Morris & Anorv Boothey

[2003] HCATrans 657

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A58 of 2002

B e t w e e n -

GEOFFREY ROBERT MORRIS and SUSAN JANE MORRIS

Applicants

and

MARIA ELIZABETH BOOTHEY

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 11 APRIL 2003, AT 11.33 AM

Copyright in the High Court of Australia

MR R.C. WHITE, QC:   If the Court pleases, I appear for the applicants in this matter.  (instructed by Phillips Fox)

MR D.C. LOVELL, QC:   If the Court pleases, I appear with my learned friend, MR S.J. HANUS, for the respondent.  (instructed by Ryans Lawyers)

McHUGH J:   Yes, Mr White.

MR WHITE:   If the Court pleases, the question of principle which the proposed appeal raises relates to the obligations on a party cross-examining an expert witness when that cross‑examination reveals that the expert opinion is based on assumptions which have not been the subject of independent evidence.  It raises a practical issue which affects the everyday conduct of trials involving expert evidence, at least in those cases in which it is the common law rules of evidence which apply.

The decision of the South Australian Full Court requires a party whose cross‑examination of an expert reveals that the expert opinion is based on particular assumptions not previously identified, and which the cross‑examiner believes not to have been proved in the trial, to put the opposite party on notice that it is expected to prove by admissible evidence the basis for the opinion.  That is so even when the expert opinion goes to the very matters which are at the heart of the trial and even where the cross‑examination, by its very nature, identifies the deficiencies.

The principle which the Full Court applied is found in a 1985 decision of a previous Full Court in Scuteri v Wood.  The Court sees the principle set out in the judgment of Justice Mullighan, who wrote the judgment of the Full Court, at page 33 of the application book.  It is a passage from the judgment of Chief Justice King - two paragraphs set out.  In the first paragraph, which I do not read, his Honour identifies the basic rule derived from Ramsay v Watson, to the effect that the basis for an expert’s opinion must be proved, but then points out that sometimes the operation of that is qualified by the conventional basis upon which some trials are conducted, where parties are not required strictly to prove the whole basis for an opinion.

It is the second paragraph of his Honour’s quote which is pertinent here, and his Honour held, and it seems that this was applied by Justice Mullighan:

If a party wishes to contend that an opinion is unacceptable because it is based upon a factual foundation which has not been established and will not be established, it is incumbent upon the counsel for that party to take the objection when the evidence is tendered or at least to make it clear before the close of the case of the opposite party that the opposite party is expected to prove by admissible evidence the factual foundation of the opinion.

McHUGH J:   But how do these questions even arise in South Australia?  In the jurisdiction in which I mainly practise, ordinarily an opinion would only be asked for after the witness was asked to assume certain facts and the cross‑examiner or the other party could point out that those facts had not been proved in evidence and counsel would undertake to prove them, but what happens in South Australia?  Do witnesses get in the box and just express an opinion?

MR WHITE:   Your Honour, the issue arises because of the practice of adducing evidence from an expert by means of tender of a report.  In personal injury litigation it is quite common for a medical report written by the expert to be tendered as that expert’s evidence-in-chief, and that is what happened in this case.  The expert in that report sets out a history obtained in the usual way and then expresses an opinion.  In this case the cross‑examiner, by the cross‑examination, elicited that the expert’s opinion was based on a rather more confined foundation than had appeared in the report itself.

McHUGH J:   Yes, I suppose I am out of touch.  When I was at the Bar most cases in New South Wales, civil and criminal, were conducted with juries, so I suppose ‑ ‑ ‑

MR WHITE:   Your Honour, at least in this State -  I do not think it was the position at the time that this trial was conducted, but it is now – there is a rule of court which is to the effect that evidence from an expert should be led in-chief only by the tender of a report and it is only with leave that one can elicit further evidence.  So it was, at least before that rule came into effect, the practice for evidence to be led in this way and then the expert to be cross‑examined in the usual way, with the cross‑examiner seeking to undermine or attack the validity of the opinion or the assumptions upon which it was based.

HAYNE J:   Now, what are we to make of paragraph 39 of the Full Court’s judgment just above the passage that you took us to from Scuteri v Wood, in particular, the conclusion:

it may be safely concluded that the appellant did tell him of her symptoms and that the history which she gave him coincides with her evidence.

What do we make of that?

MR WHITE:   Your Honour, that paragraph should also be read in conjunction with paragraph 37 at the bottom of the previous page, and one can see from reading those two paragraphs that Justice Mullighan rejected a submission that there was not in fact evidence of the four matters which the psychiatrist had relied upon.

HAYNE J:   If that is so, how do we ever get to the point of principle?  The point of principle seems to be that there must be a factual foundation for expert opinion.  The Full Court says yes, there was.  Are we not left with a factual fight rather than a principle fight?

MR WHITE:   Yes.  One of the matters we would need to make good, your Honour, in order to get to the principle is that there was in fact an absence of evidence on these four critical matters which the psychiatrist relied upon.  What we draw attention to in this regard is that, although Justice Mullighan says in paragraph 37 that he does not accept that there was not a factual basis for the opinions reached by Dr Gauvin, we note that he does not identify what that evidence was; he does not go to it.  This is in a context where this was the very submission which was being put by my clients, who were the respondents on the appeal to the Supreme Court.

HAYNE J:   At trial, did trial counsel contend in address that an insufficient factual foundation for the opinion was proved?

MR WHITE:   I am told that that is so, your Honour; that this same issue was taken at trial and it was not a new point raised on appeal.

Now, your Honours, not only does Justice Mullighan not identify the evidence to which he refers in paragraph 37, but we actually draw attention to the fact that paragraphs 37, 38 and 39 are followed almost immediately by the reference to Scuteri v Wood and we draw attention to the fact that there would be no need to go to Scuteri v Wood if in fact the court was satisfied that there was evidence in the case.

In the written outline, your Honours, we have made the submission that there was in fact an absence of evidence on these topics.  I invite the Court’s attention to what we said in paragraph 18 of the written outline.  In addition to that, we attach to the written outline a schedule of the evidence on these four critical matters, and the Court will see that schedule starting at page 57 and going over to page 58.

If the Court pleases, there were four critical matters which Dr Gauvin, the psychiatrist, identified as founding the basis for his opinion as to incapacity.  If I deal with those in turn, the first was that he thought that the plaintiff had difficulties with travel.  There was no evidence of that at all.  On the contrary, the plaintiff spoke about engaging in a whole lot of driving and her only point about driving is that she said she sought to avoid it because of environmental concerns.  She was concerned about the effect it had on pollution.  There was nothing to the effect that there was something about her condition which interfered with it.  I qualify that in one respect:  she had lost a finger as a result of the incident and she did mention a difficulty gripping the steering wheel, but there was not a psychological base to difficulties with driving.

The next was difficulties interacting with people.  We have set out in footnote 13 on page 52 of the application book and again on page 57, at the top of the page, the evidence she gave about that.  Rather than suggesting that she did in fact have difficulty interacting with people, on the contrary she was participating in a number of activities which we have listed there, including participating with the Country Women’s Association, engaging in quilting groups and engaging in other activities.  Dr Gauvin then relied on evidence of what he called “fatigueability”.  There was no evidence of that, apart from that which we identified on page 58 in the top box marked 3, where she said she had some lack of physical stamina because of the physical limitations of her hand.  As to the symptom of flashbacks, there was simply no evidence given by her at all.

We are fortified in putting that submission now to the Court because, when we look to my learned friend’s response, we do not see, with one exception to which I will come in a moment, any other evidence on those topics being pointed to.  The one exception is that she did say at one stage that at a point in early 2000, which was very shortly after the incident, she had been fatigued, but there was no continuing evidence of this.  The cross‑examiner’s question, which the Court will have seen we rely very much on, related to the 12‑month period prior to the trial, which was really the period June 2000 to June 2001.  So, in that period, an absence of evidence.

To come back to your Honour Justice Hayne’s question, true it is that there is this statement in the Full Court that there was evidence of those matters, so that one might never get to the principle.  Our short answer is that Justice Mullighan does not point to it and it does seem to us, on examination of the material, that the complaint that there is an absence of evidence is a complaint well made.

The principle which the Full Court applied from Scuteri v Wood was really a principle applied in relation to the necessity to prove extrinsic material upon which an expert relies.  It could have been x-rays, it could have been a pathology report.  In Scuteri it was the results of neuropsychological testing which had been carried out on a head‑injured plaintiff.  The point was that if you are expecting that sort of testing contained in extrinsic material to be proved, it is appropriate to put your opponent on notice.

That is not this case.  This case was one where the incapacity for work, whether there was an incapacity and if so its causes, was at the very heart of the trial and, furthermore, the question in the cross‑examination of itself signalled the deficiencies which the cross‑examiner then considered existed.  The cross‑examination to which I refer the Court will see summarised in paragraphs 16 and 17 of the application book at pages 51 and 52.  In the book of materials with which the Court has been provided, we have set out in full an extract of the two pages from which that summary is taken.

Scuteri was, in effect, an application of the wider principles stated by Justice Gibbs in Hughes v National Trustees, which is to the effect that if you lead your opponent to believe that proper evidence of a fact is not required, you are precluded later from complaining about the absence of that evidence and if that is what the principle is, there is no complaint about it.  But in this case it has been extended to cover a circumstance where the evidence goes to something which is at the very heart of the trial and where the cross‑examination of its very nature identified the particular deficiencies which the cross‑examiner thought then existed in the material.

The Court will have seen from the materials that in this case the plaintiff suffered from a condition known as post‑traumatic stress disorder.  The critical issue at trial was whether or not that condition wholly incapacitated her for work.  She had suffered some physical injuries as a result of the incident.  Those physical injuries incapacitated her for her former job, but it was not suggested that they incapacitated her wholly.  If there was to be a finding of total incapacity, it had to result from the psychological condition.  It is apparent that it was Dr Gauvin’s opinion which was relied upon by the trial judge and by the Full Court for that finding.

The Court will see, if one turns back to the judgment of the trial judge, who was Judge David, that at page 13 of the application book he summarises the evidence which the plaintiff gave about her physical limitations but we do not see any corresponding findings in relation to evidence about her psychological feelings or her emotions.  So it was not a case where there was a basis in her evidence alone, she having been accepted at trial, for the findings of fact.  Dr Gauvin’s opinion as to this was the critical issue upon which each of Judge David and the Full Court relied.

The effect of the Full Court decision is that counsel will be required during the course of a trial to give his or her opponent some form of commentary, pointing out, as it were, “This is where I think I’ve got to with my cross‑examination and it’s now apparent that your expert relies upon this fact or that fact.  I put you on notice that you’ll be required to prove it”.  With respect, that is inconsistent with the conventional basis upon which litigation is conducted.  Relevantly, that basis was made plain by this Court’s decision in Ramsay v Watson, the well-known principle that a doctor can give evidence of what he or she was told so as to establish the basis for the opinion but, unless it is within what is known as the first rule of Ramsay v Watson, that foundation has to be proved by independent evidence.

The principle in Ramsay v Watson is so well established that parties to litigation should be taken to know the requirement for proof of the primary or critical facts upon which an opinion is based.  The Full Court’s decision, in our submission, is, in effect, a qualification of the Ramsay v Watson principle.  In effect, the Ramsay v Watson principle is to be applied, if the Full Court be correct, only if a plaintiff has been put on notice by the defendant of the need to prove the basis for the expert’s opinion.

The Full Court decision will affect the conduct of every trial in this State and perhaps elsewhere, which is governed by the common law, where expert evidence is called and that fact alone, in our submission, makes it appropriate for the grant of special leave.  It is all the more so, given the practice of evidence-in-chief being adduced by the tender of a written report and the opponent then being left to cross‑examine as to the basis of the report or the validity of the opinions.

The principal argument that seems that seems to be put against the grant of special leave in the respondent’s written outline is waiver.  It is said that by not objecting to the tender of Dr Gauvin’s evidence in the form of his written reports, the applicant waived the right to object to Dr Gauvin’s evidence.  As to that we say that the way Dr Gauvin’s evidence was tendered was this:  first of all, there was a tender during the course of the opening of the medical reports from those medical practitioners from whom the plaintiff proposed calling evidence.  The basis for so doing was not stated at the time but it appears to have been a shorthand way of informing the judge during the course of the opening of the nature of the medical evidence to be led.  When Dr Gauvin was called, his reports were then formally identified and tendered through him.

The second is this:  given that the more confined basis for Dr Gauvin’s opinion emerged only in the cross‑examination and after his evidence had been received, of necessity it raised issues about the use which might be made of the opinion, as opposed to its admissibility; it is the only way in which the issue could have arisen.  Furthermore, waiver is to be inferred as a matter of principle only where it is reasonable to do so and, in particular in the context of the admission of evidence, only where there is

no other apparent explanation for the tender and the absence of objection.  One can see authority for that principle in the judgment of Justice McLelland in Ritz Hotel, and we have referred to that in the written reply.

The last point we make is that given the widespread practice of medical reports being tendered as part of the evidence-in-chief followed by cross‑examination as to the basis of the assumptions and opinions, it is not to be supposed the cross‑examining party waives the ability to rely upon whatever successes it has in attacking the basis for opinion which the cross‑examination produces.  Those are the submissions of the applicants on the application for special leave, if the Court pleases.

McHUGH J:   Thank you.  Yes, the Court need not hear you, Mr Lovell.

The applicants seek to contend that, at the hearing of the respondent’s claim for damages for personal injury, no sufficient factual foundation was established for expert opinions offered in evidence and that it is not incumbent on the opposite party to make it clear before the close of the evidence that the factual foundation of the opinion must be proved.

The Full Court of the Supreme Court of South Australia concluded that a sufficient factual foundation for the opinion was, in fact, established.  If that is so, no question of principle would fall for determination in this Court.  Examining the validity of that conclusion would require a close analysis of the evidence led at the trial.  That, in itself, is a matter that indicates the case is not a suitable vehicle for the grant of special leave to appeal.

The law concerning the admissibility of evidence of expert opinion is well settled.  All that seems to be involved in this case is the application of those principles to the particular facts of the case and whether the applicants, by their conduct, waived the proof of the factual foundation for the expert opinion. 

In our view, neither the interests of justice in the particular case nor the interests of justice more generally require the grant of special leave to appeal.  Accordingly, special leave to appeal is refused with costs.

AT 11.56 AM THE MATTER WAS CONCLUDED