial support. There can be no question

of proving as a fact that she would have

received a certain amount of benefit. No one

can know what might have happened had he not been

killed. But the value of the prospect, chance

or probability of suppo~t can be estimated by

taking all significant.factors into account.

But, perhaps on an application of the de minimis

principle, speculative possibilities would be

ignored. I think that must apply equally

whether the contention is that for some reason

or reasons the support might have increased,

decreased or ceased altogether.

And then a little further down at letter D:

she says that there was a prospect or chance or

probability that she might have returned to him

later and it is only in that event that she

would have benefited from his survival. To my

mind the issue and the sole issue is whether that chance or probability was substantial. If it was it must be evaluated. If it was a mere possibility

it must be ignored. Many different words could

be and have been used to indicate the dividing

line. I can think of none better than

"substantial," on the one hand, or "speculative"

on the other.

His Lordship goes on and discusses the approach that

should then be taken. A similar approach is taken by
others of the committee.	We would refer Your Honours

particularly to the speech of Viscount Dilhorne at
page 219, letter B, going on to letter C, and the

discussion at letter F commencing:

Beneath the legal concept of probability

lies the mathematical theory of probability.

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MR FRYBERG (continuing):  The second passage is in Lord Simon's

speech, which concludes at page 220D, by saying:

this is one of those cases where a balance

of probabilities is not the correct test.

If the appellant showed any substantial

(i.e. not merely fanciful) possibility of a

resumption of cohabitation she was entitled

to compensation for being deprived of that

possibility. The damages would, of course,

be scaled down from those payable to a

dependent spouse of a stable union, according

as the possibility became progressively

more remote. But she would still be entitled

to some damages down to the point where the

possibility was so fanciful and remote as to

be de minimis.

There is an interesting dictum by Lord Diplock in the

decision in MALLETT V McMONAGLE, (1970) AC 166. The

dictum is at page 176F. It is the whole of the

paragraph at that reference. Although His Lordship

does not expressly refer to the case of a past
hypothetical event, as opposed to a future hypothetical

event, the same reasoning would apply to a past

hypothetical event, and, indeed, perhaps that passage

is to be read as though His Lordship means when speaking

of the future, the future as of the date of the

incident, rather than as of the date of the trial.

McHUGH J: Are these passages and the principles which they

contain applicable to this case, though, because
here it said that an event had occurred by the date
of trial, or is likely to have occurred at the date of

trial, you are not looking to the future?

(Continued on page 5)

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MR FRYBERG:	No, it is a past hypothetical case.	The finding

was that it probably would have happened, in any

event, the decompensation would have been triggered,

probably, and the word, of course, varies.

Your Honours will have seen, for example,that at

first they describe it as a very significant chance

and then a little later in their judgment the

majority described it as a possibility or indeed

a likelihood and by the end of the judgment it
became likely that the decompensation would have

occurred by 1982. But it is still a hypothetical

event. What in fact did happen and what was found on

the balance of probabilities -to have happened

was that he got a neurotic decompensation from the

brucellosis. So it is still a contingency.

The principles have been· applied, as far as

we could ascertain, at Full Court level in two

States of Australia and by a bench of five in New

Zealand - we would only take Your Honour specifically

to the New South Wales decision because it, on its

facts, is a little bit close to the present one -

that is McINTOSH V WILLIAMS, (1979) 2 NSWLR 543.

That again was a Lord Campbell's claim complicated by a number of factors but the relevant passage

for present purposes in the judgment of the president

and Mr Justice Samuels is at page 550, at the paragraph

lettered C, they cotmnence:

Both ·at this point and at other points of the judgmmt,

his Honour fell into the error of discarding,

on the basis that they were not probable,
matters necessary to be brought to account

as possibilities -

and then he refers to the facts as they specifically

were and continues the discussion of principle at

letter F:

Where an evaluation of a loss has to be made and

event, which has not occurred by the time the the extent of the loss depends upon an uncertain	evaluation is made, such evaluation must be
made by reference to the chance of the event occurring, and not by reference to whether or not the occurrence was or is probable:
DAVIES V TAYLOR.

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MR FRYBERG (continuing):

This is so whether the time when the event would ordinarily have occurred is before or after the time when the

evaluation is made, which, for the

present purposes is the date of trial.

If, by the lapse of time to the date of

trial, some uncertain factors have been

rendered certain by happening or by not

happening, then only those factors which

remain uncertain need be evaluated as

chances. The earnings of a deceased person,

had he not died, are uncertain, whether the

earnings to the date of trial or afterwards

are under consideration. There may be

•

uncertainty -

and I w i 11 not read i t a 11 . They go on t o d i s cu s s

other examples of uncertainty and then after the

citation of WILLIAMSON at letter B:

As to those matters which remain uncertain,

the evaluation of the loss must be made on the basis of chance, whether loss to trial

or loss thereafter is under consideration.

The degree of chance will depend on the

circumstances of each case.

That was a case where they were discounting damages for

chance. The trial judge had allowed in full because

he found on the balance of probabilities that something

was going to happen and the court, in fact, held that

he should have discounted for the chance of a future

event; but, we would submit, the same principle would apply when the finding on the balance of probabilities

is in the negative but there is a chance of a future

benefit, the principle is the same.

We submit that that approach is consistent with

what was laid down in WILSON V PEISLEY - and I think

Your Honours will be familiar with WILSON V PEISLEY

and with the well-known passage of Sir Garfield Barwick's

judgment, which we would submit is consistent entirely

with what we have said.	We ought to note in passing,
incidentally - - -

DEANE J:	What is the reference, Mr Fryberg?
MR FRYBERG:	The reference, Your Honour, is (1975) 50 ALJR 207,

or 7 ALR 571.

(Continued on page 7)

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MR FRYBERG (continuing): In the judgment of the majority in	the Full Court there is a reference to that case
and in particular in the record at page 805 at line 26.
The majority say that they are quoting from the
judgment of Mr Justice Mason who was writing a
Mr Justice Gibbs concurred, though apparently not dissenting judgment as they note with whom
on this point. And there is a quotation which we have
not really been able to find in the report of the case. Where it came from we are a little uncertain
but it must have come from somewhere. It certainly does not seem to be at the reference in the ALR and we have not managed to quite track down where it
came from. The leading passage, however, is the
other one from Sir Garfield Barwick's judgment.

The approach adopted by.Mr Justice Carter,

we would submit, is the more consistent with that

decision and that is at page 830 of the record

particularly from the paragraph commencing half-way

down the page at line 28 to the end of that

paragraph. We would submit that that is entirely

consistent with authority.

It might be said that the decision of the

House of Lords in HOTSON V EAST BERKSHIRE AREA

HEALTH AUTHORITY, (1987) 1 AC 750, stands in our way. That was a case which, we would submit, until

it reached the House of Lords raised some very

interesting points. The facts were that the plaintiff -

I think a school boy - had sustained an injury in

circumstances not giving rise to any claim against

anyone - he fell out of a tree. He was taken to

hospital and the nature of his injury, a fracture

in the femur, I think, was not correctly diagnosed

for five days and as a result, it was said by the

plaintiff,he sustained necrosis of the relevant part

of his leg and would suffer severely in the future

from that.

(Continued on page 8)

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MR FRYBERG(continuing):  The findings of fact by the trial judge

were expressed with some ambiguity, unfortunately.

They are relevantly set out in the speech of

Lord Bridge at page 779; they are quoted from

paragraph F to the end of the page. Although

originally the plaintiff had pleaded the necrosis

was caused by the defendent's negligence, at trial

and in the eourt of Appeal the case was conducted on

the basis that the plaintiff's damage - the gist of
the damage suffered by the plaintiff was the loss of
the chance of rehabilitation. That appears at
page 755 at the beginning of the judgment of the

Master of the Rolls in the Court of Appeal, at

letter A:

specifically, "Can a plaintiff recover

damages in negligence for the loss of a

chance or loss of opportunity?"

In the House it was argued on two bases: first on

the basis that on the facts of the case,
causation was not proved, and second, on the basis
argued in the Court of Appeal - for the question argued

in the Court of Appeal, on which the plaintiff had been

successful. The House unanimously decided it against

the plaintiff on the facts, in our submission, and a proper reading of the judgments will show that in so

far as the speeches deal with the question of whether

one can recover damages for loss of a chance, they are

obiter.

May we specifically, in that regard, refer

Your Honours to the judgment of Lord Ackner, at page 791 to page 792, particularly at letter G on page 791, Lord Ackner said:

Thus the essential question to determine

was - what was the effect of the fall upon the

remaining 50 per cent of the blood supply which

was to be found in the blood vessels running

along the back of the femoral neck?

(Continued on page 9)

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MR FRYBERG (continuing):  I should pause to say that the context

was that it was found that 20 per cent of the blood

vessels to the relevant part of the body would have

been unaffected, that was common ground; up to 30

per cent would have been destroyed, that was common

ground; the issue was what would have happened to

the remaining 50 per cent.

His Lordship then quotes the passage in the

judgment of the trial judge to which Your Honours.

have already been referred, but he emphasizes in the

third last line with italics the words, referring

to the Judge's finding that he thinks it "possible

but improbable" and then goes on to comment: The judge was thus making clear that he

accepted Mr Bonney

he was the doctor -

Mr. Bonney's opinion to this extent, viz.

that the blood vessels running along the

back of the femoral neck containing approximately

one-half of the total blood supply must have

been, on the balance of probablities, ruptured

by the fall.

He thus found that immediately after the fall,

that is before admission to hospital and therefore

before the duty was imposed upon the defendants

properly to diagnose and treat, the epiphysis

was doomed.

And then down at G :

The debate on the loss of a chance cannot arise where there has been a positive finding that

before the duty arose the damage complained of

had already been sustained or had become

inevitable.

So that in His Lordship's view the question did not

arise in that case. The same approach was taken by

Lord Mackay at page 784-785 - - -

McHUGH J:  The net result of the case was that the plaintiff

had failed to prove the issue of causation?

MR FRYBERG: Yes, it is as simple as that. The case does

contain some dicta but they are no more than dicta,

in our submission, and that does appear,in our

submission,at 784-785, in Lord Bridge at 782,

and it is clear from those passages that Their

Lordships expressly were leaving open the question

whether the plaintiff could succeed by proving

loss of a chance.

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BRENNAN J: Do you say that the issue of causation is to be

resolved on the balance of probabilities but

questions of damages are not?

MR FRYBERG:	No, we would put it, Your Honour, that issues of past fact have to be resolved on the balance of
probabilities. Hypothetical questions about which
one cannot, by definition, prove that a fact was so
have to be resolved by assessing the probabilities
and that is so whether the hypothetical event is in
the past, as at the date of trial or in the future,
as at the date of trial.

McHUGH J: That is what Lord Diplock said in McMONAGLE in the

passage to which you referred at 176.

MR FRYBERG:  Yes. There is also, we should point out, a

distinction to be drawn between the present case
and the case before Their Lordships in that,
Their Lordships were concerned with the question
of causation whereas, on a more traditional analysis,
the present case is really concerned with a question

of valuation. There is no doubt that the injury

which was suffered was caused by the relevant

negligence in the present case.

There is a view, of course, that those two

questions shade into each other at some points

and that view is "helpfully discussed in the article

by Stapleton to which we give Your Honours the

reference immediately after the indented parts of

paragraph 7 and it is a helpful discussion. I will not

read from it now but it is a useful discussion.

BRENNAN J: But what do you say about it though, what is

your submission on it?

MR FRYBERG:  Our submission in relation to HOTSON is that there

is nothing in it that stands in the way of our

success - it is a pre-emptive submission, Your Honour,

that is all.

BRENNAN J: In this case there is a certain condition from which

the plaintiff is suffering at the date of evaluation.

MR FRYBERG: Yes.

BRENNAN J:  In one way one can look at it and say the

plaintiff has the onus of establishing that there is

a causal relationship between the negligence and

that condition.

MR FRYBERG:  Yes.

BRENNAN J: On the other, one can say that there is some

hypotethical event in the past which does not have

to be dealt with on the balance of probabilities.

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MR FRYBERG:  One can say that there was the possibility on

the findings of the majority, by 1982 there w~s

a chance, or whatever word you would use.-the

majority used various words -that by 1982 he

would have, in any event, contracted the decompensation

independently of the brucellosis.

BRENNAN J: But the causation in this instance is a causation

of triggering, is it not?

MR FRYBERG:  Yes.

BRENNAN J: And the question is whether it would have been

triggered by some non-compensabl9 cause?

MR FRYBERG:  We would probably say the question is what were

the chances of its being tr~ggered by a

non-compensable cause, but ·essentially that is the

same question, Your Honour, yes.

BRENNAN J: And the event which might have been the trigger

has occurred.

MR FRYBERG:  The way they expressed it was also in terms of

chance. They said that there was a chance that

from 1982 onwards the spinal condition might have

prevented him working at tasks which involved

lifting or bending. That is how they expressed it

at 806. They did not actually find, I do not think,

that it had occurred, though we would have to concede

that there was evidence that by 1985, in any e~ent,

rather than 1982, there was degeneration in his spine

which the doctors said might or might not be

symptomatic. I think Dr Watson said he would not

be surprised if the plaintiff were feeling symptoms.

DEANE J:	Was there any suggestion that the spinal degeneration
might have prevented the neurotic decomposition from slowing down?
MR FRYBERG:	No .
DEANE J: So the position is the event that might have been

the trigger could be seen not to have been the

trigger.

MR FRYBERG:	Yes.
DEANE J:	Because what it would have triggered was already there.

MR FRYBERG:  Yes. Your Honours, if then we make good the

proposition for which we have been contending as a

matter of law, the question then becomes what

happens.

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MR FRYBERG (continuing): It is our submission and we set

it out in paragraph 8 of the outline, that there

is an evidentiary onus on the defendant to establish

the discounting factors with reasonable precision;

ijhat ·is~the proposition extracted from PURKESS V

CRITTENDEN and WATTS V RAKE, and it then becomes a

question simpl~ of looking briefly at the evidence
to establish whether, in the present case, the
necessary precision is achieved.

Mr Justice Carter did not completely go into that process; he did to a large measure but he did

not have, he felt, the necessary materials to do

the exercise completely but we would, however, here

seek to approach only the two questions which are

set out in paragraph 9 of our outline; that is, the

absence of the necessarily precise evidence to

establish any substantial chance, first, that the

plaintiff's back condition would, in any event,

have produced a totally disabling decompensation.

We would submit that the evidence established

only that the plaintiff may have had a vulnerable

and predisposed personality which could have

produced decompensation and there are only three

bits in this entire record which deal with the

question and Your Honours do not, in fact, have

the entire record; it has been culled for this

appeal. It was a much longer record in the event.

They are exhibit 19 which appears at page 544 or, more accurately, page 2 of the exhibit appears at page 544 and, at line 48, in Dr Apel's report -

Dr Ap~l was the psychiatrist called on behalf of

the plaintiff - the third last paragraph, the doctor

says:

Although Mr Malec gives no history of

Neurosis Disorder prior to the onset in

1977 I would assume him to have a vulnerable

and predisposed personality.

On the following page, in a later report, at

line 39, he says:

It is possible that subject to similar

changes in~ similar setting from some

other cause he may also have responded

with this decompensation in his

personality.

So, it is possible, he says.

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MR FRYBERG (continuing):  The cross-examination of Dr Apel

did not put to him the question of whether the

back condition was capable of triggering the personality

disorder. It was not put to Dr Apel that that could

happen, although, at page 105 and following, a number

of other possibilities were put.	At page 105 of the
record, commencing at line 20:

How precarious was the plaintiff's mental

health prior to the accident? You

mentioned that he was predisposed and

vulnerable. How precarious was it?--

Well, there was always the possibility that given some similar event such as

an accident at work that he might have

been -

I think it probably is, "he rt11.ght have decompensated" -

along similar lines.

Would you agree with me that the entitlement or perceived entitlement to compensation in relation to such an event is a factor in the decompensation?--1 would think so.

So that the prospect of a non-compensation

event causing a decompensation is less?--Yes.

I appreciate we are out of your field, but

if I suggested to you that in general terms

an infection with brucellosis is similar to a

severe dose of the flu ?--It is.

Does it follow that regardless of brucellosis, if the plaintiff had developed a serious

dose with the flu or something equally traumatic

that he could have decompensated?--No - I

must say it is certainly usual for people to

recover fairly promptly from post-influenza

depression.

Would it be the case that the persistence	of any symptoms here is the result of the
existence of a compensation element?--It is
certainly impossible to rule out these things
in any total way. One would expect them
to have an effect. But his pattern of symptoms
has run to a pattern that has been fairly
consistent all the way along.
You mentioned a post-influenza depression.
Do such things exist, do they?--They
certainly do.

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From a severe dose of flu?--Well it seems

to depend more on the viral strain than

on the severity of the flu.

You didn't quite answer my question

earlier as to whether or not such an event

as a severe dose of the flu could have

provoked this reaction in the plaintiff?

--I wouldn't have expected it.

You wouldn't have expected it?--No.

Looking at the thing from the outside

would you have expected such a severe

reaction following a brucellosis

infection which was treated?--I wouldn't

have, no.

(Continued on page 15)

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MR FRYBERG (continuing):

Malec(2)

So it is in the same category, is it?--

Yes, usually what one sees with the flue is a much milder and briefer episode.

Apart from the flue and so on what are some

of the types of stresses which could provoke this

decompensation in this man? A car accident?--

Yes.

Another injury at work?-- It could, yes.

A loss within the close family?-- Yes.

Or perhaps more distant family?-- It could.

A financial set back?-- Yes.

Loss of a job?-- Yes, and in fact he was

under fairly severe financial strain early in the

piece.

And then the cross-examination goes on to another topic.

It was not put that the back might have triggered it

and indeed when Dr Nothling, the psychiatrist called

on behalf of the defendant gave evidence, this question

was not raised with him. He gave no evidence in

chief and of course no cross-examination about it.

So that is the evidence on which the matter must

proceed and in our submission it is not of the

quality required to satisfy the test in PURKESS V

CRITTENDEN.

DAWSON J:  It really amounts to saying that because a man

suffers a mental illness it shows he is susceptible

to mental illness and that means that many things

may cause· mental illness in this man.

MR FRYBERG:  Yes, Your Honour. The reference to Dr Nothling's

evidence - I will not read it because there is nothing

in it - is exhibit 73 which is at page 549 and his

oral evidence is at page 356. It is, perhaps, worth

noting that he gave evidence immediately after the

orthopaedic specialist called by the defence,

Dr Watson, so that the question of the relevance of

the back can hardly have been far from the forefront

at that time.

The second point that we would submit the

necessary precision is lacking is in demonstrating
that the plaintiff's back condition was totally disabling.

There is no doubt that the X-ray evidence by 1985

showed there was degeneration in the back and that

there was some evidence of back difficulty. May we

take Your Honours to the evidence relevant to that

point. First of all, the general practitioner,

Dr Tan-Brehon, exhibit 21 which is at page 556 of the

record.

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MR FRYBERG (continuing): At page 556, line 41, the X-ray

reports are summarized under the headings,

"Lumbar Spine" and "Cervical Spine", and it should

be noted that these are 1985 X-rays, not 1982 X-rays.

The complaints that were made by the plaintiff at

the time are set out in the first two paragraphs on

that page. The back does not appear to form the

subject of complaint. There is no mention of complaint

by the plaintiff about his back in the passage, although

it is clear that there must, at some stage, have been

some complaint because on the following page in the

third paragraph she says:

Mr. Malec declined my advice to see a

physiotherapist for his complaints of his

back and neck.

One gets the impression that the back and neck were

not bulking very large in the plaintiff's mind. She described the plaintiff at line 27, on page 557, as:

A fit looking man with a quite normal

general examination and there is no

evidence of organic desease objectively.

The basis, apparently, of the finding that was made

in the Full Court occurred in her cross-examination

at page 114 - perhaps one should start at page 112 and
go from 112 to 114. At line 48 the cross-examination

begins by reference to the reports, which Your Honours

have seen·. The second question:

Does that indicate an excessive amount of

degeneration for a man of his age?-- For a man
of his age, you can say that, yes.

Do you have the x-rays with you?-- Not

the x-rays, no, only the reports.

And then over the page:

Does the existence of that severe degeneration explain the complaints of

back problems that he is having?-- Yes.

Is that an adequate explanation for his

back problems? You would not look for any

other cause?-- No. Because he has no other

causes which can cause that other back problem.

He has no neurological deficits as well.

Is the severe disc degeneration that you

observe on x-ray or that you see on the report, is

that capable of producing the back symptoms of

which he complains?-- Yes, it is.

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MR FRYBERG (cdntinuing):

How severe would you regard his back

symptoms? Are they disabling?--Partly disabling,

yes. Not completely.

Not completely?--No.

If you were considering only his back

symptoms and thinking whether or not he could

work, would he be capable of labouring work?--

Only his back problem - not very heavy lifting.

Not involved with heavy lifting.

Could not do heavy lifting?--No.

What about standing for any length of time?

Could he do that?--For any length of time.	It
depends on how long.

Could he stand continuously for 2 hours

working at a facto~y in a production line or

something like that?--Oh, perhaps for 2 hours

he would complain of pains as well.

Would complain of pains in his back?--Yes.

His neck, the cervical spine, is also the

site of marked degenerative disc disease at CS/6

and to a lesser extent at C6/7. Is that

degeneration sufficient to explain his neck
complaints?--Yes, it does.

Does he also complain of problems in his

shoulders?--Yes.

Is that problem, in your opinion, related

to the cervical disc disease?--Yes.

What, through the nerve irritation?--Nerve

irritation, yes.

Taking the back and the neck and shoulders

together, would this man be suitable to heavy
physical work now regardless of any other

problems?--No, I don't think so.

If he was seeking work, would you suggest it

be nothing more than, for example, sedentary work,

sitting in a chair doing clerical work?--Yes.

Would that be the limit of his capacity?

Clerical work?--Clerical work without any other symptoms, yes. If it's only regarding the neck

and the back.

And then they turn to another topic.

C2Tl5/l/CM	17	15/2/90
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The majority proceeded on the basis that she had said that and since he was only educated to

grade 6 and had a trade training as a bricklayer

it was improbable,they felt, that he would get
any clerical work, therefore the feeling was that

must mean that he was totally disabled.

McHUGH J:	Do they not have lifts in Queensland?
MR FRYBERG:	We rather attempted to meet it with that sort of response, the lift-driver response, and that
evidence does appear - I will take Your Honour to it in a moment if I may because I perhaps can
assemble all the evidence that was put against us
first and then the evidence that we lead in relation
to it as well.  The other evidence that was against
us was that of Dr Watson, who was not really
prepared to be as strong about it as Dr Tan-Brehon,
the GP.  Perhaps she did not know about lifts,
Your Honour.  She was a suburban GP. Dr Watson
had not examined the plaintiff.  He had simply
examined the 1985 X-rays and nothing else. His
evidence consists of exhibit 71, which is at page 568
of the record.  The second and third paragraphs
describe what he saw in the X-rays.  I will not read
them. I ought however to say that he was called
primarily to support the defendant's contention that the condition of the back was unrelated to the
brucellosis.  We had contended at trial that the
back condition was itself caused by the brucellosis,
but on the findings so far we did not make that good
and the appeal proceeds on the basis that that is the
finding  which is why the first half of the report
deals with that question.

(Continued on page 18)

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MR FRYBERG (continuing):  At line 38, he says:

The more significant of the lesions

is the degeneration of the 14-5 disc.	One
would expect this disc to, at least, constitute a vulnerability -

is how he describes it -

that is to say, there need not necessarily

be constant symptoms but symptoms could be readily evoked by any occupation requiring

prolonged bending or much in the way of

lifting. The symptoms provoked would be

low back pain and possible sciatica radiating

down the back of the leg to the big toe.

This could be accompanjed by sensory

changes over the same area.

I would say that the degeneration

in the lumbar spine is well in excess of

what would be accepted as reasonable age

changes. I would suspect that there would

be a past history of significant back injury -

perhaps as far back as thirty years ago.

I would say that these changes would

require somewhere between five and ten years

to develop even after quite significant

injury.

Then, over the page:

The answer to your question as to how

long he would have been unable to work is

difficult to answer. It depends on the work

and depends on chance. If he were prepared

to work slowly and to bend with great care
and not more often than need be and to avoid

weights which were liable at all to over power

him then he could conceivably work now if one

were to judge only by the x-rays. On the other

hand it would not surprise me to be told that

he had been unable to work for five years or

more and that any attempt to return to work

provoked symptoms.

There was not any further evidence by Dr Watson.

His oral evidence is at pages - I am sorry, I will

give Your Honours the reference in a moment - his

oral evidence was totally concerned with the question

of the relationship of the back to the brucellosis

and this question was not further touched on.

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McHUGH J:	Apart from the passage at page 557 which you showed us, is there any evidence as to what his actual
complaints were about his back and over what period of
time?
MR FRYBERG:	In all the medical reports his complaints are

recited and there is a complaint about his back in

1982 for the first time, as far as we can tell from

the medical reports, and he then went to see a

Dr Staunton Smith who was called by us.

Dr Staunton Smith had X-rays taken at that time and

he expressed the view in evidence that there was some

sign of degeneration in 1982 but his view was that

substantially it was consistent with what you would

expect for a man of his age at that time. He said

that 1985 X-rays were in his view much more gross.

They were much worse than you would expect for his

age, so it had got worse between 1982 and 1985.

The plaintiff himself in cross-examination

wandered around a bit. His English was not the best

and he tended, perhaps because of the decompensation,

to say that everything was terrible all the time,

though he said his back was not as bad early in the

piece as it was now. The problem really, Your Honours,

you see was that the defence conducted the case at
trial by trying to show that he was perfectly fit

at the date of trial. Their case really was that even at the date of trial he was not unfit. They

had an investigator video tape him at his home and

called the investigator and gave evidence of

conversations in which he was alleged by the investigator

to have said, "I built a Besser block wall and I built

a retaining wall, and I did this and I did that",

and their cross-examination of the plaintiff and of

his wife and of his son was designed - it was put to

them that the plaintiff had, in fact, built this

brick wall and had done other brickwork around the
house, so that the way the case was run at trial was

not conducive to bringing out the point that has

become, in the Full Court, the heart of the matter.

Just for Your Honours' assistance I can give you a list of the pages where that appears - page 273,

page 282 to page 284, pages 67, 68 and 69, page 140

to page 141, and page 145 to page 146, and propositions

are put to witnesses at those pages. The evidence on

behalf of the plaintiff as to what his capacity to

work was was given by two people, Mr Smith, who was

a clinical psychologist, and Mrs Coles, an occupational

therapist who had a practice in partnership and examined

the plaintiff jointly.

(Continued on page 21)

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MR FRYBERG (continuing): Their evidence, relevantly, is set

out in exhibit 34 which is, I think, at page 565-567,

a report which they both signed. There is a misleading

description, or perhaps an unclear description in the

first paragraph of what they did, and perhaps it will

be clearer if I take. Your Honours first to the oral

evidence given by Mr Smith at page 163 because there is

one point that has to be cleared up first. May I

take Your Honours first to page 163 of the record,

at line 49 at the top it commences in examination-in-chief:

Have you had the opportunity before coming

into the witness box to read a portion of

the evidence of a Dr.K.L. Tan-Brehon?--

Yes, I have.

Perhaps I could ask you·to have a look at

the copy of the transcript and you could

identify to us -

And he identifies the passage which I have already

referred to, Your Honours, in the cross examination

about the back. Dr Tan-Brehon was the GP -

Were you asked to have regard to the matters

set out there and also to hypothesise that

the removal of all of the plaintiff's

disabilities save for the disabilities to his

back and neck there described, and having

so hypothesised to formulate some duties which

he would be able to carry out?--Yes.

And then exhibit 34 was tendered. That was the basis on which he did exhibit 34._ May we now invite

Your Honours to perhaps read exhibit 34. It sets

out the duties which the two signatories thought he

could do.

BRENNAN J:  Mr Fryberg, what is the order that you seek from

this Court?

MR FRYBERG:  Your Honours, we would very much like to get

Your Honours to assess the damages but we really feel a bit embarrai:ssed about asking that, The order

really that Mr Justice Carter made, we would propose,

is the practical one for Your Honours to make, and

simply that the matter be remitted for assessment

of the remaining issues of damages by a master
on the existing evidence in accordance with the

judgment of Mr Justice Carter.

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DEANE J: Is there anything in His Honour's judgment that you

disown?

MR FRYBERG:  I think His Honour makes a reference in 1982

in connection with the X-rays which probably should be

1985. Apart from that I cannot think of anything,

Your Honour.

BRENNAN J: Are we concerned on that approach with your

paragraphs 8 and 9?

MR FRYBERG:  Only in so far as it bears upon the nature of the order that ought to be made, Your Honour, I think.

BRENNAN J: But do we have to come to a conclusion on whether or

not the evidentiary onus was established with sufficient

precision?

MR FRYBERG:  I suppose you would only have to do that if our

learned friends invited you to hold that the result

reached by the Full Court was right but for different

reasons.

BRENNAN J:	We will meet that one if we come to it.
MR FRYBERG:	Yes, Your Honour.
DEANE J:	The 1982 references are the ones at pages 833 to 834, are they?
MR FRYBERG:	Yes, at page 833, line 5, he talks about X-ray changes.

They appear to be the 1985 changes and then that

11this reduced capacity for work since 1982"and that	discussion continues over to 834. At line 10 he says,
· seems to follow from his earlier reference to the X-rays ..

DEANE J:	Except if you correct that on page 833,would it be
correct to simply substitute 85 for 82 on 834?
MR FRYBERG:	Your Honour, we, at this level, have difficulty in

contending otherwise. We would have much rather had

a different results on the facts, of course, but

His Honour has looked at it and reached a view and it
seems a rational view.	We would really say that

perhaps one ought not to say too much at this point.

The master can assess conformably with His Honour's

reasons for judgment. The evidence is there. We are

not suggesting there should be any further evidence

or anything like that.

DEANE J:	So really what you would have to say would be that 'since
1982",on page 834, should be simply deleted really?

MR FRYBERG:  Yes. I cannot think of anything else that we would

dissent from in His Honour's judgment, Your Honour.

McHUGH J: Could explain something to me about the schedule?

How do you get the figure of $266,000 at the bottom

of the second- la· st colunm?

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MR FRYBERG:	Those are in brackets, Your Honour.	The $266,000

is the total of all the figures found by

His Honour both in the pre-trial and post-trial.

In other words, the $266,000 plus to be assessed

is the total of Mr Justice Carter's two colunms.

McHUGH J: Is that right?

MR FRYBERG: I see. No, that does not add up. There is an

error got into that somehow. Perhaps I could have

that checked, Your Honour. There is obviously an

error there of some sort.	We will endeavour to
work out what it is.

DEANE J: It seems you may have simply doubled everything.

MR FRYBERG:  We are optimistic, Your Honour, but I do not think

we are quite that optimistic.

GAUDRON J:  I would have thought $200,000 might be too much.

MR FRYBERG:  Yes, I suspect that one of the figures in one of the

colunms might be wrong but I am not sure. I do not

know. Perhaps I could not speculate about it but

try and find out. Your Honours, the only other

references that we wanted to give Your Honours to

the evidence and perhaps I can do it just by giving

Your Honours reference: the cross-examination of

Mr Smith is at page 178 and following.

BRENNAN J:  Why are you giving us this?

MR FRYBERG:  Just so that we cannot be accused of not putting

before Your Honours all of the relevant evidence to

the exhibit 34, the list of things that he still

can do. He was cross-examined in an attempt to show

that that really was not a very good list.

Significantly, the occupational therapist - - -

McHUGH J:  Was the cross-examination to suggest he could have

done more or less? (Continued on page 24)

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MR FRYBERG:  I think by that stage they were trying to suggest

that he could not do those jobs; by that stage, yes. the team, Mrs Coles, was not cross-examined on that

topic and the other references that we would give

you are to the nature of the work that the plaintiff

was actually doing before he got the brucellosis.

He was in a meatworks but he was a cleaner in the

meatworks and his job simply consisted of cleaning

up the floor because the men in the boning room

would drop bones on to the floor occasionally; they

would have to be picked up or swept into a bin or

bits of offcuts of meat would sometimes have to be

picked up and thrown into bins and that, essentially,

was what he had to do. It was not as though he was

doing heavy carrying work. It would involve some bending.

The description of his w:rl:is-in the evidence of the

witness Nilsson, at page 17, lines 15 to 17; page 21,

line 30 through to page 22, line 13 and page 23,

lines 3 to 18 and line 39 and, in the plaintiff's own evidence at page 42, lines 18 to 60; page 43,

line 15 through to page 44, line 28 and page 44,

line 58 through to page 45, line 5.

In our submission, these two findings that

we set out in paragraph 9 are implicit in

Mr Justice Carter's judgment and His Honour was

correct. Those are our submissions, Your Honours.

BRENNAN J:  Thank you, Mr Fryberg. Mr Hampson.

MR HAMPSON:	I think that of those references that are given in our paragraph 2, there is a number that our
learned friend has already given the Court; the
one from Dr Tan-Brehon that, from the point of view of his back only, he would be capable of only
sedentary clerical work which, of course, his
lack of knowledge of English would have debarred him from doing; Dr Staunton-Smith; but there is
one that is very important; that is, the plaintiff
himself, at page 71.
back has been very bad and in that passage, about He was asked how long his
lines 20 to 30, he swears that his back has been
very bad for ten years.

(Continued on page 25)

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MR HAMPSON(continuing):  Now the trial, of course,was in

september 1987 so that takes it back, the bad back,

to 1977. And it is interesting to note that

Dr Scott - we have not given the Court this reference,

but Dr Scott at page 303, line 30, has a note - he is
looking at an entry in his records of 7 December 1975,

in his own handwriting - he is asked what it is -

this is line 25, or thereabouts:

And to what does it relate, doctor?-- It

relates to Mr. Malec seeing me in which he stated

that he had had a history of a lumbo sacral strain

for the previous three months being worse on the

left side than the right, and he felt that it was

aggravated by lifting.

So, it is very important to ad~ to that evidence of

Dr Watson, who of course, did.not know either of those

pieces of evidence, to which we have referred the

Court, that on 17 December 1975 he had been

complaining of this back condition - existed for

three months - and that his own evidence, when he

gave evidence in trial at September 1987, that for

10 years his back had been very bad, and that is quite

important.

Before looking at the figures in our submission

it is important probably to go back to what the trial

judge found, because the majority in the Full Court

really did not depart from his findings. They made

a different date up to which damages should be assessed,

but that was the only significant variation they made

so far as the assessment of damages were concerned.

And the learned trial judge, in his decision - his

reasons for judgment - dealt with issues of liability

up to page 773 of the appeal book, when at about line 40

he turned to questions of quantum, and he sets out

at first the history of evidence: a lot of it coming

from the plaintiff's wife, whom, he said, at line

about 26 or so on page 774, in substance he accepted

her evidence on the plaintiff's condition since he

ceased employment.

He refers then to a lot of other medical evidence

and on page 775 he makes the first of a number of findings
which are quite important, seeing he was the one who

was endeavouring to evaluate and make findings with

relation to, obviously, a. very difficult plaintiff

and his wife, because, in spite of what they had been

told by the doctor, they still had a belief that he

was suffering from brucelbsis, at a later point of

time, as the doctor said, and also from medical

evidence,which was not in some directions, entirely

as precise, perhaps, as one would have hoped. Obviously

the nature of the disease of brucellosis was something

which was a little unusual.

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Well, his first finding, then, at page 775,

about line 25, he found that:

I am satisfied that the condition which

was diagnosed in 1977 was acute brucellosis and

a matter for determination is whether the

plaintiff has since developed chronic brucellosis.

And, having made the first finding, he went on to consider the second, and at page 776 appears his second

finding, about line 30:

In my view it has not been shown on the balance of probabilities that the plaintiff now

has chronic brucellosis or that he ever had such

a condition.

So, that is his second finding·, and he said that he then

proceeded on the basis:

the plaintiff suffered from acute

brucellosis which was contracted at some

time between 1975 and 1977 and was diagnosed

in July 1977. On the evidence the period for which this condition continued is not easy to

determine but there are two disabilities, one

physical and the other psychiatric, from which
the plaintiff has suffered which it is necessary

to consider for the purpose of determining

whether it has been established that they have

resulted from acute brucellosis.

And he posed, therefore, very correctly, the question

that was before him,	and he went on, then, to deal
with the back.	He reviews the evidence that related

to the back: the fact that the changes there seen

were not the type that you would find from brucellosis

infection, and so on, and then, finally, at page 777,

about line 45 -

McHUGH J: What is this?

MR HAMPSON:  777, Your Honour.

McHUGH J: No, no, but, having regard to what His Honour found

at 776, line 51, that since at least 1982 the plaintiff has

had symptoms; what are we to do with the plaintiff's

evidence at page 71 and Dr Scott's evidence at

page 303, to which you referred us?

MR HAMPSON: Well, His Honour is not rejecting that there.

I mean, I do not think His Honour has turned his attention

at that particular point to that part of the evidence.

I think what he is really doing now is saying, "Now

these were the symptoms he has been reporting to

doctors which could have been due to brucellosis".

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See, what he complained of in 1975, on His Honour's finding, could not have been brucellosis, because

His Honour found that that occurred after then and it was only diagnosed in 1977.

(Continued on page 28)

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MR HAMPSON (continuing):  So what he is really coming on

to here is to try to say "Now, I am going to try

to discover whether or not the changes in the

back have been influenced or caused by the

brucellosis." That is really what he is dealing there.

McHUGH J:  I appreciate that, but the easiest way of disposing

of that issue would have simply have been to say

''Well, the plaintiff,on his own admission has had

back problems since 1977 and he was actuaily treated

in 1975'.'.

MR HAMPSON:  Yes, and I think that is the way the Full Court looked at it. I mean,I think they probably took

a short cut, but His Honour seemed to see these as
a number of matters o.n which he should make findings

and the brucellosis or the -~llegation that there

was a brucellosis engendered bad back was the next one.

He looks only at the experts here and he finds that

the experts do not support it in effect because of

the nature of the disc degeneration and so on and

that is why he can come, on page 777, at about line 45:

I would prefer the evidence of Dr. Watson.

Insofar as there is any conflict between the

evidence given by Dr. Staunton-Smith and

Dr. Watson. In the result I am not satisfied

that it is more probable than not that the

condition either of the plaintiff's cervical
spine or of his lumbar spine is a consequence

of his contracting brucellosis.

So that is a clear case of the plaintiff failing

to satisfy His Honour, and when one goes through

the medical evidence one can see that it is quite

a proper finding. He just has not satisfied

His Honour of that necessary connection. Then he says:

There remains the question of the plaintiff's

psychiatric disability.

H.e then again turns to the expert medical evidence on that and he reviews it. He reviews

Dr. Apel's evidence. That is an important report_

we have given the reference to it in April 1987 _

that written report where Dr Apel said _ it is

reproduced - that is the reference at page 545,

where he said:

Mr Malec's Personality Disorder is not caused

by his Brucellosis but is related to pre-existing

personality factors.

And he would have:othought that _.there was:;

,neurotic SY-Jllptoms · -

,, ....

C2T23/l/CM	40	15/2/90
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of -

a lo~g-standing basis ..... brought out and

aggravated by the current problems.

And so on. He then reviews Dr Nothling's evidence.

Dr Nothling, in short, seemed to be saying, "Well it is very difficult to assess what the current

psychiatric condition of the plaintiff is, because

there must be something overlying it due to this
increased,and wrongfully increased, ingestion of

various drugs', and he espoused the theory it would

be necessary to put the plaintiff in a hospital for

a couple of weeks to get rid of whatever symptoms

were being presented because of this addiction, as
he thought, to drugs, before one could really examine

what the underlying conditio~ was.

(Continued on page 30)

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MR HAMPSON (continuing): And that is why His Honour I think

said at top of page 15:

To the extent that there is a conflict between the evidence of Dr. Apel and that of Dr. Nothlinp-

it is not really possible to resolve that ~

conflict. The conclusion which I reach from

the whole of the psychiatric evidence is that

whilst the neurotic decomposition which was

diagnosed in 1979 occurred in a vulnerable

and predisposed personality and was precipitated

by brucellosis, it is at least equally probable

that the plaintiff's present condition is not

related to brucellosis but rather is related to

pre-existing personality factors and his

continuing use of Ativan and Aspalgin as that

it is related to brucellosis, and in my view

that is the most that can be said. I am

prepared to assume that there was justification
for the prescription of these drugs in the
first instance, which would appear to have been

in about 1979 when the plaintiff may well have

been suffering from the aftermath of acute
brucellosis but it does not necessarily follow

that the plaintiff's continuing to take high

dosages resulting in his present addiction to

thos medications and the consequences of

that addiction is to be attributed to the fact

that he had suffered from acute brucellosis.

BRENNAN J: Well, now is that finding maintained in the Full

Court?

MR HAMPSON:	In the Full Court, I think really they did not pay much attention to the drugs and they said,
"Well, in effect, the condition -we believe that
the condition he is suffering about, you
need not worry about any question of drugs because the condition he is suffering about would have been brought on any way by this loss of his job;
by the back pains and all of the like which we find
occurred in 1982".
BRENNAN J:	I may have misread i 4 Mr Hampson,but I rather thought

that the majority were accepting the views which

Mr Justice Carter had advanced for saying that there

was no conflict between Dr Apel and Dr Nothling, of

a relevant kind, and that the findings which were

expressed on page 779 were set aside, is that not

right?

MR HAMPSON: 

No, I do not think that is so. It is a question

of reading, I think it is necessary to have a look
at what the Full Court said, but I do not really

think that that is what they say.  I think what they

have got in mind is, I will come to it perhaps in

a moment, what they have got in mind is yes,

C2T24/l/JL 30 15/2/90

Malec(2) (Continued on page 30A)

he is getting this treatment, he is getting the

medication but at this stage it has nothing to do

with brucellosis - that is after 1982 - after 1982
it is due to psychiatric disorders which he would

have suffered anyway once the man's back had got

so bad that he would not be able to conduct his, or

take part in his former employment. He obviously

could not have had a job as a clerical person, his

English was not as good and so forth.

(Continued on page 31)

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BRENNAN J:  There were two questions, were not there? If

he has the condition at the moment, what is the cause

of it, and there were three causes falling for

consideration; brucellosis, the addiction to the

drugs and the back. The trial judge said it was the

addiction to drugs, the Full Court said it was the

back and the plaintiff maintains it was the brucellosis.

Now, am I wrong in thinking that the Full Court said it

was the back and not the drugs?

MR HAMPSON:  Yes. I think what the Full Court said, it was

the back and not the drugs but it did not matter
because if it was the drugs it was because of his
condition for the back and the psychiatric problems

coming from the back that caused the drugs. In

other words, they looked at it that any addiction to

drugs was, in fact, not due to brucellosis since

1982.      It would have come on· - the doctors

prescribing drugs - they no longer prescribed
anything from any brucellosis originated illness but

for this psychiatric condition which would, in any

event, have come on because of his back condition.

I think, Your Honour, that is the way they seem to

look at it and that is why they did not set aside

the finding, but they said, "It doesn't really matter.

There is no real conflict between them". They looked

at the drugs as being a non-brucellosis effect, and I

do not know, with the greatest respect, whether the

trial judge is saying anything really different here.

He points out the two different things they state,

but Dr Nothling, of course, is not stating, is not
saying that whatever the drug condition which conceals,

to some extent, what the underlying personality

condition is, that the giving of the drugs was due to

brucellosis.

McHUGH J:  I am sorry, but I must say when I read Their Honours'

judgments, passages at pages 803, 805, 807, I got a

completely different view. Just having regard to the

proposition you just put, what about the passage at

workers compensation paid off, to the amount for which

the plaintiff, as appellant in the Full Court, should

have got judgment. I do not know there is anything

that I can usefully add.

(Continued on page 57)

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DEANE J: Mr Hampson, if you are going to finish can I just

divert you for a moment? Can I take you to page 834

of the appeal book? In that carry-over paragraph,

Mr Justice Carter has dealt with the problem of

the back.	Now, putting to one side for one moment
your causation argument which I follow,	would

it be true to say that His Honour's sentence beginning

on line 4 corresponds very closely with the way

you put it?

MR HAMPSON: "Accordingly-his spinal"?

DEANE J: No.	"It was this reduced capacity for work."
MR HAMPSON:	I am sorry, I do not have the right page, I do not think, Your Honour,.
DEANE J:	Page 834, the next sentence~

MR HAMPSON:  Page 834, at line?

BRENNAN J: Six.

DEANE J:	L~ne 6~
MR HAMPSON:	I see, yes:

Accordingly his spinal condition would limit his capacity for work. It was this reduced

capacity for work since 1982 - - -

DEANE J: Cross out "since 1982", we have agreed.

MR HAMPSON:  Yes:

which has been destroyed by the psychiatric

disability consequent upon the brucellosis.

DEANE J: That seems to me to accord fairly closely, subject

to the question of degree of incapacity with the

way you were putting it in the alternative to your

causation argument.

MR HAMPSON:  Ye$, Your Honour, it is somewhat similar to

it, but, of course, I have the further point which

His Honour has not mentioned here and, indeed,

he does not really mention it in his judgment and

that is the extent to which the psychiatric

disability flows from the back condition.

DEANE J:	No, I was just aiming at asking you about the back
condition.
MR HAMPSON:	Yes, that is so. He, in other words, deals there

with the back condition and I accept that, that is

reasonable, that goes to economic loss. The only

problem is that His Honour does not deal with the

psychiatric condition consequent upon the back condition.

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DEANE J:  And, you also say, I gather, that he does not

take sufficient account of the impact of

Dr Watson's evidence?

MR HAMPSON:  Yes, that is where we disagree with His Honour.

We disagree with His Honour on two ones. He really

seems to think that Dr Watson really just sort

of says, "Oh well, he couldn't do the heaviest

labouring work and it's very up in the air".

Dr Watson's evidence is much more precise than that
so we disagree with His Honour Mr Justice Carter

on that. And, with respect, also we do not think

he gives any weight at all to the fact that there

would have been attendant upon the development of the

back condition had there been no action at all - I

will put it this way - a likelihood of a very soon

development of a psychiatric c9ndition in the

sense it would have been triggered off by that

condition.

DEANE J:  Yes, I do not want to take time but in one sense

that is a circular argument, is it not, in that

it is the back problem and the loss of work which is

seen as being likely to have produced psychiatric

treatment?

MR HAMPSON:	That is so.
DEANE J:	So, from the point of view of economic damage,

it is only when you get the combination of back

problem and loss of work that the psychiatric problem

probably enters the picture.

MR HAMPSON:  Yes, although, with respect, if one looks at

the doctor - if one looks at Dr Tan-Brehon and so

forth you see she says he could not do any heavy

labouring work but she goes on to say, she has got a

thing there, that you could put him in charge - this

is with his back condition - of _dealing with files and
things of that kind. Well, His Honour seems to think,

in other words, that the reduction and the ability

to work was much less than Dr Tan-Brehon does

because it was - a person who has difficulty with

English where he is going to get a job doing clerical

work, where he can sit down for long periods and that

sort is very difficult to imagine but, _nevertheless,

I mean, what His Honour says, if there is a reduction
there - I suppose we are saying it is a reduction

to 100 per cent, His Honour is thinking it is much

less than that, it might only be 50 per cent.

His Honour does not say exactly what it is but it seems

that he thought it was much less than we had put it at

and the majority put it at.

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MR HAMPSON (continuing):  I do not know that there is anything

else that we could usefully add but we would submit
that it was not an easy case for the court, for

His Honour the trial judge but he has made certain

findings which are, in our submission, supported

by the evidence and this Court has very often set

its hand against interfering with findings that are made by trial judges in these assessment of

damages' ·cases particularly when, in fact, there

is evidence there and there is nothing to show that

he misunderstood the application of the rules to
what he was supposed to be doing and, really, the

Full Court in so far as any matter of any significance is concerned here, is really

disagreeing with him, we would submit, when you

analyse what is being said - is only disagreeing

with him in relation to whether the plaintiff has

failed to prove his damages beyond 1980 or bey.ond

1982. That is the significance of what they have

in fact done. I do not know whether there is

anything I can add.

BRENNAN J:  Mr Hampson, if the Court should be of the view

that the schedule to your notes of argument does

not go to the full extent of the plaintiff's

entitlement, what order should be made?

MR HAMPSON: Well, it is a question of whether the Court

feels that it could make its own assessment.

BRENNAN J: Well, 'l:ouldu,or - - -

MR ,HAMPSON: - - _nshould !' That is the matter. I do not

know whether the Court - it is a question of when

one reads· the record, whether the Court is left

with a feeling that if we were too low in what

we said there,- I take it that is what Your Honour

means - that it is a question of whether the Court

is confident enough that it could substitute some

other figure for what we have suggested there.

I cannot honestly answer that because - - -

BRENNAN J: Otherwise it should go back to the master, I

take it?

MR HAMPSON: Well, that is the only other thing that could be

done, yes.

BRENNAN J:  Yes. Thank you, Mr Hampson. Yes, Mr Fryberg.

MR FRYBERG:  Your Honour, in relation to that last matter,

if the Court were minded to do the assessment

itself, there are some submissions which we could

make on that topic and which we would wish to

make in terms of drawing out the evidence.

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BRENNAN J:  I do not think we need trouble you with those,

Mr Fryberg.

MR FRYBERG:  Thank you, Your Honour. In relation to the

reference which Your Honour Justice Deane put to

our learned friends at page 834, we would accept
the proposition that the back would have produced

a reduced capacity for work. In measuring that it

must be borne in mind, however, that our case was

that he was a cleaner before he got brucellosis and

even with the reduced capacity caused by the back

that, by itself, would not have stopped him going on

with his job at Huttons, so that in measuring the

reduced earning capacity you have to take into account the fact that he could have gone on doing the job that

he had had all the time.

DEANE J:  Except - and I do not want to take time - but when

you read Dr Watson's evidence it is a bit hard to

accept that he could have continued in a job involving

the cost of picking up of bones and things.

MR FRYBERG:  Yes. It gets down to looking at what the actual

evidence is as to what he did and how he did it, and

so on, and I will not take up time going through

what we will hopefully be putting to the master.

In relation to our table at the end of our submissions, the mathematics are hopelessly wrong in the total.

The figure should be $148,277.63 plus to be assessed.

I cannot work out reconstructing how we got to the

figure that is there, although there are a number of

other figures mentioned in Mr Justice Carter's

judgment as hypothetical. I cannot make any of them

add up and I cannot even blame my junior for doing

the sums because I did them myself.

BRENNAN J:  You might have had a telephone number written down

somewhere, Mr Fryberg.

MR FRYBERG:  It must have been, Your Honour. Just two points

in relation to what our learned friends had to say.

Our learned friends pointed out that the trial judge's

finding can be construed that the plaintiff was prone

to exaggeration - the reference to malingering - and

perhaps the cross-examination that he referred

Your Honours to at page 71 where the plaintiff said he had had the back going back for 10 years might

fall into that category. Perhaps he was exaggerating

a little in that regard.

(Continued on page 61)

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MR FRYBERG (continuing) It is significant that in the

contemporary medical reports, up to 1982, there were

no complaints of back trouble. In relation to the

passage in Dr Scott's evidence, at page 303, to which

our learned friends referred Your Honour, that

incident was not actually put to the plaintiff

directly, in cross-examination, though at page 64

the matter was raised briefly, and, may we just give

Your Honours the reference to page 64, lines 10 to 25,

because the passage is useful for two points.

First, the plaintiff denied getting treatment for a

back complaint prior to getting brucellosis, and,

in that context, the specific note made by Dr Scott

was not put to him when he made that denial, and

secondly, the passage really shows the tendency that

is evident throughout the plaintiff's evidence, to

assimilate all his different complaints: his

joints, his dizziness, his aches, all to one, and

when he answers questions, to not really distinguish

very clearly between his back and his other aches and

pains, and his evidence has to be weighed in the

light of that tendency.

Those are our submissions, Your Honour.

BRENNAN J: Thank you, Mr Fryberg. The Court will consider its

decision in this matter and will adjourn to Sydney

tomorrow at half past nine.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE.

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