NSW Insurance Ministerial Corp (GIO of NSW) v Kirkwood

[1996] HCATrans 48

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S118 of 1995

B e t w e e n -

NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW)

Applicant

and

LESLIE JOHN KIRKWOOD

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 4 MARCH 1996, AT 10.50 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR J.G. POULOS, QC, for the applicant.  (instructed by RJ Walters, New South Wales Insurance Ministerial Corporation.)

MR D.E. GRIEVE, QC:   May it please your Honours, I appear with MR S. COLLINGRIDGE for the respondent.  (instructed Madgwick Partners.)

MR JACKSON:   Your Honours will have seen that the essence of this case derives from the fact that, at first instance, the Master was not impressed by the respondent’s credibility; an opinion which was based not just on his view of him in the witness box, but on inconsistencies in his evidence with that of other independent witnesses.  Now, your Honours, that resulted in a situation that the Master took the view - which your Honours will see at page 26, lines 1 to 10 , and at page 43, lines12 to 17, namely that, to put it shortly, the allegation of brain damage in the accident which was relied on was one which he was not prepared to accept unless there was some objective proof of it, and, indeed, the medical evidence in relation to it, he said, depended too on the question of credibility.

Your Honours, ordinarily speaking, findings of that kind, based as they were on credibility, could not be attacked successfully on appeal.  The majority in the Court of Appeal, however, took a different view, holding, as your Honours have seen, that there was objective evidence of brain damage in the accident; that evidence being in the report of a Dr Ho, showing the results of a magnetic resonance imaging, or MRI scan.  And your Honours will see that the Court of Appeal, or the majority in the Court of Appeal, said that because the Master did not refer specifically to that evidence, he had not taken into account incontrovertible objective evidence of brain damage. 

The relevant passage, your Honours, is at page - if I could give your Honours where the block appears, and then the core part of it - is at page 77.6, through to page 81.4, and especially, your Honours, at the top of page 81, where your Honours will see in the first four lines on the page the summary of the court majority’s view.  Now, your Honours, the difficulty with that view, in our submission, is that medical evidence which the Master was perfectly entitled to accept had made it apparent, in our submission, that the MRI scan could only have had such a probative value if one accepted other evidence itself based on credibility.  Your Honours, in other words, the MRI scan results stood in no different position from the other medical evidence to which he referred.

Your Honours, could I just indicate very briefly that that was so.  The most relevant evidence is extracted by the dissenting member of the Court of Appeal, Mr Justice Powell, at page 104, line 10.  Your Honours, could I pause to say that his Honour had earlier referred to larger passages, or more passages, in the medical evidence, but may I refer your Honours to, first of all, about line 4 on page 104, where his Honour summarised his view and then went on to say, about line 15, that he called in evidence various passages.  Now, your Honours, I shall not read out the passages, but we would invite your Honours to read them, including, particularly - your Honours will see No 2, or extract No 2 on page 105, about line 15:

And whether or not this man has suffered brain damage -

et cetera.

TOOHEY J:   Mr Jackson, in what sense is the term “organic” used on page 104?  Is it in contradistinction to “traumatic,” or is it used in some different sense?

MR JACKSON:   No, your Honour, I do not think it is used to indicate a paradox.  It is simply to indicate some kind of observable brain damage, probably traumatically caused, but the particular trauma, as the evidence - well, the possibilities of trauma were, first of all, in, for example, the trauma of birth, then two earlier accidents or incidents to which there was some reference.  There does not seem to have been, your Honour, any suggestion that - apart from the use, for example, of the word “congenital” at line 30 on page 105 - in other words, something caused other than by some form of trauma and the terms - - -

TOOHEY J:   I asked you that question because at page 106, at about line 5, in Justice Powell’s judgment, he says:

it seems to me that, in the light of the fact that what is revealed by the MRI examination, cannot be identified as traumatic in origin, and still less, an injury sustained in the accident in May 1986 - - -

MR JACKSON:   Well, your Honour, that is a reference, I think, to page 105, about line 30, where it was said the:

MRI results could have been congenital in origin.

But, your Honour, the evidence which does not appear in the extracts your Honours have in relation to what might be a congenital cause seems to have been that there might have been, for example, during birth, some trauma, and that is the kind of thing that was referred to.  That was given as an example, without apparently exhausting the list of possible things that might bring about those indications.

TOOHEY J:   It is just that if it did have a traumatic origin, and if the evidence pointed to the plaintiff not complaining of that condition prior to the accident, it might not be a giant step to take to infer that his condition was brought about by the accident.

MR JACKSON:   Well, your Honour, one had to bear in mind that in relation to the position of the plaintiff and his complaints and so on, the view that was taken by the primary judge in relation to his credibility was not good, apart from the particular matter in issue.  Now, it was true that he had not made complaints of there being a particular - I am sorry, he had not made complaints of particular problems beforehand, but there was some evidence that he had had, and your Honours will have seen that, for example, in the passage that is referred to in our summary of argument, where he had given statements to doctors in the past.  Your Honours will see paragraph 14, page 5.

Now, for example, paragraph 14(a) Dr Connelley was a doctor whose report was put in on behalf of the plaintiff.  You will see then paragraph 14(b) and 14(c), where differing versions were given.  And, your Honours, what I was seeking to say was that if one looks, for example, at the passage which is numbered 3 on page 105 and, particularly, about line 29, even without a history of head injury the MRI results could have been congenital in origin.  He agreed yes, and said one would not know without the scans.  And then, if your Honours also go to No 2, about line 15, and also to No 4, and to the top of page 106, your Honours, those are the passages extracted by Mr Justice Powell.

Could we refer also to the passages in our summary of argument in paragraph 12 at page 4?  Now, your Honours will see that in our learned friend’s summary of argument in response that in paragraphs 20 to 22, commencing at page 5, there are some further questions and answers given by Dr Burke in relation to that question and, your Honours, in the light of those perhaps we might hand to your Honours one further document, which contains a reference to a couple of pieces of the evidence.  It is headed, “Applicant’s notes re respondent’s summary of argument.”  I will give your Honours copies of that.  We would refer in that regard to paragraph 2 of that document.

TOOHEY J:   The more we descend to this sort of detail, the less it shapes up as a special leave case, does it not?  Particularly bearing in mind that the outcome before the Court of Appeal was an order for re trial.

MR JACKSON:   Your Honour, could I say a couple of things in relation to that?  All I am seeking to do is to demonstrate that there was evidence which supported the view taken by the minority judge in the Court of Appeal that the issue of the effect of the MRI scan was an effect which did not necessarily have the consequence attributed to it by the majority.  Now, your Honour, that being so, it then becomes a question of the Court dealing with the matter on one of two possible bases and, your Honour, the evidence is little more than I have said I had to go to, including - if I could just refer perhaps to paragraph 3 of that document that I just handed up, on page 2.

But, your Honour, what I was going to say from that was that there were really two ways of looking at the case, in our submission; first of all, to treat the case simply as one where the course taken by the majority in the Court of Appeal was one which was not properly open to it, with respect, on evidence and, accordingly, because of that the appeal was not dealt with properly in the Court of Appeal.  That is a matter depending entirely on the justice or injustice of the particular case and I would accept that.

The other feature - and, your Honours, no doubt it is always possible in a sense to try to re‑categorise things in this way - the other feature is to say that the view taken by the Court of Appeal as to the nature of evidence which entitled it to interfere with the - set aside a finding made by the primary judge and based on credibility - the view taken by it, although it purported to apply the tests adopted by the court, did not properly identify, or, indeed, gave a new meaning to the question of incontrovertible objective evidence, because the one thing that one might think - and I will take your Honours to the passage in Abalos in just a moment - the one thing that the Court might think is required for there to be incontrovertible objective evidence, if I can use that phrase, is that the acceptance or non‑acceptance of that not itself depend on the question of credibility, or depend relevantly on the question of credibility.

The passage to which I wish to take your Honours is in Abalos v Australian Postal Commission 171 CLR 167. The particular passage is at page 178. It immediately follows the quotation on the page and what your Honours will see is that this was a case where no reference was made to the evidence of Dr Ho, and the Court of Appeal should not have acted on that evidence to reverse the finding unless, et cetera. Your Honours will see the reference there set out.

Your Honours, our submission is it is a case where the submission which we make in paragraph 16 of our summary of argument is made out, and that in those circumstances it is appropriate for there to be a grant of special leave.  Your Honours, those are our submissions.

BRENNAN CJ:   Yes, Mr Grieve.

MR GRIEVE:   Your Honours, it was only towards our friend’s argument that he came close, in our submission, to identifying a special leave point and, as I heard it, it was that ‑ ‑ ‑

BRENNAN CJ:   The real problem about it is the way in which the majority judgment in the Court of Appeal expressed itself, is it not?  There is a proposition paying lip service to the judgments of this Court followed by a citation from an unpublished article by a psychiatrist about which way the trial judges get advantages.

MR GRIEVE:   We submit that that citation is not fundamental to the decision, but properly viewed, the approach taken by the majority was, putting it in as few as words as possible, there was objective evidence in the form of the MRI scan that the plaintiff, now respondent, suffered from brain damage.

McHUGH J:   Yes, but that was not the point, was it?  The point was that this accident had to have caused that brain damage.

MR GRIEVE:   I understand that, but that is point one.  Point two, there was a body of medical evidence that expressed the probability that there was a causal link between that objectively identified brain damage ‑ ‑ ‑

McHUGH J:   Well, that is not an incontrovertible evidence.  I mean, you may or may not succeed in this application, but speaking for myself the grounds upon which this Court interfered with this trial judge’s findings are pitifully weak and no more than lip service has seemed to have been paid to the principles expounded by this Court in Abalos  and Devries.

MR GRIEVE:   Well, we submit to the contrary, obviously enough, for the reason that the primary judge was apprised of the fact that there was objective evidence of brain damage.  He put it to one side entirely, we submit, and properly examined, his reasons did not come to grips with that objectively demonstrated fact.  Rather he elected to prefer the approach of looking at the plaintiff’s credit, saying, I do not find the plaintiff to be an acceptable witness; I therefore find those medical opinions which favour him to be unsatisfactory because, in the main if not entirely, they rely upon the accuracy or reliability of his accounts, if he is inherently unreliable then those medical opinions must fall.

McHUGH J:   Mr Grieve, can you put your case any higher than that Dr Burke said that he believed that the area of gliosis could be related to the accident.

MR GRIEVE:   That, we submit, is sufficient.  It is a civil case, it is a matter of ‑ ‑ ‑

McHUGH J:   But that is not incontrovertible evidence, when a doctor says, I believe it could be related.

MR GRIEVE:   I understand that, of course.

McHUGH J:   Does not the real problem seem to be that the court may have taken what the Master said out of context, when he said, I am not satisfied that the existence of brain damage has been e stablished.  Now, if that meant he just did not have brain damage, that might be one thing, but in the context surely he was saying, it had not been established as a result of this accident.

MR GRIEVE:   I understand that proposition, but a few lines further up - and the passage that your Honour has in mind is, of course, at page 43 lines 16 and 17.  A few lines up however, we submit that that finding is vitiated by the sentence which begins:

The allegation of brain damage depends, ultimately, not upon any facts which are susceptible of objective proof -

et cetera.  Well, in our respectful submission, that is plainly wrong.  Proof of brain damage depends firstly upon facts which are capable of objective proof, no less than a broken arm, and we submit that in that passage the Master has really put the cart before the horse by saying, one looks at the credibility of this plaintiff, who claims to suffer from brain damage, a factor which if true, as acknowledged by the Master, would have a substantial impact upon his capacity to give evidence, but coming back to it, the Master says, one looks at the plaintiff, not at the objective evidence, to start with, and then having made an assessment of the plaintiff’s credibility, one then looks to see what, if any, objective evidence there is.  Now, in our submission, the appropriate approach is the other way around.

McHUGH J:   Well, the ambiguity in that passage might be just sufficient to say.....on the question of principle on a special leave application.

MR GRIEVE:   Well, as Justice Toohey has observed, the applicant claims great injustice, but the ultimate orders of the Court of Appeal are for a retrial on the damages issue, so that in effect no final determination of this matter has yet been made.  If the Court of Appeal’s orders remain, the matter simply stands to go back to start all over again and if the applicant is right then costs will basically follow in that event.

McHUGH J:   On an indemnity basis?

MR GRIEVE:   Well, we make no concession about that.

McHUGH J:   But that is not a problem.  So you get the same result again and you have solicitor and client costs that have got to be borne by the appellant or applicant.

MR GRIEVE:   Well, in practical terms, since 1 July 1994, the distinction between indemnity costs and party and party costs or solicitor and client costs and party and party costs has diminished significantly under the new regime, at least, in New South Wales, for the assessment of costs and the margin that used to obtain has shrunk considerably, as we apprehend it.  So that that cannot be pointed to as any significant feature in favour of the grant of special leave in this case.  Those are our submissions, your Honour.

BRENNAN CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say two things in response to my learned friend:  the first concerns his reference to page 43 where he says the Master was speaking of brain damage in the abstract, not related to the accident.  The particular reference is at page 43 line 12, where the Master says:

The allegation of brain damage depends -

Presumably the Master, using his judgment, if one can use the judgment as the dictionary, is referring back to what he said at page 7 about line 6.

McHUGH J:   It is a bit ambiguous though.

MR JACKSON:   Well your Honour, I suppose if one takes it out of context.  Could I try to give your Honour the context.  If one looks at page 7 about line 6, he says:

By far the most serious of the injuries alleged by the plaintiff to have been sustained by him in the accident was the injury to his head.  It is alleged in the particulars of injuries that he suffered -

amongst other things -

brain damage -

Now, your Honours, it is with respect perfectly clear that what he is talking about is the consequence of the head injury in the accident.  That is the first thing I wanted to say.

Your Honours, the second thing was that of course always in one class of cases of this kind the result will have been a new trial, but, your Honours, that itself is a source of injustice if the true situation is that the judgment that was obtained in the first instance was set aside by an intermediate appellate court in circumstances where the function of that court was one that was not properly followed by it.

BRENNAN CJ:   The structure of the majority judgment, and particularly the recitation of an unpublished psychiatrist’s opinion which depreciates the advantages of a trial judge in evaluating evidence, suggests that full weight was not given to the principles which restrict appellate review of findings of fact.  However, this Court cannot be satisfied that, on a proper application of the principles laid down by this Court, the same result would not have been arrived at.  Having regard to the order for retrial, the ultimate judgment should not produce an injustice.  In those circumstances, the case is not one which demands the intervention of this Court.  If it were to appear with clarity that an intermediate Court of Appeal is not applying the relevant principles as this Court has declared them, it will be necessary for this Court decisively to intervene.  In this case however, special leave will be refused.

MR GRIEVE:   We ask for costs, your Honour.

MR JACKSON:   Nothing I can say, your Honour.

BRENNAN CJ:   With costs.

AT 11.15 AM THE MATTER WAS CONCLUDED