Manly Fast Ferry Pty Ltd v Wehbe

[2021] NSWCA 67

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67

Hearing dates:

28 October 2020

Date of orders:

23 April 2021

Decision date:

23 April 2021

Before:

Gleeson JA at [1]
Leeming JA at [114]
Simpson AJA at [161]

Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs of the appeal.

Catchwords:

COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried

DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee

EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert

DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 141B

Suitors Fund Act 1951 (NSW)

Transport Administration Act 1998 (NSW), s 121

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53(1)

Cases Cited:

Adacot & Sowle [2020] FamCAFC 215

Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Galea v Galea (1990) 19 NSWLR 263

Gordon v Truong [2014] NSWCA 97

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Jones v National Coal Board [1957] 2 QB 55

Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461; [2019] FCAFC 113

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879

Miller v Galderisi [2009] NSWCA 353

Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243

Polsen v Harrison [2021] NSWCA 23

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

R v Hamilton [1969] Crim LR 486

R v Hulusi (1973) 58 Cr App R 378

R v Nelson [1997] Crim LR 234

R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3

Sampco Pty Ltd v Wurth [2015] NSWCA 117

Serafin v Malkiewicz [2020] UKSC 23; [2020] 4 All ER 711

Southwark London BC v Kofi-Adu [2006] EWCA Civ 281

Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15

White v Benjamin [2015] NSWCA 75

Windsor v Health Care Complaints Commission [2020] NSWCA 110

Yuill v Yuill [1945] P 15; [1945] 1 All ER 183

Category:

Principal judgment

Parties:

Manly Fast Ferry Pty Ltd (ACN 135 008 070) (Appellant)
George Paul Wehbe (Respondent)

Representation:

Counsel:
G J Parker SC (Appellant)
L King SC / W Carney (Respondent)

Solicitors:
HWL Ebsworth Lawyers (Appellant)
PK Simpson & Co (Respondent)

File Number(s):

2020/138068

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2020] NSWDC 155

Date of Decision:

30 April 2020

Before:

Levy SC DCJ

File Number(s):

2019/217178

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Mr George Wehbe, injured his left knee when the ferry he was travelling on operated by the appellant, Manly Fast Ferry Pty Ltd, collided at speed with a wharf at Manly in 2017. Mr Wehbe was seated on the top level at the rear of the vessel and experienced a direct impact to his left knee in a “dashboard” type accident. Mr Wehbe alleged that as a result of the injury he was unable to return to his previous occupation as a tiler. He also complained of a “compensatory” injury to his right knee as a consequence of favouring his left leg.

Liability was admitted by the appellant. The proceedings below concerned the assessment of damages. The extent of injury and its consequences were disputed. The medical experts gave evidence in a conclave – one by audio visual link, the other by audio link only. There was conflicting medical expert evidence as to whether Mr Wehbe could return to his previous work as a tiler and whether any injury to Mr Wehbe’s right knee was related to the injury to his left. The primary judge preferred the evidence of Mr Wehbe’s expert that Mr Wehbe was incapacitated from work as a tiler and had a reduced work capacity. The primary judge awarded damages of $426,600 for past loss of earnings, future loss of earnings, future domestic assistance, future treatment expenses and past out-of-pocket expenses.

Manly Fast Ferry appealed. Four grounds were advanced on appeal:

1. Ground 1 contended that the appellant was denied procedural fairness as the frequency and nature of the involvement of the primary judge in the cross-examination of the medical experts and Mr Wehbe created a real risk that the trial was unfair.

2. Ground 2 contended that the primary judge erred in concluding that Mr Wehbe sustained a compensatory injury and disability to his right knee.

3. Ground 3 contended that the primary judge erred in rejecting the evidence of the appellant’s medical expert and instead substituted his own medical opinion.

4. Ground 4 contended that the primary judge erred in allowing an amount of $22,657 for commercial domestic assistance.

Held, dismissing the appeal (per Gleeson JA, Simpson AJA agreeing; Leeming JA dissenting):

As to Ground 1

1. Per Gleeson JA: The interventions of the primary judge in the cross-examination of the medical experts were appropriate. The questions and clarifications were fairly directed to attempting to obtain a proper understanding of the basis for the difference of opinion between the experts: [42]-[56]. The interruptions in the cross-examination of Mr Wehbe were also appropriate: [57]-[61].

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55; Galea v Galea (1990) 19 NSWLR 263; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 referred to.

1. Per Simpson AJA: In the context of the primary judge having to decide between two competing medical opinions, there was no indication of any impediment to the witnesses in giving their evidence, impediment to counsel advancing the appellant’s case, or impediment to the judge in reaching his determination: [214]. Nor did the primary judge engage in an exercise of self-persuasion: [216]-[217].

Yuill v Yuill [1945] P 15; [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55; Galea v Galea (1990) 19 NSWLR 263; Michel v The Queen [2009] UK PC 41; [2010] 1 WLR 879 referred to.

1. Per Leeming JA, contra: The interventions and questions by the primary judge went beyond seeking clarifications and resolving ambiguities. The primary judge’s questioning of the appellant’s medical expert amounted to excessive judicial cross-examination such that the appellant was denied procedural fairness: [136]-[137], [150]-[157]. The primary judge’s reasons for rejecting the evidence of the appellant’s medical expert were insufficient, indicating that the primary judge had ceased to perform the function of resolving the evidence adduced before him, maintaining the appearance of impartiality and an appropriate degree of detachment: [146], [155].

Galea v Galea (1990) 19 NSWLR 263; Serafin v Malkiewicz [2020] UKSC 23; [2020] 4 All ER 711; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 referred to.

As to Ground 2

1. Per Gleeson JA, Simpson AJA agreeing: It was open to the primary judge to accept the evidence of the respondent’s medical expert that Mr Wehbe suffered a compensatory injury to his right knee. The respondent’s medical expert observed muscle loss in both of Mr Wehbe’s knees over a 16-month period. The appellant’s medical expert only observed Mr Wehbe once and was not in a position to contradict the clinical observations made by the respondent’s medical expert: [90]-[99].

As to Ground 3

1. Per Gleeson JA, Simpson AJA agreeing: It was open to the primary judge to reject the evidence of the appellant’s medical expert. There was medical expert evidence at trial which supported the primary judge’s finding that Mr Wehbe should refrain from heavy lifting, pushing, pulling and carrying: [64]-[68]. Further, the primary judge did not misstate the appellant’s medical expert’s evidence about Mr Wehbe’s pain and discomfort; the appellant’s medical expert did not consider the complaint of pain and discomfort to be a relevant and integral factor in determining his diagnosis: [84]. While the primary judge did err in criticising the appellant’s expert for not examining the respondent’s left hip, this error was immaterial as the primary judge gave other reasons for rejecting the evidence of the appellant’s medical expert: [75]-[76].

Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 referred to.

As to Ground 4

1. Per Gleeson JA, Simpson AJA agreeing: The primary judge did not err in allowing an amount for commercial domestic assistance. There was evidence that home maintenance tasks previously performed by Mr Wehbe were being performed by Mr Wehbe’s brothers after the collision, that commercial assistance would take pressure off of his brothers and an inference could be drawn that the brothers would cease to provide gratuitous home maintenance, if funds were available, in favour of a commercial service: [110].

Gordon v Truong [2014] NSWCA 97; White v Benjamin [2015] NSWCA 75; Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95; Sampco Pty Ltd v Wurth [2015] NSWCA 117; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20; Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93; Miller v Galderisi [2009] NSWCA 353 referred to.

Judgment

1. GLEESON JA: On 13 September 2017, the respondent, Mr George Wehbe, injured his left knee when the “fast” ferry on which he was travelling as a passenger collided at speed with a wharf at Manly. At the time of the collision, he was seated on the top level a t the rear of the vessel and experienced a direct impact to his left knee in a “dashboard” type accident. He sued the appellant, Manly Fast Ferry Pty Ltd, as the operator of the vessel for damages alleged to have been suffered by him. Liability was admitted. The only issues involved the assessment of damages. He was awarded the sum of $426,600.15 comprising the following heads of damage (Wehbe v Manly Fast Ferry Pty Ltd [2020] NSWDC 155):

Past loss of earnings and superannuation    $115,000.00

Future loss of earnings and superannuation   $281,050.00

Future domestic assistance   $ 22,657.00

Future treatment expenses   $ 5,000.00

Past out-of-pocket expenses   $ 2,893.15

Total   $426,600.15

2. The appellant appeals against that assessment making a complaint of procedural unfairness (ground 1) and challenging the rejection of the evidence of the expert called by the appellant (ground 3). The appellant also challenges the amounts allowed for injury and disability to Mr Wehbe’s right knee (as a result of favouring his left knee and his altered gait) (ground 2) and for commercial domestic assistance (ground 4).

3. The relief sought by the appellant is a retrial. To obtain a new trial, it is necessary for the appellant to demonstrate some substantial wrong or miscarriage has been thereby occasioned: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.53(1).

4. For the reasons that follow, the appeal should be dismissed.

Background

5. At the time of the accident Mr Wehbe was aged 32 years and worked as a tiler. Prior to that he worked for Sydney City Council in various positions including as a cleaner, where he sustained a needle stick injury in 2012. He had also worked as a forklift driver and in the warehousing and transport industry.

6. Mr Wehbe did not work following the accident. At the time of the trial he was living in a “granny flat” at his parents’ home; and he was not seeking work for family reasons, as he was a carer for his elderly widowed mother. His case was that as a consequence of his injury he had a significantly reduced work capacity, including as a tiler.

7. The fact of injury was not disputed; however, the extent of injury and its consequences were disputed. The evidence tendered at trial included reports from Dr MacDessi, an orthopaedic surgeon who was Mr Wehbe’s treating doctor, and expert reports from two medical specialists – Dr Andrew Porteous, an occupational physician called by Mr Wehbe, and Dr David Maxwell, an orthopaedic surgeon called by the appellant. The experts also gave a joint conclave report and oral evidence at trial.

8. Given the scope of the grounds of appeal, it is necessary to outline the medical evidence about Mr Wehbe’s injury.

9. Dr MacDessi reported on 24 October 2017, referring to an MRI scan taken on 19 September 2017, that:

George’s knee shows normal tibiofemeral and patellofemoral cartilage surfaces. He has mild patellofemoral dysplasia. There is significant soft tissue bruising within the prepatello bursa but there was no associated patellar fracture.

10. Under the heading “Management”, Dr MacDessi stated:

… [Mr Wehbe] had a prepatellar bursal haemorrhage causing pain within his knee from a direct impaction injury. Pleasingly though he has not sustained any deep injury within the joint. George does quite a lot of weightlifting and currently this is aggravating his knee. I would like him to start physiotherapy under Mr Charlie Haddad focusing on graduated improvements in quadriceps and gluteal strength, soft tissue treatment of the prepatellar bursa and a graduated rehab program to get him back to work.

11. Dr MacDessi saw Mr Wehbe on 16 February 2018 and noted that his knee had “not improved significantly”; he still had anterior knee pain and a feeling of weakness and pain getting up and down stairs and was unable to work as a tiler. Mr Wehbe reported that there was new clicking (in his left knee). He was referred for another MRI scan. Dr MacDessi considered that Mr Wehbe had a quite severe case of patellar tendinopathy related to a direct impact injury with associated prepatellar bursal swelling.

12. After the second MRI scan on 23 February 2018, Dr MacDessi saw Mr Wehbe on 23 August 2018 and reported that Mr Wehbe had quite severe patellar pain, that the MRIs had not demonstrated any significant chondral pathology, Mr Wehbe had not been able to return to work, that he had some physiotherapy but it had been minimal because he could not afford it and he discussed weight reduction and regular exercise. He advised that from a surgical aspect no treatment was needed.

13. Dr Porteous first examined Mr Wehbe on 4 October 2018. After the third MRI scans on 7 December 2019 of both knees, he re-examined Mr Wehbe on 15 January 2020. The comparative measurements of Mr Wehbe’s knee flexion and left and right thigh and calf on examination by Dr Porteous in October 2018 and January 2020 were:

• a 120° flexion in his right knee (135° in October 2018) and 108° in the left knee (110° in October 2018);

• left thigh circumference (10 cm above the patella) was 55.5 cm (57.5 cm in October 2018), while the right was 52.5 cm (58 cm in October 2018); and

• left calf circumference was 44.5 cm and the right calf circumference was 44 cm (both 46 cm in October 2018).

14. In his second report, Dr Porteous said that the loss of muscle over time since last seen was consistent with Mr Wehbe’s history.

15. Dr Porteous’ observations of Mr Wehbe’s gait in October 2018 and January 2020 were similar. On each occasion he observed that “gait was normal once [Mr Wehbe] got up”. In October 2018, he noted, “however, [Mr Wehbe] had a sharp pain as he moved from sitting to standing and grimaced”. In January 2020, he noted that “once [Mr Wehbe] got up and started moving, but was hesitant again initially, with a reported increase in pain”.

16. Dr Porteous’ initial diagnosis was left knee patellofemoral syndrome. In his second report his diagnosis was left knee chronic soft tissue injury and clinical evidence of patellofemoral syndrome. Dr Porteous observed that the MRI scans showed evidence of “an effusion suggestive of inflammation and injury consistent with the reported history”. His opinion was that Mr Wehbe “has developed a consequential right knee soft tissue injury from favouring the left knee and carrying most of his large weight through the right knee when limping on the left”.

17. Dr Porteous expressed the view that Mr Wehbe was incapacitated from work as a tiler and that he had a reduced work capacity. He adhered to that view in his second report, explaining:

In my opinion, he remains restricted from kneeling and crouching. He remains restricted from heavy lifting, pushing, pulling and carrying. He is still restricted from frequent or constant walking up and down steps or ladders or slopes.

18. Dr Porteous assessed Mr Wehbe as being able to undertake activity and work that avoided the above restrictions, whilst noting that it is probable that Mr Wehbe eventually will have to medically retire, some 5-10 years earlier than otherwise expected.

19. Dr Maxwell provided one report having examined Mr Wehbe on 12 September 2019. He noted that Mr Wehbe was “a huge man” - 140kg and 191cm tall. On examination his right and left thigh both measured 55.5 cm (10 cm above the patella) and his right and left calf both measured 43.5 cm. Dr Maxwell observed no muscle wasting of Mr Wehbe’s left calf or thigh, and said that an absence of muscle wasting is the best objective sign that someone is using their left knee relatively normally.

20. Dr Maxwell said that individuals who experience patellofemoral pain almost always have wasting of the left quadriceps muscle and Mr Wehbe had no wasting of the quadriceps muscle. As to the possibility that Mr Wehbe had an unstable patella, Dr Maxwell found none of the tests for patella instability were positive and Mr Wehbe had no history of giving way of his knee, such as would occur with patella subluxation.

21. Dr Maxwell disagreed with the suggestion by Dr Porteous that Mr Wehbe, a regular weightlifter, should restrict heavy lifting, pushing, pulling and carrying. Dr Maxwell considered that Dr Porteous had not indicated why these normal activities would be harmful for Mr Wehbe.

22. Dr Maxwell also disagreed that Mr Wehbe was incapacitated such that he could not be a tiler and was “sure” he could go back to such work. Dr Maxwell continued:

As is common with occupational physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery from soft tissue injuries. Resting a soft tissue injury usually makes it worse.

23. Dr Maxwell found no hard objective evidence of any continuing pathology on the physical examination and “one is forced to rely entirely on his symptoms which are not entirely consistent with the physical examination”. His diagnosis was that Mr Wehbe had sustained “[s]oft tissue contusions to the left knee which based on objective evidence have now resolved”. Dr Maxwell could not explain any continuing symptoms on the basis of any continuing pathological process.

24. The experts provided a joint conclave report dated 15 April 2020. The primary judge observed that the only substantive matter that the experts agreed upon was that Mr Wehbe had sustained a soft tissue injury or contusion to his left knee in the subject accident, but disagreed on the effects of that injury: J [31] and [33].

Oral evidence at trial

25. In his evidence in chief, Mr Wehbe described his left knee as having “deteriorated, it’s very painful, it’s starting to affect my left hip gradually, pins and needles in my left foot”. He said his right knee “is very painful as well” and that it’s “more painful once it’s fully extended not when it’s bent”.

25. In cross-examination, Mr Wehbe rejected the suggestion that he had never limped on his left knee. He said “I can’t walk normal …. If I walk normal, I have a micro trauma” and “[w]hen I have that, I lean to my right”. He explained a micro-trauma was a “pop and a sensation of pain and grating in my knee, the pain shoots up to my hip and the only way to stop it, if I have nowhere to sit, I limp to (sic) on my right knee, on my right leg, or I just sit down if I have a seat nearby”.

26. Mr Wehbe also gave evidence that when pain starts in his left knee, it goes up to his left hip and “I lean on my right; that’s when the, the gradual onset, that’s how it began”. He said that he had been offered and refused painkillers, specifically OxyContin, which he had previously tried and had made him “very disorientated”.

27. During the expert’s conclave at trial, Dr Porteous gave evidence that in his experience painful knees can occur without muscle wasting, but he did find some muscle wasting on his second examination of Mr Wehbe’s right leg, and by that time Mr Wehbe had reported his right knee being “significant and painful”. He noted that the restricted leg range or motion in the left knee were both objective clinical findings.

28. In response to Dr Maxwell’s view that “[t]here is absolutely no evidence that you can injure your right knee by not using your left” and the “idea that you can somehow injure a part of your body by over-using it, is completely fallacious”, Dr Porteous said that “people do develop over-use conditions and particularly have aggravation of underlying pathology”, giving as an example over-use of one shoulder when the other shoulder has suffered a rotator cuff injury.

The primary judge’s reasons

30. The primary judge identified the principal areas of disagreement that persisted between the experts following their conclave report at J [35] as follows:

(1)   Dr Maxwell disagreed with the clinical conclusion of Dr MacDessi and the analytical conclusion of Dr Porteous that the plaintiff had patellar tendonitis;

(2)   Dr Porteous disagreed with Dr Maxwell’s interpretation of MRI scan imaging and maintained that the radiology indicated deterioration in the pathological signs in the plaintiff’s left knee that preceded the accident, which in effect, he considered to have been an underlying asymptomatic condition which was aggravated by the subject accident, whereas Dr Maxwell maintained that the three MRI scan reports identified different degrees of mild cartilage degeneration consistent with the plaintiff’s age. Absent from Dr Maxwell’s analysis on that point was the effect of trauma, which he insisted in describing as mild;

(3)   Dr Porteous considered the plaintiff’s ongoing left knee pain was due to the accident whereas Dr Maxwell considered the “normal” time for recovery would have been 4 – 6 weeks;

(4)   Dr Maxwell introduced into the evidence for the first time, the notion that pain can be affected by anxiety and depression. Whilst that proposition accords with common sense, there is no reliable evidence to compel a diagnostic conclusion that such factors were at play and affecting the plaintiff in this case;

(5)   Dr Maxwell discounted Dr Porteous’ treatment recommendations on the basis of his view that there was no objective evidence that the plaintiff was unable to function;

(6)   Accordingly, the experts maintained diametrically opposed views on the plaintiff’s prognosis, Dr Porteous expressing the view the prognosis was guarded, as stated in his report, and Dr Maxwell expressing the view it was excellent;

(7)   Dr Maxwell placed great emphasis on the location and variation in the observations of muscle wasting in the plaintiff’s lower limbs. Given that the observations varied, all that seemed to flow as a consequence was that at differing times, the plaintiff was using his legs in different ways which produced such results. That did not necessarily mean the plaintiff was not favouring his left knee and overusing his right knee;

(8)   Dr Maxwell’s view of the absence of muscle loss was anchored to his report dated 12 September 2019, whereas Dr Porteous’ conclusion that there was muscle loss in the plaintiff’s left leg, was based on his unchallenged observations to that effect which he made on 15 January 2020. Dr Maxwell was not in a position to contradict that clinical finding;

(9)   Dr Maxwell found it difficult to understand how the plaintiff developed 3 cms of right thigh muscle wasting but, inconsistently, had no apparent difficulty emphatically saying that it was not related to the subject accident. Absent from his analysis was a due consideration of alteration to the plaintiff’s gait due to pain, which by then was in both knees;

(10)   The experts maintained their disagreement on the plaintiff’s capacity to return to his pre-injury employment or to work in other employment.

31. In resolving the conflicting medical opinions, the primary judge considered that Dr Porteous had the observational advantage of examining Mr Wehbe twice, noting at J [58]:

…Dr Maxwell’s single examination of the plaintiff took place 5 months before Dr Porteous carried out his last examination, and where Dr Porteous had in fact observed muscle wasting in [Mr Wehbe’s] right leg. That finding on examination was not challenged.

32. In preferring the evidence of Dr Porteous, the primary judge made the following findings at J [83]-[87]:

1. prior to the incident on 13 September 2017, Mr Wehbe was symptom-free in both knees and that as a result of the incident he continues to experience constant pain and discomfort in his left knee, which affects his gait and mobility;

2. in early 2019, as a result of favouring his left knee and his altered gait, Mr Wehbe experienced the onset of right knee pain, which has since continued most of the time such that he wears knee braces on his knees for support and assistance;

3. the left knee pain has developed into a chronic condition, which increases with activities such as kneeling or crouching, and his sleep has become disturbed by his knee pain; and

4. Mr Wehbe feels considerable frustration from his experience of pain and the inability to partake in recreational activities he previously enjoyed, including the power lifting of weights and boat fishing.

33. Having found Mr Wehbe to be a credible witness and accepted his evidence generally (J [82]), the primary judge accepted Dr Porteous’ assessment that Mr Wehbe has a chronic reduced work capacity due to his ongoing pain and restricted movements and found that these disabilities will obviously affect his productivity in the workplace: J [90].

34. After observing (at J [91]) that Mr Wehbe’s prognosis was guarded due to both his left and right knee conditions, his Honour concluded at J [92]:

I also accept Dr Porteous’ opinion that from his perspective as an occupational physician, not only does the plaintiff have a significantly reduced work capacity due to his stated restrictions, but also, the probability is that he will have to retire some 5 – 10 years earlier than would otherwise have been expected, on medical grounds, due to his knee disability. That opinion will be considered in connection with the assessment of damages.

Ground 1: Procedural unfairness

35. Consistent with High Court authority that issues of bias (and by extension procedural unfairness) should be addressed first, the parties directed their attention in oral argument to ground 1: see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117], [172].

36. The allegation of procedural unfairness was put on the basis of the frequency and nature of the involvement of the primary judge in the cross-examination of the medical experts and the cross-examination of Mr Wehbe. The complaint made was that the primary judge had crossed the line and departed from the role of a judge presiding over an adversarial trial. The following particulars of excessive judicial questioning and interventions were relied upon as demonstrating procedural unfairness:

1. his Honour’s frequent intervention during the cross-examination of Dr Porteous;

2. his Honour’s tendentious cross-examination of Dr Maxwell; and

3. his Honour’s “entering the arena” in the course of the experts’ conclave resulted in the assessment of the evidence of the expert witnesses miscarrying.

37. These particulars are not very informative, expressed as they are in general and conclusionary terms. In written and in oral submissions, senior counsel for the appellant took the Court to the various passages of the transcript relied upon in support of the complaint of procedural unfairness. According to the submissions, the interventions by the primary judge were substantial and continuous and caused the trial to miscarry because the judge took over the conduct of the trial. In addition, the cross-examination of Dr Maxwell was described as adverse, at times mistaken, and liable to result in self-persuasion by the primary judge.

38. There was no dispute as to the applicable principles, which are discussed in Galea v Galea (1990) 19 NSWLR 263 at 280-282 (Kirby A-CJ, Meagher JA agreeing) and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [14]-[20] (Basten JA), and [162]-[172] (Ward JA). The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: Galea v Galea at 281.

39. It is well-recognised that different considerations apply to a judge-only trial, in contrast to a trial with a jury, and again, different considerations will apply to judicial intervention in the course of opening or final submissions, as compared to intervention in the questioning of witnesses: Galea v Galea at 281B; Royal Guardian at [14] (Basten JA), [164] (Ward JA, Emmett AJA agreeing).

40. The present case was a civil trial without a jury. The trial was in late April 2020, shortly after the Covid-19 pandemic was declared. Counsel for the plaintiff appeared, initially by telephone and later by audio visual link (AVL). Counsel for the defendant appeared by AVL. The interventions complained of primarily arose in the course of cross-examination of the medical experts. The experts gave evidence concurrently in the experts’ conclave – in the case of Dr Maxwell – by AVL – and in the case of Dr Porteous, who was in New Zealand at the time of the trial – by audio link only. It is apparent from the transcript that the quality of the audio connections was affected by feedback and other “noises” that made it difficult for the experts to hear and follow some of the questions asked. A number of the interventions by the judge were directed at clarifying the experts’ understanding of the questions asked. No valid complaint can be made as to these interventions.

41. It is convenient to address the appellant’s complaints in the order advanced in its written submissions.

(a) Dr Porteous

42. The appellant identified six occasions where the judge intervened during cross-examination of Dr Porteous.

43. The first was on the topic of whether Mr Wehbe had developed a consequential injury to his right knee by favouring his left knee. The judge intervened to clarify a confusing question framed in the present tense directed to an opinion expressed by the witness in the past tense in a causative sense. Counsel for the appellant fairly accepted at trial that the question needed to be re-framed. The intervention was justifiable.

44. Second, on the topic of whether Mr Wehbe was favouring his left knee when Dr Porteous saw him in October 2018, the judge sought clarification of the significance of Dr Porteous’ comment that he first saw Mr Wehbe a year after the incident. That clarification was unobjectionable.

45. Third, on the topic of commercial assistance for domestic care, the judge intervened when difficulties arose with the audio connection to clarify the cross-examiner’s questions after Dr Porteous had indicated that he did not understand one question and had not heard another question. As already explained, this intervention was appropriate.

46. Fourth, on the topic of the need for regular monitoring of Mr Wehbe’s pain and condition, and what would be the purpose of consulting his general practitioner two to four times a year, the judge raised the issue of Mr Wehbe’s previous adverse reaction to OxyContin and his refusal of opiods when he suffered a needle stick injury in 2012. The appellant complained that there was no evidence of this and hence the intervention was inappropriate. I do not agree. Evidence was given by Mr Wehbe that he had previously tried OxyContin and felt its effects first-hand; it made him “very disoriented”. The context and basis of the judge’s question was no doubt understood by counsel for the appellant at trial who did not object to the judge’s question. The question was not inappropriate.

47. Fifth, on the topic of the need for future treatment, the judge corrected counsel for the appellant when he framed a question to Dr Porteous about a “consultation”, rather than a “review” by an occupational therapist of Mr Wehbe’s functional capacity as the joint conclave report required. Whilst counsel for Mr Wehbe had not objected to the question as framed, and the correction was somewhat pedantic, the intervention to clarify the question did not cause the trial to miscarry.

48. Sixth, on the topic of Mr Wehbe’s work capacity, the appellant complained that the judge took over the cross-examination of Dr Porteous. I do not agree. On a fair reading of the transcript, the judge raised with counsel for the appellant and then with Dr Porteous, the distinction between the capacity to obtain a full-time job and the ability to sustain that position over a period of time. The clarification was properly raised by the judge in the context of an expert witness giving evidence in a conclave. The question was not inappropriate.

(b) Dr Maxwell

49. The essential complaint made by the appellant is that after some initial questions by counsel for Mr Wehbe, and with only minimal involvement of counsel thereafter, the judge took over and conducted the cross-examination of Dr Maxwell. Assessing the merits of this complaint requires a close consideration of the transcript.

50. The transcript records that the judge first asked Dr Maxwell questions directed to the history of the injury obtained from Mr Wehbe, whether his examination included the left hip, his review of the MRI scans, and the reference in the first MRI scan to minimal fissuring and blistering of the patellar cartilage. No objection was taken to these questions by counsel for the appellant at the trial. The questions and answers reflect a dialogue between the expert and the judge in seeking to understand the import of the experts’ report.

51. Next, following a lengthy answer by Dr Maxwell to a question by counsel for Mr Wehbe in relation to basing a diagnosis and prognosis on the patient’s history, the judge asked a series of questions of Dr Maxwell as to whether Mr Wehbe’s complaints of symptoms were either not genuine or out of proportion. Dr Maxwell responded that he based his conclusion on the objective sign of lack of muscle wasting of his left leg. The judge then asked a question about whether pain radiating up from the knee to the hip (as reported by Mr Wehbe to Dr Porteous) was extremely abnormal. Dr Maxwell responded that Mr Wehbe had not reported this complaint to him.

52. Counsel for Mr Wehbe then asked questions of Dr Maxwell concerning his examination of the X-ray and MRI scans. At the end of that passage of cross-examination, the judge sought clarification from Dr Maxwell of his use of the term “significant” in his answer that Mr Wehbe “didn’t really have any significant abnormality anyway” and the opinion in his report that Mr Wehbe did not report any history of any other causal or contributing factors.

53. The judge then put some further questions to Dr Maxwell concerning the reference in the first MRI report to some early fissuring of the articular cartilage and stated his understanding of Mr Wehbe’s case was that the injury had rendered symptomatic underlying conditions of fissuring and blistering. Counsel for the appellant objected to this question on the basis that this was not Mr Wehbe’s case. The judge disagreed and rejected the objection. That evidentiary ruling was an error. However, the complaint goes nowhere. The judge did not make any finding of the condition or pathology mentioned in his question concerning underlying conditions of fissuring and blistering, to which objection was taken. The fair inference is that the judge ultimately accepted that the appellant’s objection was well-made and disregarded the issue he had raised with Dr Maxwell.

54. The judge then asked questions of both Dr Maxwell and Dr Porteous directed to the topic of muscle wasting in Mr Wehbe’s left leg and the reported pain in his right knee.

55. Accepting that the judge was quite involved in some of the questioning of Dr Maxwell, I do not agree with the appellant’s submission that the questions put by the judge were likely to lead the reasonable observer to the conclusion that the purpose of the questions was to erode and undermine Dr Maxwell’s evidence. Dr Maxwell was an expert. His opinion conflicted with that of Dr Porteous in various respects. The judge’s questioning was fairly directed to attempting to obtain a proper understanding of the basis for the difference of opinion between the experts.

56. One final matter should be mentioned. At the conclusion of Dr Maxwell’s cross-examination in the conclave, the judge invited and permitted each expert to ask questions of the other. During that dialogue between the experts, Dr Maxwell gave an answer: “[i]t’s just patently ridiculous”, in response to Dr Porteous’ view that consequential injury can develop as a result of favouring the other limb. The appellant complains that the judge prefaced his next question to Dr Porteous: “Well, putting aside the pejorative comment, Dr Porteous, can we try and unpack this in logical terms?”. In context, the judge was seeking to direct the experts to express themselves in a manner that avoided pejorative comments. That intervention by the judge was entirely appropriate.

(c) Mr Wehbe

57. The appellant complained that the judge interrupted the cross-examination of Mr Wehbe on two occasions. The first concerned the issue of limping. The second concerned Mr Wehbe’s possible post-injury employment.

58. On the issue of limping, the appellant’s case was that the expert witnesses had not observed Mr Wehbe limping. The appellant complained that the judge intervened in the cross-examination of Mr Wehbe seeking clarification that the questions were directed to the absence of limping or having an altered gait in the presence of the expert witnesses. That clarification was appropriate given the full description by Dr Porteous of his observations of Mr Wehbe’s gait (see [15] above).

59. The appellant also complained that the judge sought clarification of Mr Wehbe’s evidence of a micro-trauma occurring four times in the presence of Dr Maxwell, when he asked Mr Wehbe whether Dr Maxwell had asked him questions about that phenomenon to which Mr Wehbe said, “No, sir, he wasn’t interested”. Again, that clarification was appropriate, given the absence of any reference in Dr Maxwell’s report to an observation that Mr Wehbe was limping.

60. On the second issue the appellant complained that the judge asked questions of Mr Wehbe concerning the meaning of “manual handling” in connection with forklift driving, to which counsel for the appellant took objection on the basis that his Honour’s question was leading. The judge rejected the objection explaining that he had asked the question in order to clarify the evidence because he considered that the cross-examiner’s question had left the issue vague and unexplained. The judge was best placed to assess the need for that clarification. The intervention was not inappropriate.

57. In my view, the complaint of procedural unfairness should be rejected.

Ground 3: Challenge to rejection of Dr Maxwell’s evidence

62. Ground 3 contends that the primary judge erred in rejecting the evidence of Dr Maxwell and substituting and acting on his own medical opinion.

63. The particulars given of this ground are that:

1. the conclusion that “[Mr Wehbe] reported experiencing pain would naturally limit the advisability of persisting with such activities”, was a medical opinion rejected by Dr Maxwell and not supported by Dr Porteous;

2. the conclusion that Dr Maxwell did not examine all relevant parts of Mr Wehbe’s lower limb, relevantly, the left hip region, was a clinical judgement and no specialist doctor found it necessary to examine Mr Wehbe’s left hip;

3. the conclusion that Dr Maxwell did not attach importance to Mr Wehbe’s reported symptoms misstated Dr Maxwell’s evidence;

4. his Honour erred in rejecting the unchallenged evidence of Dr Maxwell that he reviewed the three MRIs.

(1) Ongoing effects of the injury

64. The first matter is directed to challenging the primary judge’s findings rejecting Dr Maxwell’s criticism of Dr Porteous’ opinion that Mr Wehbe should be restricted from heavy lifting, pushing, pulling and carrying. Relevantly, the judge said at J [52]:

(7) He [Dr Maxwell] raised a query as to why Dr Porteous would suggest the plaintiff should be restricted from heavy lifting, pushing, pulling and carrying without indicating why these “normal activities would be harmful for him” as the plaintiff “is a regular weight lifter”. In my assessment, the element of analysis that was lacking in Dr Maxwell’s comment was the plaintiff’s reported experience of pain, which would naturally limit the advisability of persisting with such activities, depending upon its severity. Furthermore, insofar as the plaintiff has in the past been a weightlifter, there is an apparent difference between the process of static lifting of weights and the more dynamic processes of pushing, pulling and carrying. I considered Dr Maxwell’s comment to be superficial and unpersuasive from a logical perspective. In any event, the unchallenged evidence of the plaintiff is that he has followed Dr MacDessi’s advice to cease weightlifting because of its aggravating effect. Dr Maxwell’s comment which was expressed in the present tense, appears to lack a factual foundation;

…

(9) Dr Maxwell made the following sweeping generalised and ad hominem remark in connection with Dr Porteous’ opinion: “As is common with occupation physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery form soft tissue injuries. Resting a soft tissue injury usually makes it worse.”: Exhibit “1”, p 8. The generalised, unsupported sweeping and superficial nature of that remark fails to engage with the logical notion that symptoms of pain on activity in the face of the effects of injury may vary in specific individual circumstances. The absence of detailed engagement with the plaintiff’s specific complaints indicates that particular remark by Dr Maxwell should be given no determinative weight. The untenable implication of Dr Maxwell’s remark is that occupational physicians, including Dr Porteous, do not provide correct or appropriate advice when advising to limit pain producing activity. I give the cited remark no evidentiary credence.

65. In support of Dr Maxwell’s view that Mr Wehbe should not be deterred from undertaking physical activity, the appellant drew attention to the comments of Dr Maxwell in the joint expert report that “there is no evidence in general that increasing one’s physical activity levels can cause trauma or pathological change” and that there was no generally accepted studies that support such a causal relationship.

66. The difficulty with this complaint is two-fold. First, the appellant seeks to challenge the judge’s evaluation of the competing medical evidence on the topic of the advisability of restrictions on Mr Wehbe from heavy lifting, pushing, pulling and carrying, without identifying any particular error in the judge’s acceptance of Dr Porteous’ evidence on this topic.

67. Second, Dr Maxwell reasoned that restrictions on Mr Wehbe’s activities were unnecessary because Mr Wehbe “is a regular weight lifter”. But, as the judge noted, Dr MacDessi advised Mr Wehbe to cease weightlifting because of its aggravating effect and Mr Wehbe gave evidence that he did not continue weightlifting post-injury. The medical advice of Dr MacDessi that Mr Wehbe should refrain from continuing weightlifting also accorded, as the judge found, with common sense for a person of Mr Wehbe’s large size and weight who had suffered a knee injury.

68. The idea that Mr Wehbe could continue weightlifting post-injury was central to Dr Maxwell’s opinion that Mr Wehbe was fit to undertake tiling work and could perform his pre-injury duties. It was open to the judge to reject that evidence of Dr Maxwell.

(2) Absence of examination of left hip

69. Dr Maxwell recorded in his report that Mr Wehbe gave a history of symptoms which included:

… his left knee hurts in the front, the pain radiates all around the knee and it spreads up to the left hip.

70. The appellant complained about the judge’s questions of Dr Maxwell concerning pain radiating up to Mr Wehbe’s left hip. In answer to the judge’s question whether Dr Maxwell put to Mr Wehbe a suggestion that perhaps his complaints as recorded, of pain in the knee and the front of the knee and radiating up to the left hip, were unlikely to be present or perhaps inconsistent with the muscle condition of his left leg, Dr Maxwell responded:

No, no I didn’t but I, I must state that pain radiating up from the knee to the hip is extremely abnormal, and it’s not a normal clinical finding. Most of the – certainly pain can radiate down from the hip, but pain radiating up from the knee to the hip is most unusual and it’s, it’s certainly nothing I’ve ever experienced in my clinical history, ever in my clinical life as an orthopaedic surgeon. And I can’t explain that on a, on an anatomical pathological basis.

71. In answer to his Honour’s rhetorical question that he would have thought it “worth a look”, Dr Maxwell replied:

No, no he didn’t actually, didn’t actually complain to me of any, of sharp intermittent pains radiating up to his hip.

72. In response to the judge’s further question, “surely it is worth a look”, the following exchange occurred:

MAXWELL: Well I don’t think everybody, any of the other examiners felt that there was any abnormality and be, no, nobody else examined his hip; certainly Dr MacDessi didn’t consider it was worth examining his hip, and nor did Dr Porteous. The pain he was describing in his hip was fairly minimal compared to the symptoms in his knee.

HIS HONOUR: Is that your answer to my question?

MAXWELL: Well I – the, the history that he gave me didn’t indicate that he had had any pathology in his hips, so I would not normally examine it, and there was no history of any injury to his hip.

73. The judge found at J [68]:

Another matter that caused me to doubt the thoroughness and the adequacy of Dr Maxwell’s approach to the task of the examination of the plaintiff for the purpose of preparing his report was his acknowledged complete dismissal, without so much as a cursory examination, of the plaintiff’s left hip region: T79.12 – T79.42. This was in circumstances where the plaintiff had identified that symptom to Dr Maxwell as an area that was a source of pain shooting up from the left knee. It is difficult to see how Dr Maxwell could have reasonably dismissed such a complaint without first having examined the plaintiff’s left hip region in order to give that aspect of the plaintiff’s complaint his proper and reasoned consideration before rejecting it. He simply did not examine it.

74. The judge repeated this finding at J [56], giving this as one of the reasons for his ultimate conclusion that Dr Maxwell’s analysis was superficial and unreliable: at J [56].

75. The appellant complained that none of the treating doctors or medical experts examined Mr Wehbe’s left hip. That can be accepted. Against this, the judge’s reaction to Dr Maxwell’s rejection of the need to examine the left hip is understandable, given the complaint to him by Mr Wehbe of pain extending up to the left hip.

76. However, ultimately the significance of the pain in Mr Wehbe’s left hip and whether this should have been the subject of a clinical examination, was a matter within the province of Dr Maxwell’s expertise, and there was no expert evidence to the contrary of his opinion. The judge was required to make a determination on the evidence; the District Court is not a court of specialist jurisdiction, and the principles and practices that apply in such courts do not apply: Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 at [58] (Beazley JA, Ipp and Basten JJA agreeing). In the circumstances, the judge erred in criticising Dr Maxwell’s evidence on this ground. Nonetheless, the error was immaterial. The judge gave other reasons for rejecting Dr Maxwell’s evidence.

(3) Mr Wehbe’s reported pain symptoms

77. The judge found at J [53] that Dr Maxwell had excluded from his consideration Mr Wehbe’s complaints of pain, which suggests that the effects of the injury had resolved.

78. The judge further found at J [61]:

In expressing that dismissive view, Dr Maxwell appears to have overlooked or has placed little if any weight on Dr MacDessi’s contemporaneous clinical diagnosis of tendinopathy. Dr Maxwell has in effect taken the stance of dismissing the significance of the plaintiff’s reported symptoms.

79. The judge continued at J [62] finding that a fundamental obstacle that precluded acceptance of Dr Maxwell’s opinions was that, whilst he noted Mr Wehbe’s complaints of pain and discomfort, he has not considered them to be a relevant and integral factor in determining his diagnosis.

80. In challenging these findings, the appellant submitted that Dr Maxwell did not fail to consider Mr Wehbe’s subjective complaints of pain and discomfort, and these were assessed by Dr Maxwell, together with a review of the investigative material.

81. Dr Maxwell was of the view that objective indicators were determinative of whether Mr Wehbe had an ongoing injury, giving the following evidence:

… the main objective finding was the lack of muscle wasting of his left leg which indicates that it’s a very, very pertinent objective sign, because if you’ve got muscle wasting it means you’ve got a painful leg and you’re limping on it. And so we find that’s the best objective sign that somebody’s not using their leg normally.

82. In answer to the judge’s question as to the basis for excluding any ongoing effects of this injury, Dr Maxwell responded:

Well we know that the later MRI scans show no evidence of objective pathology to, to cause his symptoms. We know that for a fact. We know that he’s got no muscle wasting in his left leg which would explain, which would indicate that he’s using his left leg normally. We know he’s experiencing symptoms because he tells us he is. But symptoms are extremely variable and can be affected by many, many other factors. … But we see people with symptoms out of proportion to the underlying pathology all the time and that’s just part of the art of being a doctor. …

83. In answer to the judge’s further question that there was no challenge in Dr Maxwell’s report to Mr Wehbe’s “motivation”, Dr Maxwell responded:

No I’m not, I’m not and these are subtle and subconscious things quite often. I, basically I looked at him objectively to try and find some evidence of an objective pathological process and, and had great difficulty finding one in either knee. I note that he said he had problems with his right knee. There is absolutely no evidence that you can injure your right knee by not using your left and there’s no objective evidence that he wasn’t using his left knee anyway, even if that is the case, but this idea that you can somehow injure a part of your body by over-using it, is completely fallacious. It’s got no basis in scientific fact.

84. Contrary to the appellant’s submission, the judge did not misstate Dr Maxwell’s evidence. The judge correctly found that whilst Dr Maxwell noted Mr Wehbe’s complaints of pain and discomfort, he did not consider them to be a relevant and integral factor in determining his diagnosis. That was a fair statement of the effect of Dr Maxwell’s evidence. The judge was not bound to accept that evidence. After evaluating the competing medical evidence, the judge preferred the evidence of Dr Porteous. That finding was open on the evidence.

(4) Whether Dr Maxwell reviewed the three MRI scans

85. The judge observed that confusion arose in Dr Maxwell’s evidence as to what imaging evidence had been provided to him, and when this occurred: at J [72]. In this context, the appellant challenged the judge’s remarks at J [74], that:

… without Dr Maxwell having examined the plaintiff’s actual MRI scans himself, it is difficult to see how he could have been in a reasonable position to contradict the aptness of the unchallenged radiological opinion that there was fissuring and blistering of the patellar cartilage of the plaintiff’s left knee, seen on specialist examination of the films, whether such findings were minimal, early, or otherwise.

86. The appellant also challenged the judge’s finding that “[t]here is no satisfactory evidence upon which to conclude Dr Maxwell’s comment [in the joint conclave report, referring to “the latest MRI scan”] was based on an actual viewing of the actual MRI scan images as distinct from just commenting on a report of that scan”: at J [77].

87. Although having doubts that Dr Maxwell had viewed the actual scans rather than only read a report, the judge ultimately proceeded upon the basis of assessing Dr Maxwell’s evidence “at its highest”, that is, accepting that he actually viewed the three separate MRI scans, stating at J [78]:

In his oral evidence Dr Maxwell made reference to the three MRI scans and stated that “none of them showed any significant pathology”. He said he viewed the MRI’s (sic). It is not apparent as to when or how this occurred as there was no index of annexed documents or materials annexed to the joint expert report. Reading Dr Maxwell’s comments at their highest, that is accepting that he actually viewed the three separate sets of MRI scans, I consider that his commentary should not be given any determinative weight because of the following matters arising from his evidence:

…

88. Given the approach of the judge recorded at J [78], the appellant’s complaint goes nowhere.

89. None of the complaints in ground 3 have been established.

Ground 2: whether compensatory injury to right knee

90. The question of whether Mr Wehbe had sustained a “compensatory” injury to his right knee as a consequence of favouring his left knee was a major issue at trial. Ground 2 contended that the primary judge erred in concluding that Mr Wehbe sustained injury and disability to his right knee and awarded damages accordingly.

91. This ground challenged the judge’s findings at J [84]-[85] and [91], which it is convenient to reproduce in full:

[84] The plaintiff continues to experience constant pain and discomfort in his left knee. It affects his gait and mobility. He experiences knee discomfort after walking about 10m. His ability to run is now limited: Exhibit “1”, p 4. His gait becomes altered as a result in that he favours his left knee. The pain worsens on activities such as weight bearing, prolonged walking and when climbing and descending stairs. He wears knee braces on his knees for support and assistance in managing his knee problems. He experiences painful sensations, which he calls “micro-traumas” on activities such as getting up out of a chair. He finds he must wear a knee brace during the day.

[85] In early 2019, the plaintiff found that as a result of favouring his left knee and his altered gait, he experienced the onset of right knee pain which has since continued most of the time. He also uses a knee brace on that knee as well.

…

[91] … His prognosis is guarded due to both his left and right knee conditions.

92. In support of this ground the appellant advanced essentially three submissions:

1. there was no dispute between the medical experts that there was no muscle wasting of Mr Wehbe’s left leg;

2. the loss of muscle in the right knee on examination by Dr Porteous in January 2020 indicated Mr Wehbe was favouring his right leg, not his left leg; and

3. neither expert recorded observing Mr Wehbe limping.

93. The first submission concerning the evidence of muscle loss does not accurately reflect the medical evidence. It is of assistance to summarise the respective observations by the experts on examination of Mr Wehbe’s left and right legs:

• Dr Porteous:    left knee 57.5cm (Oct 2018), 55.5cm (Jan 2020)

right knee 58cm (Oct 2018), 52.5cm (Jan 2020)

left calf 46cm (Oct 2018), 44.5cm (Jan 2020)

right calf 46cm (Oct 2018), 44cm (Jan 2020)

• Dr Maxwell:   left knee    55.5cm (Sept 2019)

right knee    55.5cm (Sept 2019)

left calf    43.5cm (Sept 2019)

right calf   43.5cm (Sept 2019)

94. Dr Maxwell’s opinion that there was no muscle loss was based on a single examination in September 2019. Against this, Dr Porteous observed muscle loss in the left leg over the 16 month period of his two reports, and noted that the loss of muscle over time was consistent with Mr Wehbe’s history that “with favouring the left knee he had onset of right knee pain in early 2019”. It was open to the judge to accept that history, as recorded by Dr Porteous, which was corroborated by Mr Wehbe’s evidence: at J [85].

95. Faced with the competing evidence in relation to muscle loss, the judge correctly observed that Dr Porteous’ conclusion that there was muscle loss in Mr Wehbe’s left leg, was based on his unchallenged observations to that effect which he made in his second report in January 2020, and Dr Maxwell was not in a position to contradict that clinical observation: see [30(8)] above.

96. The appellant’s second submission that the muscle loss in Mr Wehbe’s right leg is inconsistent with him favouring his left leg, ignores the history of muscle loss in both legs. In October 2018, Dr Porteous noted some muscle difference in the left knee compared to the right knee. In January 2020, Dr Porteous noted muscle loss in the left leg, and also muscle loss in the right leg of more recent origin, having regard to the reported pain in Mr Wehbe’s right knee in early 2019.

97. The difficulty with Dr Maxwell’s view that the muscle wasting of Mr Wehbe’s right thigh was not related to the accident in 2017, is that there was supporting evidence from Mr Wehbe of pain developing in his right knee in early 2019 as a consequence of favouring his left leg. There is no challenge to the judge’s factual finding accepting that evidence. Whilst Dr Maxwell disagreed with Dr Porteous that Mr Wehbe could have developed a compensatory injury in his right knee, it was open to the judge to accept the contrary medical opinion of Dr Porteous.

98. As to the third submission, the appellant is correct that whilst Mr Wehbe gave evidence that he limped when he saw Dr Maxwell and Dr Porteous, neither expert recorded that he observed him limping. However, as already mentioned, Dr Porteous recorded in October 2018 that Mr Wehbe “had sharp pain as he moved from sitting to standing and grimaced” and in January 2020 that when he got up “he was hesitant again initially, with a reported increase in pain”. Those observations are generally consistent with Mr Wehbe’s evidence.

99. Ground 2 has not been made out.

Ground 4: damages for commercial domestic assistance

100. Ground 4 contends that the primary judge erred in allowing an amount of $22,657 for commercial domestic assistance.

101. This claim rested primarily upon the evidence of Dr Porteous who expressed the opinion that Mr Wehbe could not do some domestic work without aggravating his conditions, including some of the low cleaning, some of the vacuuming and mopping, some of the spring cleaning, such as washing the windows, carrying some of the heavy shopping, moving heavy furniture, and he is restricted, if he ever had to do it, from some outdoor home maintenance, including most of the gardening and from mowing the lawns. Dr Porteous estimated that Mr Wehbe would reasonably require 2 hours per week of professional domestic and homecare support.

100. In addition, Mr Wehbe gave evidence that the accident had significantly changed the maintenance he was doing around his parents’ house and the granny flat in terms of tidying up, cleaning, and gardening. He said he had a problem with “[a]nything that’s low, anything that involves squatting or crouching, carrying anything heavy or mowing the lawn”. He said that he previously spent an hour and a half to two hours every fortnight on the lawn mowing, weeding and blowing and his brothers now did that maintenance. He gave unchallenged evidence that if he had the money he would pay for assistance to take pressure off his brothers.

101. No claim was made for gratuitous domestic assistance under s 141B of the Motor Accidents Compensation Act 1999 (NSW) (made applicable to this accident by the Transport Administration Act 1998 (NSW), s 121) because the level of assistance claimed at 2 hours per week would not have qualified Mr Wehbe for an award for gratuitous services under s 141B.

102. The primary judge’s consideration of the claim for commercial domestic assistance was relatively brief. He accepted Dr Porteous’ assessment that Mr Wehbe “would need domestic assistance for the heavier aspects of home maintenance on an intermittent basis” (J [93]-[94] and [120]), but discounted Dr Porteous’ estimate of 2 hours per week (based on approximately 20 minutes per day), to 1 hour per week. He allowed an amount for future commercial assistance for only 20 years, not Mr Wehbe’s statistical life span of 50 years, discounted by 15 per cent for the impact of possible adverse vicissitudes. The primary judge gave the following reasons at J [125]:

… [this] component requires discounting to reflect the fact that [Mr Wehbe] is for now, in his present accommodation, self-sufficient in respect of many domestic tasks as he conceded in cross-examination. He will only need assistance for the heavier tasks on an intermittent basis. Those tasks include garden maintenance, moving furniture, carrying heavy items and occasional cleaning of awkward to reach spaces that would require him to weight bear awkwardly. In my view, an allowance the equivalent of 1 hour per week at the acknowledged rate of $40 per hour projected over 20 years (x 666.4) and discounted by 15 per cent for the impact of possible adverse vicissitudes represents fair compensation for this head of damage.

105. Whilst the primary judge did not clearly state what standard he was applying to the finding concerning the future possibility that Mr Whebe will obtain domestic assistance on a commercial basis, it seems that he was applying the balance of probabilities, rather than an exercise in prediction, in accordance with the principles established in Malec v JC Hutton PtyLtd (1990) 169 CLR 638 at 643; [1990] HCA 20. Insofar as his Honour allowed a discount for contingencies or “vicissitudes”, no complaint is made by Mr Wehbe that this approach was less favourable than the Malec approach.

106. As the correct approach to the standard of proof was not argued in this Court it does not require resolution. It is sufficient to note that there is a body of authority for the view that the approach in Malec should be accepted: see Gordon v Truong [2014] NSWCA 97 at [26] (Basten JA), cf Simpson JA at [133]-[134], Macfarlan JA agreeing at [51]; White v Benjamin [2015] NSWCA 75 at [85]-[89] (Basten JA, Meagher JA agreeing); Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95 at [81] (Basten JA, McColl and Macfarlan JJA agreeing); Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [101] (Basten JA, Meagher JA and Adamson J agreeing); Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [49] (Basten JA).

107. The appellant’s submission that Dr Porteous’ evidence was unsatisfactory rested on the proposition that he had not undertaken a physical examination of the granny flat or obtained a sufficiently detailed description of the granny flat before expressing his opinion. In my view, that criticism is sufficiently answered by Dr Porteous’ evidence that whilst Mr Wehbe had not given him a detailed description of the granny flat, he assumed it “to be a small granny flat”, explaining “… but they you know granny flats, it’s usually a small building as the judge referred to, it still does have floors and walls and facilities”. It was not suggested by the appellant at trial that this assumption was unreasonable.

108. The primary judge made no express finding as to the likelihood or otherwise of the need being provided on a commercial basis. As Basten JA remarked in Australia and New Zealand Banking Group Ltd v Haq at [47], this question needs to be addressed in circumstances where domestic assistance had been provided gratuitously by family members up to the date of trial. Here, gratuitous domestic assistance, limited to lawn mowing and related maintenance, had been provided by Mr Wehbe’s brothers. The appellant submitted that there was no evidence that Mr Wehbe would not continue to receive such gratuitous care if he required any domestic assistance.

109. In Miller v Galderisi [2009] NSWCA 353, the Court (Allsop P, Basten and Macfarlan JJA) said at [24]:

In awarding damages for loss of earning capacity, allowance is routinely made for contingencies or vicissitudes which may, absent the tortious injury, have caused loss in any event. Conventionally, a figure of 15% is allowed for such contingencies: see State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [31]-[33] (Mason P) and the authorities referred to, including Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497-498 (Dawson, Toohey, Gaudron and Gummow JJ). There is no conventional allowance for the provision of domestic assistance on a commercial basis at some future point in time, against the possibility that the gratuitous carer may no longer be able or willing to provide such care. If any such convention were to be adopted, it would, as with vicissitudes, require the plaintiff’s particular circumstances to be taken into account. The respondent’s circumstances in this case militate against any such allowance. Accordingly, it is not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future.”

110. Whilst his Honour did not say at what point commercial assistance would likely eventuate with respect to the home maintenance provided by the brothers, the unstated assumption of fact by his Honour in making the award was that the gratuitous assistance provided to Mr Wehbe by his brothers would not continue to be provided, as it had been in the past. Mr Wehbe gave unchallenged evidence that a commercial service would take pressure off his brothers who also worked on weekends. An inference can be drawn that the brothers would cease to provide gratuitous home maintenance, if funds were available, in favour of a commercial service.

111. I am not persuaded that there is any basis to interfere with this award. Ground 4 should be rejected.

Conclusion and Orders

112. The appeal has failed and there is no reason why the costs of the appeal should not follow the event: UCPR, r 42.1.

113. I propose the following orders:

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs of the appeal.

114. LEEMING JA: The background to this appeal is contained in the reasons of Gleeson JA, which I have had the advantage of reading in draft, and which I shall not repeat. They enable me to proceed directly to the dispositive issue.

115. The first ground of appeal is that the appellant was “denied procedural fairness and the trial miscarried”. The notice of appeal provided three particulars:

1. “His Honour’s frequent intervention during the cross-examination of Dr Porteous”;

2. “His Honour’s tendentious cross-examination of Dr Maxwell”, and

3. “His Honour’s ‘entering the arena’ in the course of the adducing of evidence resulted in the assessment of the evidence of the expert witnesses miscarrying”.

116. If this ground is made out, there will not have been a trial in accordance with law, and a retrial will be necessary. It follows that this ground should be addressed first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51].

117. The parties agreed that the relevant principles were sufficiently stated in Galea v Galea (1990) 19 NSWLR 263 and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128. Even so, both parties’ written submissions, and the appellant’s oral submissions, reflecting the earlier authorities and indeed the terms of the notice of appeal, invoked the metaphor of the primary judge “entering the arena”. I respectfully agree with Basten JA’s observation in Nguyen at [16] that this wartime metaphor deriving from Yuill v Yuill [1945] P 15 at 20 of an “arena” in which the judge’s vision is “clouded by the dust of the conflict” is unhelpful and should be abandoned.

118. Many judgments in this area have stated that one difficulty with judicial cross-examination is that it detracts from the capacity of the judge to assess the demeanour of the witness. While views may differ as to the ability of judges to resolve conflicting evidence by reference to the appearance of the witness while giving evidence, it was of diminished significance in this trial, where one expert gave evidence by telephone. But that does not detract from the institutional values involved when judicial intervention is excessive. This was the point made by Basten JA, with whom the other members of the Court agreed at [255] and [298]), in Nguyen at [16]-[18]:

“16.    Yet there will be circumstances when appellate intervention is not only justifiable, but necessary. Quite apart from doubts as to the capacity of the judge to assess demeanour in such circumstances, there are important institutional characteristics at stake, as helpfully identified by Lord Brown in Michel v The Queen. In such a case, as Lord Brown explained by reference to the position of the appellant:

‘He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ... The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.[’]

17.    Lord Brown continued, referring to the judge’s role:

‘Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.’

18.    These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court.”

119. The last paragraph of that passage was also cited with evident approval in Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243 at [54].

120. This is not to say that judges need or should remain inscrutably silent throughout a trial. As the joint judgment said in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [13]:

“Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

121. Even so, there is an important difference between judicial interventions during submissions, and judicial interventions when evidence is being adduced. This was emphasised in the recent review of authority in Serafin v Malkiewicz [2020] UKSC 23; [2020] 4 All ER 711 at [40]-[43]. Lord Wilson writing for the Court endorsed Denning LJ’s statement in Jones v National Coal Board [1957] 2 QB 55 at 65 that “interventions should be as infrequent as possible when the witness is under cross-examination”, Jonathan Parker LJ’s statement in Southwark London BC v Kofi-Adu [2006] EWCA Civ 281 at [145]-[146] that interventions during oral evidence continued to give rise to the risk of rendering the trial unfair, and Lord Brown’s observation in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [31] (also endorsed by Basten JA in Nguyen), that:

“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.”

The limitations of the record

122. Ultimately, an appellate court, faced with the claim that a trial has miscarried because of the interventions of the judge, must make an evaluative judgment, based on an assessment of the record as a whole and the findings and reasoning of the judge: Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461; [2019] FCAFC 113 at [104]. In doing so, it is as well to be conscious of the deficiencies in the record, including the following.

1. Transcript is commonly imperfect evidence even of the words said.

2. Very often words are omitted, and occasionally words are also mistranscribed.

3. Transcript is very imperfect when two people are speaking at once, which is often the case in cross-examination, and especially with an AVL hearing. One speaker may, deliberately, or inadvertently, cut the other off. Whether or not that is so may or may not be clear on the face of the transcript.

4. Transcript hardly ever discloses the tone of what was said – whether it is aggressive, or supercilious, or condescending, or belittling, or perfectly polite. Indeed, whether or not spoken words are a question or a challenging proposition often depends on tone.

5. Transcript hardly ever discloses pauses, which can be highly significant in evaluating testimony.

123. All of those limitations are trite, and inform the presentation and resolution of any appeal or review where oral evidence is given. They are especially apt, however, when the ground of appeal is that what has been said in court by the judge has so far departed from his or her proper role that there must be a retrial. In such cases, the tone of the judicial cross-examination is very important. This can be difficult to assess. No application was made for this Court to listen to the audio recording (if one was available) of the judicial cross-examination; cf Adacot & Sowle [2020] FamCAFC 215 at [14].

124. In the present case, the difficulties were exacerbated by the fact that the two experts, Drs Porteous and Maxwell, gave evidence concurrently, but neither was in court. Dr Porteous was in New Zealand on a telephone line. Dr Maxwell appeared by AVL. Counsel for the plaintiff appeared, initially by telephone, later by AVL. Counsel for the defendant appeared by AVL. It was late April 2020, relatively shortly after the COVID-19 pandemic was declared, and it is apparent from the transcript, reinforced by my own experience, that the technology was imperfect and those using it were inexperienced in its operation. None of that is intended by way of criticism; to the contrary, the judge, counsel, litigants and witnesses give every impression of constructively seeking to have their case heard and determined in quite trying circumstances.

125. All of those considerations favour a cautious approach before acceding to this ground of appeal. Nonetheless, I have concluded that it is made out.

The expert evidence given at trial

126. Liability had been admitted, but the parties were worlds apart, as was confirmed by the parties’ brief openings. Mr Wehbe’s case was that the injury had caused him to become unable to continue to work as a tiler. He accepted that there could be no claim for non-economic loss. The defendant maintained that the injury to the left knee resolved within a period of four to six weeks, and that was the extent of the plaintiff’s damage.

127. The narrowness of this ground of appeal leads me to turn directly to the expert reports. Two diametrically opposed reports had been exchanged. Dr Porteous said that Mr Wehbe was unable to work in his trade, and remained off work with a “very guarded” prognosis. Dr Maxwell considered there was no underlying pathology to explain Mr Wehbe’s symptoms, and that it was “probable that he is malingering”. There were a number of unusual features of the plaintiff’s condition, notably the complaint that he suffered pain in his right knee, although the injury giving rise to the action was limited to his left knee.

128. The experts were not evenly matched in discipline or experience. Dr Maxwell was an orthopaedic surgeon. Dr Porteous was an occupational physician. The impression gained from reading their reports and evidence (neither expert’s report attached a curriculum vitae or professional experience) is that Dr Maxwell drew upon his experience as a surgeon, which Dr Porteous seems to have lacked.

129. Drs Porteous and Maxwell were affirmed and sworn at transcript page 59 at 10.27am. Their evidence concluded at transcript page 91 at midday. In circumstances where the experts were diametrically opposed, there seems to have been no attempt to deal with a list of issues or areas of agreement and disagreement. Rather, the primary judge announced that the procedure that would be followed was that Dr Porteous (called by the plaintiff) was to be cross-examined and re-examined, then Dr Maxwell was to be cross-examined and re-examined, with a right on the part of both witnesses to ask questions of each other subject to leave at the conclusion.

130. The cross-examination of Dr Porteous occupied transcript pages 59-73. It was mostly conducted by the defendant’s counsel. There were minor interventions by the trial judge, none of which whether considered in isolation or cumulatively could give rise to any concern. I agree with what Gleeson JA has said in more detail about this half of the expert conclave. The first particular of this ground of appeal is not made out.

131. The cross-examination of Dr Maxwell occupied transcript pages 74-88. It was followed by an exchange between two doctors occupying some two pages of transcript.

132. The appellant’s ultimate submission was as follows:

“The interventions were substantial in number and content. They occurred throughout the evidence of the expert witnesses. They raised, often for the first time, critical issues. They cannot be described as mere clarification of unclear or ambiguous points in the evidence. In relation to Dr Maxwell, the cross examination was adverse, at times mistaken, and liable to result in self persuasion. ...

[T]he sheer bulk of the introduction of material from the primary judge of itself indicates that his Honour was entering into the arena and conducting what was, in effect, the respondent's case in answer to the evidence of Dr Maxwell.”

175. Lord Parker CJ went on to identify three types of intervention that give rise to a quashing of a conviction:

1. those that invite the jury to disbelieve the evidence for the defence;

2. those that make it really impossible for counsel for the defence to do his or her duty in properly presenting the defence;

3. those that have the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.

   176. The Board held that, if the inquiry were limited to those considerations, it might be “disinclined to dissent from the Court of Appeal’s conclusions”. However, it considered that the inquiry was not limited to whether the conviction was safe, but that there was “a wider principle in play”. That they expressed as:

   “Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the appeal court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor.”

   177. In R v T, WA (also arising out of a criminal trial but before a judge alone) Kourakis CJ at [38] stated three grounds on which a judge’s intervention might vitiate a conviction:

   “(1)   the questioning unfairly undermines the proper presentation of a party’s case (the disruption ground);

   (2)   the questioning gives an appearance of bias (the bias ground); and

   (3)   the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge’s advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground).”

   178. The second of these is clearly directed to the apprehension of bias ground; the first and third are directed to the procedural unfairness ground. The first parallels Lord Parker’s second category (see [175] above).

   179. The application of these principles is rarely easy. Indeed, frequently judgments contain qualifications to the principle as stated. For example, in Yuill (in a passage that appears in the All England Report, but is not to be found in the Probate Report) Lord Greene said:

   “…the part which a judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. … It is quite plain to me that the judge was endeavouring to ascertain the truth in the manner which at the moment seemed to him most convenient. But he must, I think, have lost sight of the inconveniences which are apt to flow from an undue participation by the judge in the examination of witnesses. It is, of course, always proper for a judge – and it is his duty – to put questions with a view to elucidating an obscure answer or when he thinks the witness has misunderstood a question put to him by counsel. If there are matters which the judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course, take steps to see that the deficiency is made good. It is, I think, generally more convenient to do this when counsel has finished his questions or is passing to a new subject. It must always be borne in mind that the judge does not know what is in counsel’s brief and has not the same facilities as counsel for an effective examination-in-chief or cross-examination. In cross-examination, for instance, experienced counsel will see just as clearly as the judge that, for example, a particular question will be a crucial one. But it is for counsel to decide at what stage he will put the question, and the whole strength of the cross-examination may be destroyed if the judge, in his desire to get to what seems to him be the crucial point, himself intervenes and prematurely puts the question himself…” (italics added)

   180. In Jones Denning LJ said at [63]:

   “…In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’. His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage that ‘truth is best discovered by powerful statements on both sides of the question’? … and Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations?” (italics added)

   181. His Lordship then referred to the passage from Yuill extracted above (see [169] above). In Michel Lord Brown said at [33]:

   “None of this, of course, is to say that judges presiding over criminal trials by jury cannot attempt to assist the jury to arrive at the truth. On the contrary, they should. That is part of their task. Judges exist to see that justice is done and justice requires that the guilty be convicted as well as that the innocent go free. But for the most part they must do so, not by questioning of the witnesses but rather by way of a carefully crafted summing up…” (italics added)

   182. Lord Brown then referred to a passage from R v Nelson [1997] Crim LR 234, in which the Court of Appeal had made a somewhat robust defence of the right of a judge (even in a criminal trial) to participate in the elucidation of the truth. In that context, he went on to say at [34]:

   “…Of course he [the trial judge] can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given…”

   183. Although the same principles apply whether the jurisdiction being exercised is civil or criminal (see Michel at [31]), an important consideration is whether the trial is before a jury or before a judge alone; in the latter case more latitude may be allowed (see Galea, guideline 6, at [171] above). Some of the statements above may need to be adapted to the circumstances of a non-jury trial. Also not to be overlooked and, in my opinion, of considerable importance in the present determination, is the context in which the principles have been stated, and the significant changes in the way evidence, in a modern civil trial, is adduced. Commonly, evidence is given in the form of statements that have been exchanged, before trial, so that the factual context is identified. In this case, it does not appear that the lay evidence (including that of the respondent) was exchanged before trial, but the expert evidence was. Pre-trial exchange of evidence means that a trial judge may be in a position to intervene, without unfairness, to raise issues that have occurred to him or her. Far from signifying unfairness, such intervention gives the opportunity to witnesses, or to counsel, to answer the questions that have arisen: see Johnson v Johnson at [13].

   184. It is apparent from Yuill, Michel and R v T that the questioning by the trial judges in those cases was:

4. of lay witnesses

5. giving factual evidence orally.

   185. By contrast, the witnesses in question in the present case were experts who had reduced their primary evidence to reports that had been made available to the primary judge. They had the opportunity of meeting in conclave, of exchanging views, and of responding to the views of each other. A report of their competing opinions was before the primary judge. That is an important distinction. There was no interruption, by reason of the primary judge’s interventions, of the flow of evidence in chief, and no interference with the capacity of the witnesses to explain their respective positions. No question of the assessment of the demeanour, or the credibility, of either witness could be said to have arisen. That renders observations such as those of Lord Greene in Yuill, in the first passage extracted at [169] above, of diminished significance.

   186. It is then necessary to turn to the application of these principles to the interventions by the primary judge in this case. In the usual case, the assessment of the impact of the judicial questioning will be able to be discerned from the transcript, without recourse to the judgment, although I acknowledge that the ultimate findings and conclusions of the trial judge may be useful in confirming (or otherwise) that, for example, the interventions evidence a mind closed to further persuasion.

Background facts

187. The respondent, who was then aged 32 and worked as a tiler, was injured on 13 September 2017 when the ferry on which he was a passenger collided with a wharf at Manly. His left knee struck the seat in front of him. To this point there was no dispute. Nor was there any dispute that the collision was caused by the negligence of the appellant’s employees, or that the respondent was entitled to damages to compensate him for the economic loss he suffered (he was not entitled to any damages for non-economic loss).

188. The dispute arose subsequently and concerned, essentially, the extent of the respondent’s injuries. In a nutshell, the dispute that emerged concerned:

• whether pain the respondent asserted that radiated around his left knee and up into his left hip was caused by the injury suffered in the ferry accident;

• whether pain the respondent asserted that he suffered in his right knee (which was not directly involved in the collision) was caused by the injury suffered in the ferry accident.

189. Lurking in the background was a question of the respondent’s credibility in relation to his complaints of pain.

190. The respondent was examined and treated by an orthopaedic surgeon, Dr Samuel MacDessi, on a number of occasions beginning in October 2017. Dr MacDessi’s reports were relied on in the trial by the appellant. Dr MacDessi was not called to give evidence.

191. The respondent was assessed for medico-legal purposes by Dr Andrew Porteous on 4 October 2018 and again on 14 January 2020. Dr Porteous is an occupational physician. In his first report Dr Porteous noted some reduction in flexion of the left knee compared with the right. He diagnosed left knee “patellofemoral syndrome”. He considered that the respondent was restricted in certain activities, notably kneeling and crouching, heavy lifting, pushing, pulling and carrying, and frequent or constant walking up and down steps or ladders and slopes. These restrictions had implications for the respondent’s work capacity.

192. The respondent was then assessed for medico-legal purposes on behalf of the appellant by Dr David Maxwell in September 2019. Dr Maxwell is described on his stationery as an “orthopaedic and spinal surgeon” and “medico-legal consultant”.

193. Dr Maxwell had available to him a variety of reports, including Dr Porteous’ report of October 2018, and radiological investigations. He was forthright in expressing his opinion. He recorded complaints by the respondent of pain radiating around the left knee and spreading up to the left hip, and of recent (commencing in early 2019) pain in the right knee. Dr Maxwell commented extensively on Dr Porteous’ report. He expressed his disagreement with virtually every specific conclusion and observation made by Dr Porteous. Specifically, where Dr Porteous recorded slight crepitus (crackling or grating) in the left knee, Dr Maxwell found none; where Dr Porteous diagnosed left knee patellofemoral syndrome, Dr Maxwell disagreed, saying that patellofemoral pain is almost always accompanied by wasting of the quadriceps muscle, a sign that was absent in the respondent; where Dr Porteous suggested as “plausible” that the respondent had an unstable patella, Dr Maxwell found no signs and no history of such instability; where Dr Porteous suggested restriction from heavy lifting, pushing, pulling and carrying, Dr Maxwell queried why these “normal activities” should be harmful for the respondent; where Dr Porteous considered that the respondent was incapacitated for his previous occupation of tiling, Dr Maxwell was “sure” that he could go back to his work as a tiler and considered that that incapacity would “seem remarkable” following the nature of the injury.

194. Dr Maxwell concluded his commentary on Dr Porteous’ report with the following:

“As is common with occupational physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery from soft tissue injuries. Resting a soft tissue injury usually makes it worse.”

195. Dr Maxwell found the respondent’s left knee to be essentially normal. He discounted the respondent’s complaints of pain in the right knee simply by saying that there was no evidence that using one knee more than the other could cause any pathology. He diagnosed soft tissue contusions to the left knee which:

“…based on objective evidence have now resolved.”

196. He considered that there was no underlying pathology to explain the respondent’s symptoms. In answer to a specific question he said that it was probable that the respondent was malingering. In response to a question about Dr Porteous’ opinion of the respondent’s reduced work capacity and restrictions on his activities, Dr Maxwell said:

“I consider given the objective evidence with no muscle wasting of his right knee, no effusion, no synovial hypertrophy and no evidence of any continuing inflammation in the knee that Dr Porteous’ recommendations on Mr Wehbe’s reduced work capacity and restrictions are illogical.”

197. Dr Porteous assessed the respondent again on 14 January 2020. He also noted the respondent’s complaints of right knee pain commencing in early 2019 (that is, post-dating his prior examination). He recorded a reduction of the right thigh circumference, this reduction being greater than the left. He diagnosed left knee chronic soft tissue injury and restated his opinion that there was clinical evidence of patellofemoral syndrome. He considered that the respondent had developed a consequential right knee soft tissue injury from favouring the left knee and carrying most of his weight (which was substantial) through the right knee when limping on the left. He restated his opinion of the respondent’s work capacity, which he said was compounded by the consequential right knee injury resulting from favouring the left knee.

198. Drs Porteous and Maxwell met in conclave on 15 April 2020. A report of their discussion records adherence by each to his previously stated opinions, with detailed explanations.

199. Dr Maxwell based his opinions on objective signs, particularly the absence of any muscle wasting of the left calf, which he said indicated that the respondent was using the left leg normally; he observed that the respondent walked without a limp.

200. Dr Porteous maintained that the respondent had developed patellofemoral syndrome, which Dr Maxwell defined as “pain arising from the patellofemoral articulation … due to disuse”. Dr Maxwell restated his opinion that the absence of muscle wasting contra-indicated that diagnosis. He also referred to radiological evidence which, he said, showed no significant abnormality. With respect to the right knee, Dr Maxwell said that there was no objective evidence that the respondent was not using the left knee normally. He added that, even if he was, there is no evidence that using one leg more than the other causes pathology.

201. Dr Maxwell cast doubt on Dr Porteous’ January 2020 finding of muscle wasting, which he said had not been apparent on his examination in September 2019. He expressed the opinion that:

“Any recent loss of right thigh muscle bulk is not related to the incident on 13/9/2017.”

202. It is worth observing at this point that a glance at the conclave report shows that, while both doctors expressed their opinions in answer to specific questions, Dr Maxwell did so at significantly greater length and in significantly greater detail than did Dr Porteous.

203. Attached to the conclave report was an article (to which Leeming JA has referred at [153]) produced by Dr Maxwell, dealing with medical causation. The theme of the article emerges from the first paragraph:

“Causation analysis should always be based on current scientific evidence and the facts of a specific case. However, certain beliefs have evolved that lack scientific basis. One unsupportable myth is that favouring 1 lower extremity will often result in injury or illness of the opposite lower limb.”

204. The authors of the article proceed to explain why the “myth” is unsupportable.

205. I have gone into this background material at what may seem to be inordinate length because it throws light, in my opinion, on what happened next. That was the oral hearing, which took place in the less than ideal circumstances described by Leeming JA. The respondent gave evidence and was cross-examined, followed by Drs Porteous and Maxwell giving concurrent evidence (in fact, although those witnesses were available at the same time, they were in different locations, and their evidence was given consecutively and not concurrently). It was in the course of that procedure that the primary judge’s questioning giving rise to Ground 1 of the appeal took place.

206. Liability having been admitted, the sole issue for determination was the quantum of damages to which the respondent was entitled. That, in turn, depended essentially on two things: the reliability and credibility of the respondent in his complaints of symptoms; and the starkly different medical opinions as to both the existence and cause of those symptoms, and objective signs relevant to the symptoms.

207. At the time the medical experts gave oral evidence, the respondent’s evidence was completed. At an early stage in the judgment, the primary judge stated his acceptance of the respondent’s evidence as credible and reliable. Although at the time the experts gave their evidence he had not expressly made that finding, it may be assumed that he had at least formed a tentative view to that effect. That meant that the question of damages depended heavily on the medical evidence. That had three components – objective signs and symptoms, diagnosis and causation. On these issues, the primary judge was confronted with two diametrically opposed medical opinions, of which he had to choose one.

208. It is of some importance to note that it is apparent from the transcript that the primary judge had not only had access to all of the material outlined above, but that he had familiarised himself with it and digested it with some care. The competing positions of the two expert witnesses were manifest in the documentary evidence. Each had had, and had availed himself of, ample opportunity to express his opinions. Dr Maxwell in particular had done so with some force (and with some expressed disrespect for the opposing view). There could be no question of any inhibition of either witness in giving his evidence.

209. It is also apparent that the primary judge was more troubled by the stance adopted by Dr Maxwell than he was by the stance adopted by Dr Porteous – that is, Dr Maxwell’s position called for more examination and explanation than did that of Dr Porteous. The primary judge nevertheless intervened at times in the cross-examination of Dr Porteous in order to clarify some questions, or some aspects of his evidence.

210. Although in Ground 1 complaint is made of the interventions by the primary judge in the cross-examination of both doctors, the thrust of the argument was directed to the extent, and the manner, of his questioning of Dr Maxwell, which was said to have been:

“… adverse, at times mistaken, and liable to result in self persuasion”.

211. That calls for some examination of the primary judge’s questioning. The questioning of Dr Porteous has been fully dealt with in the other judgments and does not need repeating. I agree that it does not evidence any unfairness.

212. The questioning by the primary judge of Dr Maxwell fell essentially into three categories:

1. the potential effect of trauma on what appeared to have been relatively minor abnormalities recorded in radiological examinations, rendering asymptomatic conditions symptomatic;

2. the respondent’s complaints of pain in the left hip, which Dr Maxwell acknowledged he had not had examined;

3. the significance of the absence of muscle wasting on which Dr Maxwell placed considerable emphasis.

   213. In respect of each, Dr Maxwell gave a comprehensive answer, maintaining the position he had taken and explained in his individual report and in the conclave report.

   214. I am unable to conclude that, as a result of the questioning by the primary judge, the trial was objectively unfair. I detect in the transcript none of the consequences that have been held to indicate unfairness in the trial – impediment to the witnesses in giving their evidence, impediment to counsel advancing the appellant’s case, or impediment to the judge in reaching his determination. In this respect it is of signal importance that the judge was confronted with a situation in which he had to choose between two competing positions.

   215. Certainly Dr Maxwell was in no way precluded from stating his position, which he had done in his individual report and again in the conclave report and a third time in response to the primary judge’s questioning. The transcript demonstrates that he was in no way inhibited by the manner of the primary judge’s questioning. This may be contrasted with Nguyen in which there was concrete evidence that an important witness felt overborne by the manner in which he was questioned by the trial judge: see, for example, [205], [228]. Similarly, and since the appellant’s case in respect of the medical evidence was almost solely put through Dr Maxwell, I cannot conclude that there was any impediment in the presentation of the appellant’s case.

   216. That leaves the final question whether, by the approach he took, the primary judge in some way impeded his own capacity to evaluate the evidence. This was put in oral argument as “liable to result in self persuasion”, a concept drawn from guideline 3 of Galea. I do not read the questioning by the primary judge as an exercise in solidifying an opinion he had already formed, or tentatively formed. It seems to me that, as a matter of fairness, the questioning gave Dr Maxwell the opportunity to expand upon and explain the opinions he had expressed previously in his reports. It signalled to counsel the areas of dispute between the doctors that concerned the primary judge, and therefore provided an opportunity to senior counsel for the appellant to focus his arguments on those issues in respect of which the appellant was at risk. It also gave Dr Maxwell the opportunity of explaining why he had not undertaken some examinations (for example, examination of the respondent’s left hip). Dr Maxwell gave an explanation for that, which was that the respondent’s report of pain was not a normal clinical finding but one which was unique in Dr Maxwell’s experience, that he could not explain it on an anatomical pathological basis, that no other medical practitioner who had examined the respondent had examined the hip and that there was no pathology to the hip based on the respondent’s account and no history of injury to the hip.

   217. As Leeming JA has observed, that explanation was not recorded in the reasons for judgment, where the primary judge described Dr Maxwell’s analysis in this respect as “superficial and unreliable”. It may be that this characterisation is questionable, even unfair, but it does not, to my mind, indicate that the primary judge, by undertaking the questioning that he did, engaged in an exercise of “self-persuasion”. If the finding is subject to challenge, it more appropriately falls within Ground 3 of the appeal, by which the appellant attacks the (wholesale) rejection of Dr Maxwell’s evidence.

   218. I accept that, in accordance with the observations of Lord Greene in Yuill (see at [179] above), it might have been better for the primary judge to have deferred his questioning of Dr Maxwell until after counsel for the respondent had cross-examined. I accept also, so far as one can discern from the transcript the tone of questioning, there was a level of combativeness or, at least, challenge in the manner of questioning. However, in that context it should be remembered that it was Dr Maxwell who set the tone in his reports, by his disparaging reference to Dr Porteous’ speciality as an occupational physician, and his description of Dr Porteous’ reasoning as “illogical”. Nevertheless, the primary judge should have risen above the temptation to adopt a confrontational tone, and maintained a judicially appropriate distance from the conflict between the doctors.

   219. I am not persuaded that the primary judge departed from the permissible limits of judicial questioning. I would join with Gleeson JA in rejecting Ground 1 of the appeal.

   220. In relation to the remaining grounds of appeal, I also agree with Gleeson JA.

**********

Appendix (884452, pdf)

Decision last updated: 23 April 2021