Sefa v Kidman

[1995] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 1994

B e t w e e n -

JASMINE SEFA

Applicant

and

DAVID KIDMAN

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 JUNE 1995, AT  10.52 AM

Copyright in the High Court of Australia

MR A.W. ADAMS:   If the Court pleases, I appear with my learned friend, DR K.P. HANSCOMBE, for the applicant.   (instructed by Petersons)

MR A.G. UREN, QC:   If the Court pleases, I appear with my learned friend, MR J.J. NOONAN, for the respondent.   (instructed by Ebsworth & Ebsworth)

BRENNAN CJ:   Yes, Mr Adams?

MR ADAMS:   If your Honours please.  Can I emphasise the importance of this application by giving you this very brief description of how it may be looked at by the common law world.  Suppose one were to take a page of the notes of the Law Quarterly Review and devote it to this case, it would only take about five or six lines.  It could be edged in black but it would describe Sefa v Kidman:  a young woman who suffered a trifling injury which was thought, perhaps, to be a bruise to the wrist, who, seven months later, was operated on by a surgeon who was a candidate for the surgical olympics performing the operation in what could only be described as record time and as a consequence, this 16 year‑old girl was left with a hand which was rendered almost useless.

When her case came to be determined on appeal, it was decided that, despite the specific statutory exception to her claim which allowed her to maintain a common law action in damages, that despite that specific exception in the Act, the court of our State on appeal determined, although they were hesitant, that she did not fall within the specific statutory exception.  Now, the point of this appeal involves a matter of statutory construction which is, in my submission to your Honours, of importance because it is a matter to the extent to which the common law rights of a citizen are to be affected by statute.  Your Honours have just been referred to the decision of the Full Court in Sharp;  if I could refer your Honours to what was said by Mr Justice O’Connor in the case of Potter v Minahan at page 304, starting a third way down the page.  He has referred to Maxwell on Statutes and the statement that:

There are certain objects which the legislature is presumed not to intend ‑ - -

GUMMOW J:   Well, that is a fairly well-known passage, is it not?

MR ADAMS:   Of course but if I can repeat it, your Honour:

One of these presumptions is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares.....either in express terms or by implication;  or, in other words, beyond the immediate scope and object of the Statute.  In all general matters beyond, the law remains undisturbed.  It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness ‑

Now, your Honours, there is there referred to a decision of Arthur v Bokenham 88 ER, which is a decision of the Kings Bench in 1708.

BRENNAN CJ:   Mr Adams, you have limited time.  We are familiar with the basic propositions.  You need to make good some argument based on those propositions that this is a case in which this Court should grant special leave.

MR ADAMS:   Well, can I just take your Honours to what the Chief Justice said:

The general rule in exposition of all Acts of Parliament is this, that in all doubtful matters, and where the expression is in general terms, they are to receive such a construction as may be agreeable to the rules of common law, in cases of that nature;  for statutes are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare;  therefore in all general matters the law presumes the Act did not intend to make any alteration;  for if the Parliament had had that design, they would have expressed it in the Act.

That, indeed was what was said by the Full Court in the case just referred to, Sharp’s Case.  This, it must be emphasised, is a situation where the section itself which is described in our argument at page 3, specifically prescribes in section 135(1)(b) that where it is a deemed injury by reason of section 83(2), that an action such as this can be maintained.

BRENNAN CJ:   That is in proceedings to which the employer is not a party.

MR ADAMS:   Yes.

BRENNAN CJ:   Is that these proceedings?

MR ADAMS:   Well, it is my argument that it is but that was not a matter that was argued before the Federal Court.  The Federal Court determined that it did not meet argument on that point.

BRENNAN CJ:   Maybe it did, but are these proceedings within that section or not?

MR ADAMS:   Well, in my submission, these were separate proceedings in that there was a separate and distinct claim brought against the doctor and the notion of separate proceedings could not and should not, in these circumstances, be dependant upon the mere fact that there was a separate writ issued with the respect to the claim against the employer and the claim against the doctor.

DAWSON J:   You say it was not argued.  Justice Nathan based his decision on this point.

MR ADAMS:   What your Honour says, of course, is correct, but despite the fact that it was not argued, Mr Justice Nathan ‑ ‑ ‑

MR UREN:   My learned friend is quite wrong there.  I argued the point but the court indicated, I think, that they did not wish to hear any argument from a person who then held my learned friend’s brief on that particular point, maybe because of some view they had formed about the first point, I do not know.  But, that is what they said.

BRENNAN CJ:   Well, it is a matter of fact.  You sued the employer first, did you not?

MR ADAMS:   Yes, and the doctor was joined as a third party by the employer and then was joined as a defendant by the plaintiff.

BRENNAN CJ:   So, you sued them as co-defendants?

MR ADAMS:   Yes.

BRENNAN CJ:   For a judgment in solidum against both.

MR ADAMS:   Yes and, indeed, the mere fact of ‑ obviously, if two writs were issued, there would have been an order that they be heard together and separate verdicts would have been required as, indeed, they were required in the proceedings which were determined ultimately by his Honour Judge Duggan sitting alone.  And his Honour determined that the mere fact that they were heard together should not affect the plaintiff’s rights and it specifically raises the issue of separate constructions we have here.  Why should the mere accident of the plaintiff having brought both persons together as separate and distinct defendants with the one process, as opposed to two processes, affect whether she has a claim for pecuniary loss with respect to what was ultimately found to be a ‑ ‑ ‑

DAWSON J:   Probably because the section says so.

MR ADAMS:   Well, it should only, with respect, your Honour, bear that interpretation if it is clear and it is our submission that it is not clear.  The other matter ‑ ‑ ‑

BRENNAN CJ:   Well, now, Mr Adams, it seems that you have really two problems, at least two problems.  One is to satisfy us that this matter which turns upon a construction of the Accident Compensation Act is one that this Court should take on board.  The second is that if the problem that you wish to agitate on section 135(1)(b) were appropriate to take on board, is this a suitable case in which to take it on board, having regard to the constitution of the proceedings?  Now, those are two major problems that you have to overcome and no amount of reference to the injustice that may have followed to your client is going to overcome it by itself.

MR ADAMS:   Well, I appreciate that, your Honour, but we are, with respect, left in this situation:  that we have our ultimate court which, as we know, is almost the final arbiter of matters of this kind in Victoria determining an issue such as this without reference to this most fundamental principle that you will only interfere with common law rights if that is the clear intention of the legislation.  This is an extraordinary situation and that is why I mentioned the Law Quarterly Review.  What would people say if they saw that throughout the common law and they saw that situation and they were told that the statute itself granted an exception to that claim but the court on appeal said, “Well, we’ve got some hesitation and doubt and reluctance about the matter, but we’ve determined that we don’t really think that’s what Parliament intended” where the actual words say, “If that be the situation a common law right may be maintained”.

And it is my submission to your Honour that it involves a critical point of statutory construction that the error would be, in my submission, of that magnitude.  In other words, it is not a matter of saying, “Well, we don’t think that it bears this construction”.  Mr Justice Brooking said it falls within the literal term of the exception.  In other words, she has her common law rights and she falls literally within the terms of exception but then he says, “Well, but I don’t really think that’s what was intended” and he pays no heed to the fact that he is interfering with common law rights when the legislation, at the very least, is not clear. 

We would say it is clear and he should have been impelled to maintain the common law rights.  He says he has this doubt and hesitation. Despite the fact that she literally falls within the terms, her rights are taken away.  There is another matter which is involved and that is an interpretation of the word “deemed” in this exception section.  Section 83(2) involves a consideration of what is meant by the word “deem” and that has been a matter which has been considered by this Court.  If I can refer your Honours to what is said in Hunter v Perma Blinds, 122 CLR 49, and what Mr Justice Windeyer said at page 65 ‑ ‑ ‑

GUMMOW J:   That is a fairly well-known passage, as well.

BRENNAN CJ:   Very familiar to us, Mr Adams.

MR ADAMS:   Well, what his Honour is saying and what has been said by ‑ I will not take you to what the House of Lords said and I will move as briskly as I can ‑ but it does raise the fact, the mere fact that “deemed” is used does not mean that it necessarily involves an artificiality.  It may be deemed that as is, in fact, the real situation.  What is raised here is by his Honour Mr Justice Brooking, he says because it is deemed within the section, that does not cover a common law deeming and it is our submission that those matters are not necessarily exclusive, that, indeed, that should not have brought him to that conclusion at all and that it flies in the face of that situation.

The other matter that I would want to refer to is that it is said by the respondent to this appeal that this is not a matter of significance because the section has been changed.  It is accepted in the respondent’s outline of argument that any claim involving medical negligence which arose by injury prior to December 1992 ‑ I understand the Court, of course, does not want to involve itself in a close analysis of this piece of legislation but the fact remains that when our current government came to power at the end of 1992, it changed the Act and it imposed a restriction saying that you could only get common law damages if the injury was serious.  And that is a situation that has been reflected in other legislation, particularly in New South Wales.

Any injury prior to December 1992, if it involves medical negligence, is affected by this decision.  What it means is that if there is provable negligence against a medical practitioner, then there is this restriction in damages and the Court might well think, in what sort of situation could that really be the intention of Parliament?  Why do the medical profession have to be protected in a situation so as to assist the employer?  The legislation is designed to, no doubt, protect the employer

from excessive claims and it is no doubt designed to protect the worker.  The situation is, in my submission, that on what basis ‑ the question I ask is on what basis can that restriction be allowed to continue so that persons who bring proceedings against medical practitioners in negligence are denied their common law damages.  And they are denied their common law damages because, according to Mr Justice Brooking and the other members of this Court, despite the literal acceptance of the claim, it is denied.

The other matter is that claims prior to December 1992, if they become apparent after that time, there is provision in section 135A(2)(b) to enable those claims to be heard at a later time providing they satisfied the serious injury situation.  I could give many examples, but suppose a person is treated for a respiratory condition that involves a fatal disease, such as asbestosis in 1989 and it is not treated appropriately.  At a later time a significant and serious injury develops which is life threatening or even results in death.  Now, in that situation, according to this decision, and if it is not effected by this Court, that plaintiff would lose a right to claim damages for loss of income against the doctor.

Despite the exception in the Act, despite the enabling provision in the Act, that person would not be able to take proceedings.  With respect to serious injury, with this decision in place, the same situation applies.  It is not uncommon for persons to be hurt in the workplace, as your Honours, of course, appreciate, and it is not uncommon if one reads the papers, for there to be sometimes involved in the treatment of injuries, negligence.  If the injury is initiated in the workplace, then the situation as a consequence of this decision, will persist in that the person affected by medical negligence, has his rights denied.

In my submission, it is necessary for a court to be directed as to the way in which the statute such as this ought to be interpreted.  It is not a case that involves a total analysis of every section in the Act.  Going through all the complications and amendments that have been made, in my submission to your Honours, it is a simple point which our superior court has been mistaken in interpreting and that they need the guidance of this Court.  This Court, in my submission, has an important supervisory role which, in my submission, ought to in fact require it to explain the way in which a statute such as this ought to be interpreted.  If your Honours please.

BRENNAN CJ:   Thank you, Mr Adams.  We need not trouble you, Mr Uren. 

This is another case which turns on the provisions of the Accident Compensation Act 1985 (Vic). For the reasons given in Copur v Alcan Australia Limited the application can succeed only if special considerations can be demonstrated.  The relevant provisions of the Act have since been amended.  An argument based on the exception contained in section 135(1)(b) of the Act may have had a greater prospect of success if the employer had not been a defendant in the proceedings.  Therefore, the present case would not be a suitable vehicle in any event to raise the question of the scope of that exception.  For these reasons, special leave should be refused.  Special leave is refused accordingly.

MR UREN:   Would the Court make an order for the cost of the application?

BRENNAN CJ:   You have nothing to say to that, Mr Adams?

MR ADAMS:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.15 AM THE MATTER WAS CONCLUDED