Naga, Besim v Quintell, Philip John

[1984] FCA 161

I

i

l ,bp-5- '

CATCHWORDS

Appcal - adequacy of award of damages - a l l e g e d m i s c a r r i a g e of

trial - whether ev idence of respondents ' medica l wi tnesses

- i n c o n s i s t e n t w i t h r e s p o n d e n t s ' c a s e as opened and cross-

examinat ion of a p p e l l a n t ' s w i t n e s s e s - e l e m e n t o f s u r p r i s e -

w h e t h e r f a i l u r e by r e s p o n d e n t t o p u t t o a p p e l l a n t ' s m e d i c a l

w i t n e s s e s m e d i c a l e v i d e n c e t o b e c a l l e d - w h e t h e r t r u e j o i n d er

of i s s u e o n p s y c h i a t r i c a n d o r t h o p a e d i c e v i d e n c e - l a w as t o

m i s c a r r i a g e o f t r i a l - f u n c t i o n o f p l e a d i n g s - p lead ing matters

r e l a t i n g t o general damages - need for exchange of medical

r e p o r t s i n a c c o r d a n c e w i t h Supreme Court Rules

:

Cross-appeal - c o n t r i b u t o r y n e g l i g e n c e - spec ia l damages -

amount of c o s t s af ter o f f e r t o c o n s e n t t o judgment - whe-cher

" s p e c i a l r e a s o n s " for award ing cos t s t o a p p e l l a n t a f t e r offer

t o c o n s e n t w h e r e a p p e l l a n t r p c e i v e d less than amount of o f fe r

I /

Rules of The Supreme Court of t h e N o r t h e r n T e r r i t o r y o f A u s t r a l i a

- 0.26 r.6A, 0 .34 r . 3 0

BESIM NAGA v . PHILIP J O H N OUINTELL and MARINELAND N.T. PTY. LIMITED

I

No. NTG 36 o f 1983

MUIRHEAD, TOOHEY E McGREGOR JJ.

13 JUNE 19811

DARWIN

I

I N THE FDERAL COURT

O F AUWRALlA

NORTHERN TERRITORY O F

AUSTRALIA

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL from the Supreme

Court of the Northern Territory

of Australia

B E T W E E N :

BESIM NAGA

Appellant

and

PHILIP JOHN OUINTELL and

MARINELMID N. T. PTY. LIMITED

Respondents

O R D E R

JUDGES EL-KING ORDER	: Muirhead, Toohey & McGreqor JJ.
D A E OF ORDER	: 1 3 June 1984

MHERE MADE : DARWIN

THE COURT ORDERS THAT:

I 1. The appellant's appeal be dismissed.

1

z

2. The appellant pay the respondents' costs of the

appeal.

3 . The judgment: of the Supreme Court of the Northern

Territory of Australia be varied by providing that

the respondents pay the appellant's costs of the

Supreme Court action up to but not; including 4

October 1983 and that the appellant pay the

respondents' costs of the action thereafter.

4. Otherwise th respondents' cross-appeal be

dismissed.

5. The respondents pay two thirds of the costs

incurred by the appellant by reason of the

cross-appeal.

I

i

I

-r'

IN THE FEDERAL COURT

OF AUSTRALIA	1
NORYHERM TERRITORY OF )
AUSTRALIA	1 No. NTG 36 of 1 9 8 3
DISTRICT REGISTRY	1

GENERAL D I V I S I O N 1

ON APPEAL f rom the Supreme Court

of t h e N o r t h e r n T e r r i t o r y of

A u s t r a l i a

B E T W E E N :

BESIM NAGA

Appel lan t

and

PHILIP J O H N QUINTELL and

MARINELAND N. T . PTY. LIMITED

Respondent-

CORAM:	Muirhead,	Toohey	€ McGregor JJ.
1 3 June	1 9 8 4

REASONS FOR JUDGMENT

MUIRHEAD J.

I have had the o p p o r t u n i t y of r e a d i n g t h e j u d g m e n t s

of M r J u s t i c e Toohey and M r J u s t i c e McGregor, which upon t h e

i s s u e s w h i c h h a v e a r i s e n i n t h e c o u r s e of t h i s Appeal are i n

s u b s t a n t i a l a g r e e m e n t , I agree w i t h t h e o r d e r s p r o p o s e d by

Mr J u s t i c e Toohey.

I c e r t i f y t h a t t h i s i s a t r u e c o p y of

the Reasons for Judgment h e r e i n of h i s

Honour M r Jus t ice Muirhead

A s s o c i a t e

Dated: 1 3 June 1984 !

IN THE FEDERAL COURT

OF AUSTRALIA

NORTHERN TERRITORY	OF	No. NTG 36 of 1983
AUSTRALIA

.

DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL from the Supreme

Court of the Northern Territory

of Australia

B E T W E E N :

BESIM NAGA

Appellant

and

PHILIP JOHN OUINTELL and

MARINELAND N.T. PTY. LIMITED

Respondents

CORFJI: bluirhead, Toohey & McGregor JJ.

13 June 1984

REASONS FOR JUDGMENT

TOOHEY J.

On 28 April 1979 the appellant was injured in a motor

vehicle collision. On 28 October 1983, in the Supreme Court of

the Northern Territory,	he was awarded damaqes in the sum	of
$18,556.95.

The appellant has appealed against the adequacy of that

award. The respondents have cross-appealed in relation to the

finding of the learned trial Judge that there was no contributory

negligence on the part of the appellant and they have also

appealed on matters of special damages and costs.	I shall deal
with the cross-appeal later in these reasons.
Grounds of Appeal

The appellant's notice of appeal, as filedt challenged

a number of findings of the learned trial Judge relating to the

Injuries he suffered in the collision and the disabilities that resulted therefrom. The appellant also challenged components in the assessment of general damages as "manifestly inadequate".

When the hearing of the appeal began, the appellant

sought and obtained leave to add additional grounds of appeal. In

i

effect these grounds contended that. the trial had miscarried in

relation to the medical issues because of the respondents' failure

to notify the appellant in advance of certain matters put forward

in the course of medical evidence called on their behalf and the

failure of the respondents' counsel to cross-examine the appellant

and witnesses called on his behalf in relation to those matters.

In the result, the appellant contended, he "failed to secure	a
fair trial of these issues".

c

7,

3 . I '

As the appeal emerged, the .appellant's challenge to the judgment of the learned trial Judge was confined to the matters

the subject of the added grounds of appeal. Because of the

importance these grounds assumed, it is necessary to set them out

in full and it is necessary to trace in some detail the course the

hearing followed in the Supreme Court. In the applicatlon to

.	amend the grounds of appeal, the additional grounds were numbered
11 and 12. In fact they should have been identified as grounds and 14 and I have so described them. 13

"13. The trial miscarried in relation 50

the medical issues because of the

fact that the appellant did not

receive notice of nor were h or his

witnesses cross-examined in relation

t0:-

(a) Dr Shoulder's opinion that the

appellant was deliberately

fabricating his symptoms;

(b)	Dr. Shoulder's opinion that the
appellant's condition was
caused by an inadequate

personality disorder;

(c) Dr Fry's opinion that he

absence of punctate lesions

observable in the appellant's

left knee was a factor aiding

his conclusion that his left

knee problems had not been

caused by the motor vehicle

accldent ;

(d) Dr. Fry's opinlon that he

appellant had suffered a

further trauma or series of

minor traumas to his left knee

in about late 1980.

In the result, the appellant failed to secure a fair trlal of these issues.

4.

14. In assessing the weiqht, if any, to be attached to the evidence of Dr.

Shoulder and Dr Fry the learned

Trial Judge failed to attach any significance to the matters set out

in paragraph 11 hereof."

Statement of Claim

To understand what took place during the hearing of the

claim, it is necessary to make some reference to the statement of

claim as originally pleaded and as amended from time to time.

As endorsed on the writ of summons, the statement of

claim pleaded that the appellant sustained the following injuries:

Fractures to the left sided ribs;

Bruising to the chest;

Concussion;

Tissue lnjury to the right knee;

Loss of menor);

Continual headaches;

Loss of balance;

Pain and suffering."

There was no plea of any residual disability other than

might be inferred from the description of the injuries themselves.

j The hearing began in the Supreme Court on 7 March 1983.

'	I
I

On 3 March the appellant had obtained an order in chambers for

5 .

leave to amend the statement of claim by adding two additional

items of in juries. They were:

"(i) traumatic patellomalacia, meniscal,

laxlty of the medial ligament and

patello-femoral crepitus of the left

knee ;

(j) post-traumatic neurosis."

These were additions of some importance because they

asserted residual disabilities. The appeliant had originally

sought, in the chambers application, to add as a particular of

injury "pre-frontal andlor temporal lobe brain damage". The

order for leave to amend the statment of claim did not extend to

this particular, apparently because it was not pressed on behalf

of the appellant.

When counsel began to open the appellant's case on 7

March, he applied to add as a further particular of injury "(k)

damage to the frontal temporal and limbic cerebral cortex".

Counsel for the respondents objected on the ground that his

instructing solicitor had been given an assurance on the Friday

preceding the commencement of the hearing (which began on a

Monday) that there would be "no allegation of organic brain

damage". Counsel for the respondents complained that he had, in

the preceding 10 days, received not less than 10 medical reports,

delivery of which was in breach of the requirements as to time in

0.34 r.30 of the Rules of the Supreme Court of the Northern

Territory of Australia.

- . - -

6.

Counsel made a further complaint that, although the

Statement of claim made no reference to loss of earning capacity,

he now understood that such a claim was to be made. I shall say

something more of this matter later.

Against the respondents' objection. the application to

add the additional particular of injury was allowed. On 10 March

the statement of claim vas further amended, at the instance of the

appellant, by adding as an additlonal particular of injury " ( k )

soft tissue injury to the neck". At the same time the existing

particular ( k ) was deleted, thus removing any allegation of brain

damage.

SequencP of Hearinq

The hearing occupied 7, 8, 9 and 10 March 1983 and was

then adjourned. At the time of the adjournment the appellant had

completed his case which comprised 17 witnesses including Dr.

James, a psychiatrist, and Dr. Baddeley, an orthopaedic surgeon.

The respondents had called	4 witnesses, none of whom was	a medical
practitioner.

The actlon was further heard on 4 , 5, 6 and 7 October.

The respondents called Dr. Fry and Dr. Shoulder, the persons

mentioned in the additional grounds of appeal, and another

I witness. Although Dr. Fry was called first, it was with Dr.

n

7.

Shoulder's evidence that the appellant's argument was mainly

concerned. I shall'therefore consider the implications of his

. testimony before that of.Dr. Fry.

The Psychiatric Evidence

Although the appellant abandoned any allegation of brain

damage as a result of the collision, there had been since just before the hearing began allegation of post-traumatic neurosis.

The appellant sought to make good this part oT his case through

his own testimony and through a number of witnesses who had known

him for some time and who were able to speak of changes in his

personality since the accident. He also relied upon the evidence

of a psychiatrist, Dr. James, who in the course of his

examination-in-chief, was asked this question about the appellant:

"If one assumes that he had a relatively

happy life, and arelatively well

adjusted personality prior to this

accident, and that he suffered a

crushing type injury to the chest which

involved two fractured ribs, a

laceration to the forehead, a whiplash

type injury, and what may at first have

appeared to be relatively minor injuries

,	to both knees, and that subsequent to
that the symptoms of anxiety and
depression became apparent for the first
time, what to would you relate
causatively onset the of ose
symptoms?"

To this Dr. James answered:

"Well, I think that the accident and its

after effects precipitated this neurotic

illness".

Speaking of the appellant, Dr. James said:

"So he presents a fairly typical picture

of an individual with a depressive

I

neurosis".

Dr. James was cross-examined at some length. The

I	cross-examination did not attack the doctor's conclusion of a depressive neurosis. Rather it directed attention to'a number of disturbing incidents in the appellant's life, including an unhappy
marriage and a history of problems with a fishing boat on which
the appellant had spent a great deal of time and on which he had
lavished much affection. Dr James acknowledged the stresses that
could result from such difficulties but concluded:

' l . . . I'm still perfectly satisfied that

the accident physical the and

disabilities caused by it, are that that

accident; the emotional shock of the

accident, then bemg a sick person and

having physical disabilities, that that

is enough stress to trigger off; to

precipitate a depressive neurosis".

That line of cross-examination assumed a neurosis but attacked the medical opinion that it was related to the motor

vehicle collision. Such an approach was consistent with what

I

counsel for the respondents said in opening:

i

9.

“The defendant‘s case 1s further that no

psychiatric disability flows from that cause. namely the subject accident and

that the causes for what is an

acknowledged depressive condition on the

part of the plaintiff is to be found in

other areas“.

Dr. Shoulder was called as a witness on 4 October 1983,

’	the first day of the resumed hearing. His report had been made
available to the appellant‘s solicitors some time between 10 March
(the day the hearing was adjourned) and 29 April. It is not clear
why a more precise date was not available. The report 1s dated 9
March 1983. In it Dr. Shoulder refers to a consultation with the .-
appellant in Sydney on 2 March 1983 and havlnq had available to
him some 13 medical reports concerning the appellant. The report
is a lengthy one but, for present purposes, it is enough to refer to these extracts:

“1. The report of B. Dawson the

Psychologist, dated 3.4.81. I would

disagree substaritlally with the summary

expressed by Mr Dawson. I think that

the results that have been achieved are

the end result	of	conscious distortion
bp Mr Naqa.
...

3. Dr. Raymond James, dated 7.2.83 and

25.2.83. I agree in general with Dr

James factual report of Mr. Naga‘s early

life. I agree with his opinion that

there is no evidence for orqanlc damage.

I disagree completely with his

assessment of Mr Naga’s genumeness and

degree of disability. ...

In my opinion Mr Naga is fabricating,

deliberately his symptomatology in terms

of his present distress, with the

10.

exception of the symptoms to do with his

l left lcnee on which I am not able to

1	comment. I could	not	support	any
I

contention that he is suffering organic

' 1	brain damage, from any cause at any
: i
' ,
time. I do not support any claim that
I .	might arise from an accident in 1979
that he might make for compensation,
within the areas that are relevant to my
speciality".

It is apparent, from Dr. Shoulder's report that, if

called as a witness, he would not acknowledge any traumatic

neurosis in the case of the appellant and indeed that he would express the opinion that the appellant was simply a'malingerer. This would be a radical departure from the respondents' case as

outlined in cross-examination of Dr. James. counsel S opening and as implied in the

When Dr. Shoulder was called as witness on 4 October,

counsel for the respondents elicited his formal qualifications and

then sought to tender his report of-9 March. - Counsel for the

zppellant objected on the ground that the opinion proposed LC be

given by Dr. Shoulder regarding the appellant was inconsistent

with the respondents' conduct of the litigation to that point. In

particular it was inconsistent with the cross-examination of Dr.

James and statements made by counsel for the respondents during

his opening. Counsel for the appellant added that "in

anticipation that Dr. Shoulder would be called we have made

arrangements for Dr. James to return to the Territory for the

purposes of giving rebuttal evidence if this evidence is allowed".

!

11.

His Honour commented to counsel for the respondents:

“...I‘d be disposed to permit you to

tender that report and call evidence

from Doctor Shoulder, but I would also

permit you to tender that report and to

call evidence from Doctor Shoulder, but

I will also be disposed to permit Doctor

James to be recalled“.

Although his Honour did not, in express terms, overrule counsel‘s objection to the tender of Dr. Shoulder’s report,

clearly it was assumed by counsel that he had done so and the

report was tendered in evidence through the doctor.

Dr. Shoulder was asked some questions in amplification

of his report an& then the following question was put to him In

examination-in-chief:

“I think you have come to a conclusion,

yourself, as to the nature of the

problem that you see him as suffering

f r om? ”

This is a question that would not have been asked unless

counsel had some foreknowledge of the answer. Dr. Shoulder

replied:

“Yes. My own diagnosis of Mr. Naga‘s

condition is that he has an inadequate

personalLty disorder and that coupled

with that he has a tendency to project

onto the outside world, outside beings,

outside bodies, the Flame or cause of

any incident that happened in his life.

...

...

I

I

r”

12.

i

I thirlk that any event in a person's

life who is a repetitive projector is

likely to attract blame for thlngs that

may well be due to something that person

himself has caused; they're unable to

accept their own participation, and I

think that Mr Naga is focusing on a life

event and attributing all his life's

problems to that single event".

Later the witness expressed the opinion that the

appellant was in no way incapacitated for work by virtue of any

psychiatric problem. Examination-in-chief concluded late on the

afternoon of 4 October. Counsel for the appellant then asked for

an adjournment overnight on the ground that "the thrust of his

evidence is quite different from what	I had anticipated	. . . ' I .
That adjournment was granted.

When the hearing resumed on the morning of 5 October,

counsel for the respondents arose to complain that at the end of

the preceding day he had been handed a copy of a further report

from Dr. James, a report dated 29 April 1983. Counsel complained

that not only was delivery of the report so late in the day "a

flagrant breach of the rules" but that the report had been

withheld from him until he had completed the examination-in-chief

of the witness he had called as to the psychiatric condition of

the appellant. No decision was called for by the court on those

matters at remained to be completed. It was completed and cross-examination then took place. that stage as Dr. Shoulder's examinatiod-in-chief

I

I l

F-

i 13.

:

I	l
' l
I 1
i Cross-examination ranged over a number of matters
I

including Dr. Shoulder's opinion that he appellant was

i

l

. deliberately fabricating his symptoms and also his thesis that the ...

, i	I
1 appellant suffered from a projective personality.
1
I
' I
I At the conclusion of Dr. Shoulder's evidence, counsel

. for the respondents applied for leave to further cross-examine the

, .

appellant. The basis of the application was that, since the

!

l i appellant had given evidence, Dr. Shoulder's report had become

i

I	available with its allegation of malingering. There was also
l	available a film taken of the appellant in July 1983 which was
said to cast doubt on his evidence of limitation of activities. Furthermore, the respondents wished to put to the appellant the
i	I	matter of an earlier accident in which had been involved, a matter
1	on which they proposed to call evidence. The application was
1	granted and the appellant was further cross-examined. He was
1	I
I	re-examined but only on matters arising out of the film.
!
I
i	there would be no application to recall Dr. James. The hearing

Counsel for the appellant bhen informed his Honour that ,

1 was adjourned to the following day and on 6 and 7 October counsel

. made their final addresses.

' i

l It is important to see how, in relation to Dr.

Shoulder's testimony, the appellant put his case that the trial

! micarried. In essence it was that until Dr. Shoulder's report was

' l

received by the appellant's legal advrsers, which was after the

i

l

I F-

14.

. .	/ =
, I

: I

, I appellant's case had been completed and the respondents' case had

'	I
1	, begun, there had been o suqgestlon that he respondents would
i aruue malinuering on' the appellant's part. In that sense Dr.
m	!
8 7

Shoulder's evldence added an entlrely new dimension to the

; I

' ;	hearinq.	It was	the	appellant's	further	complaint	hat,	in	the
, .

! !	pmrse	of his evidence-in-chief, Dr. Shoulder developed a	new
I !

' / theory to explain the appellant's condition, the notion of

I	1
, I

' ! projective personality constituting an inadequate personality

disorder quite unrelated to the accident. In the appellant's

I i

!

I i	submlssion. not only was this thesis a further departure from the
! l	basis upon which the hearing had been conducted, but tDe notlon of

I I projective personallty was inconsistent with he eory of

malingering. The former relates to unconscious thought processes while the latter lnvolves a conscious fabrication.

In the appellant's submission, the extenc to vfhich the

trial miscarried is reflected in the conclusion of the learned

trial judge as follows:

"I accept Dr. Shoulder's opmion that the

plaintiff has deliberately fabricated

his symptomatology in the psychological

area nd also

that personality leads him to blame anything his projective

or anybody other than himself for things

that go wrong in his life".

It is apparent that the learned trial Judqe was

persuaded by Dr. Shoulder's evidence to reach these conclusions:

15.

:

"His serious depression, if genuine which

I doubt, probably postdated he

collision by more than 18 months. ...

The plaintiff's lack of ability to

concentrate and remember have no basis

in organic brain damage. I think he

suffered disability in this area for a

shorl; time after the collision but that,

as with other present claimed

disabilitlzs, the effect the of

collision was quite rapidly dissipated

and that after that he has exaggerated

or fabricated his claimed symptoms. I

do not regard his present claims in this

area as genuine".

!

I

' l ' I It is also apparent that it was as a consequence of

these findings that his Honour assessed damages for pain and

suffering at $8,000 and for interference with enjoyment of life at

$5,000, amounts which would have been unduly modest had the

appellant established a. traumatic neurosis as a result of the

accident. -

Equally his Honour ' S conclusions that "Any

collision-caused loss of earning capacity had dissipated at the

latest by the end of 1979 ... I do not accept that any present

loss of earning capacity is due to injuries suffered in the

collision" were a consequence of his rejection of the submission

'	that the appellant had suffered and was continuing to suffer a
traumatic neurosis as a result of the accident. His Honour's
assessment of $ 5 , 0 0 0 for loss of earning capacity was a direct
reflection of the unfavourable view he formed as to the

1 genuineness of the appellant's complaints.

16

But, the appellant argued. issue was never truly joined

on . the medical evidence. Neither the proposition that the

appellant ~ 7 a s deliberately fabricating his symptoms nor the

proposition that sought to explain them in terms of unconscious thought processes was put to the appellant or his witnesses.

Indeed, argued the appellant, until Dr. Shoulder gave evidence the

! '

case had proceeded on the clear footinu that the appellant had an

acknowledged neurosis. che only area of dispute belng 13hether it

was a result of the motor vehlcle collision in which he was

involved.

The Orthopaedic Evidence

The additional grounds of appeal made a somewhat

-

comparable complaint concerning the evidence of the orthopaedic

surgeon, Dr. Fry. This matter did not assume such large

proportions in the submission of the appellant's counsel. But, In

his submission, Dr. Fry's opinion that the absence of p.unctate

lesions observable in the appellant's left knee was a factor

aiding his conclusion that the left knee problems had not been

caused by the motor vehicle accident. and his further oplnion that

the appellant had suffered a further trauma or series of minor

traumas to his left; knee in about late 1980 were not put to the appellant or his witnesses. lay or medical. "Punctate lesions" I understand to be damage in the form of depressions resembling punctures.

l

r-

At the instance of the appellant's counsel, Dr. Baddeley

was recalled. This took place just before Dr. Fry gave evidence.

Dr. Baddeley's further testimony related to an arthroscopy he had

performed on the appellant's left knee since the adjournment in

March. In cross-examinatlon he was asked whether he had observed

any lesions in the appellant's left knee though, as I read the

transcript, the expresslon "punctate lesions" was not put to him.

In examination-in-chief Dr. Fry was asked what

significance he attached to the absence of punctate lesions in the

appellant's left knee. He explained that when there PS an injury

to a knee, as a result say of a motor vehicle accident, there will

very often be damage to both patella and femur which are in

contact. He said that punctate lesions thus produced are:

'I... an indication par excellence that

there has been a traumatic contact

between those 2 surfaces".

In Dr. Fry's view, the absence of such lesions

' I . . . tends to suggest - suggest that if

there are degenerative changes or

changes to the articular surfaces there,

they occurred from other reasons".

In my view the evidence adduced from Dr. Fry in ,'

evidence-in-chief on the matter of punctate lesions was reasonably

foreshadowed in the cross-examination of Dr. Baddeley. No

complaint was made at the time by the appellant's counsel of the

!

... r - .

1 evidence-in-chief, the wltness was extensively cross-examined on

the matter, and no application was made to recall Dr. Baddeley.

There 1 s no justification for concluding that the trial miscarried

by means of Dr. Fry's testimony.

Dr. Fry's evidence as to the possibility of a further

trauma or series of minor traumas arose in this way.

The appellant's brother Sadriya Resulagic was called to

give evidence in support of he appellant's claim. In

cross-examination he was asked about the method f fiskiin9 used by

him and by the appellant. Thls involved leaning over the edqe of

the fishing boat with knees pressed hard against the side of the

boat. The witness agreed that this could be "very rough" on the knees though protective clothing was worn.

Hhen this description was put to Dr. Fry by the

I

respondents' counsel, the witness agreed that it could cause

damage to the patello-femoral joint. In cross-examination Dr. Fry

explained that. if there were a "lot of minor trauma", there was

no reason why punctate lesions should be formed.

1

The posslbility of the condition of the appellant's left

knee having been caused by fishing activities should have been put

to Dr. Baddeley in cross-examnation. But it was offered bp Dr.

Fry only as a possible explanation since he was adamant that the

motor vehicle collision had not been responsible for thc

condition.

19.

The real difference between the opinions of the two

orthopaedic surgeons lay in the matter of continuity of symptoms.

His Honour put it this way:

"Mr Baddeley says that when degenerative

the change in patello-femoral

compartment is caused or exacerbated by

trauma, there is often a symptom free

period. Mr. Fry says that this is not

so and that if degeneratlve change, as

seen by arthroscopy by Mr. Baddeley and

described him, by caused is or

contributed to by a blow to the knee,

the symptoms of pain are continuous

following the trauma".

The evidence showed a period after the accident when the

appellant, in his Honour's words, was "relatively, if not

entirely, symptom free in this knee . . . ' I .

.-

The learned trial Judge expresed his preference for the

i

evldence of Dr. Fry over that of Dr. Baddeley without indicating

the basis 0; that preference. He concluded that he was not

satisfied on the balance of probabilities that "the plaintiff's

present left knee condition came about as a result of a blow to

the left knee which he received on the occasion of the collision.

Mr. Fry may well be right when he suggests that the plaintiff may

have suffered a further trauma to his left knee in about December

1980".

I

. ..

l

20.

Apart from the broad ground of appeal that the trial

miscarried, this conclusion was not challenged before us.

No Joinder of Psvchiatric Evidence?

I

I

I return now to the argument that there was no ~oinder

I '

i of the psychiatric evidence.

respondents answered the appellant's arguments in

this way. They said that the trial followed a difficult course,

mainly because of belated amendments to the statement of claim and

the late notice the respondents received of many medical reports,

some of which in the end were not tendered nor the authors called.

The allegation of post-traumatic neurosis was added only four days

The

l	before Lhe hearing and even then a weekend intervened. The
l
respondents said that all this placed them under great difficulty
I
in the preparation of their case including the assessment of
medical evldence to be called in answer to the appellant's claim.
Dr. Shoulder's report b7as not available when the appellant was
first cross-examined. They said that cross-examination of a
number of witnesses called in the appellant's case carried an
underlying assumption that he appellant's credibility was
directly in issue. The respondents further argued that the
I	appellant had been in possession of Dr. Shoulder's report for some
months before the resumed hearing, providing ample time to
consider the necessary. Counsel pointed out that the learned trial Judge had recalling of witnesses had that been thought
I

21.

!

I

I	offered	the appellant’s	counsel	the	opportunity	to	recall	Dr.
1	l
1

I	James hut the offer was not availed of.
I

As to the theory of projective personality, the

.	l
1 respondents’ counsel contended that his was not a substantial

8 1

I ,

departure from anything said by Dr. Shoulder in his report of 9

‘ i

March 1983. In any event, said counsel, the likelihood of some

I ,

#	I	such explanation being offered for the appellant’s behaviour was
I	!	to be found in a passage from Dr. Shoulder’s report in which he
#	l
I !	said:
I	I
, i

“I think that the results that have been

achieved are the end result of conscious

distortion by Mr. Naga”.

l The respondents aruued that there had been a clear

1 joinder of issue on the psychiatric evidence as to whather the

‘ I

!

appellant was Incapacitated for work by reason of his psychiatric

condition and that, again. the learned trial judge preferred the

evidence of the witness called by the respondents to that of the

witness called by the appellant.

It was at the forefront of the respondents’ case in

reply to the appellant that the attack in the original notice of

appeal on various findings made by the learned trial Judge had not

been pursued. Not only that, but the general ground of appeal

that damages were manifestly inadequate was not pressed. In

consequence, the appellant was driven to making ood the

l

!

22.

proposition that the trial had mlscarried, failing which the

appeal must be dismissed.

I do not accept hat he thesis of projective

personality was Implicit in Dr. Shoulder's report or that it was

consistent with the opinlon that the appellant was fabricating his

symptoms. As mentioned earlier, counsel for the respondents

argued that the reference in the report to "conscious distortion"

indicated that Dr. Shoulder might express the views he did about

the appellant's projective personality. This is not so. As

counsel for the appellant rightly pointed out, conscious

distortion cannot be equated with a theory of personality

explained in terms of unconscious thought processes.

But while this aspect of Dr. Shoulder's evidence could

not have been anticipated, the projective personality theory w2s i

not crucial to his evidence. The reference in the report to

"conscious distortlon" is synonomous with the later reference to I

the appellant "fabricating, deliberctely his symptomatology". And a reading of his Honour's reasons for judgment shows that it was

essentially a rejection of the qenulneness of the appellant's

claim that led to what would otherwise be a very 1067 award of

general damages. I refer in particular to such language as "His

serious depressxon, if genuine which I doubt", "he has exaggerated	!
or fabricated hls claimed symptoms". "I do not regard his present

claims in this area as genuine".

!

l

23.

It was of course open to counsel for the appellant to

point out to the learned trial Judge the inconsistencies in Dr. other reasons thought appropriate, to reject that evidence in

favour of Dr. James'. A reading of the transcript of his final

address suggests that this was done. But his Honour chose to

accept the opinion (or opinions) of Dr. Shoulder. His decision to

do so was not challenged before us except in so far as it might

throw light on the wider proposition that the trial miscarried.

But the appellant further contended that if one put the

projective personality concept to one side and focused on the

notion of deliberate fabrication, there was nonetheless a failure

by the respondents to cross-examine the appellant and the

witnesses called by him in such a way as to alert the appellant's

advisers that this esse would be put against him.

In the cross-examination of the appellant, some attacks were made on the credibility of his evidence. It was put to him

that he had fished "more or less continuously" between May and

September 1979; it was also put to him that in late 1981 or early

1982 he had ferried a refrigeration engineer between the

appellant's boat and the shore. After the film was shown to the

Court, the respondents obtained leave to recall the appellant and I

cross-examine him on matters shown in the film.	It V70Uld not be
right, therefure, to conclude that there was nothing in the

cross-examination of the appellant from which an attack on the

24.

genuineness of his claims, as opposed to their origin, might have been anticipated. In saying this, it must be recognised that the further cross-examination of the appellant took place at the end of the hearing.

The appellant called a number of witnesses to speak as

to changes in his personality and general outlook following the

accident. Some were members of his family, sone were friends and

others were persons who had known him through work. The picture that emerged from their evidence was of a change in someone who

had been a reasonably outgoing and friendly person to a person who

seemed depressed .and was given to complaining about his physical

and mental condition.

The evidence of those witnesses was not the subject of

any extensive cross-examination. Counsel for the appellant was

entitled to invite his Honour, by reason of the content of the

evidence of those witnesses and the absence of any real challenge

to it, to conclude that the appellant had undergone a substantial

l

change in personality since the accident. Of course the question

still remained	- to what extent was the accident responsible	for
that change?

i The learned trial Judge did not refer to the evidence o f

the lay witnesses in his reasons for judq-ment. It is apparent

that he was unimpressed with the appellant who, in his Honour's

view, "demonstrated whak seemed o me to be a selective memory and

25.

... exaggerated many of his complaints". On the other hand, his

Honour placed great reliance upon the evidence of Dr. Shoulder

that the appellant was fabricating his symptoms and the evidence

of Dr. Fry that the condition of the appellant's left knee was not

brought about by the motor vehicle collision. These views formed

' :

I , by his Honour were not challenged before us except in the context

' , of the broad submission that the trial had miscarried.

Counsel for the appellant complained that, had he been

alerted to Dr. Shoulder's theory of projective personality, he

would have directed questions at the lay witnesses aimed at

rebutting that theory. There is some force in thls complaint but,

at the same tine, such evidence as was elicited from those

witnesses was at variance with the notion of a projective

personality. This was a matter his Honour was entitled to take

into account. But, as I have already ssid, it was outweighed by

the unfavourable impression the appellant made in Court and the

great weight his Honour attached	to the evidence of Dr. Shod'der
and Dr. Fry.

So far as the notion of malingering is concerned, the

appellant's legal advisers hzd some six months in which to

consider recalling any of the witnesses who had given evidence in March and also to consider what further evidence the Court might

be asked to receive on that matter. I do not underestimate the

difficulties of making such decisions in the course of a hearing

I

but the appellant had the advantage of a long break between March

P

1

26.

and October 1983. After Dr. Shoulder had given evidence, his

Honour gave leave to the appellant. to recall Dr. James but he was

not recalled. That is not to be critical of counsel for the

appellant. They made an assessment that there was nothing to be

gained by recalling Dr. James. I have no doubt that ~7as an

. assessment carefully made but the fact remains that he was not

recalled and the fact	is that his Honour preferred the evidence	of
Dr. Shoulder.
Miscarriaqe?

An appellant who seeks to persuade an appeal court, not

, /

that the trial Judge erred in particular respects but that in some

way the trial miscarried, assumes a heavy burden.

In McCormack v. Federal Commissioner of Taxation

1

11978-1979) 143 CLR 284 at p.305 Gibbs J. (as	he then was)
commented:

"It is of great importance in the conduct

of litigation that a litigant should be

bound, on appeal, by the manner in whch

he, or his counsel, has conducted the

proceedings at first instance".

See also b.nerz (Aust.) Ptv. Ltd. V. Hale (1980) 54

8 .

ALJR 378.

It is apparent from McCormack's case itself that the

principle may yield to other considerations such as the lack of

I

any opportunity properly to assess the credibility of the

I

p - . ! '

appellant. In Mapley v.. Radial Industries (1982) 61 FLR 189 a

majority in the Federal Court allowed an appeal from the Supreme Court of the Northern Territory in a workers' compensation claim

because the matter had not been properly tried in the Supreme

Court. Deane, J., one of the majority, said at p. 200:

"Ultimately, it seems to me that the

combination four governs the outcome of this appeal. f considerations

I

have already referred to three of those

considerations. The first is that the

appellant's case, on the question of

permanence of loss of use, was never

properly put in the Supreme Court. The

second is that the failure properly to

put the appellant's case in the Supreme

Court was the result, to a significant

extent, of the unfair manner in which unsatisfactory nature of the evidence in

the respondent's case evolved in the

the Supreme Court was such as to lead to

the case being determined not by

-- positive findings of relevant questions

of fact but by reference to the onus of

proof on the issue of whether the

persisting loss use f of the

appellant's arms was permanent. The

fourth consideration is not truly

independent of the first three. It is

seems it that to me that,

notwithstanding the importance and

desirability, from the point of view of both State and litigants, that there be

finality In litigation, the overall

objectives of justice under the law

would, in the present case, be best

served by a matter in the Supreme Court". complete rehearing of the

Earlier in these reasons I concluded that Dr. Fry's

evidence could not properly be the subject of complaint by the

appellant. "h= proposition that the trial miscarried must, in the

28.

end, reva llve aroun d th ,e evldence of Dr. Shoulder. I do not regard

Dr. Shoulder's notion of projecLive persorldlity as consistent with

his written opinion that he appellant was deliberately

fabricating his symptoms. But that was a matter which might

fairly expose him to cross-examination and to comment. His view

that the appellant was a malingerer had been known to the

appellant's advisers for nearly six months before the resumed

hearing. Even though the appellant had then concluded his case,

there was, I think, by the airing of these matters before the

learned trial Judge, and the recall of some witnesses an

opportunity to meet what was undoubtedly a new angwer to the

claim arising from Dr. Shoulder's report. It was a difficult

trial in many respects, not least by reason of the late exchange

of medical reports and the substantial amendments made to the

statement of claim so late in the day. But I am not persuaded

that the interests of justice require that there should be a

further hearing on the question	of the general damages to which
the appellant 1s entitled.

Once that conclusion is reached, the appellant's appeal

must be dismissed for no reliance was placed upon the original

grounds of appeal.

State of the Pleadinss

Most if not all of the difficulties that faced the

parties during the hearing of this action G70Uld have been avoided

by a proper regard f o r the state of the pleadings and a compliance

1 with

the medical reports. rules of the Supreme Court requiring the xchange of

!

The object of pleadings was described by Mr. F.G.

!

, I

Brennan, Q.C. (as his Honour then was) in "Written Pleadinqs"

(1975) 12 UWAL Rev. 33 in these words:

"The system is designed to empower the

parties to a dispute to state for the

I

purpose of decision the issue between

them. It is a bilateral system. The

Court, though interested in the process, assumes no primary responsibility. The

pleading is, as it historically has

been, formulated by a party or his legal

i adviser. If the formulation accords

with the rules, the formulation is

conclusive. If the formulation offends

the rules, the Court may exercise a

corrective power, though it may not

reformulate the pleading. The rules are designed to assist in the statement of the issues for decision. This is the

object of pleadings. It t7as the object

under the common law, and the rules

under the Judicature Act were designed

to attain that object more efficiently".

In the end, pleadings must yield to broad considerations I

of juskice. But the fact is that the statement of claim in this

action, as originally formulated, failed to identify what was

later alleged to be the most serious injury sustained by the

appellant, an injury described as traumatic neurosis, though this

might be said more accurately to be	a condition resulting from
in jury.

I
l	I

3 0 .

~

In the area of damages, the statement of claim did no

l more than allege injuries and some items of special damages.

, I

IITeke was no plea of residual disabilities and no plea of economic

loss.

I

!

I .	I	While ordinarily it is not necessary to quantify the nature of general damages, if a plaintiff proposes to allege that there are special circumstances by reason of which he has	loss in
!

suffered damage which would not ordinarily flow from the

defendant's wrongful act, he must plead those circumstances to

avoid surprise. !l%e matter is well illustrated by Domsalla v.

I

(1969) 3 All E.R. 487, a claim for damages a5 a result of an

industrial accident. At the hearing, it was said that by reason of

i

l	the accident the plaintiff had been deprived of the opportunity to
l	set up in Susiness with his father's financial assistance and that
I
he was confined to some such job as that of a crane driver. At
I
I	p.492 Edmund Davies, L.J. said:
1

i "The statement of claim does not begin to

suggest anything of the sort. Should it

have done so? In my judgment, it should. Where it is proposed to allege that there are any special circumstances

. which will probably lead the plaintiff to sustain in the future losses over and

i l above those which in the ordinary way

would reasonably be expected to f low

from the accident, I hold that those

1 special circumstances should be pleaded.

i "his duty cannot be neglected simply by

saying: 'those losses relate to the
!	future: they are therefore part of the general damages and accordingly need not be pleaded'. So to hold would be to ignore the basic object of pleadings, which is, to crystallise the Issues and

I !	i
I

. -. .

31.

so enable both parties to prepare for

trial. and, indeed, to declde whether

they should go to trlal at all or rather

seek to compromise their differences,

and, if they fail to do that, to gulde

the defendant on the important matter of

payment into Court".

The fact that a defendant may seek particulars or

interrogate on matters of damage as well as. liability does not

relieve a plaintiff of the obligation to plead in such a way as to

indicate that there will be a claim for deprivation or reduction

: i	of loss of earning capacity. In my view, the principle also holds good in relation to the non-financial aspects of general damages where the plaintiff proposes to rely upon disabilities which
cannot reasonably be inferred from the injuries he or she has
suffered.
Exchanqe of Medical Reports

Again the rules requiring the exchange of medic2.l

reports well in advance must yield to any particular order made by

the Court. But the rules are designed to serve a valuable

purpose, to alert the parties to the respective cases to be made

out, to narrow the areas of dispute, to enable the parties' legal

advisers to assess the evidence to be led and to permit decisions

to be made about compromlse, the maklng of a payment into Court or

I

of an offer to consent ta judgment and the acceptance of any	such
payment or offer.

!	%	32.
I

It is difficult to resist the feeling that, in the

present case, had the statement of claim pleaded at the outset the

injuries, disabilities suffered by the appellant and had there been and economic loss said to have been

an exchange of

medical reports in compliance with the rules, the parties would

not be before this Court, at least not to argue for and against

the proposition that the trial miscarried.

The respondents cross-appealed in respect of three

matters.

Cross-Appeal : Neqlisence

The first concerned a finding by the learned trial Judge

that there was no negligence on the part of the appellant

contribaLing to the collision in which he was injured.

The collision occurred at about 6 pm, in daylight and in

good weather conditions. The appellant was driving north-west in

McNinn Street, heading towards Stuart Highway. The first

respondent, who ~7as driving in the course of his employment by the

second respondent, was travelling south-east in McMinn Street

intending to turn to his right into Bennett Street. In	his
reasons for judgment, the learned trial Judge described Bennett

Street as entering McMinn Street “from the north east forming

effectively a T-junction“. His Honour continued: “the vehicles

met head on in proximity to the T-junction the north-east side

.. !--

I I _, 33 .

, .

1

of McMinn Street". It would seem, having regard to the locality,

m ,

that the refererlces to "north east" should read "north west".

His Honour accepted the evidence of a police officer who

arrived on the scene shortly after the collision that "the point

of impact between the two vehicles was approximately opposite the

I '

centre line of Bennett Street". The damage to the two vehicles

would suggest that the repondents' vehicle had begun to make its

turn into Bennett Street when the collislon occurred.

appellant approaching. He did not see any indicator giving a warning of the first respondent's intention to turn into Bennett Street. The had seen the respondents' vehicle

The

first respondent claimed to have used his indicator but, havlnq

examined the evidence, his Honour concluded that he was not

satlsfied on the balance of probabilities that "the turning

I

indicator 17as operating so as to be seen by the plaintiff if he looked". That conclusion was not challenged before this Court.

Before the Supreme Court and before this Court the

respondents argued that, since the first respondent was travelling

slowly, the appellant should have seen the respondents' vehicle in

time to do somethlnq to avoid it. Of this submission his Honour

said: -

"I think that	this puts the plaintiff's
duty of care	for his own safety in the

circumstances too hlgh".

I %

I

34.

I respectfully agree. If the turning indicator was not

operating, the appellant had no reason to suppose that the

oncoming vehicle intended to turn and he was entitled to assume

that it would continue past him in McMinn Street. Even had the

indicator been operating, the appellant was entitled to assume

that the respondents' vehicle would wait until he had passed

.	although, no doubt, reasonable care would have demanded some
closer attention to the other vehicle. But in view of hls

I

Honour's finding that the indlcator	~7as not operating, it is
unnecessary to pursue this aspect.

I can see no basis upon which to interfere wlth the

learned trlal Judge's conclusion that the appellant was taking I.

reasonable care for his own safety and that it was the negligence

I

of the first respondent that brought about the collision. In my opinion this part of the cross-appeal should be dismissed.

Cross-Appeal : Special Damaqes

It 67as a further ground of cross-appeal that the learned

trial Judge erred in awarding the appellant the sum of $556.85 by

.c7ay of special damages, there belng no evidence before the Court

of the nature of those damages or of the appellant's liability for

them. The amount appears to have been in fact $556.95.

35.

As the appellant's case was concluding on 10 March 1983,

his senior counsel said:

"The final evidentiary matter, Your

Honour, is that I am instructed that

special damages have been agreed - as to

quantity	not as to	liability	- at
$556.95".

Such an arrangement is common enough in personal injury

claims where liability is an issue. The items of special damages

related to ambulance, hospital and medical fees and the charges	of
a physiotherapy clinic.

In view of the ag-reement reached between counsel, it was

I open to His Honour, once negligence had been found against the

' ! respondents, to include the items of special damages in his

judgment. The respondents did not press this part of the

cross-appeal with any enthusiasm and in my view it should be

dismissed.

I Cross-Appeal : Costs

The next and last ground of cross-appeal concerned his

Honour's treatment of the costs of the hearing. This ground

' !

arose from an offer to consent to judgment filed by the

respondents in accordance with Order 26 Rule 4A of	the Rules of
the Supreme Court of the Northern Territory.

I

r-

1 . 36.

In February 1983 (the date shown in the offer is 15

February but the Index to the Appeal Book gives 27 February) the -.

respondents offered to consent to judgment in the sum of $37,500

plus costs to be taxed. Under the relevant rule the appellant had

14 days in which to accept the offer. If he failed to do so and

recovered less than the amount of the offer, he was liable for

.	subsequent costs unless the Court held that there were "special
reasons'' prevailing. (Order 26 Rule 6A(1)).

i When his Honour delivered his reasons for judgment on 28

, I

, ) October 1983, he concluded by saying that "there will'be judgment

I for the plaintiff in the sum of $18,556.95 and costs to be taxed".

Counsel for the respondents then drew his Honour's

attention to the offer to consent. His Honour expressed the view

l

that "by operation of law, when the costs come to be fixed, they

I

cut out on that date". The reference to "that date" was a

reference to the date of offer of consent to judgment. With

respect to his Honour that was not so; the judgment entered by

him, in its terms, entitled the appellant to all the costs of the

action.

Before this Court counsel for the appellant did not seek

to defend the learned trial Judge's comments regarding the rule.

Rather he sought to persuade us that there were "special reasons"

~7hy the appellant should have the costs of the hearing. The

I

special reasons offered were twofold - the nature of appellant's

I

- . .-

' l c

l ' *. . I

! 37.

psychiatric condition which made it difficult for him to

appreciate the implications of the offer and the element of

surprise brought about by the evidence of Dr. Shoulder and	Dr.
Fry.

I :

l

' )

i Order 26 Rule GA(1) does c nfer not C u t h on a

I	'	.	discretion in the matter of costs where there has been an offer of
!
, I
consent to judgment. Where such an offer is made and the
I / I :
1	:	plaintiff recovers less than the amount of the offer, the
:	l
I *
,	I	defendant is entitled to subsequent costs unless the Court is able
, i
' I	to find special reasons why that should not be the result. See
, I
Jurowski v. Sallis (No.2) (unreported decision of Supreme Court of
i	South Australia dated 24 February 1984). See also v.
' I	Incorporated Nominal Defendent (1981) V.R. 170.
I I

I ._

I	I
! Counsel for the appellant did not argue that his client
1 was mentally incapable of appreciating the lmplications of the
, I
I action in the Supreme Court. That is not to be wondered at, for

if it had been so, no doubt a next friend would have been

appointed. But he did submit that, given his client's psychiatric

condition, it was hard for him to assess the reasonableness of the

offer. In my view this does not constitute "special reasons".

I

The acceptance of such an argument would remove a sanctlon which

the Sapreme Court Rules have given to defendants.

As to the element of surprlse, I am of the opinion that

Dr. Shoulder's report dld change the character of the respondents'

!

answer to the appellant's claim for damages and that the provision

of the report and reliance upon it constituted "special reasons"

with'in Order 26 Rule 6A(1). The appellant should have the costs

!

I	of the action until the receipt of that report and the provision
I 1
I ,
I 1	of an opportunity assess o its implications. There was a
! ;	,	substantial gap between the receipt of the report and the resumed
I '

, I	. hearing in October and no doubt during that time work	~7a5	done by
' I

' l

the legal advisers on both sides. But in terms of the hearing the

report was not available until after the adjournment. It seems to

me that, in the circumstances, it would be just that the appellant

i	have the costs of the action up to but not including'	4 October
l

1983 when the hearing resumed and that the respondents should have

the costs thereafter.

I Conclusions

In summary then:

(1) The appellant's appeal should be .

dismissed.

( 2 ) The respondents' appeal on the issue

of liability should be dismissed.

( 3 ) The respondents' appeal on the matter

special of d rnages should be

dismissed.

( 4 ) The respondents' appeal on the matter

of costs should be allowed and the

judqment of the Supreme Court varied

by awarding the appellant the costs

of the action up to but not including

4 October 1983 and the respondents

the costs of the action thereafter.

A s to the costs in the Federal Court, I can see no basis

upon which the respondents should be deprived of their costs of

the appeal. They have succeeded in part on the cross-appeal but

on a matter which should have been resolved by referring the

learned trial Judae to the relevant Supreme Court rule at the ime

of judgment or immediately thereafter. They have failed on the

other mutters on which they cross-appealed. Substantial justlce

would, I think, be done by ordering the respondents to pay two

thirds of the costs incurred by the appellant by reason of the

cross-appeal.

I certify that this and the thirtyeight

preceding pages are a true copy of the

Reasons fo r Judgment herein	of his
Honour Mr.

Associate

' ! Dated: l 3 June 1984

:

-. .

I

- I N THE FEDERAL COURT OF AUSTRALIA )

. NORTI-iERN TERRITORY @FF_USTRF.LII? )

) No. NTG 36 of 1983

DISTRICT REGISTRY	)
)

GENERAL DIVlSJON 1

_- O N APPEAL FROM THE SUPREME COTJRT OF THE

NORTHERM TERRITORY

BETbIEEE :

B S M NAGA

Ap'pellant

AND :

Respondencs

Rm..SONS	-	FOR	JUPGMEMT	I
I

___	CORAM:	Pluirhead, Tooheg & EcGt-egor JJ.
DATEi	1 3 June 1 9 8 4

ECGRECOR J. This i s an appea l by SESIM WAOA ( p l a i n t i f f ) aqainsr-

p a r t of a judgment of the C h i e f J u s t i c e of the Supreme CoL:rr: of

the Northern Tecrir;ory of Australia given on 28 Octo jer 1983 I n

an a c t i o n f o r damages f o r p e r s o n a l i n j u r l e s s u f f e r e c ? hy The

L

p l a i n t i f f i n a road a c c i d e n t on 28 A p r i l 1979 .

The plaintiff ' s clalrn as o r i g i n a l l y filed incl.uded a

F-

L

"

2. I ,

Statelnmk of Particulars of Injuries and Special Damages thus -

Particulars of Iniuries

(a) Fractures to the left sided r l b s .

(b) Bruisinq to the chest.

(c) Concusslon.

(d) Tissue 1nyn-y to the rlqht knee.

(e) Loss of memory.

(f) Continual headaches.

(g) Loss of balance.

(h) Pain and suffering.

Particulars of SnecTal Damases

St. Johns Arnbulance	$26.70
Medical Fees:

Dr. Yaksich 90.00

Department of Health -

Hospital Darwln 294.00

Medical Fees:

Mr. G. Johnstone 29.00

Darwin Physiotherapy Clinic 163.00

His Ho!?our entered ~udgment for the plaincifi in the sum

of $18,556.95 Fade up as follows -

Speclal damaqes

Pain and sufferinq

Loss of earning capacity

Loss of enjoyment of life

3 .

The plaintlff contended that the learned Chlef Justlce maQe

errors In estmatlng the last three components of the veralct:

I

thus the plaintiff recovered less than the amount to whlch he was

' l

; I properly entitled.

There is a cross-appeal by PHILIP JOWN OUINTELL, driver,

(first defendant) and MZRINELAND .T. PTY. LIPlITEI?, owner (second defendant) of the relevant vehicle complaining of certain errors in the decision of the learned Chief Justice In failing to find

the plaintiff WRS quilty of contributory negllgence; Inrludlnq

in the verdict the sum of $556.85 awarded by way' of speclnl

damages, there being, so it is said, no evidence before Lhe Court

of the nature thereof or of the defendants' liability therefor;

and in respect of an order for costs made at the trial..

-

The negligence may be shortly stated. facts relating to negligence and contrlbutory

O n 28 April 1979 the plaintiff ~ 7 ~ s drivmg northwest In

McMinn Street in the Cicy of Darwin, heading towards the Scuart

Hlghway . The first defendant was driviny southeast In McMinn

SLreet intendinq to turn to the right into Bennett Street whlch

then formed a "T" junction with McMinn Street. That would have

reqvired the first defendant to turn riqht. across McMlnn Street

and that portion of McMinn Street upon which the plaintiff ~7as

travelling in a northwesterly directlon. Accordlng to the

evidence to which the learned Chief Justlce referred, the poinr;

i

4.

of Impact between the vehicles was approximately opposite the

centre line of Bennett Street: the defendants' vehicle ~7as not

"cutting the corner"; and the plaintiff's vehlcle went, almozt

straight along Its oriqlnal path. His Honour found that the

first defendant dld not see the plaintiff's vehicle until very

shortly before the impact and the plainclff did not realise cne

defendants' vehicle had turned until a very short tlme before

that. His Honour further found that the plaintiff had previously

seen that approachlng on its correct side vehicle sone dlstance off. driving normally ami

of the road: the next time he

saw it it was right in front of him and the coElision vas

inevitable. These findings were not questioned before us.

Judqnent was entered for the plaintiff. However. upon these

facts, the leacned Chief Justice posed for himself the questlon

as to ~7hlpther the plaintiff was guilty of contributory negligence

-

in falling to see and to try to avoid the defendants' vehlcle

after it crucial matter was whether or noc had started to turn. Hls Honour considered that a I

the first defendant had	caused	I
l
I

to operate Lhe turninq indicator on his vehicle. Though the

first defendant had said in evidence he had done so , his Honour ! .

had doubts about this evidence. He said that he was not

satisfied on the balance of probabllities that r,he turnxEu indicator was operating so as to be seen by the plaintiff if he had looked.

The learned Chief Justice, however. dld not regard thls

as questlon the of contributory negligence. He

r.

5.

considered further whether even if the turnlng indicator was not

operating, the plaintiff might have had no reason to suppose that

the first defendant was going to turn. He decided the plalntiff

would have had no reason to suppose that the first defendant r~as

going to turn. He concluded that he should not find the

plaintiff was guilty of negligence contributins to che occurrence

of the collision.

The grounds of appeal as filed were

"2.	His Honour the Learned Trial	Judge erred in
finding that the degenerative	changes in che

patello femoral compartment of the Appellant's left knee were nat caused by injuries received

in a motor vehicle accident on 28 April 1579.

3 . His Honour the Learned Trial Judge erred in

finding that che effect of the accidenr; on the

?-ppellant's neck and head had dissipated not

long after in vention th of a

physiotheraplst during January 1980.

4. HIS Honour the Learned Trlal Judge erred in preferring the evidence of Mr. Fry and Dr. Shoulder to that of Mr. Baddeley or Dr. James respectiveIy where they were in conflict.

I 6.

5. Ills Honour the Learned Trial Judge erred in

assessing the extent to which his findings

with respect o the Appellant's medlcal

condition should depend on the Appellant's own

evidence and credibility.

6. HIS Honour the Learned Trial Judge erred in

finding that the Plaintiff deliberately

! fabricated his ymptomology (sic) in the

I	psychological area.
' I

7. His Honour the Learned Trlal Judge

misconceived the effect	of the evidence of Dr.
Shoulder.

I

R.

failing to take into account sufficiently or

at all the evidence of the lay witnesses as to

His Honour the Learned Trial Judge erred in behaviour followlnq the accident.

9 .	The assessmenc of the Plaintiff's damacres for
pain and. sufferins at $8,000 is manifestly

inadequate.

10.	The assessment of the Appellant's damages for
loss of ordinary enjoyment of life at $5,000

I 1 I . 7.

is manifestly inadequate.

11. His Honour's finding that rhe Appellant's loss

of earning capacity caused by the injuries	he
received in the motor vehicle accident had

disslpated at the latest by the end of 1979

was against the evidence and the welght of

evidence.

12. His Honour's assessment of economic loss at

$5,000 was agalnst the evidence and the weiqht

of evidence and is manifestly inadequate."

The grounds of appeal as filed refer to the detail of

the plaintiff's contentions in this appeal. They express, for

the most parE. resulcs which in the suhmlssior. of senior counsei

f o r the plaintiff flowed frpm the shortcominqs in the trial.

Counsel souqht to raise Lhese claims more specifically in amended

grounds of appeal which the Court perrnltted to be added after the

hearing began. These were -

"13. The trial miscarried in relation to the

medical issues because of the fact that the

appellanr: dld not receive notice of nor vere

he or his witnesses cross-examined in relation

to: -

I i	,
! '

8.

(a) Dr. Shoulder'r; oplnion that the appellant

deliberately was fabricating h s

symptoms :

(b) Dr. Shoulder's oplnion that the

appellant's condition was caused by	an
inadequate personallty dlsorder;

(c)	Dr. Fry's opinion that the absence of
punctate l sions observable in the
appellant's left knee was a factor alding
his conclusion t'nat his lefc knee

problems had not been caused bp the motor

! vehicle accident:

(d)	Dr. Fry's opinion that the appellant had
suffered a further trauma or series of
minor craumas to his left knee in about

late 1980.

In the result, the appellant failed to secure a fair trial of these issues.

14. In assessing the welght, if any, to be

attached to the evidence of Dr. Shoulder and

Dr. Fry the learned Trial Judge failed -to

attach any slqnificance	to the matters set out
in paragraph 13 hereof."

We have been considerably assisted by the partles'

9 .

outlines in writlng of their submisslons which were developed by

counsel during argument. The main thrust of the argument offered

.

by counsel for the plaintiff was that the r-rial miscarrled, for reasons he developed. He said that in reachlng certain findlngs

that some of the complaints of the plaintiff were not qenulne,

e.g. its to headaches and other matters, the Lrial Judge w a s

influenced by the evidence	of Dr. Shoulder. a psychlatrlst called
in the defendants' case.	The trial Judge, he sald. accepted Dr.

Shoulder's opinion that the plaintiff had deliberately fabricated his symptomatology. Counsel pointed out hat Dr. Shoulder described the plaintiff as having an inadequate 'personality

revealed by his habit of projection: that was irreconcilable

with hls earlier expressed views that the plaintifi was a

malingerer. The witness, he said, when using the t7ord

"malingerer" sought to explaln the plaintiff's complaints in

terms of conscious fabrication whereas nis other oplnlcn

cxplamed them in terms of unconscious processes. He submltLe6

that Dr. Shoulder's use of tine vords "deliberateiy fabricating"

and "malingering" was not in accordance [nth accepted

medlco-legal definltlons: that the findings of the crnl Judge were "tainted" by a misapprehension of Dr. Shoulder's evidence. He referred to Federal Commissioner of Tasar-ion v. Nixon

(1979-1980) 30 BLR 400 at pp.405-406. I!e submitted that the

trial Judge In his 9easons referred to the plaintlff's "serious

depression" and went on -

"....if genuine which I doubt, prohably postdeted

the colllslor! by more than l& months. 'I

10.

T h i s opi~ion was apparently based on something the plaintlif Inay

have said to a psychiatrist, Dr. McGregor. I shall refer to this

later. These findings, counsel for the plaintlff said,

l '

I

I overlooked a substantial body of lay evidence to the contrary to

, I which the trial Judge made no reference, thus contributing to his

!

l misapprehension of the effect of Dr. Shoulder's evidence. He

submitted that the plaintiff had failed to obtaln a fair trial of

the issues relating to hls medical condition. This failure, he

argued, was the result of the course which the proceedings took

and, in partlcular, the fact that neither of the theories

advanced by Dr. Shoulder to esplaln the plaintiff's condition was

put in cross-exammation to the psychiatrist who gave evidence In

the plaintlff's case. He cited Browne v. Ounn (1894) 6 R.67;

Allied Pastoral Holdincrs Ptv. Ltd. v. Commlssloner of Tasatlon

(1983) 1 N.S.W.L.R. 1. He referred to the findjng of the learned

i

Chief Justice that the plaintiff's left knee conditlon was not

:

caused by the accident. Implicit in this findlng, so he said, was

an acceptance of the "hypothesis" advanced by Mr. Fry that an

event just plalntiff's condition; yet thls hypothesis was not put to the prior to January 1981 was responsible for the

plaintiff in cross-examination: nor was there any evidence of

it. He the absence of punctate lesions in coming	referred to the evldence of Mr.	Fry who had relled u?on
to his opinlon chat the

plaintiff's left knee condition was not caused by the accident. Their absence v7as regarded as siqnificanc by Mr. Fry but this wa.s

not put by defendants' counsel In cross-examination to the

orthopaedic specialist called in the plaintiff's case. Ye

-

11.

submitted t,hat. these omlssions materially reduced the welghc

which might have been attached to the evidence of the witnesses

called in the defendants' case: that this was overlooked by the trlal Judge and thus contributed to the plaintiff having falled to secure a fair trial on medical issues. He said. he did not seek to arque that individual components vlnich made up the total

award of damaqes were, on the materlal which the trial Judgs

accepced, inadequate; rather, the plaintiff sought a nec7 trial

on the Issue of damages generally.

Counsel for the defendants referred fiist to the

cross-appeal. He submitted the learned trial Judge should have

found that the plaintiff by hls Otjn necligence had contributed to

the collision. Counsel said, upon the evldence, the first

defendant had not Seen "cuttinq" the comer: the plaintiff

2 2 .

symptoms with his left knee. That's his opinion:

tins man is an out and out malingerer.

After the tender of these documents, Dr. Shoulder was called. His

report of 9 March 1983 b7as tendered. Counsel for the plaintiff

I

said -

"I'd like to formally objecc to it, your Honour.

The report as I've already said, concludes chat Mr

Naga is fabricating deliberacely sympcomatoloqy In terms of hls present distress with the exception of

the sympcoms to do wlth nis left knee on which I am

not able to comment. Your Honour wlll recall that

as part of the plaintiff's case he called a

speciallst psychiatrist from Queensland, a Dr.

James: he gave fairly extensive evidence *and it

was never for a moment suggested to him that the

plalntiff was fabricating, deliberately or otherwise, his symptomatology. It was never put to

the plaintiff that he was fabricating

I deliherately.. . . : the case v7as not conductc-i on

that basis ac a l l . Indeed, the basls upon which

the case was conducted 1 s best reflected in ny learned frlend's openir?g words at page 389 of che

transcript where he	?=id chis, in ahout the middle
of the page :

"The defendants' case is further that- no

psychiatric disability flows frorn that C?.UZP,

namely the subject accident and that the

causes for c7hat 1s an acknowledged deFresslve

condition on che par; of the plaintiff 1 s eo

be found in ocher areas. The Kelvinacor

problem, financlal stresses, press from cne NTDC over beinq sued, poor returns from

fishing, famlly problems and the loss of the

boat which ----"

and so on. Thot's the basls upon vhich I object to it I hsve to sap this, of course, that in

anticipation that Br- Shoulder would be called we have made arrangements for Dr. James to return to the Territory for the purposes of giving rehuttal

evidence if thls evidence 1s allowed, and the

airline pilots strike permltting ne %ill1 59 here,

we hope, on Thursday afternoon. He had in fact set

aside the veek for the purpose oi coming to Darwin

to give evldence in this casc."

Counsel for the defendants nade varlocls submissions in reply eo

2 3 .

this objection, includlng that "we" had not received the

(Shoulder) report when he made his opening address. Atter

argument, his Honour admltted the report into evldence. He said

that he would allow counsel to call evidence from Dr. Shoulder and would be disposed to permit Dr. James CO be recalled.

Defendants' counsel In remarks indicated that he had not the

Shoulder report when he cross-examined the plaintiff and Dr.

James. Dr. Shoulder then gave evidence Including -

"I think you have come to a conclusion, yourself,

' I	as to the nature of the problem that you see him as suffering from?----Yes. My own diagnosis of Mr
Naqa's condition is that he has an inxlequate
personality dlsorder and that coupled with that he
ha5 a tendency to project onco the outside world, outside beinqs, outside bodies, the blaae or cause
of any inclaent chat happened in hls life. There
seem to be two dlfferent walrs t'nat people nandle a problem when it arises. which of course 1 s not totally one way or the other. It's a spectruy: buc
people introject or prolect. and at the estreme of
introjectlon it's the taking Into seif of hlame I '
such that people may even quite believe chat tiney've commtted some sln wn~nlch thelr peers 170uld
not see as a reasonable concluslon. They will
blame chemself for all sorts nf thinus.
Is this likely to be a long-standlng cofidltlon, in
your view?----Yes. The tendency is a basic pacterr,
that can be seen throughout a person's life."

He vas asked whether his conclusion that the plaintiff was

fabricating	deliberately	was	mconsistent with	the	above	I
i

conclusion which he had lust drawn. He said "No." I note that !

these questions and answers were given without objection by

plalntiff's counsel. At he conclusion of Dr. Shoulder's

~

evldence-In-chief, there being stlll half an hour left of the

ordlnary hearing time, counsel for the plaintiff asked f o r an

I

24.

adjournment until the nest day upon the basis that the thrust of

Dr. Shoulder's evidence was quite different from what had been

anticipated. That adjournment was granted.

On the resumption on dcfendants referred to a matter which had come 5 October 1983 counsel for the

to hxs notice wlth

some "horror and concern", viz. that it had been foreshadowed the

plaintiff miqht recall Dr. James; and he had. been given a copy of

a further report dated 29 April 1983 from Dr. James for t,he first

tune the previous night. Counsel coaplained of the failure to

disclose this report earller. He referred to Order 34 Rule l1

(1) and to the report having been in existence for four months,

l and withheld -

'I.. .until after I completed had

my

exanlination-in-chief of my psychiatric witness.

Counsel sought to ask further questior.s in chlef of Dr. Shoulder. Thls ~7 ,353 not objected to and was permitted by the learned trlal

Judge.

Dr. Shoulder 67as extensively cross-examined including

upon the subject of the plaintiff's walingering and projectlon.

Counsel for the defendants sought to cross-examine further the

plaintiff as to an alleged earlier accident and a film taken of

him. That application was opposed. So far as the

cross-examination might relate to malingering which might be

discerned on the film, counsel for the plaintiff asked

rhetorically t7hy the alleged malingering had not been put to the

2 5 .

plaintiff at the last hearing; he submitted also thls should

have been put to D;. James. His Honour sald that he did nor:

. quite understand that it should have been put to Dr. James and he

did not accept that submlsslon.

Counsel f o r the plaintiff adverted tc the possibility of

recalling Dr. James but considered he would do no more than

disagree with Dr. Shoulder's report. Later he stated that it had been decided not to recall Dr. James and for the reason he had

stated; though I note counsel's earlier statement quoted above

that there had been some arrangement to recall hlm. I am aware

that if recalled Dr. James would have had to come from Brisbane.

His Honour gave leave for the plantiff to be recalled

to be cross-examined. H e 572s recalled 01 5 October. H e vas

cross-examlned about what the film (referred to above) ssor~ed and

also about a mocor vehicle accident sald to have occurred between

1969 and 1975. After the showing of the f i l a ancl r : ? ~

cross-examination. the plaintiff vas re-examined very shortly,

b u t only upon the questlon of what the film had shown. ??OllobJin7

that, on 6 October 1983 , defendants' counsel announced he would

not be recalllng Mr. Fry ; and that he understood plaintiff would

not seek to recall Mr.	Fry. The evldence	then	closed	and
addresses beqan.

I shall assume for the purpose of this decision chat

this Court in its appellate jurisdictlon has pover to grant a new

n

Counsel for the plaintiff submitted that the trial had

I miscarried because the learned trlal Judge had not had the

' I	advantage of hearing adequate cross-examination of two witnesses,
Mr. Haddeley and Dr. James, who were of great Importance in the
plaintlff's case. He relied on Browme v. Dunn (supra) CO which I refer later. This declsion. which was an appeal ln respect of a jury trial, 1 s regarded as of great iaportance In the conduct of litigation in our courts where the adversary system operatss.
However. the "rule" in Browne v. DunG 1s subject to limitations.

I

It is oi more importance in a lury trlal than it is where factml !

issues ere declded by a single Judge, ad]ournments may be	s o w h c
and granted, and witnesses recalled.

Counsel for the defendants maintained that he had I

sufficiently cross-examined Mr. Baddeley in the relevant' sense.

He referred to the evidence.

On this aspect of the case ighich I propose to c o n s i d e r

first I	do not find it necessary to refer further to counsels'
argurents	.
Mr. Fry's evidence was that If there had. heen an Injury

sufficlent to cause the relevant deterioration. there would have

2 7 .

been observable punctate lesions in the plaintlff's knee; that

having regard to the arthroscopy performed by i4r. Baddeley, he

was able to say there were no such lesions. i$r. Fry's opinions.

on my reading of the transcript, did not depend finally on the

presence o r absence of punctate ("a word . . . suggestive of

shape ... a small area") lesions. He did not agree that the motor

vehicle accident as a cause of arthritic changes In the left knee

could probably he ruled out only because	of	the absence	of
punctate lesions but, as he said, -

"I thought it could be ruled out altogether Fecause

- as a result of no slgnificanc symptoms occurring

at the time, and punctate lesions being at that

staqe, was one example of it."

Further, Hr. Fry said that had there been such an inlury there would have been a history oi continuing problems witn that knee

from the time of che initial trauma before the kr?ee's

deterioration ~7as marked: whereas Mr. Baddeleg's evidence was

consistent vith there belng a period	of some trlenty months	of
remission as opposed CO continuous pain.

learned Chief Justice slnce Mr. Baddeley did not refer to the presence was entitled to infer tnat

l k c

of punctate

lesions (in fact rather mdicaced there were none) and attributed

the deterioration to the injury, that Mr. Baddeley must have

considered that punctate lesions or their presence were not

essential to his diagnosis. It was to be inferred that had he

been asked specifically therefore in cross-examination a question

relatinq to thelr presence. he would have said that the absence

l 28.

of punctate leslons did not rule out a causal conncction between

the trauma in 1979 and the subsequent deterioration. Nor am I

satisfied that defendants' counsel did fail relevantly to

cross-examine Mr. Baddeley or that the latter was not given an opportunity to refer to the significance of the lack of sucn lesions. Mr. Baddeley agreed In cross-examination that in his

latest arthroscopy he had esamined the femoral condyles. His

answers thereafter were to the effect that he did not crbserve

anything more problems with the medial femoral condyle". than degenerative changes and "oniy minlmal

He was asked if there

! were any punctate lesions in the femoral condples. His answer

?as in the negative and, later, he stated that the only lesions he observed in -the femoral cond;rles ~7ere generalised. !.?oreover, Mr. Baddeley, whose address was given in evidence as at Darwin,

I

' I

could have been recalled if it were thought necessary OL-

advantageous and asked to c mment speclfically on the

significance of the absence of these lesions In determlnlng t h e

I

cause of the condicion he found. This would have achieved	z;he
specificity which plaintiff's counsel implied was necessary to

raise the appropriate issue. A readinq of the transcript

suggests a great deal of weight was attached by Mr. Fry to the

absence of continuation of symptoms immedlatelp following the

motor accident. I notlce that in submissions to the Chlef

Justice, counsel for the plaintiff appeared to have accepted an

issue from hls Honour as to thls matter. His Honour put it, to counsel for the plaintiff that the thrust of Mr. Fry's evidence 17as that whatever condition the plaintiff now had, it could not

I

I

i

2 9 .

have occurrcd from the collision becallse otherwise there G70Uld

not have been the pain free interval of time. Counsel accepted

that as being the "real nub of the issue". This sublect had been

fully explored by him wlth Mr. Fry.

I

The rather more important issue to the plaintiff on

I

this appeal, as I gather from his submission as I understand it,

l	concerns
the post-traumatic depression and the injury. relationship between the plaintiff's alleTed

'The plalntlff's case

is that the former ~7as related to the collision: the defendants'

case is that the plaintiff fabricated his symptomatology or was a

malingerer in the sense used by Dr. Shoulder, or that any

depression was related to other external causes. Further. he wzs

said to have an inadequate personalltg, being the type of person

17hO blamed events exterior to himself for misfortunes. Dr.

Shoulder said the malingering and inadequate personality were not inconsistent. It is correct that these expressions of oplnion

were not put to Dr. James. Yet it is to be rememhered that the

clalla of post-traumatic neurosis had been put forward on the

plaintxff's behalf only some four days before the hearinq

connenced and psychiatrist on behalf of the defendants, that witness's Medlcal that although he had been examlned by a

report vas not then available. It would have been, therefore,

not possible for the defendants' counsel to cross-examine the

plaintiff's wltness on the material later appearing in the

Shoulder report or as to hls virra voce evidence. The plaintiff's

counsel further submitted that there was an inconslstency betveen

30.

the assertion on the one hand that the plaintiff was a

malingerer, consciously fabricatlng symptoms and, on the other,

the assertion that he had the unconscious tendency or practlce

always to himself. Dr. Shoulder attribute hls misfortunes to events exterior to

did not accept that there was an

inconslstency In these assertions. I do not agree that the

evldence establishes or that the allegation 1 s that projectlon,

or plaintiff's projection, 1s essentially or wholly unconscious. ..

The plaintiff's advisers considered and had che opportunlty, it

would appear, to call Dr. James in reply to the defendants' case.

The earlier quoted words of counsel indicate chat it was decldsd

during the hearing not to do s o . I do not suggest tnat thls r - j a s

a wrong decision. Presunl?&whly, Dr. James, havlnq reqara to ~ h ?

clear-cut manner in whhlch his evldence appears. would have

adhered to his previous opln2m; thus chere wmld have beer: a !

conflict, as the learned Chef Justlce acceFted, becween che

psychiatrists. If, on the other hand. Dr. James on recall had

I

agreed with plaintiff's case in chis area would thereby have been the opinions expressed by Dr. Shoulder, the

dminished.

I notice Dr. James accepted in evidence that there may have been

some kind of conscious exaggeration by the plaintiff of symptoms;

presumably he regarded this as not inconsistent with

post-traumatic neurosis developlng from the injury; so he was

not denying some form of c7hac might be descrlbed as fabrication;

but rather treating this a s part, perhaps a manifestation, of the

accident-induced neurosis.

I

31.

In my view the competing testimony of these two

psychiatrists established a clear enouqh issue and hls Honour was

. entitled to choose between their testimony as he did.

I As indicated earlier. counsel for the plaintiff placed

much rellance on Browne v. Dunn (supra). One aspect of whac it

decided 1 s referred to In the speech of Lord Herschell at

pp.70-71 thus -

"Now. my Lords, I cannot help saying that it seems

to me to be absolutely essentlal to che proper

conduct of a cause, where it is Intended to suggest

that a wltness 1s not speaking the truth on a

pzrticular point, to direct hls atcencion to the

fact by some questions put in cross-examinatlon

shomng that that Imputation is intended to be

made. and not to take hls evidence and pass It by

a5 a matter altogether Unchallenged, and then, when

it is impossible for h m to explaln, as serhaps he

might have been able to do if such questions had

been put to him, the circumstances which it is

sugqested indlcace that the story he tells ought

not to be believed, to argue Lhat he is a witness

unworthy of credit. My Lords. I have always

understood that If you intend to impeach a witness

you are bound. whllst he is in the box, to give him

an opportunity of naking any explanation which is

op?n to hlm; and, as it seems to me, that is not

only a rule of professlonal practice in the conduct

of a case, but is essentlal to fair play and fair dealing with wltnesses.

In the instant case It was not suuqested that che

medical witnesses called to give evidence in the plaintlff's case

speakinq unchallenged. If Mr. Baddeley was not the truth: nor was their evldencc

were not

fully cross-examined ir;

was because counsel for the defendants vas not in possession of

material he later received. Lord Halsbury in Browne v. Dunn

(supra) (pp.76-77) refers to the faiiure to give witnesses "an

3 2 .

opportunity of explanation and .... to defend their oxm character."

Counsel here could hardly glve an opportunlty to explain

something of which he himself had not been Instructed; and no

question of the character of medical witnesses arose ar; any

stage. Authorities which have referred to Browne v. Dunn and

I

underline its place in our procedures are collected In Aliled

Pastoral Holdinas Pty. Ltd. v. Commissioner of Taxation (supra).

I

What Browne v. nunn decided 1s referred to by Newton J. in

Bulstrode v. Trdmble (1970) V.R. 860 (Bulstrode) at p.846 -

I

"The rule in Browne v. Dunn	has, in my opinison,	two
aspects.

In its first aspect the rule in Rrowne v. Dunn is a

I

I rule of practlce or procedure desigfied to achieve

8	1	fairness to witnesses an?. a fair trial between the
parties. In Its second aspect it is a rule
relating to ~7eight or cocjencp of evidence. "

It h+: been summarlsed jn Cross on Evidence 2nd Australian

editFon (1979) at p.245 -

"Any matter upon wh~ch it is oroposed to contrad3.ct

I

the evidence-in-chief given bp the witness musc

nuz-mally be put to him so that ?le map have an

opportunity of explainins the contradiction, and

fallure to 60 this be held to imply acceptance

of the evidence-in-chief. It may be that In

jurisdictions wh~ch permit evidence in rebuttal

liberally,	this	rule	will	be applied	less
strictly.	. . "

(underlining is mine).

I note that Newton J., in Bulstrode at p.847, referred

to the possibility of remedying the situation, where the "rule"

has been breached. by recallinq witnesses.

R -

33 .

In the instant case it wds rlot "proposed" to contradict the evidence of Dr. James and Mr. Baddeley. In the case of the

first, the second, Mr. Fry's evidence relied upon Mr. Baddeley's evidence appropriate material was not available: in the

as

to the absence of punctate lesions. This vas not a situatlon

where these matters could "normally" have been put. The fallure

to do so did not imply acceptance. However, I do not accept

there was a failure to cross-examine Mr. Baddeley relevantly.

There remains one further submisslon by plalnciff's

counsel i.e. that the Chief Justice ignored the evidence of lay

witnesses. I do not agree as contended that this has been made

out. (cf. Lord Simonds, Natt or Thomzs v. Thomas (supra) at

p.492). The Chief Justice finally decided that tiie defendants' medical evidence was preferable to that cblled on behalf of the

plaintiff, as he was entitled to do. I have r~ondered whether the

learned Chief Justice drew more from the repark said to have been

made to Dr. McGregor than he should have done. I have referred

t@ this earlier. It 1 s possible to infer t'nac his Honou'r found

from this expressed, remark some support for hls view, tentatively

that he plaintiff's depression post-dated che

collision by more than 18 months. However, such consideraclops

bear upon the weight to be attached to the varlous areas oi

evidence. Nor is this a case where one thing was taken to be the question to be determined by a jury (or Court deciding factual

issues) and afterwards raislng another qdestlon. At all times

the case for the defendants was that the condlclon of depression

I .

I

34.

suffered by the plamtiff wa5 not causally rclatcd to rhe

collision; in fact, defendants' counsel said in his openlnq

(which I have set out in part earller) that although the

condition of depression was accepted, it v7as to be explained by

reference to other areas, meaning, perhaps, the plaintiff's

various misfortunes. Two other matters, as it eventuated, were the assertion that the plaintiff was a mallnqerer of which s01p.e notice, though not in tlme to be used when Dr. James was belnq

cross-examined, was given by providing a report: and the

assertion as to an inadequate personality of which no notlce wa5 given; but viva voce evldence concerning it was admitted wlchout- oblection. A factor which affected his Honour's assessment of

damaqes was, clearly, his unfavourable view of the plaintiff a s 2

witness. So the Shoulder evidence 17as more acceptable tcj hls

Honour: it coincided with his Honour's own estimation of the

! plaintiff, a task which was, of course, most signifxcant in the

assessment he	made &S to the varlous coaponents of the darnages
award.

Counsel referred to Precision Plastics Ptv. Ltd. v.

Demlr (1974-1975) 132 C.L.R. 362 (Precision Plastics) per Glb3s J. at p.370. It appeared that in a jury trial a plaintiff had

wished tn establish how lonq she proposed to remain in employment

if she had not received her injuries, this being relevant and

adrnissible evidence upon the question of impairment of earnlng

capacity. She answered -

i

.

35.

"Until the age of fifty-five years old. Of course, until r:he last day until I died I llke to work as far as work is concerned."

. There was no cross-exaainatlon upon this answer. Gibbs J. sald

at pp.370-371 -

"If it had been intended to suggest that she 1.7as

not speaking the truth she should have been

cross-examined on this matter so that she might

have had an opportunity of explanatlon (cf. Browne

v. Dunn (1893) 6 R.67, at pp.76-77). but she ~,7as

not in fact cross-examined on her answer."

He commented that the plamtiff's evidence that she intended m

i	work until she reached the age of fifty-five was nor: innerently incredlble; in his opinion the jury, acizinq reasbnably, were bound to accept her evidence, uncontradicted and unchallenged in
cross-examination, thtrt she had the present intentlon of working
until she reached the aqe of fifty-five.

-

I note that in thls case Ste>hen J. agreed with the

decision of Gibbs J. for the reasons stated in it: however,

Barwick C.J. dissented, McTiernan J. founded himself upon a

different aspect of the material as di& Murphy J.: though Murpny

J. did say that he agreed "generally with the observations on the

verdict" made by Gibbs J. In Precision Plastlcs the person who

should ?I*.v- ?veri cross-examlned was the plalntlff, not, as here,

a "mere witness" - cf. Horner V. Canadmn Northern R . Co. (19201

55 D.L.R. 340 at p.358 where the failure to cross-examine was noT;

thought to call for S new trial. However. In the circumstances

outlined here, counsel for the defendants did not have in hls

possession material which would have enabled him to cross-esamlne

I

3 6 .

Dr. James as speciflcally as he mlqht have done. Furthermore.

I

the evidence was that of an expert and not factual evldence; and _ .

. there is much to be said for the view that to put precisely what

I

17as expected to be the evidence of Dr. Shoulcler in the

I	cross-examination to Dr. James would have done no more than brlnu
about a refutation from Dr. James of the opinion put forward by
Dr. Shoulder. This is implicit In the evidence glven by Dr.
Jarnes and vas the substance of the comment by counsel for the
plaintiff I have quoted earlier. In my opinion, the claim made
on behalf
of miscarried in part because of the failure fully to cross-examlne the plaintiff that the trlal miscarried o r
Mr. Baddeley and Dr. James has not been made out. This was a case
of experts who simply reached a point of view different to those of .
W r t s call& b:7 the other si3e after consideration of the material
before them.

Much reliance was placed upon the d2cision of this Court

in Manlev V. Radial Industries (1982) 61 F.L.R. 189 (Mapley). Tnere it appeared the appellant sufZerecl personal injury'from an accident arising ouc of employment by the respondent. He applied

for compensation to a Tribunal. His claim was dismissed. He appealed to the Supreme Court of the Northern Territory. During

nuch of the proceedings, the case was conducted by both sides on

the basis that the appellant's injury ~7a5 permanent. That Court

dismlssed the appeal because "in the present state of the

evidence" the probabjlites" that the appellant's injury was permanent. It Court "was not satisfied on the balance of

is

c

37.

1 ,

necessdry to notice ho7.7 the issue in that case arose, as sec out

in the judgment of Deane J. (as he then vas1 at p.197, -

“The expert medical evxdence before the Chief

Justice took three dlfferent forms. There was a

number of written reports which had been tendered

before the Tribunal. There vas the transcript of

oral evidence, lncludlng the oral evldence of three medical experts, given before tine Tribunal. There was oral evidence glven before the Supreme Court.

The reports and oral evldence which had been

tendered or given before the Trlbunal do not appear

to have been discussed in any detail before the

Chlef Justice: they were simply included in a bulk

tender. made by consent, of all the material that

I	had been before the Tribunal. The oral medxcal evidence before the Supreme Court consisted of the
evidence of one expert (Dr. Yaksich) who had a l s o
given evidence before the Tribunal and of ‘another (Dr. Lowe) who gave evidence for the first tlme before the Chief Justice.
The;? proceedings before the Tclbunal appear to have
been conducted on the basis, common co both sxdes.
that any perslstinu loss, bg the appellant, of use
of his arms for the purposes of his employment was
permanent. lip unl;il the the? when che last medical I

I

experr., Dr. LOW^, gave hls evidence. the

prnceedlnqs before the C‘nlei: Justice were p l a m i y

conducted on that basis.“

His Honour said further at p.20@ -

“MO suggestion of these matters was made in

cross-examination of the appellant or Dr. Yakslch

when they gave oral evldence in the appellant‘s

case in the Supreme Court. The first suqgestion of

these matters came in the evidence of the last

witness, Dr. Lowe, in answers which were strlccly

unresponsive to questions which he was asked. It

was unfalr to the appellant that the respondent’s

case should be so conducted. That unfairness was.

no doubt, unmtentional on the part of those c~V-3

appeared on behalf of the respondent and, at least in part, the resulr. of changes in the identicg of counsel and the fact chat Dr. Lowe was an expert

called from the south. It is 1mporr;ant. however,

in that it does much to explain the failure by

counsel, who then eppeared for the appellant,

either to cross-examlne Dr. Lowe on -the ne17 natters

which he had raised or to call or recall expert

. .. . . r.

n

38.

evidence to. deal wlth them. 'I

The basis, 'as to be found at p.199 where he said - I read ir;, for his Honour's judqment, 1 s

"A reading and rereadinq of the material before the

Supreme Court has persuaded me of the vallditg of

the submlssion that the appellant's case, on the

questions which emerqed for the first time in the

evidence of Dr. Lowe, GI?.S never properly put.

His Honour, for reasons which he gave, decided thar: it would be

wrong to lay the responslbllity for the unsatisfactory state of the evidence in relatlon to the questlons raised by Dr. Love's

evidence, wholly at the door of the appellant o> his leqal

advisers. He stated that ultimately the combmation of four

considerations governed the outcome of the appeal, viz. the

appellant's case on permanency w z s never properly put tc the

Suprene Court; this was, to a significant extenr;. due to the , .

unfalr manner unsatisfactory nature of the evidence in the Supreme Court led in whlch respondent's case volved: I- he

LO

the case being determined by the onus of proof rather than by

positive findings on relevant questions of fact; and fLnally the

overall objectives of justice would be best served by a

rehearing.

In my opinion the first three reasons are absent here;

the fourth step is a reference to the issue in this or any

appeal. The plaintiff's case to the learned Chief Justlce.

apparently thoroughly argued by counsel then representing him,

was that there was a deterioration of the left knee and

l

i % r r

I ' c

I ' 39.

post-traumatic neurosis due to the accldent and its consequences.

Those who asserted t o the contrary, viz. Mr. F r y and Dr.

Shoulder, were fully cross-examined: though, admittedly, the

l

, ) defendants' case in speclflc terns was not precisely put to Dr

! James. To have recalled the witness. Dr. James, and asked hi5

view of the Shoulder opinion would, it seems, hcrve beer? no more

than an academic exercise; unless, of course, Dr. James accepted

the Shoulder opinion. To some extent the plaintiff's advisers

must accept responsibility by their late introduction o€ the

so-called "post-traumatic neurosis". And they did not recall Dr.

James or Mr. Baddeley. The third consideration of Dkane J. does

not apply here. In the sense that he used the expression, there

was no "unsatisfactory nature of the evidence" : nor was there

unfairness. Litigants should be bound on appeal by the way L ~ P Y

have conducted the hearing at first instance. See per Glbbs J.

(as he then was) in McCocrack v. FederEl Commissioner of Taxat=

(1979-1980) 143 C.L.R. 284 at p.305. Tine learned Chief Just~ce

did not determine thls matter by reference to onus but racher by

a cholce of evidence which he founu In two witnesses a opposed

to two others. Furthermore, he formed an unfavourable view of

the plaintiff. Federal Commissioner o f Taxatior. v. fiJixon (supra)

referred to the pre-eminence of the trial judge's view in matters	I I
!

of credlbllity. The strictures set out in that case at p.406, I

consider, offer timely caution aqainst making a findinq dlfierenr:

to that of the learned Chief Justice in matters of weiqht and

I I

credibility; particularly against interfering w l ~ h his

assessnent as trial ~udge of the plaint].fr as a wicness.

, I

., .--

40.

Moreover, T wonder whether v7hat emerged from Dr. Shoulder's evidence subsequently was really the assertion of a psychiatrlc

.	disability. Those rJho consciously falsify symptomatology are not
necessarily thereby manifesting a psychiatric disability. They
may be behavjng in an improper manner for gain. An Inadequate
personality wlth projection is not readlly to be perceived as a
psychiatric drsability. It could be a weakness from which all
suffer in varying degrees. I note that Gallop J., who ~7as one of

the majorlty in Maplev, examined the evidence and the findi'gs of

the primary Judge from rrhom the appeal was brought to the Full

Court. Having referred to the primary Judge's 'advertinq to

medical evidence which he compared wlth that of Mr. Lowe who gave

the new evidence related to permanency, Gallop J. at p.208 said -

"In my view, his Honour has failed to appreciate

the full extent of the evidence	of the medical
witnesses except Mr. Lowe."

He said, at pp.210-211, after exanlnatlon of the meanlnq of L n ?

I

word "permanent" I n authorities -

"It does not appear that the Chief Justice was

referred to any authorities on the meaning of the

word "permanent" in comparable leqislatlon, and

further, that hls Honour may have applied the

notion of a perpetual state of affairs rather than

the ordinary meaninu of lasting indefinitely,

enduring or perslstlng."

Latcr in his gudgment. h ~ s Honour said that if notice had been

glven on behalf of the rzsponclent of an intention to lead

evidence tending to show that the appellant's loss was not

permanent, a ruling could have heen sought that the respondent

should be bound by the course it had dellberately adopted,

r-

41.

meaning. a s T understand him, bound to accept the evidence that the condition was permanent. He referred to Rowe v. Australian

United Steam Maviuation Co. Ltd. (1909) 9 C.L.R. 1 at p.24.

Having regard to this summary, I do not agree, with

I . .

respcct, that Mapley, so far as the Reasons for Judgment of

Gallop J. reveal, is appllcable here.

I conclude that the claim on behalf of the plaintiff

that the trlal miscarried has not been made out.

I am aware of the Orders proposed by Toohzy J. and, witn

respect, concur in them.

I s d r f y [bat thls and the 40 I

Fl"c*dlng pages are a true copy of the

Reasons for Judgment herein of his Honour

Mr. Jusuce McGrcgor.

!

... .

r ..-

'I