Manolakis v HENDERSON
[2018] SADC 147
•21 December 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MANOLAKIS v HENDERSON
[2018] SADC 147
Reasons for Ruling of His Honour Judge Slattery
21 December 2018
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS
Application during course of trial for trial judge to disqualify himself for actual bias.
Held: Application dismissed
Migration Act 1958 (Cwth) s 476, referred to.
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507; Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; Wannakuwattewa v Minister for Immigration and Ethnic Affairs unreported, Federal Court of Australia, 24 June 1996; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71; Johnson v Johnson (No 3) (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Forge v Australian Securities and Investment Commission (ASIC) (2006) 228 CLR 45; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Isbester v Knox City Council (2015) 255 CLR 135; Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685, considered.
MANOLAKIS v HENDERSON
[2018] SADC 147ALLEGATION OF APPREHENSION OF ACTUAL BIAS
During the hearing of this action, the plaintiff, Mr Manolakis, asked me to disqualify myself for actual bias. I refused his application. I said that I would publish reasons in due course. These are those reasons.
In this action, the plaintiff sues for damages allegedly suffered by him as a consequence of a collision between a bus in which he was a passenger and a utility driven by the defendant which occurred near to the intersection of Leah Street and the Adelaide-Glenelg tramline at Forrestville on 17 December 2012. The vehicle driven by the defendant came into contact with the rear of the stationary bus.
Mr Manolakis has asserted in his evidence and in a version of facts given to Dr Nagi Guirguis, orthopaedic surgeon, and to Mr Paul Carney, neurosurgeon, that as a result of that collision, his head jerked or was jarred sufficiently, or there was a sufficient application of force to his head so as to cause an injury to his neck or the aggravation of an existing neck condition which forms the basis of his claim for damages. In 2012, Mr Manolakis was suffering from a pre-existing injury to his neck dating back to 1995.
The primary issue in contention in this case is whether or not at the time of the relevant collision, there was any movement in the head and neck of Mr Manolakis consistent with the ‘injury’, whether in the sense of a new injury or the exacerbation of an existing condition in his neck.
Unusually, in this case, cameras inside the bus filmed the passengers at the time of the collision; there was a direct and specific filming of the head and upper body of Mr Manolakis. The audio recording within the bus demonstrates a noise associated with the collision, a verbal reaction by the driver and the driver leaving the bus to exchange details with the defendant.
No issue of liability arises in this matter and so the question is only whether any ‘injury’ to Mr Manolakis was or could have been suffered by him as a result of this collision.
In this trial, Mr Manolakis is unrepresented. Until about six months ago he has been represented by the firm of solicitors Palios Meegan & Nicholson but that firm has terminated its retainer with Mr Manolakis. Mr Paul Carney, neurosurgeon, provided a medical report in February 2016 for Mr Manolakis and expressed an opinion supportive of his claim for damages. He then largely withdrew that support having since had the chance to review the video of events occurring inside the bus at the time of the collision. He has provided a fresh report in which he has expressed the view that he could not support any connection between the injury and so the damages claim of Mr Manolakis and the events on the bus apart from a possible effect of a mild muscle ache that should quickly resolve.[1] The case of the defendant is that if there is any damage to the neck of Mr Manolakis, it is caused by another event not associated with the rear-end collision which separately aggravated his known pre-existing condition, or that it is such a slight effect that it would have resolved in a few days.
[1] Exhibit D12; compare the Carney report of 16 February 2016 (D11).
Mr Manolakis gave only brief evidence-in chief. He said that as a result of the collision, his head jerked in a particular way and he has suffered pain and disability as a result flowing from that collision. He noticed this pain on the evening of the collision. His case is that the collision is causative of the injuries suffered by him and the pain and suffering in respect of which he claims damages.
In this trial, an issue for decision rests in large part upon the physical effect of the collision upon the passengers inside the bus. In his case, Mr Manolakis called in support of his claim, Dr Nagi Guirguis, orthopaedic surgeon. Dr Guirguis provided a report to Mr Manolakis’ solicitors in October 2013, in which he expressed a view that Mr Manolakis suffered a neck injury directly attributable to the effects of the collision upon him physically. In the penultimate paragraph of his report, Dr Guirguis expressed the view that the content of his report and therefore the opinion expressed by him is entirely dependent upon the accuracy of the material provided to him by Mr Manolakis.
When he was cross-examined, Dr Guirguis indicated that he had not been given the benefit of a view of the video of the interior of the bus at the time of the collision. That tape had been provided to the solicitors for Mr Manolakis some 2.5 years prior to the commencement of this trial. There was no identifiable reason why that tape had not been provided to Dr Guirguis prior to the time of trial. Dr Guirguis was also not made aware of a second of opinion of Dr Carney provided after he had seen the video tape.[2] Associate Professor Anderson, an expert in accident reconstruction, had prepared a report dated 10 March 2018 in which he expressed the opinion that the collision was not of sufficient force to have caused any effect upon the passengers on the bus.[3] The physical effect of the collision which he measured was less than the effect of braking and acceleration of the average bus. Although it is not completely clear, it appears that Dr Guirguis had not been given a copy of the report of Associate Professor Anderson but he may have been given some indication of the views expressed by him. In making some of these observations I make no criticisms of the performance of Mr Manolakis’ solicitors. There was no evidence on that topic.
[2] When preparing the second report Dr Carney was asked to consider the position of all of the passengers on the bus that he could see on the video tape. He was not directed to any particular person on the bus. When he expressed his second opinion, Dr Carney was addressing the bus passengers generally. One of these passengers was Mr Manolakis
[3] Exhibit D16.
In the course of cross-examination, the relevant video tape, Exhibit D17, was shown to Dr Guirguis. Dr Guirguis was then taken to the screen (which was then enlarged), showing Mr Manolakis sitting in a seat at the front of the bus. He was then asked to listen for a noise to be heard on the audio tape and the sequelae of that noise. It is not in contest that the noise recorded was the defendant’s vehicle colliding with a stationary bus.
The video is then shown to Dr Guirguis.[4] Mr Ward for the defendant then asked this question of Dr Guirguis:
Q.Did you hear a noise there and did you see that Mr Manolakis didn't move at all or what did you see.[5]
[4] T279.34.
[5] T279.37-.38.
Dr Guirguis responded that Mr Manolakis did not move.[6]
[6] T280.1.
As Mr Manolakis was a self-represented plaintiff, I wanted to ensure that Dr Guirguis had the benefit of seeing the tape a number of times, as had occurred in the Court during the evidence of Mr Manolakis. I then asked Dr Guirguis to come closer to the screen which was displaying the taped recording D17 and I asked him to look at the tape again and to confirm his answer.[7] His response was:
A.Sure, no, he didn't move on this.[8]
[7] T280.5.
[8] T280.6.
He later said:
A.Didn't see any sudden movement.[9]
[9] T280.8.
He later went on to say that there was no jerking motion and only normal movement.
Dr Guirguis then asked to have another look at the tape. When doing so, I drew to his attention that there are other people and things to which he might have reference when looking at the tape. I drew his attention to a woman sitting in the front left-hand side of the bus immediately behind the front door. She was reading a newspaper. The reason I did so was because the Court had heard the audio of the tape completely and was aware that the driver of the bus had alighted from the bus, spoken to the defendant, and then got back onto the bus. When he did so, he had a conversation with this woman who said to the driver that: ‘I didn’t even notice it’ after the driver told her of the collision.
The video, exhibit D17 was then replayed to Dr Guirguis. He reiterated again without being asked that at the moment of collision and thereafter there was no sudden movement in the head of Mr Manolakis.[10] When Dr Guirguis looked at the tape again, he said he thought that he could detect some form of movement of the lady reading the newspaper. I suggested to him that she was folding her newspaper.
[10] T280.18.
I informed Dr Guirguis that I had already informed Mr Manolakis as a self-represented party, that I was unable to detect any movement in his head at the time of the collision and so no movement of or affecting his neck. I asked Dr Guirguis to assist me by giving his own assessment of that issue from what he had seen. He said that he agreed with my assessment, that he could not detect any movement in the head of Mr Manolakis on the videotape at the time of the collision.[11]
[11] T281.21.
I then asked Dr Guirguis about the content of the penultimate paragraph of his report and whether or not he would be prepared to continue to rely upon the version of events given to him by Mr Manolakis. He said that there was no sudden jarring that you would expect to see in a rear-end collision. He said that there was no basis to suggest that there was an acute aggravation of a right cervical facet joint following a rear-end bus collision.[12]
[12] T281.29.
Dr Guirguis was then shown some photographs of the vehicle driven by the defendant. He viewed those photographs and could identify that there was no damage on that vehicle and he then said ‘all of this stuff should have been presented to me.’[13] He confirmed that he had not been given the benefit of viewing this material, including the videotape Exhibit D17 which was seen by Dr Carney in 2016.
[13] T282.8.
He was then asked the following question by Mr Ward:
Q.So we understand, are you saying having considered that additional information of other opinions, or more importantly having seen the video today, that you are unable to say that he suffered a neck injury as a result of that bus incident.
A.No. That bus incident would - certainly the way just that movement was not - there was minimal movement, not a sudden movement. No, I can't - the more I think about it I can't really have that link. You need to have a reasonable jarring.[14]
[14] T283.13-.22.
That was the last evidence for the day. The plan was for Mr Manolakis to call Dr Orso Osti on the following day.
When the Court reconvened, Mr Manolakis informed me that he would not be calling Dr Osti. He told me that he would not be providing any further evidence, including from Dr Osti. I enquired why that was the case. He said to me that the reason was my interference in his case. He said first that I had told Dr Guirguis that the lady (in the front seat of the bus and reading the newspaper) had moved after the collision. He complained that it had not been tested whether there were two movements of the bus.[15] He then later insisted that the lady did not move.[16] I confirmed to Mr Manolakis that it was me, on his behalf, who specifically asked Dr Guirguis to watch the lady and the road to ensure whether or not he could detect any movement either in the bus or in any of the passengers in the bus. I then read through to him the transcript of the evidence and in particular those passages where Dr Guirguis said that there was no sudden jerking of the neck of Mr Manolakis at the time of the collision and there was only normal movement.
[15] T289.36.
[16] T290.1.
Mr Manolakis then said, in contradistinction to his earlier complaint, that in relation to his head that there were two movements in the video that was seen.[17] He said that there was certainly a second movement of his head.[18] As a result of that submission, the videotape was played again. However, shortly afterwards, he said that he did not say there were two movements of the head and only that there was a movement.[19] He contended that the bus driver certainly moved and after further discussion I asked him to identify how he said that his own head moved and how that could be discerned. He said that on his view of the videotape his head moved to one side and that is how he saw it.[20]
[17] T292.19.
[18] T292.22.
[19] T294.37.
[20] T295.19-.24.
Mr Manolakis maintained his submission that I should disqualify myself for actual bias. I asked him to give me the specific reasons why he thought that I should do so. He said that he felt that based on what had happened the previous day, he was not comfortable with me as a judge.[21] He said he was uncomfortable with me because he thought that I was biased. I asked him on what basis he said that I was biased and he said that I unduly influenced the evidence given by Dr Guirguis on the previous day. He said that I pressured him into saying that there was no movement in his head as a result of the collision because he was going to say that there was a movement by the lady reading the newspaper. I restated that it was me who asked Dr Guirguis to watch the tape with a view on the lady reading the newspaper in the front seat immediately behind the front door of the bus as well as the other views given by the cameras. Mr Manolakis then said that Dr Guirguis was going to say that there was movement there and as far as he is concerned I interfered inappropriately. However, that submission overlooks the fact that prior to any discussion about the lady in the front seat of the bus, Dr Guirguis had identified that the tape showed no movement in the head of Mr Manolakis as a result of the collision. He also said that there was no jarring as one would expect in a rear-end collision, and that, as a consequence, he would be unable to maintain his opinion that he had expressed in his report, all of which relied upon the credibility of the version given to him by Mr Manolakis. Mr Manolakis then maintained that he had decided that he would not call Dr Osti.
[21] T296.23.
In his submissions, Mr Ward challenged the failure to call Dr Osti. He said that without any positive evidence on the point, the Court should not accept an assertion by Mr Manolakis that this allegation of actual bias was the reason he would not call Dr Osti in evidence. The Court would need to understand whether or not Dr Osti, for example, had been given the benefit of the available videotape (now Exhibit D17) given to Mr Manolakis’ solicitors, of the second report from Dr Paul Carney[22], or the report from Professor Anderson[23], or reports from Dr Jackson[24]. Mr Ward asserted that Mr Manolakis had put up a reason which was manufactured for a specific forensic purpose.
[22] Exhibit D12.
[23] Exhibit D16.
[24] Exhibits D14 and D15.
I decided to give both parties time to further develop their submissions and the Court adjourned. When the Court reconvened, Mr Manolakis did not wish to put any further submissions apart from saying that his complaint was specifically about the witness Dr Guirguis, that I had somehow unduly influenced Dr Guirguis and had not been impartial. That submission overlooked the fact that Dr Guirguis had expressed the opinion that the event of the rear-end collision did not cause a jerking or jarring of the neck consistent with the complaints of Mr Manolakis.
Mr Manolakis then expanded his complaints. He said that I had earlier identified a dissatisfaction with the method of cross-examination of Mr Ward. I had indicated to Mr Ward that I was not assisted by the continuation of his cross-examination of Dr Guirguis on the issues associated with his file and note keeping. That cross-examination centred for a long time on the fact that Dr Guirguis had not kept his notes of his consultation with Mr Manolakis and therefore he had no material available to him to explain or justify the basis for the expression of his opinion; all that he had was a copy of his own report. This discussion became quite heated well after Mr Ward had properly and thoroughly made his point. I was not assisted by these further exchanges. The professional standards of the Royal Australian College of Surgeons specify the requirements for a surgeon about note keeping and over what period. Any failure to comply with those standards is a matter for the professional body. For my part, I was more interested evidentially in the opportunity for Dr Guirguis to view the videotape (Exhibit D17), having regard to the qualification that he had expressed in the penultimate paragraph of his own report.
A complaint of Mr Manolakis was that I should have pointed out the dissatisfaction with the method of cross-examination earlier than I did. I reject that submission. It is not for the trial judge to protect a witness in cross-examination. The robust exchanges between Mr Ward and Dr Guirguis were justified but I felt that the point had been made. Once that point is reached, it is appropriate for the trial judge to ask the cross-examiner to move on and this is what I did.
Mr Manolakis then developed a second complaint. He said that my demeanour in the Court was objectionable. He could not explain what he meant by that. He then said that the tone of my voice was angry.[25] It was not aggressive, but it was sharp. I asked him to explain and he said that the tone of my voice was sharp.[26] He thought that I was sharp in the way that I spoke to Dr Guirguis. I was speaking to Dr Guirguis in the context of two things: first to ensure that the interests of Mr Manolakis were completely protected; and secondly to be fully informed as the trial judge about the opinions of Dr Guirguis on the relevant issues connected with his opinion having regard to the further information with which he had not previously been furnished. I considered it very important to ensure that I fully understood the views of Dr Guirguis in order for me to make a decision on the claim of Mr Manolakis.
[25] T305.18.
[26] T305.25.
He then suggested that my demeanour and tone influenced Dr Guirguis or at least made him feel intimidated. This followed the aggressive behaviour and tone of Mr Ward as counsel for the defendant. However, as I have indicated, the views expressed by Dr Guirguis following his viewing of the tape (Exhibit P17) were expressed in cross-examination. He said that having viewed the videotape for the first time and now for a number of times, he did not detect any movement in the head (or the neck) of Mr Manolakis, which would otherwise be expected and which would inform a complaint about a neck injury following such an event. It was only on that basis that he was not able to maintain his opinions.
Factually, none of the questions that I asked had any effect upon those views expressed by Dr Guirguis concerning Mr Manolakis because having viewed the videotape, Dr Guirguis expressed the view that he could not detect any movement in the head of Mr Manolakis at the time of the accident. In order to support his opinion, he expected to see some movement of the head of Mr Manolakis consistent with jerking or jarring. Mr Ward submitted and I agree that once Dr Guirguis had identified that as a result of the collision there was no movement in the head or neck of Mr Manolakis, it was impossible for the doctor to maintain the opinion that he had expressed because he could no longer accept the version of events given to him by Mr Manolakis. As Mr Ward correctly said, once that view was formed, that was the end of the effect of the evidence of Dr Guirguis.[27]
[27] T310.25-.26.
Mr Ward submitted that the central feature of the complaint of Mr Manolakis was that he was suggesting that I had somehow forced Dr Guirguis to give this version of his evidence. That is not right because Dr Guirguis expressed his views in cross-examination. He expressed the same views after I insisted that he have the opportunity to view the videotape on a number of occasions. This is what has occurred.
In Halsbury’s Laws of Australia at [125-285], the learned author states:
Ordinary Rule
A judge who may reasonably be suspected of bias is disqualified from hearing or determining a case. Such disqualification may arise by reason of actual bias … The principle of disqualification for … bias is an important element in reinforcing the impartiality and independence of the judicial system (citations omitted).
In Minister for Immigration and Multicultural Affairs v Jia Legeng[28], Gleeson CJ and Gummow J agreed with the judgment of French J at first instance that, for the purposes of s476 of the Migration Act bias must be a:
pre-existing state of mind which disables the decision-maker from undertaking or renders him [or her] unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made.[29]
[28] [2001] HCA 17, (2001) 205 CLR 507.
[29] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 at 104.
Gleeson CJ and Gummow J then went on to say at [36]:
His Honour cited, with approval, judicial statements to the effect that, where there is a claim of actual bias involving prejudgment, the applicant must show that the decision-maker ‘had a closed mind to the issues raised and was not open to persuasion by the applicant's case’[30], and that actual bias exists where ‘the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant’[31].
[30] Wannakuwattewa v Minister for Immigration and Ethnic Affairs unreported, Federal Court of Australia, 24 June 1996 at 4 per North J.
[31] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134 per North J.
Their Honours went on to say at [72]:
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Earlier in these reasons I have set out the bases alleged by Mr Manolakis as the grounds upon which he would seek my disqualification for actual bias. None of these grounds or any submission that he has made indicate any form of conduct which demonstrates that I have made a prejudgment which would be incapable of alteration notwithstanding evidence or arguments that might be presented. I reiterate that natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. I did not force Dr Guirguis to give evidence. I ensured that Dr Guirguis had the same opportunity as the Court had to view the videotape of the passengers (including Mr Manolakis) in the bus at the time of the collision on as many occasions as had been given to the Court. I also suggested that Dr Guirguis position himself closer to the screen and that he may wish to have regard to both the female passenger in the front passenger seat immediately behind the front door of the bus as well as the vision in front of the bus. I allowed Dr Guirguis to have the opportunity to review that material as often as was necessary and on as many bases as was necessary.
At the time that I spoke to Dr Guirguis and asked him to look again at the videotape, he had already expressed the opinion that the head and neck of Mr Manolakis had not moved at the time of the collision. At that time, I was aware (but Dr Guirguis was not aware) of the audio tape recording a conversation between the bus driver when he came back onto the bus and the female passenger in the front seat. The female passenger informed the bus driver that she did not ‘… notice it …’ (the collision). Later evidence before the Court from Adjunct Associate Professor Anderson was to the effect that the impact of the collision on the bus was so small that it did not physically move the bus from its traction point of being stationary and that it was of much less force than the effect of a bus accelerating or braking.
Dr Guirguis viewed the videotape once and then expressed the view that the head of Mr Manolakis and his neck could not be detected as having moved. He later expressed the opinion that based upon his observations, he could not support any connection between the event of the collision and the complaints of Mr Manolakis of his neck injury at the time that he saw Mr Manolakis in October of 2013.
No issue of prejudgment can arise because the important opinion was that of Dr Guirguis and he now expressed a view which was not supportive of Mr Manolakis. I did not display any form of prejudgment nor did I indicate that I would be incapable of altering any conclusion that I had reached (and there was no evidence that I had reached any such conclusion) irrespective of the evidence or arguments that may be presented. I wished to receive the opinion of an orthopaedic surgeon and that is what occurred. To receive an opinion from him that is unfavourable to Mr Manolakis is not an occasion of actual bias. It was on that basis that I dismissed the application on the basis of actual bias.
Mr Manolakis is a lay person. I have taken into account the possibility that he may not understand the distinction between actual bias and a reasonable apprehension of bias. I should therefore discuss that latter aspect.
The learned authors of Halsbury’s Laws of Australia say at the same paragraph:
A reasonable apprehension of bias exists where a fair-minded observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide.[32] The apprehension must be that of a fair-minded lay observer with sufficient understanding of the circumstances of the case to make a reasonable judgment,[33] taking into account that the judge is a professional whose training, tradition and oath require him or her discard the irrelevant, immaterial and prejudicial.[34] … There are two steps required to establish apprehended bias. There must be an identification of the particular relationship or circumstance said to give rise to the apprehended bias and then a logical connection must be made between that circumstance or relationship and the feared deviation from impartial decision making[35] (some citations omitted).
[32] Johnson v Johnson (No 3) (2000) 201 CLR 488 at [12] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [3] and [6]; Forge v Australian Securities and Investment Commission (ASIC) (2006) 228 CLR 45 at [74]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [32], at [139].
[33] Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Isbester v Knox City Council (2015) 255 CLR 135 at [20], [23] per Kiefel, Bell, Keane and Nettle JJ, at [57] per Gageler J.
[34] British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [46]-[48]; at [140].
[35] Michael Wilson & Partners Ltd v Nicholls (2011) 282 ALR 685 at [33] per Gummow ACJ, Hayne, Crennan and Bell JJ.
As I understood the argument of Mr Manolakis, he was complaining about my conduct. Under the authorities, in order to make out apprehended bias, he must suggest that: I had taken a non-judicial approach; I have intervened in some inappropriate way or have used some inappropriate form of language such that a question of apprehended bias arises during the course of the proceedings.
The rules in relation to judicial conduct do not prevent me from expressing any particular view about the evidence where the witness has made an observation concerning a relevant issue, as in this case, which would lead to a conclusion to the opposite effect of the report that he had prepared. In so doing, I do not express any preconceived views about the credibility of the party or the disposition of the proceedings. I ensured that Dr Guirguis had every opportunity to view the videotape from as many perspectives as possible and on as many occasions as he thought fit. The professional views he had expressed were under attack. The basis of the attack was the credibility of the version of facts given to the doctor. The tape did not support the assumed factual basis used by Dr Guirguis. After he reviewed the tape a number of times, Dr Guirguis maintained his view that there had been no jerking or jarring of the head of Mr Manolakis and consequently he did not stand by the opinions of his report. In that context, all of the statements made by me to Dr Guirguis were in the circumstances where I was asking for the assistance of Dr Guirguis concerning his expressed view, the status of his report Exhibit P18 and whether in light of that information he maintained the opinion that he had expressed. He did not maintain that opinion and said that the information that he had now received and particularly the videotape of the events inside the bus at the relevant time, led him to form an opinion that he could no longer stand by the report that he had prepared concerning the injuries of Mr Manolakis. The same position had largely been taken by Dr Carney, neurosurgeon, who previously expressed an opinion supportive of Mr Manolakis but, once having seen that videotape, withdrew that support except to a very limited extent.
In so doing, I was not expressing any negative views about the credibility of Mr Manolakis. I wished to have the assistance of Dr Guirguis in relation to the opinion that he was expressing based upon an assumed state of facts. The penultimate paragraph of the doctor’s opinion identified that he relied upon the credibility of a version of events given to him by Mr Manolakis. I needed to understand whether he maintained his expressed views having now seen all of the information that was available to the Court.
In those circumstances, no basis of actual bias exists nor is there any basis to assert an apprehension of bias because I am satisfied that a fair minded observer would not reasonably apprehend that I may not bring an impartial and unprejudiced mind to bear upon the resolution of the question that I am required to decide. For these further reasons I dismissed the application.
0