R v Gee and Thaller

[2002] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2002

B e t w e e n -

SDN CHILDREN’S SERVICES INCORPORATED (formerly known as SYDNEY DAY NURSERY AND NURSERY SCHOOLS ASSOCIATION INC)

Applicant

and

LINDA HUGHES

First Respondent

JACOB HUGHES

Second Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2002, AT 10.06 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 NRMA Workers Compensation (NSW)(No 2) Pty Limited)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.J. HIGGS, SC, and MR J.R. CLARKE, for the respondents.  (instructed by Charlton Shearman)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, if I could go first to page 134 of the application book.  As is made clear by paragraphs 32 and 33 of our summary, this is a case where it is submitted that the course taken by the Court of Appeal was sufficiently unsatisfactory, both in procedure and substance, to merit the ground of special leave, and, your Honours, with a view, if special leave were granted and the appeal be successful, to either a fresh hearing in the Court of Appeal or, perhaps, consideration of this matter by this Court.

Now, your Honours, the contentions which we seek to advance in support of that submission are set out in fairly exact terms, in a sense, in our written summary of argument and I do not propose to go through them one by one, of course, but may I endeavour to highlight what, in our submission, are the important matters.

Your Honours, this was a case where the second respondent was born seriously disabled because of cytomegalovirus, CMV, commonly called, acquired during the first respondent’s pregnancy.  A question in the case was whether the CMV was acquired congenitally, that meaning from and through the mother.  We say that it was not.  The respondent says it was.  They succeeded on that issue and that is not challenged.  It was not challenged, ultimately, in the Court of Appeal but there was a second question, namely, whether the CMV, though acquired from the mother, was acquired in consequence of one or two things.  One, was a primary infection sustained by her during her employment by us in day care or, on the other hand, a reactivation of earlier infection, the reactivation being in consequence of pregnancy.

Your Honours will see the reason why the resolution of that issue was critical appears at page 126, paragraph 5.  It was something that:

was commonly present in the community, and might be transmitted by young children to adults in the day care environment.

She had been employed in that area before.

GLEESON CJ:   Just a moment.  Why was it in your interests to argue as your primary argument that it was not contracted congenitally?

MR JACKSON:   Because your Honour will see from paragraph 5(c) on that page, reactivation – I am sorry, your Honour, may I start again.  Why it was not acquired congenitally, your Honour, because it can be acquired from a number of other sources, various other types of contact other than contact with children, so we were endeavouring to say that it may have been acquired by some other reason.

There were two issues, we were saying, really, and we had lost on the first, but the relevance was really what is in 5(c) that reactivation, if someone has earlier been infected, is not a consequence of obtaining it again.  In other words, it would not be working in the day care environment that brought about the reactivation.  Your Honours will see that set out in paragraph ‑ ‑ ‑

GLEESON CJ:   If you had established that it was not acquired congenitally, it could have been contracted from anywhere.

MR JACKSON:   Yes, your Honour.  The primary judge dealt with the issue commencing at page 46, paragraphs 154 through to page 62, paragraph 196.  Now, he dealt with the evidence in considerable detail and then in paragraphs 197 and 198 at pages 62 and following, he then set out the factors either way.  The factors at paragraph 197 were in favour of the present respondents.  The factors in paragraph 198 were in favour of our contention.  He then, in paragraphs 199 and 200 set out his evaluation of them, concluding, as your Honours will see in paragraph 200, that he was not in the end satisfied:

on the balance of probabilities that the first plaintiff did contract primary infection by reason of her employment by the defendant during her pregnancy.

Could I pause to say, your Honours, that that evaluation must have been based, in significant measure, on the judge’s estimation of the witnesses as they gave their oral evidence.  Indeed, what is in the preceding paragraph very much suggests that.  You will see the last sentence of paragraph 199:

I bear in mind Dr Grigor, by whose evidence generally I was particularly impressed –

and then references to other oral evidence that was given and then you will see at the bottom of page 63, for example:

I am not persuaded that Prof Isaacs’ opinion as to this makes adequate allowance –

et cetera.  Now, your Honours, the views adopted by the Court of Appeal appear, with respect, to be a rejigging, in a sense, of the evidence as if that court’s function were to deal with facts in a sense completely afresh.  Could I take your Honours to the ultimate summary of that court’s ‑ ‑ ‑

McHUGH J:   But that is its role to look at the matter afresh but bearing in mind the findings of the trial judge, particularly in relation to credibility.

MR JACKSON:   Your Honour, I accept that, of course.  What I was saying, however, with respect, was to look at them completely afresh, as it were, meaning by “completely” not taking into account findings properly made.  Your Honour, could I indicate a little more precisely what I seek to say about that.  If one goes to page 115 your Honours will see in paragraph 95 what appears, really, as the summary of the Court’s views in the succeeding paragraphs for the view that was taken.

Could I take your Honours – I will not go through these in detail, they are set out in our written submissions, but may I go first to what is the first matter relied on, paragraph 96.  The reference to there being:

flu like symptoms on Christmas Eve and Christmas Day . . . Support for contraction of the virus at this time is –

shown.  Now, your Honours, we deal with that in our written submissions at page 128.  Could I take your Honours to that for a moment.  The first thing we would seek to say about it – this is paragraph 12 – is that the primary judge had made two findings.  The first was:

that the first respondent’s condition on Christmas Eve and Christmas Day was not symptomatic of the CMV –

The second was:

that the first respondent was not unwell at any stage –

this is during the pregnancy –

because she had contracted CMV.

Those findings are at page 67, paragraph 211.  Your Honours will see at paragraph 211:

The evidence did not establish that the first plaintiff was unwell at any time in her pregnancy by reason of the CMV.

Your Honours will see the next sentence set out.  Now, that is entirely inconsistent with the approach taken by the Court of Appeal.  We have noted, your Honours, in paragraph 13, that that was done in a cross‑claim but if one looks at, as your Honours will see in the remainder of that paragraph, the findings underline the finding which he made on the main claim that the incubation period did not begin, at the soonest, before 16 January.

McHUGH J:   Mr Jackson, these are questions of fact.  This Court cannot be expect to sit as another Court of Appeal and, again and again, litigants are coming here asking us to sit as another Court of Appeal, which we are not.  We are not here to examine questions of fact.  We have to take into account the length of our list.  Already this year there are 803 matters been filed in the High Court .  That is more than double the number when I first came onto this Court nearly 14 years ago.  Special leave applications have increased 787 per cent.  If we take on all these factual cases we just will not be able to give proper consideration to the more important constitutional cases that affect the nation.

MR JACKSON:   Your Honour, may I say two things in relation to that.  The first is this:  the Court has three functions, really.  One is constitutional in original jurisdiction, as it were, one is constitutional in other important points of law in appellate jurisdiction and the third is in relation to dealing with cases which have not been properly dealt with, if I could put it that way, in the courts below, properly dealt with at least procedurally and sometimes, of course, that goes ‑ ‑ ‑

McHUGH J:   That is a factor we can take into account.  That is one of the matters that we can take into account that they have not properly been dealt with but it does not mean we have to grant leave.

MR JACKSON:   No, your Honour, I do not suggest that for a moment.  What I am seeking to say is that I appreciate the Court has a busy list.  It means that, one, the Court should take the cases where it is apparent that the parties cases have not been dealt with properly.  Sometimes the Court would have to say, “Even though we think that we do not grant leave”.  What I am trying to say, your Honour, is that this is a case that is sufficiently out of the line to merit special leave.  We have not suggested for a moment that the case itself involves a point of law.

Could I also say, we would not really press the notion that if the Court did grant special leave in this matter it would, itself, have to hear the appeal.  But, may I just endeavour to complete what I was saying about this.  The first – I was dealing with this, your Honour.  The second feature about this particular item is what is submitted in paragraph 15 of our written submissions at page 129, that it was not relied on in respect of:

the December “flu like symptoms”.

Reliance on them was expressly eschewed at the trial.  Now, your Honours will see that the document to which we refer in the supplementary volume, page 14, if your Honours want to see it.  The third feature, your Honours, is at paragraph 16:  if one relied upon the December symptoms why would not one equally rely on symptoms that had occurred on two previous occasions when working with children and which were equally symptoms which were as equally referrable to the same condition.

That is the first point.  The second thing, your Honours, is the matter to which we refer at paragraph 20 at page 130.  That is a matter perhaps of some complication and time, in a sense, is against dealing with it.  The third feature, your Honours, is the absence of antibodies, the matter referred to by Justice Beazley at page 116, paragraph 99.  At page 116, paragraph 99, what your Honours will see, for example, is towards the bottom of the paragraph that:

Significantly, Dr Rawlinson was never asked by the respondent’s counsel to express an opinion on this particular issue.

That, with respect, does not seem to be correct and we refer, in that regard, to the evidence which is referred to at paragraph 27 of our written submissions, page 132.  Your Honours will see that in the answer commencing between lines 30 and 40, he referred to:

an unlikely explanation.  It’s plausible but completely unproven.

Then, in the evidence which is on the next page, page 133, referred to at paragraph 44 dealing with his reasons, he says – and, your Honours, particularly in the last six or seven lines of the evidence quoted in the footnote:

That reactivation, or primary infection, results in the mother having her own immune response.

I will not read it all out but he then goes on to say in relation to the IgG that:

That IgG would be detectable in the baby as blood . . . taken at a time within the first two to three months of life.”

Your Honours, the tests in question were not taken in that period.  Could I also refer to paragraphs 28 and 29 of our written submissions which deal with the same topic.  The judge was perfectly entitled, in our submission to arrive at the conclusion that he did not find Professor Isaacs’ view on this issue of the significance of absence of antibodies as persuasive. 

The fourth matter, your Honours, is the one to which we refer – I am sorry, perhaps if I could just go on to say that in paragraph 30 on that page, your Honours will see a reference to Justice Beazley’s reasons at paragraph 100 and your Honours will see in paragraph 100 that, in effect, if one looks particularly at the last two lines of it, the judge treats as a separate reason, in effect, what simply is to assert the conclusion.

The final matter to which I wish to refer is this, that we refer in our written submissions at page 128, paragraph 10, to the fact that the arguments, on appeal, did not deal with or deal with any detail of the matters which ultimately were regarded as decisive by the Court of Appeal.  The reason for that is, in effect, that the contention which was advanced was one based on statistical considerations, and I would seek to demonstrate that to your Honours now.  The arguments that were the subject of the Court of Appeal’s decision really find their origin in the Court of Appeal’s judgment.

May I, in that regard, take your Honours to the respondents’ written submissions which are in the supplementary book at page 118.  I do not intend to read anything of this out.  I invite your Honours to skip through it, as it were, relatively quickly but could I indicate the relevant parts of it.  After introductory matters at page 119, one then sees paragraph 5 that the:

appeal proceeds on an analysis of the statistical evidence adduced and a comparison between the relative likelihoods –

et cetera.  The statistical argument failed, your Honours, in the Court of Appeal.  But, one sees then, going to page 120 – if your Honours look through paragraph 6 on page 120 through to paragraph 14 on page 124, it is all about statistics.  One then sees the next batch of it at page 125, commencing at paragraph 15.  The heading, “Consistency with Expert Evidence” is right but it is in relation to statistics.  That goes through to paragraph 27 on page 129.  Then, if one goes to the further considerations supporting the appeal, page 130, paragraphs 28 to 34, all the same.  Our submissions, which immediately follow, were in response to that.

GLEESON CJ:   Mr Jackson, paragraph 7 of your opponents’ submissions on pages 137 and 138 under the heading, “The absence of antibodies”, just could you remind us of what your response to that is?

MR JACKSON:   Your Honour, our response to that is that the finding – of course, the finding that it was congenital is accepted.  It did not follow that the absence of antibodies meant that it was a primary infection and the point I was making in the footnote 44 to our written submissions of that passage of evidence was concerned indicated, in our submission, that the absence of antibodies could occur in both reactivation and in the other – in the primary infection case, the testing was done at a time when the time that had elapsed meant that there were no antibodies.

Now, it seems obvious enough, with respect, your Honour, the primary judge was of the view of the theory the other way, which is encapsulated in that submission, was a theory that he was not prepared to accept, it being based on Professor Isaacs’ evidence.

GLEESON CJ:   Mr Jackson, was the entire issue in the Court of Appeal causation?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   The negligence was said to consist in a failure to warn?

MR JACKSON:   Yes, your Honour.  That is set out at the start, I think, of her Honour’s reasons in the Court of Appeal.

GLEESON CJ:   Yes, but there was no argument in the Court of Appeal about failure to warn.

MR JACKSON:   No, your Honour.  So, it was a causation question.  Those are our submissions.

GLEESON CJ:   Yes.  Yes, Mr Walker.

MR WALKER:   Your Honour the Chief Justice has asked my learned friend about the argument reflected in our written submissions here about the absence of antibodies.  My learned friend’s answer, with respect, does not capture an important part, a true concession by Dr Rawlinson, the evidence of whom was the foundation of the way in which the case was run at trial on this point.  It is critical to observe that the way in which Dr Rawlinson’s evidence was relied upon at trial was nothing to do with a distinction between primary infection or reactivated infection which has now become and was in the Court of Appeal the critical point but as to whether there was a congenital infection.

At 133 of the application book in the footnote to which my learned friend has already taken your Honours there is extracted in fine print a passage that your Honours will find enlarged in a somewhat larger print at page 68 of the supplementary book.  At the latter reference, page 68 of the supplementary book, about lines 35 and following, Dr Rawlinson gave evidence which has in fact been read to your Honours this morning by my learned friend without observing the critical matter which distinguished between reactivated and primary infection in question.           What Dr Rawlinson says at that passage:

is that a baby that is congenitally infected comes therefore from a mother who has had either a CMV reactivation, or has had a primary CMV infection during pregnancy.

Now, that dichotomy, your Honours, dominates the discussion here, would dominate any factual discussion in this Court were special leave to be granted, and dominates the decision of Justice Beazley agreed in by Justices Meagher and Giles.  Dr Rawlinson went on:

That reactivation, or primary infection, results in the mother having her own immune response.  That immune response will consist of IgG –

and then the critical phrase follows:

or it will consist of mainly IgG, if it is a reactivation infection.

“mainly IgG, if it is a reactivation infection”.

That IgG is transmissible across the plancenta into the foetus and that IgG will remain within the baby’s blood post‑natally and will gradually decrease as the baby ages.  And the IgG is metabolised.  That IgG –

to interpolate, your Honours, that is the one that will mainly be, if it is a reactivation infection ‑

would be detectable in the baby as blood either on cord blood, or on post‑natal blood taken at a time within the first two to three months of life.

So, there is the telltale, a piece of objective evidence.  If one then turns to the evidence upon which Justice Beazley mounted the propositions leading to the conclusion preferring on the probabilities primary to reactivation infection, can I take your Honours to page 77 of the same supplementary book.  This piece of evidence to which I am about to take your Honours was not contested.  It is, as your Honours will see, wholly consistent with the emphasis I have just placed on Justice Rawlinson’s evidence, line 41 and following.

We have now focussed in this evidence, your Honours, on the actual baby in question, my client, Jacob:

When we add in the antibody results on Jacob, taken at three months, if this was non‑primary –

that is reactivation:

they really ought to be sky‑high.  He should have had massive IgG antibodies here, because his mother would have, because his mother would have had a reinfection, or a new infection and would have produced masses of antibody.  So I still say –

this is the further cross‑examination after the supposedly important new study was produced from Alabama, your Honours ‑

that by far the most likely scenario here, is that Jacob was infected by primary maternal CMV infection.

What pulls all this together is that baby Jacob did not have antibodies at the time where, if it was a reactivation infection according to Dr Rawlinson’s evidence to which I have just taken you, he would have had IgG detectable.  Now, in our submission, that is a piece of evidence, or those are pieces of evidence, to which the Court of Appeal was perfectly entitled, on an appeal by way of rehearing, to go.  Be it assumed, as your Honours should assume, that that was not an argument ‑ ‑ ‑

McHUGH J:   IgG antibodies are produced within two to four weeks, are they, and then persist indefinitely, is that ‑ ‑ ‑

MR WALKER:   In terms of the initial seroconversion, yes, your Honour, and then may be produced by the immune response thereafter when there is a challenge by insult, yes.

McHUGH J:   Yes.

MR WALKER:   The argument about the telltale which seems to be both dichotomous and clear, as a matter of the evidence of both experts, that argument did not figure in the presentation of the Court of Appeal below.  So far, in order to mirror the concession by my learned friend here that he raises no substantive point of general importance, I should also concede as a respondent to special leave, that that point was not run in argument below.  That raises a question, in our submission, of fairness of trial process towards the conclusion of a proper outcome and, in our submission, it can be seen, bearing in mind the statistical material not playing a decisive role

in Justice Beazley’s reasoning, that the material, all of which was before the Court of Appeal, supports the outcome of the Court of Appeal and there is no injustice, no error or fact and no likely overturning of the result for this Court to consider by a grant of special leave.

My learned friend, with respect, also correctly volunteers that it would be highly inappropriate for this Court to rake over all the evidence which would have to include a return to the statistical material, because statistics are a background to both sides arguments, in order to evaluate that, plus the general biology, plus the specific symptomatology and immunology of baby Jacob.  In our submission, for all those reasons, this is a most inapt case for the grant of special leave, confined as it is, to the putative failure of justice in the particular case.

That putative failure can be investigated at a rapid glance at the evidence, as we have just sought to accomplish.  When one sees that there are, at the very least, insufficient prospects of success to justify the grant of special leave.  May it please the Court.

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I just say that the position was, in the passage from Dr Rawlinson’s evidence at page 133, that the IgG would be detectable on tests taken at a time within two to three months of life.  Well, those tests were not taken in that time.  The second thing about it, your Honours, is that the passage of evidence from Professor Isaacs that was referred to by my learned friend is one that the judge, having seen Professor Isaacs’ evidence on this issue, having considered it in the light of the evidence given by Dr Rawlinson, was not prepared to accept in its entirety.  Your Honours, those are our submissions.

GLEESON CJ:   The Court is of the view that this matter does not raise an issue suitable for a grant of special leave to appeal and we are not persuaded that the interests of justice require a grant.  The application is refused with costs.

AT 10.35 AM THE MATTER WAS CONCLUDED