NSW Insce Ministerial Corp v Papadopoulos

[1999] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S77 of 1999

B e t w e e n -

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

Applicant

and

GEORGE PAPADOPOULOS by his joint tutors PETER PAPADOPOULOS and DESPINA PAPADOPOULOS

Respondent

Application for special leave to appeal

GAUDRON ACJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 SEPTEMBER 1999, AT 9.30 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR P.N.D. JENKYN, for the applicant.  (instructed by Helen Chrysostomidis & Co)

MR C.T. BARRY, QC:   May it please the Court, I appear for the respondent with my learned friend, MR J.R.K. PRYDE.   (instructed by Coroneos & Co)

GAUDRON ACJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I indicate at the outset the two points which we would seek to make.  The first is that we would submit special leave should be granted because the Court of Appeal did not properly perform its function when hearing the appeal.  The second feature we would seek to advance is this, that even if the Court of Appeal was correct in criticising the approach to the evidence taken by the primary judge, the case was one where the result should have been a new trial, not the reversal of the verdict, giving a verdict in favour of the plaintiff.

Your Honours, may I seek to make out those propositions?  In doing so, your Honours, may I state very briefly the facts which we would submit are germane.  First, the respondent was diagnosed with cerebral palsy.  It was a relatively rare form caused by what is called perfusion failure.  That type of cerebral palsy occurs in about one in 100 cases of cerebral palsy.  His mother had been involved in a car crash during the pregnancy.  The respondent’s submissions describe it vividly, perhaps as one might expect, at page 139, paragraphs 7 and 8.

The respondent at the trial sought to establish that the car crash was the cause of the perfusion failure but there was a strong body of evidence demonstrating that in 50 per cent of cases of cerebral palsy attributable to perfusion failure, its cause cannot be identified.  Your Honours, that, if I could say so by the way, is what is meant by the reference to one in 200, that one sees in the Court of Appeal’s reasons at page 102, line 26.  Your Honours, what that means is that one in 100 cases of cerebral palsy are due to perfusion failure; in half of those no cause is ever found.   The way in which it is put by the Court of Appeal does not quite represent what the evidence - - -

GAUDRON ACJ:   Sorry, what page was that?

MR JACKSON:   Page 102, your Honour, about line 26.  In relation to that aspect of the case may I take your Honours very briefly to three passages of evidence accepted by the primary judge.  They are Dr Burke, page 69, line 45, through to page 70, line 51.  Your Honours will see, if I can interpolate, that his Honour was referring both to reports and to oral evidence.  Secondly, your Honours, Professor Zimmerman, page 60, lines 4 to 31; and thirdly, Dr De Silva, page 54, lines 26 to 39.  But the evidence showed that there were ways of determining whether the accident, in fact, was likely to have caused the perfusion failure. 

There were four elements that were important.  First, the presence of gliosis on MRI scanning, and the evidence which the judge accepted was that the gliosis which had been seen to be present would not be there if the lesion had occurred at the stage of the pregnancy when the motor accident occurred.  Could I give your Honours one example of that evidence?  It is Professor Zimmerman’s evidence at page 56, line 30, through to page 57, line 22.

Secondly, your Honours, there was, on the other hand, an absence of what is described in the reasons as “PM”, polymicrogyria, that is an alteration of the external shape of the brain.  The evidence which the judge accepted was that if the accident had caused the perfusion failure, MRI scans should have showed the presence of PM.  One example of that evidence is Professor Zimmerman, again, page 57, line 49 through to page 58, line 20.

The third matter, your Honours, was the question of head size.  In this regard, could I take your Honours to the evidence of Dr De Silva at page 53, line 46, through to page 54, line 2.  One would have expected a smaller than normal brain but there was not, that was not the case.  To the same effect is the evidence of Dr Burke at page 71, line 50. 

Your Honours, the fourth feature was that ultrasound testing shortly after the crash had shown no evidence of change in the ventricular size.  That is summarised in the primary judge’s reasons at page 81, paragraph (6).

Now, your Honours, the result of all that is that there was a body of evidence which the judge, first, was entitled to accept and, secondly, did accept which showed that the objective facts were not consistent with the view that the accident was the cause of the perfusion failure.  Now, of course, those views, or perhaps I should say the first two aspects of the four to which I have referred, were to a degree dependent on basic facts such as dating the pregnancy but that was not, on the evidence, in issue.  Could I refer your Honours to the matters in our summary of argument, paragraphs 34 and 35, at page 135.

GAUDRON ACJ:   Was it measured backwards from the date of birth, which would seem to me to be the logical thing to do?

MR JACKSON:   Your Honour, the evidence is to the effect - - -

GAUDRON ACJ:   Would it make a difference if it were measured backwards?

MR JACKSON:   I think not, your Honour.  There were contemporaneous notes that are referred to, your Honour.

GAUDRON ACJ:   It is one thing to speculate from a point prior to conception; it is another thing to measure backwards from the date of birth.

MR JACKSON:   Yes.  Your Honour, I do not know, in fact, there was any significant - - -

GAUDRON ACJ:   It does not matter, I suppose.  It just seems to me to be a funny way to do it.

MR JACKSON:   Yes.  Well, your Honour, that was the evidence.  Your Honours will see, if I can just say one other thing at the moment, that in paragraphs 30 through to 37 we make submissions about a number of particular matters dealt with by the Court of Appeal.  I will not attempt to deal with them at present.  Could I simply say this:  the central complaint that we make is that the Court of Appeal has simply applied a kind of broad brush of post hoc ergo procter hoc in circumstances where, in our submission, that was really quite inappropriate.

The second thing we would seek to say is that even if the Court of Appeal was correct in one or more respects in disagreeing with the trial judge’s approach to accepting or rejecting the medical and scientific evidence, the fact remained that there was a conflict of evidence and that there was a body of evidence capable of acceptance which would defeat the respondent’s case.  In a case of that kind, the appropriate course for the Court of Appeal was to order a new trial and not simply to give a judgment in favour of the respondent.  Your Honours, those are the submissions.

GAUDRON ACJ:   But so far as concerns your last submission, what was concerned, was it not, was an inference to be drawn from facts?

MR JACKSON:   Yes, your Honour.

GAUDRON ACJ:   Causation, yes.

MR JACKSON:   Your Honour, I accept that.

GAUDRON ACJ:   Well, why was the Court of Appeal not as well able to do that as anyone else?

MR JACKSON:   For example, your Honour, the question of the relevance of seeing gliosis, the first of them, to take one matter, was a matter which was in issue before the trial judge.  There was evidence one way that it would be there or could be there, and evidence to the contrary.  The evidence which the primary judge accepted was evidence which was available for him to accept which entirely supported the case we were seeking to make and was against the other side.

Now, that was a matter which, in our submission, was important to be resolved because it showed, if accepted, one of the objective facts which might assist in the resolution of the question.  It was not simply a case, your Honour, where one has a choice between cases where there is an obvious cause and nothing.  It was a case where one very frequently can identify no cause.  I do not want to labour the point but the evidence from the treating gynaecologist of the plaintiff’s mother was evidence of significance which showed no difficulties, in effect, because of the accident, and that was not even referred to by the Court of Appeal.

GAUDRON ACJ:   Yes, thank you, Mr Jackson.  We need not trouble you, Mr Barry.

MR BARRY:   If it please the Court.

GAUDRON ACJ:   In essence, the proposed appeal is concerned with the proper inference to be drawn with respect to causation from primary facts which have been interpreted in different ways by different experts.  It raises no question of general principle and is not a suitable vehicle for the elucidation of any point of law.  Accordingly, special leave is refused with costs.

You do not object to costs?

MR JACKSON:   There is nothing I can say about them, your Honour.

AT 9.42 AM THE MATTER WAS CONCLUDED