Mogan Holdings Pty Ltd v Harrison
[2011] VSCA 202
•1 July 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3883
| MOGAN HOLDINGS PTY LTD - and - VICTORIAN WORKCOVER AUTHORITY | |
| 1st Appellant 2nd Appellant | |
| v | |
| TRACEY HARRISON | Respondent |
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JUDGES: | MAXWELL P, MANDIE AND HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 April 2011 | |
DATE OF JUDGMENT: | 1 July 2011 | |
| MEDIUM NEUTRAL CITATION: JUDGMENT APPEALED FROM: | [2011] VSCA 202 Harrison v Mogan Holdings Pty Ltd & anor (Unreported, County Court, Judge Hogan, 23 October 2009) | |
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PROCEDURE - Apprehended bias - Appeal from grant of leave to plaintiff, in serious injury application, to bring common law proceedings - View expressed by trial judge that proposed medical witness for the plaintiff might need to get legal advice concerning the contents of his report and that the contents of his report might raise questions in relation to his professional conduct - Unilateral ruling by trial judge that plaintiff's counsel be permitted to cross-examine his own witness - Whether a fair-minded lay observer would reasonably apprehend, having regard to the judge's conduct in relation to the said witness, that the judge might not bring an impartial mind to the determination of the case - Judge refused to disqualify herself on the application of the defendants - Judgment set aside - New trial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr B Walker SC with Mr J P Gorton | Wisewould Mahony |
| For the Respondent | Mr A J Keogh SC with Mr J J Fitzpatrick | Ryan Carlisle Thomas |
MAXWELL P:
I agree with Mandie JA.
MANDIE JA:
This is an appeal by Mogan Holdings Pty Ltd (‘the employer’) and the Victorian WorkCover Authority (jointly ‘the appellants’) from a decision of a judge in the County Court made on 23 October 2009 whereby the plaintiff (the respondent, Ms Harrison) was given leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) to bring common law proceedings for pain and suffering damages.
Factual background and proceeding below[1]
[1]The following summary is mainly derived from the agreed summary filed by the parties.
The respondent, who was born on 22 September 1971, commenced employment with the employer on 24 November 2003. The respondent is right-hand dominant. The employer dealt in a variety of paint products. The respondent’s duties mainly comprised the delivery of drums and tins of paint of various sizes to customers of the employer. She delivered the tins in a Ford utility vehicle. On 24 June 2004 the respondent sprained her right wrist when assisting in the unloading of drums of paint. On 15 July 2004 the respondent suffered further injury to her right wrist when handling drums of paint in the rear of the utility vehicle.
The respondent claimed that she suffered an injury to her right hand on 25 January 2005 when she fell from a paint drum upon which she was standing and her right hand struck metal shelves and she fell onto a concrete floor, possibly also striking her right hand on the floor.
On or about 4 February 2005 an incident occurred at the respondent’s boyfriend’s home. The respondent deposed that her right elbow was struck by the front door when the door was caught by the wind. On 5 February 2005 the
respondent presented at Dandenong Hospital Emergency Department. She had a grossly swollen right hand with clinical compartment syndrome in that hand. A triage nurse at the hospital noted that the respondent had injured her ‘left’ (sic) wrist on 25 January 2005 and ‘tonight’ jammed her wrist in a screen door. A doctor at the hospital noted a ‘left’ hand injury at work one month ago and that ‘today’ there had been an accidental crush injury to the same hand in a door.
In the early hours of 6 February 2005 the respondent underwent emergency surgery on her right arm and forearm performed by Mr Crock, plastic and reconstructive surgeon. Mr Crock performed a decompression fasciotomy to prevent a process of atrophy of the small muscles contained within the compartment of the right hand. The respondent had further treatment after surgery and remained an inpatient at the hospital until 14 February 2005.
The respondent continued to suffer symptoms and restrictions which required physiotherapy treatment and hand therapy. She was also treated by her General Practitioner and undertook a gymnasium program to strengthen her right hand and arm. The respondent was unable to return to her pre-injury employment and in 2007 underwent training in the real estate industry. She claimed difficulties in a number of jobs that she obtained in that industry as a consequence of her right hand problems.
The respondent commenced her proceeding in the County Court, seeking leave to bring a common law proceeding for pain and suffering damages, on 12 September 2007. The respondent sought leave with respect to a claimed injury to her right hand and wrist in the fall on 25 January 2005 and with respect to the resulting compartment syndrome.
The proceeding came on for trial before the judge on 13 May 2009 and the hearing occupied seven days. Whether the injury to the respondent’s right hand and the resulting pain and suffering was such that the injury was a ‘serious injury’ within the meaning of the Act was an issue at the trial. A further central issue at the trial was whether the said injury arose out of or in the course of the respondent’s employment and, in that regard, the respondent’s evidence as to the alleged events at work on 25 January 2005 was challenged and her evidence relating to the ‘front door’ incident that occurred on or about 4 February 2005 was the subject of a good deal of cross-examination.
In her reasons for judgment, the judge found that the respondent’s injuries prior to 2005 were causally irrelevant to the injury with which she presented at the Dandenong Hospital on 5 February 2005. The judge was satisfied that the respondent suffered an injury to her right hand at work on 25 January 2005 and that it was this injury which necessitated the subsequent surgery and which had resulted in the other consequences experienced by the respondent. The judge concluded that the injury was a serious injury within the meaning of the Act.
Grounds of Appeal
The appellants’ grounds of appeal are as follows:
1.The conduct of the learned trial judge gave rise to the reasonable apprehension that her Honour might not bring an impartial and unprejudiced mind to the determination of the matter in that considered individually and in combination –
(a)in the course of the opening by senior counsel for the plaintiff –
(i)her Honour expressed alarm at the content of a medical report of Mr Crock, plastic and reconstructive surgeon, in the course of which her Honour said that ‘he [Mr Crock] might need to get some legal advice before he gives evidence’ and described his opinions as ‘a bit gratuitous’ and that it was necessary for him to consider ‘his professional ethical position’ before giving evidence;
(ii)her Honour unilaterally took what her Honour later described as a ‘stand’ in determining that hospital notes containing prior inconsistent statements of the plaintiff were ‘unfair’ unless the authors of those notes were called to give evidence (no application opposing the receipt of such notes into evidence or to cross-examine the makers having been foreshadowed or made by the plaintiff);
(b)the learned trial judge pre-emptively proposed and ruled that senior counsel for the plaintiff be permitted to ask leading questions of the plaintiff’s own witness, Mr Crock (no application to cross-examine Mr Crock having been made by the plaintiff);
(c)her Honour entered the arena by extensively cross-examining Mr Crock in evidence, including over the objection of counsel for the defendants;
(d)her Honour entered the arena by extensively questioning other witnesses, particularly Ms Lord, physiotherapist, over the objection of counsel for the defendants;
(e)her Honour entered the arena by engaging in extensive intervention in the proceedings, including commentary and questioning of witnesses, throughout the case;
(f)her Honour brushed aside the objections of counsel for the defendants in relation to ‘deliberately weighted’ and ‘prejudicially loaded’ questioning and questioning in relation to matters which had not been the subject of cross-examination, on the stated basis that her Honour was ‘the finder of fact’;
(g)her Honour entered the arena by, instead of acceding to or otherwise determining an application for adjournment, requiring the ‘full details’ of a contact at Southern Health to be provided to her honour’s Associate in order that the Associate may telephone the hospital with a view to identifying the witnesses who authored the hospital notes containing prior inconsistent statements of the plaintiff;
(h)her Honour entered the arena by pre-emptively prescribing in advance the boundaries of what her Honour described to be ‘the only relevant line of enquiry’ in cross-examination of such witnesses (if such witnesses were able to be located);
(i)in refusing the defendant’s application that her Honour disqualify herself on the ground of reasonably apprehended bias, her Honour reasoned that one of her Honour’s questions of a witness (which had been objected to and which objection had been overruled) had produced answers favourable to the defendants, which principal reason was neither relevant to nor could be dispositive of the application;
(j)her Honour brushed aside as having ‘no basis’ the defendant’s application that her Honour disqualify herself without considering or referring to authority and without calling upon the plaintiff to respond.
2.In conducting the proceeding in the manner and respects referred to in ground 1 above, her Honour erred in overlooking the fact that, as a matter of law, it was for the plaintiff, not her Honour as ‘the finder of fact’, to call and marshal evidence and cross-examine witnesses with a view to discharging the onus and burden of proof borne by the plaintiff.
3.The learned trial judge erred in law in requiring ‘[as] a matter of good law and fairness’ that the authors of hospital notes containing prior inconsistent statements of the respondent be called to prove the notes and statements contained within them in evidence if the notes are to be relied upon.
4.The learned trial judge erred in finding, contrary to the weight of the evidence, that ‘the injury on 25 January 2005’ was ‘the cause’ of the symptoms which the plaintiff presented at Dandenong Hospital on 5 February 2005.
5.The learned trial judge erred in failing to identify and find the nature of ‘the injury’ found to have been suffered by the respondent on 25 January 2005 from which bodily impairment and, in turn, relevant serious injury consequences were to be identified and assessed.
6.The learned trial judge erred in failing to draw an inference adverse to the plaintiff from her failure to file an affidavit from her fiancé, who, after the ‘door incident’ on about 4 February 2005, had accompanied the plaintiff to a consultation with Dr Mackay, general practitioner and, later, on 5 February 2005, accompanied the plaintiff to Dandenong Hospital for treatment.
7.The reasons of the learned trial judge are inadequate in that her Honour failed to make findings concerning a major issue in dispute between the parties, namely the circumstances, nature and causal significance of the right wrist injury suffered by the respondent in the ‘door incident’ on 4 February 2005 prior to the right arm surgery on 6 February 2005 undertaken by Mr Crock.
Ground 1(a)(i), (b) and (c)
The above parts of ground 1 relate to what occurred at the trial concerning the respondent’s treating surgeon, Mr Crock. In order to understand the appellants’ submissions, it is convenient to summarise what occurred by reference to a number of extracts from the transcript.
In the course of the opening by the respondent’s counsel (Mr Keogh), the judge was taken to the report of Mr Crock and Mr Keogh read the following portion of that report to the Court:
Whilst on call for Dandenong Public Hospital I went through a lot over this girls (sic) treatment in the New Year period in 2005, when she came in feigning a work injury with a compartment syndrome.[2]
[2]Emphasis added.
The following exchange then took place:
Mr Keogh:… so Mr Crock will have to explain all of this, because I don’t think any of us know what he’s talking about.
Her Honour: That’s a serious allegation.
Mr Keogh: Yes your Honour. It’s extraordinary.
Her Honour: Well, we’ll be hearing from Mr Crock.
Mr Keogh:He notes that she presented with a grossly swollen hand with clinical compartment syndrome of the small muscles in her right hand. ‘She told me and others that she had fallen off some cans at work which she had used as a step ladder to reach a high shelf, and that she had hit her hand as she fell from a height. She said she had had 4 days of excruciating pain which was getting worse. Her hand was grossly swollen and so I took her to theatre on the night of her presentation – within a few hours of her being admitted to the hospital – and I released her hand surgically …’[3]
[3]Further portions of the report not presently material were read to the Court.
…
Her Honour: Well, Mr Crock seems to have taken a fairly firm view about your client’s situation.
Mr Keogh:About every aspect of my client’s situation, your Honour. It’s an extraordinary report, Mr Crock no doubt will be able to explain it.
Her Honour: He will be able to explain it. That’s a very serious allegation to be making,[4] I haven’t seen a report like that before.
[4]Emphasis added.
Mr Keogh: No your Honour.
Her Honour: I wonder whether Mr Crock might need to get some legal advice before he give evidence because frankly that’s the sort of matter that if it’s without foundation, that the medical board should know about.[5]Now, I don’t know, is there any other doctor who takes a view like that?
[5]Emphasis added.
Mr Keogh:Not so far as I am aware, your Honour. … It would seem a particularly extraordinary allegation …
(Mr Keogh continued with his opening and referred to other evidence that would be adduced, after which her Honour reverted to the matter of Mr Crock):
Her Honour: … I’m really quite troubled by that report of Mr Crock. It’s quite a serious matter. Obviously he may – he’s entitled to his opinion, I suppose, but he better be able to justify it. I just haven’t struck this situation before and I’d like to reflect on it because obviously it’s highly prejudicial to the plaintiff.[6]
Mr Keogh: Extremely.
Her Honour: And it better have some probative value. But I’m also considering his professional ethical position if he’s been a bit gratuitous in his remarks. He may need to get some legal advice because I would take a very serious view of a letter like that which didn’t have an appropriate basis. I’m really just airing my concern rather than inviting any submission from counsel, who obviously have their own interests to look after. But I suppose I really can’t, obviously, form any view about anything until I’ve heard some evidence [7]…
[6]Emphasis added.
[7]Emphasis added.
On the second day of the trial, the judge, of her own motion, gave Mr Keogh permission to cross-examine Mr Crock:
Her Honour: … May I say in relation to Mr Crock, that I regard this as a highly unusual situation. I refer to what I said yesterday, and counsel seemed to agree with me, that they’d never seen a report of this tenor before.
Mr Middleton
(defendant’s counsel): I go back a lot longer, your Honour, in seeing them. I have seen them.
Her Honour: Anyway, I regard this as an appropriate situation in which to exercise my discretion as to fairness, to permit the plaintiff’s counsel to ask leading questions. It’s a matter of really quite some significance with a number of potential consequences for a number of people.
So given that this is an unusual situation, and given that the format of these proceedings is such that normally Mr Keogh would be confined to asking questions of the doctor arising out of cross-examination, I propose to allow him to be at large in his questioning.[8]
(After the luncheon adjournment, Mr Middleton intervened and said :)
Mr Middleton: While [Mr Crock’s] not in court, your Honour, I make a formal objection to Mr Keogh being allowed to cross-examine his own witness. I heard what your Honour said, but I make the formal objection.
Her Honour: Obviously this is all on the record, but I think this is an unusual situation. It’s a serious – a very serious allegation that’s been made by this witness in relation to the plaintiff, and I think fairness does dictate that the course that I’ve indicated that Mr Keogh should be permitted to follow, should occur.[9]
Mr Middleton: If that’s your Honour’s wish.
[8]Emphasis added.
[9]Emphasis added.
Mr Crock was then called as a witness and examined by Mr Keogh. It is fair to say that Mr Keogh did not in fact cross-examine his own witness to any significant extent (if at all). Mr Crock gave an account of what he had observed at the hospital and explained his observations and what he had said in his report. It was apparent, I think, that Mr Crock was aware of criticism that had been made of his statement about the plaintiff feigning a work injury and was in part concerned to justify his medical observations but to back away from the allegation of feigning. During the course of the examination in chief of Mr Crock, the judge intervened and said, inter alia:
Her Honour: … You just said ‘I would’ve expected to see more acute changes had there been trauma’. Now, had there been trauma on that day from a door or something like that, you would’ve expected to see acute changes, and you saw no such acute changes?
Mr Middleton: I object to that question, your Honour.
Her Honour: Excuse me, I’m the finder of fact here, Mr Middleton. You don’t object to my question.
Mr Middleton: Your Honour –
Her Honour: I have to understand what the witness is saying.
Mr Middleton: I am objecting, your Honour, because … you are putting a proposition to the doctor which calls for a conclusion which is deliberately weighted in favour of the plaintiff.
Her Honour: It is not deliberately weighted. You have made your objection it’s recorded.
(Her Honour proceeded to ask Mr Crock a number of questions including some leading questions.[10])
[10]Transcript pp 73-77.
Mr Middleton in due course cross-examined Mr Crock. In the course of that cross-examination, the judge made a number of comments to Mr Crock in the following contexts:
MrMiddleton: When you refer in your report to chronic changes and signs of muscle ischaemia, can that occur other than by way of compartment syndrome?
Mr Crock:Yeah, chronic – if there’s scar tissue over a muscle then that effectively is like a sort of a low grade compartment syndrome … I mean – from my perspective I didn’t care if she was doing it at work or not doing it at work, she’s got an injured hand, she needs it fixed. You know, how that’s happened, where it’s happened I don’t know and I can’t answer those questions but if you get multiple –
Her Honour: Well that’s all the more reason, may I say, doctor, why you should be very temperate in your language in legal reports and never use lightly the word ‘feign’ which you have done twice in this report, and certainly not voluntary – making reference to voluntarily doing or not doing things, unless you have very sound reason for it because the legal implications not only in this court but in other forums could be severe. I just mention that to you in the interests of yourself and people you treat.
Mr Crock:Yeah, thank you for that.
…
MrMiddleton: Can we just go back to the traumas, the scar tissue?
Mr Crock:Yes.
…
MrMiddleton: So the body accommodates the trauma over, I think you said, over a period of 48 hours and the swelling then starts to go down?
Mr Crock:Yes … What happens with swelling is that fluids get in, can’t get out again, why? Because the lymphatics are blocked or there’s continual – a continued mechanism of – a continued injury – an ongoing injury … the reason that I said that is because I do treat self harm patients. I have them come back telling me, ‘I haven’t touched the wound’ and I look at it and I go, ‘I know you’ve touched the wound, you’ve pulled it apart’.
Her Honour: Look, doctor, I think we’ve covered the area, there’s no need to go on about it?
Mr Crock:Yeah, I think that’s – that’s what I was –
Her Honour: It is a very serious matter to accuse someone of feigning or consciously exaggerating and it’s not something to be done lightly -
Mr Crock:And I don’t –
Her Honour: Or without very firm evidence?
Mr Crock:And I don’t do it lightly and that’s by no offhand comment because this, in 22 years I haven’t seen this …
During cross-examination of another witness by Mr Middleton, a reference was made to Mr Crock and the following exchange occurred between her Honour and Mr Middelton:
Her Honour: [Mr Crock] was very anxious to justify why he’d opened her arm, that was my impression.
MrMiddleton: Well, your Honour, he also gave evidence –
Her Honour: And he went on and on and on.
MrMiddleton: I won’t debate your Honour on it but I’ll take you to it in my submissions where he did say that you don’t with compartment syndrome, if you suspect it and there are signs of it, you operate because if you leave it for too long –
Her Honour: I’m not here to blame [the] doctor but my overwhelming impression was that he was very, very concerned to justify why he had opened this girl’s hand.
MrMiddleton: Well, your Honour, that may be your impression and –
Her Honour: Well, it’s there in his notes. It was very difficult for you, me or Mr Keogh to get a question in frankly and all of us I think at one stage had to direct him to what we wanted him directed to. He was very keen to give a lecture and very keen to justify his position and why he might have written the report which he actually admitted was inflammatory and expressed some contrition for.
MrMiddleton: Your Honour, he gave evidence that you don’t when you have symptoms of compartment syndrome where you have to do pressure testing to confirm it.
Her Honour: Look, take the doctor to the evidence but I’m just telling you that this was an extraordinary witness for all sorts of reasons.
In relation to the foregoing, the appellants relied upon the principle that, if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the matters in issue then the judge should not sit or, if she did, the decision could not stand.[11] The respondent did not dispute this statement of the law.
[11]Citing R v Watson; ex parte Armstrong (1976) 136 CLR 248, 262; Livesey v The New South Wales Bar Association (1983) 151 CLR 288, 293-4; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577, [110].
On the basis of that principle, in their written outline, the appellants contended that a reasonable apprehension of bias arose from the conduct of the judge at trial. The evidence of Mr Crock went to the central issues of causation and credit. It was submitted that her Honour’s statements during Mr Keogh’s opening exposed her likely views concerning Mr Crock’s evidence. Reliance was also placed upon the fact that her Honour had unilaterally determined that the respondent’s counsel should be permitted to ask leading questions in circumstances where her counsel had not applied for Mr Crock to be declared a hostile witness. It was further submitted that, during Mr Crock’s evidence, her Honour directed questions to critical issues and disposed of objections on the erroneous basis that she was ‘the finder of fact’. It was noted that her Honour ultimately found that Mr Crock did not impress but, it was submitted, her Honour’s views were repeatedly and intemperately telegraphed during the hearing, including before Mr Crock gave his evidence. It was submitted that a fair-minded observer must have apprehended that her Honour would not bring an impartial mind to the central and important evidence of Mr Crock. Her Honour had wrongly rejected the appellants’ application that she disqualify herself on various grounds, including the foregoing.
In oral argument, the appellants further submitted that the judge’s ‘ominous warnings’ to Mr Crock set the trial on a wrong path from which it never recovered. It was submitted that it was never appropriate for those ominous warnings to be given by the judge, especially as the matter upon which the doctor had expressed an opinion went to a central issue upon which the respondent bore the onus of proof. It was contended that the judicial comments went to the heart of Mr Crock’s professional standing, including not-so-veiled threats to his capacity to keep practising (by reference to the Medical Board).
Elaborating further, the appellants contended that the judge painted a picture such that Mr Crock was potentially in trouble, needing lawyers, before he gave evidence and was theoretically exposed to sanctions for perjury and the like. Again, the judge had wrongly shown a concern that Mr Crock’s statements were ‘highly prejudicial to the plaintiff’ when there was no reason for the judge to be concerned about the effect of the evidence on one party or the other.
The appellants said that the unilateral grant of leave to the respondent to cross-examine Mr Crock was not relied upon as an error of law in itself but as a matter supporting a conclusion of apprehended bias.
In answer to the appellants’ submissions, it was submitted on behalf of the respondent that no apprehension of bias could arise from the judge’s statements and conduct in relation to Mr Crock. The respondent emphasised that the judge was entitled to express tentative views, to anticipate issues and to intervene where appropriate in the conduct and management of a proceeding. The respondent said that the allegation by Mr Crock of the respondent’s ‘feigning’ was extraordinary and that there was no factual basis for it evident in his report. The respondent submitted that dependent upon the evidence given at trial, it might have been appropriate to consider a notification in relation to Mr Crock’s conduct pursuant to the Health Profession Registration Act 2005 or alternatively a referral for investigation of the respondent for fraudulent conduct pursuant to s 248 of the Act. It was submitted that her Honour was entitled to express her concern in those circumstances while it was to be noted that she had stated that she could not form any view until she had heard some evidence. The respondent said that an application for disqualification on the basis of apprehended bias was a serious matter and that substantial grounds needed to be established to succeed on such an application.
The respondent further submitted that, although the judge’s comments about Mr Crock’s report in the course of the opening ‘may well have been inappropriate’, they were made in the context of a genuine concern as to the possible implications of his evidence in that regard ‘outside [the] proceeding’ but were not an indicator that could give rise to an apprehension of bias. Further, counsel for the respondent accepted that there was no foundation provided in Mr Crock’s report for the concerns which her Honour had raised about its propriety and that the view that Mr Crock had expressed was one that a medical practitioner in his position was entitled to express, provided that he had a proper basis for doing so.
I would adopt and accept the appellants’ submissions in relation to ground 1(a)(i), (b) and (c).[12] In my view, the judge did not have a well founded basis for raising these legal and ethical concerns in relation to Mr Crock’s report but, rather, was gratuitously expressing adverse opinions about him or speculating that there might be adverse conclusions reached about him without any basis for doing so and in circumstances that could only point to an inappropriate concern for the interests of the plaintiff. In my opinion, therefore, a fair-minded lay observer would reasonably apprehend in the light of her Honour’s statements and conduct in relation to Mr Crock that the judge might not bring an impartial mind to her determination of the case. Her Honour should have disqualified herself when application was made in that regard. I would therefore order that the judgment be set aside.
[12]See [20]-[23].
It was common ground between the parties that, if the judgment were to be set aside on the ground of apprehended bias, there would have to be a new trial. The parties advanced a number of different reasons for that conclusion but it is
unnecessary in the circumstances to detail them. It is sufficient to say that I agree with their conclusion.
I think that it is unnecessary, in the light of the foregoing, to consider the other grounds of appeal. I would set aside the judgment and remit the proceeding for a new trial in the County Court.
HARPER JA:
I agree with Mandie JA.
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