Shorey v Pt Ltd as trustee for McNamara Australia Property Trust & Ors

[2002] HCATrans 465

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S212 of 2002

B e t w e e n -

ROSE SHOREY

Appellant

and

P T LIMITED AS TRUSTEE FOR McNAMARA AUSTRALIA PROPERTY TRUST

First Respondent

CIC INSURANCE LIMITED (In liquidation)

Second Respondent

VENTURE STORES (RETAILERS) PTY LIMITED (In liquidation)

Third Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 2002, AT 10.22 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends MR A.S. MORRISON, SC and MR A.C. CASSELDEN for the appellant. (instructed by Maurice Blackburn Cashman)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR P.S. JONES for the first respondent. (instructed by PriceWaterhouseCoopers Legal)

GLEESON CJ:   Thank you, Mr Walker.  There is a certificate from the Deputy Registrar to the effect that she has been informed by the liquidator of the second respondent that the second respondent will not be playing an active role in this appeal and also that she has been informed by the liquidator of the third respondent that the third respondent does not wish to play an active role in this litigation.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, may I say just one thing before moving to the substance of the appeal and something about the basic facts.  This is a case where the appellant’s body and her mind, a perhaps dated but convenient distinction for present purposes, tell her different things.  Her body would let her stand, sit, move about, look after herself and to be a grandmother to her grandchildren and do the other very ordinary things that a women who is 71 might do at her age, but her mind tells her she is a cripple in a wheelchair and, your Honours, the mind prevails, although it is not possible to identify physical reasons for the disability which the activities of the mind compel.  Your Honours, at first instance, a suggestion was made by the respondents that what she said about the effects of the mind was something that was fabricated but, your Honours, the trial judge was not so persuaded and found against it.  Your Honours will see that finding in volume 6 at page 1456, about line 27.

Your Honours, could I interpolate that his Honour did so after a lengthy consideration of the evidence and it is clear that a factor was his view of the appellant and her daughter, Tracey, as they gave evidence.  Your Honours will see that in

volume 6 at page 1456 where your Honours will see in the paragraph commencing about line 26, his Honour said:

I have come to the conclusion on the balance of probabilities that the plaintiff is not malingering.

You will see he based that on various factors, and at the conclusion of that paragraph said:

I also take into account the way the plaintiff presented in court and the evidence of her daughter Tracey in coming to the conclusion that she is not malingering.

KIRBY J:   That was a real issue at the trial, was it not?

MR JACKSON:   Indeed, your Honour.

KIRBY J:   Were there any films or anything of that kind that were tendered to support the malingering theory or not?

MR JACKSON:   Your Honour, there were various matters put to her.  I do not think there were any films, but there was evidence that some of the things that she said she could not do were ones that, looking at her physically, she could do.

McHUGH J:   The lack of muscle wasting was a significant thing.

MR JACKSON:   Yes, so there was a very significant issue involved.  Indeed, your Honours will see that one of the features was to determine that question:  was she or was she not someone who believed that she had the condition?  Some of the doctors thought she was malingering but the view taken in the end by the judge was that she was not.  The ruling that she was not fabricating her perception of her condition was attacked in the Court of Appeal but that attack failed.  Your Honours will see where it failed, if I could give your Honours two relevant passages:  the first of Justice Handley, again volume 6 at page 1493 in a passage which goes from paragraphs 12 to 16 of his reasons.  Your Honours will see in paragraph 15 that the attack failed – he refers to Abalos, I am sorry, in paragraph 15.  In paragraph 16 he refers to the fact that the appeal should fail.  That is Justice Handley; Justice Davies in the same volume at page 1515, paragraph 72.

KIRBY J:   That attack is not renewed in this Court.  It is accepted.

MR JACKSON:   I was just going to say that, your Honour.  In answer to your Honour Justice Kirby about the film, some film was taken but it was not shown.  Your Honours will see that referred to at page 390, about line 20, except that there was some video which was taken with her knowledge but which was inconclusive.

KIRBY J:   There are all sorts of things that doctors can do, as I recollect it, from getting people to get into prone positions, to put their legs in situations that they say they cannot do, and there are tests that the medical profession carry out in these cases.  Presumably that was a big issue at trial but determined in your favour.

MR JACKSON:   Quite, your Honour.  As I submitted at the start of our submissions a moment ago really – perhaps I could say two things.  This is a case where it was in effect established that she could physically, absent the condition of the mind, do various things but the mind prevents her. 

Your Honour will see at the conclusion of the primary judge’s reasons that what he said was that he thought that her condition would improve and awarded damages in respect of a period of about 10 years that he thought improvement might take.

Now, your Honours, the position then in relation to the finding of no fabrication was one that left a situation where the appellant had a condition which made her believe that she could not act, to put it shortly, normally and, your Honours, that then gave rise, as the primary judge said – and I will give your Honours the reference in just a moment – to some further issues.  Your Honours will see those issues referred to at page 1445 in volume 6 lines 21 to 41 to, in effect, three issues.

Your Honours will see he referred, first between lines 30 and 35 to the “malingering” condition.  The second thing was he said if the condition is genuine what is the prognosis, but importantly he said the third question is, if it is genuine is it attributable to the fall on 2 April 1988.  Your Honours, that question, the question which perhaps I would describe as causation, was the basis upon which the Court of Appeal set aside the judge’s findings.

Now, your Honours, if I could just pause there:  it is clear that the judge was dealing with the question of causation in relation to an assessment of damages.  Before I go to the detail of our submissions in relation to that, may I mention one matter which arises from our learned friend’s written submissions and, in particular, it is paragraph 54 of those submissions where it is said that:

The trial judge appears to have incorrectly concluded that having determined “liability” and found for the Appellant, he would simply move to assessment of damages –

and your Honours will see a reference to page 1444 about line 10 where he says:

I now proceed to consider and assess damages.

That is in the light of the preceding paragraph of his reasons where he says:

I was invited to determine liability issues separately and did so –

Your Honours will see that the course of proceedings appears from volume 2 at page 299 and what happened, to put it shortly - your Honours will see, in effect, the commencement of oral evidence at page 299 when the appellant’s daughter gave evidence.  What took place there, your Honours, goes through to page 302, and it is apparent that the judge is dealing with the evidence in relation to the question of liability.

You will see cross-examination of her daughter commencing at page 302 and then that goes on and, finally, at page 312, your Honours will see at about line 17 the judge giving judgment on this issue and on the preceding two pages, pages 310 and 311, at the top of the page, my learned friend, Dr Morrison, saying “At this stage I will press on with liability”.  Then line 14 there is the close of the case for the plaintiff on liability.  Line 15, the first defendant not calling evidence in respect of liability.  Line 32, the other defendant not calling any evidence on liability.  Counsel address on liability and the judge gives judgment the next day, or the next sitting day.

KIRBY J:   As I understand the written submissions of the respondent, the contention is that the error which was made by the primary judge that authorised the Court of Appeal to intervene and reach its own conclusion on the facts was that the primary judge went, as it were, directly from a finding of duty to a calculation of damages and he omitted attention to the contention of causation which was in issue between the parties.  Am I correctly understanding (a) what the respondent is saying, and (b) what the Court of Appeal majority thought?

MR JACKSON:   Your Honour, so far as the respondents’ submissions are concerned, your Honour’s interpretation of them may well be what is sought to be argued.  So far as the Court of Appeal’s approach to it, your Honour, that really is not so, with respect.  The Court of Appeal simply seems to have found that the judge was wrong on the question of causation.  Your Honour, as to the first of those things, what the judge did, it is plain, with respect, if one goes back to page 1444 in volume 6 ‑ ‑ ‑

KIRBY J:   I am missing the page.

MR JACKSON:   Page 1444 in volume 6, your Honour, top of the page.  He says:

I was invited to determine liability issues separately and did so, finding in all respects in favour of the plaintiff.

There is no doubt the plaintiff slipped in a pool of dripping water and was injured, and your Honour will see that but for the limitation provided for by the various statutes she would have obtained an award of damages in respect of that and, indeed, the Court of Appeal made an award of damages in the order of $60,000.

So he proceeded to deal with the question of the quantum of damages and that is where one sees, your Honour, at page 1445, him identifying, at lines 39 to 41, that there is in doing that exercise a question of causation of the mental condition from which he was suffering.  So his Honour did not jump.  What he was doing was working out how much the damages should be and recognising that there was this issue.

GUMMOW J:   Looking at 1445, where does the primary judge then answer the question that he raises himself?

MR JACKSON:   In relation to causation?

GUMMOW J:   Yes.

MR JACKSON:   Your Honour, it is a little further on, and you will see that – I will take your Honour to the detail of it a little later, but what Your Honours will see is essentially about page 1457, commencing about line 27, after he has discussed the evidence about malingering and then goes on.

GUMMOW J:   Yes, thank you.

MR JACKSON:   Your Honours, what I was going to say was that if one –the critical question was whether the finding which he made, at page 1458 in volume 6 at lines 25 to 27 was to be set aside.  Your Honours will see there – he said:

I find that the plaintiff’s conversion disorder caused by a variety of factors, including the fall in 1988 in respect of which the plaintiff sues.

Now, your Honours, in relation to this, your Honours will see that the findings made by the judge commence relevantly at page 1457, and he says at about line 26:

I find that the plaintiff suffered severe back pain as a result of the fall, probably mainly at the sites of previous surgery, and I find that this pain due to physical factors continued to some degree for approximately twelve months after the fall.

Then, your Honours, in the same paragraph, he says that:

I also find . . . that she had continued to experience back pain and leg pain from time to time as a result of degenerative disease of the lumbar spine –

which he finds was aggravated by the 1988 fall.  Then, your Honours, in the next paragraph, he deals specifically with the question whether the effects of the fall were spent, and he said that:

The defendants argue that the effects of the fall are spent when the back pain due to physical causes ceases.  As I have found, it recurs from time to time.

Then your Honours will see that in the remainder of that paragraph on page 1548 he goes on to say that:

the plaintiff’s slide into her now full‑blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 –

Your Honours will recall the fall was April 1988, husband died:

1 January 1989 . . . the psychological and physical factors then became intertwined.  The psychological factors would not have manifested as they did without the back pain.  While it may be true to say that had she not had back pain the plaintiff’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point.  She did have back pain.

Your Honours will see then the remainder of that paragraph.

KIRBY J:   Could I ask you for your help on this.  We had a number of criminal and Family Court appeals where the Court has said that Courts of Appeal in Australia should not, as it were, reinvent the wheel and rediscover the facts unless they can get through the gateway of establishing an error.  Now, the error can be a misunderstanding of the entirety of the evidence.  It does not have to be a legal error.

MR JACKSON:   No, your Honour.

KIRBY J:   Is it your suggestion that the Court of Appeal here acted in an orthodox way in approaching the conception of its own function or do you say it acted in an unorthodox way?

MR JACKSON:   It is capable, I suppose, of classification both ways.  What we would say is that the Court of Appeal felt that it was going about things the right way, if I could put it that way, but what one did see was that the majority in doing that themselves made errors and it was a case where they made errors in relation to a number of specific matters about what the judge had decided or purported to decide or what the evidence was.

KIRBY J:   The difficulty is that, from this Court’s point of view, the Court of Appeal obviously considered that if it went into the whole detail of the facts that were so strongly against the conclusion that the trial judge reached that it was authorised to intervene.  The only way we are going to do fairness to the parties and to the Court of Appeal is ourselves, in a sense, to get a feel and an understanding of all of the facts that led the majority when they looked at the history of your client, at her very longstanding back/leg troubles and her supervening psychiatric troubles it was looking at the whole that apparently the Court of Appeal felt that the trial judge had reached an erroneous conclusion in fact.  If that is their conclusion, then they are entitled, unless there is some impediment, to give effect to that conclusion, as I understand the law.

MR JACKSON:   Well, your Honour, we do not dispute that the Court of Appeal was entitled to engage upon the statutory function of rehearing the matter – rehearing the matter in the more or less accepted sense, if I can put it that way.  But, having said that, this is a case where, so far as the Court of  Appeal was concerned, the majority – and I will deal with the minority in just a moment – the majority themselves made errors in arriving at the conclusion at which they did. 

GLEESON CJ:   On your argument, as I understand it, a specific error they made was in their understanding of the finding on page 1457 in the paragraph commencing with the words “I find”. 

MR JACKSON:   Yes, your Honour, and there are several errors, a degree related.  An immediate error and one going to the core of the matter was that they do not appear to have appreciated that the finding was that the aggravation of the degenerative disease was still operating.  The judge specifically found that at page 1457, line 36.  He speaks of “continued” and then makes it absolutely clear in the next paragraph, at the bottom of page 1457 and the top of page 1458, “recurs from time to time”.  But, in addition, it is a case – and I will come to the detail, if I may, in just a moment, of the various errors – but the one thing that is apparent, we would submit, is that the majority of the Court of Appeal does not seem to have appreciated – and this comes to performing the statutory function – it does not seem to have appreciated, with respect, that the findings of the judge were, in significant measure, based on his estimate of the witnesses and the evidence that they gave. 

In particular, I refer to four witnesses:  the appellant, her daughter, and two doctors, Dr Yeo and Dr Phillips.  I will come to that in just a moment.  Your Honours, the other feature about it is that this is not a case where one sees a unanimous decision of the Court of Appeal dealing with this issue.  What one sees is, in the judgment of Justice Davies in dissent, in our submission, a perfectly orthodox approach to the matter in which he takes the view that the judgment of the primary judge was one which was entirely justified upon the evidence. 

KIRBY J:   What is the point of that?  I mean, in our democracy, both in Parliament and in courts, it is the majority that carries. 

MR JACKSON:   Your Honour, I am quite familiar with that, with respect.

KIRBY J:   But at least you have a leg in, because you have a dissent.  Is that the point? 

MR JACKSON:   Yes.  Well, your Honour, it is not just a leg in, as it were.  What we would seek to demonstrate is, by going to his approach to it in due course – and I do not intend to take an enormous amount of time with it – to seek to demonstrate that the approach that he took was the one that was the true performance of the function of the Court of Appeal. 

If I could just say, first of all, that if one looks at the central question in the case, which really is that encapsulated in setting aside the judge’s finding on page 1458, lines 25 to 30, where he found that the conversion disorder was “caused by a variety of factors, including the fall”, there was evidence, if I could just put it in the very shortest compass for the moment, to be found in some brief passages in the evidence of both Dr Yeo and Dr Phillips.  Could I say, your Honours, Dr Yeo – and I am going to volume 2 in relation to his evidence – at page 453 said at about line 10: 

Q.  Is it your view that in a psychosomatic case of this nature there is usually a physical trigger of some sort, physical in the sense of some traumatic injury of some degree? 

Then at page 454, lines 25 to 32, he said ‑ ‑ ‑

KIRBY J:   I am sorry.  I did not get the next ‑ ‑ ‑

MR JACKSON:   It is the next page, your Honour, 454, 25 to 32: 

the main trigger point for this present level of serious disability is the fall that she had –

Dr Phillips’ evidence in volume 3 at page 519 said at about line 34:

I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically . . . 

Professor Yeo on Friday made the interesting comment that in his view physical trauma usually – not always but usually – played a role in precipitating problems of this sort in his experience.  Does that accord with your general view?
A.  Yes.

GLEESON CJ:   I understand it to be put against you that these witnesses made their assessment of your client and gave their evidence‑in‑chief without knowing something material concerning what occurred relating to the death of her husband.

MR JACKSON:   Yes.

GLEESON CJ:   It may be that I do not understand sufficiently well the concept of a conversion disorder, but what was your client’s case as to the nature of the causal connection between the fall and her condition at trial?

MR JACKSON:   The essential nature of it was this, your Honour ‑ and perhaps if I could put it in layman’s rather than medical language ‑ she was a person who had, I suppose, a kind of predisposition to her suffering from some kind of mental disorder if certain conditions arose and that the conditions which arose in her case were a combination of her injury to her back and the aggravation of the pre‑existing condition and whilst that was continuing, there being other events occurring such as the death of her husband which brought about a situation where the combination of those causes produced her mental condition and the consequences of it.  That is it in essence.  I will endeavour to get if your Honour wishes me to a better description of it but that is ‑ ‑ ‑

GLEESON CJ:   Thank you.  In your argument here, what is the significance of the fact that these witnesses, at the time they assessed your client and the time they gave their evidence‑in‑chief, did not know this fact?

MR JACKSON:   I would say two things about it.  First, the weight to be given to their evidence once they had become aware of that was very much a matter for the judge seeing them but if one looks at the evidence which was given, it is just not right to say, as Justice Handley said, that their evidence had been destroyed.

GLEESON CJ:   How did the trial judge deal with that problem?

MR JACKSON:   What the trial judge did was essentially – and it is right to say his reasons were in the end relatively brief.  What he said, if I could just take your Honours to volume 6, was this.  Your Honours will see at pages 1443 through to – I pause to say at page 1452 your Honours will see a reference to Dr Yeo’s evidence and then at 1453 reference to Dr Phillips’ evidence.  What your Honours will then see is the evidence of other ‑ ‑ ‑

KIRBY J:   Does the judge expressly accept those two witnesses?

MR JACKSON:   Yes, your Honour.  I am just about to indicate where that is.  Your Honours will see at page 1456 he sets out in the first new paragraph on the page that there has been a lot of material and he says:

those to which I have referred represent the range of views and reasons for coming to those views.

Your Honours will see in the next paragraph that he deals with the malingering question, relying particularly on the evidence of the plaintiff and her daughter.  He then comes at page 1457 to saying, at about line 17:

Is this condition caused by the fall in 1988?

And he refers to the evidence of Dr Yeo and Dr Phillips particularly.  Now, it is right to say that he does not, I think, deal with the detail of their evidence, but it is plain that he ‑ ‑ ‑

GLEESON CJ:   But does he address the fact that they made their assessment of the plaintiff without being aware of the matter that was first brought to their attention in cross‑examination?

MR JACKSON:   Well, your Honour, he does not say so specifically but what he does do ‑ ‑ ‑

McHUGH J:   It was not the case with Dr Yeo anyway; it was put to him in‑chief, the question of the death.

MR JACKSON:   Yes, I am sorry, your Honour.

McHUGH J:   And he still maintained that it was the trigger.

MR JACKSON:   Yes.  Could I just answer your Honour the Chief Justice first.  What I was going to say was this, that at page 1457 you will see in the paragraph immediately above that that he refers to it arising “from unresolved psychological conflict”.  He describes the nature of it and you will then see in the very next paragraph he refers to the evidence of Dr Yeo and Dr Phillips.  Now, it is perfectly right to say that he did not refer specifically to the matter your Honour is putting to me, but it seems apparent enough that he would take into account and would expect the fact that this had been put to the doctors and they had given evidence about it.

GLEESON CJ:   What is the meaning of the expression “conversion disorder”?

MR JACKSON:   Well, your Honour, an older name for it was “functional overlay” and a form of hysteria, where the effects far beyond the physical effects are brought about by injury.  Your HonourS, I remember a case in which a man who had been a freedom fighter in Poland who worked as a bricklayer and was hit on the head by a brick and suffered a minor injury and never worked again; that kind of thing, your Honour, and the various types of it, but, your Honour, it is common.

KIRBY J:   That is not my recollection.  “Functional overlay”, as I remember it, was something on top of a physical condition that is not explained and often a bit suspect, whereas your talking conversion seems to be a trigger hits and suddenly something apparently trivial becomes very significant, like the eggshell skull theory.

MR JACKSON:   Your Honour, I am sorry, “conversion disorder” is a big expression covering a lot of cases where one has someone who has suffered an injury and appears, for whatever reason, to be much worse afterwards, assuming the person is not malingering.

McHUGH J:   They may have no pathological or organic basis for it at a later point of time.  I once had a client who had all sorts of problems in her arm.  You could stick needles in her, she could not feel any pain, but there was no organic basis.  Where she claimed was not referable to the distribution of nerves and so on, but nobody suggested for a moment that she was not genuine; she just had some idea that she had all this pain in her arm and her arm was limp.

MR JACKSON:   Yes, exactly.

GLEESON CJ:   Now what is the question of causation that arises?  Is it, what is the cause of the “conversion disorder”?

MR JACKSON:   Yes, your Honour.

GLEESON CJ:   Let me rephrase that, of course; is this a cause of the “conversion disorder”?

MR JACKSON:   Was it a cause; it did not have to be the only cause, but was it a cause?  Your Honour, was it a cause of her condition?

GLEESON CJ:   Well, words like trigger and sentinel are metaphors.  If you look at page 1458 at line 20, that finding in the sentence beginning with the word “While” seems to be saying that if you apply the “but for” test you cannot say that but for the fall she would not have the conversion disorder; she would have something wrong with her whether she had had the fall or not.  So, what is the test of causation that is being applied?  Do not say commonsense.

GLEESON CJ:   Your Honour, what the judge is saying and the test that he was saying was this:  if one looks at her condition, was one of the causes of it the fall which she had on, whatever date it was, in April 1988?

GLEESON CJ:   Well, now we know that she would have had it even if she had not had the fall.

MR JACKSON:   She would have had something.  Your Honour, she may have had some.  What he is saying is that while it may be true to say that had she not had back pain, her psychiatric disorder would have displayed itself in some other way.  Now, your Honour, that may go to the question of the amount of damages that she would be awarded because of the possibility that some other event might have brought it on, but one is looking at the situation that, in fact, it was brought on and, in fact, it was brought on by a combination of things, one of which was the fall.

CALLINAN J:   Mr Jackson, did you refer to Purkess v Crittenden?

MR JACKSON:   I do not think so, your Honour, no.

CALLINAN J:   Well, I thought that might be relevant.  It might even assist you, Mr Jackson.  There is another case following Purkess v Crittenden which picks up the same sort of issue.

MR JACKSON:   Your Honour is not thinking of Watts v Rake?

CALLINAN J:   Yes.

MR JACKSON:   Yes.

CALLINAN J:   Now, I may have the order wrong, but it is for the defendant generally – and I put it broadly – to disentangle the causes.

MR JACKSON:   Yes.

CALLINAN J:   I would have thought that was very relevant to your case.

MR JACKSON:   Your Honour, I suppose the way in which it arose in this case was that an issue was whether the conversion disorder was caused at all by the fall.  I am sorry, your Honour, can I just finish by saying once it is established that there were two causes then the extent to which the damages would be affected would be a matter for the defendant to show, but this is probably an anterior question.

CALLINAN J:   Yes.  Well, it is certainly an alternative way, I would have thought, of putting your case, Mr Jackson – at least an alternative way.

MR JACKSON:   Yes, thank you, your Honour.

KIRBY J:   Is this the line of territory of McGhee, the case in the House of Lords?

MR JACKSON:   Is your Honour thinking of the ‑ ‑ ‑

KIRBY J:   McGhee v The Coal Board, I think it is.  I only say that because I received a note of an article by Professor Stapleton on that line of law and it mentions a recent decision.

McHUGH J:   No, it is not Fairchild.  It is not a McGhee or Fairchild.

MR JACKSON:   Your Honour, that leads one, in modern terms, into the kind of mesothelioma and so on cases.  Your Honour, it is not really that, in our submission.  It is simply a case of a person who had, in a sense, a predisposition really, I suppose, to two things.  One is that she had a predisposition to some recurrent back condition on the one hand.  On the other hand she had a predisposition to some psychiatric disorder.

Now, in assessing the number of dollars she should ultimately get the predispositions have to be taken into account, but, your Honour, in determining whether the manifestation of those conditions is something attributable to the accident is something that is, in a sense, a question of causation.  If the accident was a cause of her current condition, she is entitled to recover in respect of it.

KIRBY J:   A cause is clear authority of this Court, is it?  Because if one looks at the tort, it has to be the breach of the duty which causes damage.

MR JACKSON:   We have given, your Honour, in our written submissions in ‑ ‑ ‑

KIRBY J:   I saw you cited three cases, I think.

MR JACKSON:   Yes, your Honour, March v Stramare, Medlin.  In Medlin 182 CLR 1 at 6 to 7 – I am sorry, your Honours, I have just lost the actual passage – may I come back to that – but in our submission it is established that that is the case.

KIRBY J:   I ask the question because in the end negligence has to get back to the general principle of, I suppose, what it is reasonable to impose upon another person in liability to and it seems this may have been behind the Court of Appeal majority thinking that your client had a susceptibility, it is true, but she had a long preceding period of various disabilities and then she had the death of her husband and if you just look at it as a whole, it does seem a very great burden to place all of this at the door of one fall.

MR JACKSON:   Your Honour, may I say a few things in response to that.  The first is a pure technical matter.  Could we add to those references the Court’s recent decision in I & L.  That was in relation, of course, to the Trade Practices Act provision but it seems to be along exactly the same lines, namely that all you have to have is it be a material cause, not the only cause.  That is the first thing.  The second thing, your Honour, is that the Court of Appeal’s function was to determine whether there was error in the judge’s conclusion that it was a cause.

One has a distinct suspicion, your Honour, reading the Court of Appeal majority’s reasons that their disquiet with the unsuccessful attack on the “no malingering” finding really flowed over into their findings into their approach to the other aspects of it and were not prepared, with respect, to approach the case on the basis that there was a finding that she was not fabricating what she said.

KIRBY J:   I think that is being a bit unfair to the Court of Appeal.  The impression I got was that they kept clearly in their mind a difference between malingering, which is deliberately and in a sense for monetary gain, trying to trick the system, and there being a multitude of possible causes in a vulnerable person, one only of which was this fall and which on one view had only a limited duration.  More significant was the death of her husband and the morphine injection and things of that kind and that you had to look at the particular incident on which she sued in the commonsense environment of all the other factors in her life which made her a vulnerable person.  That does not necessitate a conclusion of malingering; it just necessitates looking at the whole picture.

MR JACKSON:   Yes, but the picture was not one that was really in a sense two dimensional in the sense of just looking at it on paper.  What I mean by that is that it was a case where the issue had been dealt with by the judge in the first place and the issue was one that was itself much affected by the judge’s view of, for example, the daughter’s evidence – I will take your Honours to that in a moment – where she said that there was a deterioration from the time she got out of hospital, in effect, and it kept on going and that the death of the husband, or the husband’s illness and death, was not really something that was itself the point that made her worse but she was on the downslide before that and kept on going.

McHUGH J:   The daughter said, did she not, that because of her mother’s love for the husband she did things for him and ignored her own pain?

MR JACKSON:   Indeed, your Honour, I was just going to mention that.  That, in fact, there was a slight up when her husband was sick because she was disregarding her own disability, or assumed disability, and helping her husband.

McHUGH J:   But is not one of the most powerful points in your case that somebody as eminent as Dr Yeo, at 453, had put to him all these episodes about death and cancer and so on, and then at 454 at line 20 he said that:

The three main psycho‑social episodes that you describe could well have sensitized this lady to becoming more profoundly disabled –

But he says:

In my opinion the main trigger point –

was before.

MR JACKSON:   I propose to come to it, your Honour, but we endeavour to say this was a case where the judge had before him evidence of persons qualified to say so, which he was entitled to accept and did.  Your Honours, in those circumstances, the Court of Appeal was in error in doing what it did.  Your Honour, could we also say it is not just a question of the Court of Appeal having adopted an unorthodox approach in that regard.  In fact, they made mistakes in dealing with what the evidence and finding were.

Your Honours, I have lost myself when I was referring to Medlin.  It is at 182 CLR, particularly at the bottom of page 6, the last three lines, and going over to the first new paragraph on page 7, and in particular in that first new paragraph on page 7 in the third line.

KIRBY J:   Why is that so in principle?  What is the principle that lies behind that?  Why should a party not only be liable for that which it actually causes, as distinct from for which its causative action is one element, and the law of negligence being a law of reasonableness?

MR JACKSON:   Your Honour, I suppose, for a number of reasons.

KIRBY J:   Your first point is that that is the authority of the Court, which is a fair starting point, but I am just trying to understand ‑ ‑ ‑

MR JACKSON:   And I exhausted myself arguing the contrary in I & L, your Honour, to no success, except, I think, with your Honour.  The position, in our submission, is this, that a person suffers damage – damage, of course, being part of the tort – an element of the tort in negligence.  That damage may be caused by a number of things, some of them being conduct which is and some being conduct which is not negligent.

Now, there are really two elements involved, I suppose.  One is to decide which causes are relevant.  If one says the test is not simply “but for” but something more is required, having applied that test, a number of causes may be identified.  Now, your Honour, if it be that there is one cause which involves breach of duty and one that does not, then one would perhaps say an absolutely perfectly system that the person who was negligent should only be liable for what proportion of that one sees is attributable to the negligence.  It is sometimes impossible to see.  But the reality is, in most cases, that one simply has a set of circumstances involving an element of negligence, perhaps other causes superimposed, but in those circumstances, your Honour, a choice is made, the choice being, “How much should the negligent person pay?”, and the answer, in our submission, is “The damage”.

If you have a case where there are two negligent causes, each responsible for the same damage, or two negligent persons, each responsible for the same damage, there is not, in our submission, any very persuasive reason why, as between those persons and the person damaged, each should not be liable, leaving it to them to work out as between themselves who is responsible for what – who has to pay what.

McHUGH J:   Well, you are not liable unless all the damage can be traced to you.  The fact that other people may also be liable is a matter between themselves.

MR JACKSON:   Well, that is our submission, your Honour, yes, and the underlying ‑ ‑ ‑

McHUGH J:   Which makes it very difficult to understand these reforms in which a plaintiff is only going to be able to recover to the extent to which a person is responsible – not to the extent to which the person has caused it, but to which the person is responsible as between that defendant and other defendants.

MR JACKSON:   Your Honour, leaving aside statutory change, the current system, if I can put it that way, is one on which there are some statutory incrustations, if I can put it that way, one being the contributory negligence legislation, one being the provisions for contribution as between or amongst tortfeasors.  Those are both based, in our submission, upon the notion that prima facie the tortfeasor is liable for all the damage that tortfeasor was a material contributor to.  Your Honour, I do not know that I can take it beyond that.  I mean, of course, there is in the end an element of judgment, an arbitrary element saying what the law will be but has been that way for a long time.

Now, your Honours, could I say also one other thing and that is this, that your Honour the Chief Justice mentioned the evidence about the death of the husband and so on.  This was actually raised with Dr Phillips also in evidence‑in‑chief.  That is page 504, lines 30 to 45.

Your Honours, I was going to move to our written submissions and to pick up the respects in which we submit the Court of Appeal erred and I wanted, if I may, your Honours, to go to our written submissions, paragraph 22.  In particular, the passage with which I wish to deal is contained in paragraphs 22 to 28.  That is where we refer to what is, in our submission, the first of a number of errors made by the Court of Appeal majority.

Your Honours will see that the first of these concerns what was said by Justice Handley at page 1496.  Your Honours will see at page 1496 in volume 6 that after referring – I am going to paragraph 20 – to the finding by the primary judge his Honour went on to say in paragraph 20, about line 31:

If the fall only caused a temporary aggravation of the plaintiff’s degenerative condition for some 12 months or so, her pain thereafter was not caused by the accident, but by her underlying condition for which the appellant was not responsible.

Your Honours will see that Justice Handley said:

a temporary aggravation of the plaintiff’s degenerative condition for some 12 months or so –

He said that the primary judge had said that, but what in fact the primary judge said – and your Honours will see at page 1457 commencing at about line 28.  I have taken your Honours to the passage earlier.  It is 1457, line 28.  It goes through to the top of page 1458.  He said she had suffered initial:

severe back pain . . . for approximately twelve months –

but she also had continuing:

back and leg pain from time to time as a result of degenerative disease of the lumbar spine.  I find that this degenerative disease was aggravated by the fall . . . the back pain . . . recurs from time to time.

So, your Honours, the basis of saying that the degenerative condition was not manifesting itself was just wrong, in our submission.  It is based on an error as to the findings made at first instance.  Your Honours will see that his Honour Justice Handley – and I referred to this at paragraph 26 of our submissions – had also referred in paragraph 18 of his reasons at page 1495 to the – he said he had read his judgment as being:

that this was only a temporary aggravation.

But your Honours have seen the passage in the primary judge’s reasons and, with respect, it just does not say that.  Could I come then to the second of the errors.  Your Honours will see that referred to in paragraph 29 of our written submissions and it again appears at page 1497 in paragraph 22 of Justice Handley’s reasons where his Honour said that he:

did not appear to have realised that his finding that her psychiatric disorder commenced “at the latest” on or shortly after her husband’s death, tended to undermine his finding that it was caused by her fall some –

12 months later and:

treated her back pain as causative without, it seems, considering that after the first 12 months or so this was due to her degenerative condition and not the fall.

What we would say about that is simply that your Honours will see, apart from what we have said already, we would say in paragraph 31 the husband’s death was within, in any event, the period of 12 months.  He died in January.  She had been injured in the preceding April.  The second thing is that what the primary judge had found was that the slide commenced somewhere in 1998, or, at the latest, on or shortly after the death on 1 January, but, in either event, it was during the 12‑month period anyway.

We would also seek to make the point, as we have in paragraph 32, that the judge was not speaking of matters having a merely temporal significance.  Your Honours will see that he said in addition in a causative way that the “psychological factors would not have manifested as they did without the back pain”. 

We would also refer your Honours to the matters we have set out in that regard to paragraphs 33 and 34 of our written submissions. I do not think I need to take your Honours to the detail of those but I did want to take your Honours to the matters to which we refer in paragraphs 35 and 36. Your Honours will see that the appellant’s daughter, Tracey, gave evidence about her condition. Could I take your Honours to volume 2 and, in particular, a reference which is omitted in error from paragraph 35. It should be in the second line of paragraph 35, “See 2 AB 487-488 and 498‑499”. If one goes to page 487 at about line 51, she was asked:

After your father’s death, the pain in your mother’s low back and right leg became increasing troublesome, didn’t it?
A.  It was increasingly troublesome from the day of the accident.  I don’t know that it increased as – she was getting steadily worse but I’m sorry I can’t exactly say.

Then your Honours will see the next question, then at page 488, line 10, on the right‑hand side of the page, your Honours will see a passage going through from lines 10 to about 37.  This is a passage referred to by Justice Davies in his reasons for judgment.  Your Honours will see she said, “She was regressing all the way through.”

If one goes also to page 498, about line 45, your Honours will see that she answered at about line 50:

All I can say is she steadily got worse . . . 

She was bad from the time she walked, like got out of the hospital ‑ ‑ . . . 

I am just saying she has got steadily worse . . . 

Since the accident.

Q.  So you say there was no particular relevance in that regard after your father’s death:
A.  I don’t think so, no.

That is relevantly it, I think.

That evidence was referred to by Justice Davies in volume 6 at page 1525, paragraph 99.  Your Honours will see he there referred to the passage at page 488 and said on the next page at paragraph 100:

Thus, at the trial, counsel passed very lightly over the events of 1988 and did not confront either Mrs Shorey or her daughter, Tracey, with the specific proposition that Mrs Shorey recovered during 1988 from the effects of the 1988 accident.

We mention that it does seem apparent that the primary judge accepted the evidence of the daughter.  I have given your Honours one reference already which is at page 1456 at about line 37 but also a little earlier at page 1450 the judge said commencing at about line 16:

She reacted emotionally but I thought tellingly to the question whether she accepted that her mother’s condition is not due to physical causes –

and your Honours will see the answer that she gave.  Could I just say that if your Honours look at the evidence which the daughter gave and also the other evidence in the case about what she had to do for her mother, one can imagine the judge saying that there was a telling response for her to say that she had been doing a lot of things that she did not need to do as well as running her own household and taking the view that she was likely to be a witness of truth.

Now, your Honours, could I refer then back to Justice Davies’ reasons, commencing at page 1519.  Your Honour Justice Kirby said, one might need to go to the detail, and the point I would seek to make about it is this, that if one goes from page 1519 at paragraph 82 through the recitation of the medical evidence and the events that took place by Justice Davies, and that goes through to page 1526, one sees that the evidence that was before the judge, in our submission, was evidence on which he was perfectly entitled to arrive at the conclusion which he did. 

Your Honours, could I come then to the third error of the case, and that is the one to which we refer in paragraphs 37 and following.  Your Honours will see Justice Handley referring at page 1505, in paragraph 47, to the evidence of Drs Yeo and Phillips.  The essence of what was said by Justice Handley appears at paragraph 57 of his reasons, at page 1511, where he said: 

After the cross‑examination of Dr Phillips, the Judge could no longer act on the evidence of Dr Yeo on the causation question (para 17) because Dr Yeo had relied heavily on –

Dr Phillips, to put it shortly –

Nor could the Judge act on Dr Phillips’ opinion, given in his evidence‑in‑chief, that the fall was “the sentinel event in the causal chain” (para 17, black 2/223) because he had withdrawn that opinion during cross‑examination –

and he refers back to paragraph 55 of his reasons, where your Honours will see a passage there set out.  He also says, at page 1511, that – and this is paragraph 56, at the top of the page: 

The re‑examination of Dr Phillips failed to come to grips with this evidence or with the additional history that Dr Phillips had received the night before and during his cross‑examination. 

Now, could I take your Honours for a moment to the actual evidence of Dr Phillips, which is in volume 3, commencing at page 501.  I am sorry,  I said page 501.  The evidence actually starts at page 502.  If one goes to page 504, using the lines on the right‑hand side of the page, line 5, he agreed that it was “fair to say” that “the orthopaedic matters” he did not believe would “help explain in totality” her problems.  Your Honours will then see, in a passage to which I think I referred earlier, line 20, that she was asked to assume a sequence of events, and then your Honours will see that put to him, and going through on the next page, page 505, about line 10, he said: 

Well, I would view the accident of 1988 as the sentinel event in the causal chain.  She had made a relatively good recovery, I understand, from previous surgery.  It was after that accident that her symptoms began to be manifest.  I accept that there were other important stressors along the way which you have touched upon but the accident, in my view, was the psychological trauma of principal importance. 

Then he was asked, in the next question, to take into account the fact of the death of her brother and related matters, and he gave, again, the same answer – an answer to the same effect at about line 25. 

Now, your Honours will then see cross‑examination by my learned friend, Mr Jones, commences, and some discussion about the nature of the diagnosis.  If I could just give your Honours a reference, page 506, about line 45: 

The central understanding of conversion disorder is based on failure to resolve conflict. 

Your Honours will then see in the cross‑examination commencing about line 55, going through, I think, the next page, and then page 508.  At page 508, your Honours will see at about lines 30 to 55 dealing with the question of the administration of morphine, and then what was put to him at page 509.

GLEESON CJ:   Just before you pass from that evidence on the bottom of 506:

The central understanding of conversion disorder is based on failure to resolve conflict.

So let us suppose that as a result of somebody’s negligence a person has a broken thumb and then some time later that person finds himself or herself in a situation of unresolved conflict and comes to believe that as a result of the broken thumb that person is a quadriplegic or suffers some disability relating to the thumb that is grossly disproportionate to any physical symptoms or physical condition.  How do you then work out the causal connection between the conduct of the defendant that resulted in the broken thumb and the condition that I have just described, which results from the unresolved conflict?

MR JACKSON:   Your Honour, the way in which one would have to approach it would be fundamentally to identify whether the condition from which the person ultimately suffers is a manifestation of a condition underlying at the time of the injury to the thumb and if it was something that was a condition that was latent at that time and its manifestation and the form in which it came was as a consequence of the injury to the thumb then, in the ordinary course of events, that would be a variant, in a sense, of the “eggshell skull” theory.  It would not be really very different from it, your Honour.

GLEESON CJ:   What is this meaning in this context of the word “conversion”.  What is being converted from what into what?

MR JACKSON:   Your Honour, I suppose I can more easily tell your Honour what is converted into, and that is converted into the condition which manifests itself.  Your Honour, it is put in various ways and I find it a little hard to describe personally, but what it seems to be ‑ and I will endeavour to give your Honour a couple of references to the evidence a little later if I may ‑ ‑ ‑

GLEESON CJ:   Certainly.  You can do it after the conclusion of argument if that is convenient.

MR JACKSON:   Yes, your Honour, I would prefer to do it that way if I may because it is a technical issue and put in a number of different ways by the persons who ‑ ‑ ‑

CALLINAN J:   Dr Phillips seems to have adopted something that was said in a textbook, that it was a form of non‑verbal language or non‑verbal communication of, in effect, grief and suffering by acting physically in certain ways, in certain apparently disabled ways.  That is paraphrasing, but I think that is ‑ ‑ ‑

MR JACKSON:   That is page 507, your Honour, yes.

CALLINAN J:   But Mr Jackson, the trial judge seemed to rely very heavily on Dr Phillips.  Is that correct?

MR JACKSON:   Yes.

CALLINAN J:   I just wonder whether the opinion of Dr Phillips was not seriously discredited when it emerged that – it was “he”, was it not, Dr Phillips was a male?

MR JACKSON:   Yes.

CALLINAN J:   When it emerged that he was unaware until the night before he gave evidence that the appellant had been consulting a psychiatrist for some years after her husband’s death and because she was troubled by the fact that she had given him too much morphine.  That seemed to be something that Dr Phillips had no knowledge of and I wondered whether that really may have demolished much of his opinion.

MR JACKSON:   Your Honour, could I say first of all about that, the evidence I think was at the bottom of page 508, at about line 43, and that is that she went to in April 1991 she went to a physician in a depressed state in relation not grief counselling, and then at the bottom of that page, saw a psychiatrist in consequence of that.

Your Honour, could I just say that had these questions been put to him, one sees Dr Phillips giving oral evidence and then one comes to the conclusion of his evidence in fact and then one sees various matters put to him at the end of his cross‑examination and then in re‑examination.

CALLINAN J:   I know I have only referred to one aspect of it, Mr Jackson.  What is the best refutation of the proposition that I have just suggested to you?

MR JACKSON:   Your Honour, it is really his re‑examination, I suppose, but could I just say in relation to it:  when one comes to the end of his cross‑examination, you see for example at the bottom of page 514, at about line 45, he said, “This a most difficult case.”  Then it is put to him:

you would really prefer . . .  is see this lady again, armed with all this additional information . . . is that right?  A.  yes.

And then he was asked:

Sit down and work through all that . . . only be at that point . . . wouldn’t it, that you would be able to say with any confidence 1, what condition this lady has, and 2, what the etiology of that condition is?

His answer was:

Well you are perhaps  . . . a bit more optimistic than I would be.  I certainly agree that armed with additional information to go back and carry out a further examination would be very useful.

Whether he could achieve the end points he is not sure but he could probably be “in a stronger position”.  He agreed in the next answer that:

it’s true to say that some diagnoses are harder to reach and to substantiate –

and “conversion disorder” is such a diagnosis.  Then your Honours will see further cross‑examination by other counsel involved and then ‑ ‑ ‑

CALLINAN J:   It is a fairly effective cross‑examination though, is it not, at 514 and 515?

MR JACKSON:   Your Honour, what he is saying is that he would know something better if he did another examination.  The effectiveness of cross‑examination, your Honour, like beauty in a sense, tends to be a bit in the eye of the beholder.  The cross‑examiner, one has found so often ‑ the cross‑examination thought to be so successful at the time turns out to be rather barren when one ‑ ‑ ‑

CALLINAN J:   I was looking at it a few years later.

MR JACKSON:   Yes, and your Honour, sometimes that happens, sometimes the merits of it do not appear really from the bits of paper.

Could I just say when one comes to the re‑examination at page 518 you will see that he is re‑examined about various aspects.  He says at line 51, “the behaviour is bizarre rather than deceitful”.  The next answer, he thought that “bizarre behaviour” can be:

evidence of a lack of insight consistent with a diagnosis of the conversion disorder.

Then you will see in the question ‑ ‑ ‑

CALLINAN J:   It looks very much like cross‑examination rather than re‑examination.  Typically Sydney re‑examination.

MR JACKSON:   Your Honour, I am not supporting it or defending it.  The judge ruled on it and there we are.

Your Honours will then see the question put to him, it goes through from line 5 to about line 38, and you will see in particular at about line 35:

In saying that I really don’t want to rule out other stressors because I think medicine –

I am sorry, your Honour, I am putting it badly.  What I was going to say was the questions repeated at about line 22 and then the answer is to say:

Yes, it is entirely reasonable to see the fall in the shopping centre in 1988 as the event which was the beginning of the downhill course, if you like.  In saying that I really don’t want to rule out other stressors because I think here perhaps medicine apart, we tolerate multiple stressors.  The law would like us to have a single cause –

and the judge said “I don’t know about that?”  And he said “I withdraw everything I have said then.”  And then he goes on.  It is in an amusing way, no doubt.  Your Honour could perhaps tell that from – but then he goes on to say:

I believe the accident in the shopping centre and the course which followed remains of very great significance aetiologically.

And then one sees the question and answer at the bottom of the page.

Now, your Honours, in relation to that, there was no reason, in our submission, why the judge was not entitled to form the view which he did of Dr Phillips.  That is why re‑examination exists.  We would refer also, your Honours – and I am referring to paragraph 40 of our written submissions – to what was said by Justice Davies in relation to this issue, in volume 6 at page 15 to 16, commencing at paragraph 75 and going through to paragraph 81.  Your Honours, we would submit that was a correct approach and one which should be accepted.

Your Honours, could I come then to the fourth aspect.  That is the matter to which we refer in paragraphs 42 and 43 of our written submissions.  At page 1497, paragraph 23, there is a reference by Justice Handley to the fact that:

The judge did not refer at all to the objective evidence in the records –

of the hospitals, but what we would simply say about it is that he did in fact refer to them, in globo, as it were, at page 1456, lines 15 to 24, but also prior to that he referred to a summary of the medical evidence, and, your Honours, a judge does not have to refer to every part of the evidence.

Your Honours, the final, I think, things we would seek to say are those set out in paragraphs 44 and 45 of our written submissions.  This was a case where the decision of the trial judge did depend, in significant measure, upon his estimation of the witnesses.  We would also seek to say, your Honours, that he expressly accepted evidence which linked the degeneration progressively from the accident. 

Your Honours, as to the definition of conversion disorder, Dr Phillips’ report in volume 4 at page 914, at the top of the page, in the first line he says:

The sensory loss will probably be explained as a conversion disorder with sensory deficit symptoms.  Conversion was previously known as hysteria.  It is best understood as the genuine loss of physical function brought about by psychological mechanisms mediated at an unconscious level.  It has been described as a non‑verbal language through which the patient demonstrates her/his distress.  It is not to be confused with malingering.

Your Honours will see in the last paragraph of that report he refers to the role of the fall in that symptomatology.

KIRBY J:   The Court of Appeal’s orders at 1529 includes order 6 that:

The cross appeal be dismissed with costs.

I could not find where that has been dealt with in Justice Handley’s reasons, but it followed the logic of it, I suppose.

MR JACKSON:   Well, your Honour, what happened was this, that there was a cross‑appeal on the quantum of damages.  Because of the view taken by the Court of Appeal, that was not dealt with by the majority.  Your Honours will see that at the conclusion of Justice Handley’s reasons, page 1514, paragraph 69.

GLEESON CJ:   Does that mean the matter would have to be remitted if we were in your favour?

MR JACKSON:   Yes.  I was going to say, your Honour – the answer is “yes”.  Could I say that it was dealt with by Justice Davies at page 1527, paragraph 103 to 105, adversely to us, but the issue has not been dealt with by the Court of Appeal, and that is why ‑ ‑ ‑

KIRBY J:   Where did that figure of 68,911 come from?  I know it was nominated by the present respondent – this is at the top of page 1515 – and Justice Handley embraced that figure.

MR JACKSON:   Your Honour, I do not know the detail of it.  It immediately appears ‑ ‑ ‑

KIRBY J:   Well, perhaps Mr Walker can explain it.  It was his figure.  But if the Court of Appeal finds error, then that gives them the gateway and then, as I understand the principles, they have to perform the function that has miscarried at trial and his Honour just says, “Well, I adopt that figure on a reassessment”.  Though he was invited to reassess himself, he just adopted the figure from the respondent.  I just do not quite understand how that was done.

MR JACKSON:   I will endeavour to give your Honour the answer.  I am sorry, I just do not know where the answer comes from.

KIRBY J:   In any case, you ask that the cross-appeal, which has not really been disposed of in light of the majority view, should be dealt with by the Court of Appeal in the event that ‑ ‑ ‑

MR JACKSON:   Yes.  Your Honour will see the orders which we seek in paragraph 47 of our written submissions.

KIRBY J:   Did Justice Davies deal with the cross-appeal?  He dismissed it, did he not?

MR JACKSON:   Yes, he was inclined to be against us.  Your Honour will see that at page 1527, paragraph 103, and he then said in paragraph 104 that he thought the findings “were well within the range of his Honour’s discretion” with one exception.

GLEESON CJ:   Mr Jackson, a tortfeasor has to take a victim as the victim is found.

MR JACKSON:   Yes.

GLEESON CJ:   Does the tortfeasor have to take a victim as the victim later becomes?

MR JACKSON:   Well, yes and no, your Honour.  I mean, sometimes yes and sometimes no.  But it depends what is meant by “as the victim later becomes”.

GLEESON CJ:   Later suffers from unresolved grief.

MR JACKSON:   Well, the answer is if it be that the condition from which the person is suffering is in part attributable to the accident or to the negligence, then the answer will ordinarily be yes, unless the damages or the types of damage are capable of being cut into pieces, and cut into pieces in the sense of being attributable to particular things.  Your Honour, if it be, of course, that a person is injured and then from other unrelated causes suffers some further disability, then the tortfeasor does not have to pay.

KIRBY J:   I think the Registrar drew attention of the parties to the Canadian decision of Housen v Rural Municipality of Shellbrook. Is there anything in the Canadian or English authority that shows that our Court has adopted a different principle for appellate review of mixed questions of fact and law, or is it basically the same in England and in Canada?

MR JACKSON:   Well, your Honour, the Canadian situation, generally speaking, does appear to be, at least in one or two respects, significantly different from that obtaining here.  What I mean by that is – could I perhaps take your Honours to the case, which is, of course, Housen v Rural Municipality of Shellbrook.  I think your Honours will have the Internet copy of it and the page ‑ ‑ ‑

KIRBY J:   I do not think it is reported yet, but I had that checked.

MR JACKSON:   Your Honour, in the principal judgment which appears at page 7, at the top of the page, one sees in paragraph 1 a proposition in relation to errors of law, and that appears to be the same position there as here.  Intermediate appeal courts have a duty to correct errors of law, and there is no difference in that regard.

I am sorry, perhaps I really should have started with a summary.  I really should have started at paragraph 8 on the next page where the “pure question of law” issue is dealt with in paragraphs 8 and 9 and there is not, I think, your Honours, any significant difference in relation to dealing with pure questions of law.

GUMMOW J:   They are very deferential people, Canadians – deferring to one another.

MR JACKSON:   Yes, your Honour, but when one comes to paragraph 10 ‑ ‑ ‑

GUMMOW J:   They are deferring in paragraph 10.

MR JACKSON:   Yes.  One sees that that test really seems quite different from that which obtains here because what one sees in relation to Australia is, if I could summarise it, broadly speaking, that if one is speaking about findings as to the credibility of a witness or findings based on credibility, then the test in Abalos and the cases following that is the test that is applied.  However, when the facts are either admitted or found, then subject to the extent to which the influence and demeanour may have affected them, then the appeal court is in the position where it itself decides the – as part of the rehearing expresses its own view on the facts.  It is the court’s function to rehear.  When one comes to mixed questions of fact and law ‑ ‑ ‑

GUMMOW J:   Whatever that expression means.

MR JACKSON:   Your Honour, that is what I was going to say, there is ‑ ‑ ‑

KIRBY J:   Perhaps a misunderstanding of causation or a misunderstanding of a cause of the damage or something of that kind.

MR JACKSON:   Your Honour, that, normally speaking, would be a factual question to be decided, of course, in the light of legal principle, but so far as that is concerned, that is really in the end no more, in our submission, than a resolution of a factual matter.

KIRBY J:   Some of the – I picked this case up from a comment on it – in which it is said that the Canadian court had emphasised that behind the legal principles were issues of not only finality, which our cases often refer to, but also economy, that to be reopening cases and retrying them at a disadvantage, as appellate courts are, that you are running into the diseconomy of unsettling what are the orders of courts.  Now, I do not know if that is something we should think about in this economic age.

MR JACKSON:   Your Honour, the starting point for the function of an intermediate appeal court is, in the end, the statute which gives it its powers and if what is contemplated is an appeal by way of rehearing ‑ ‑ ‑

GUMMOW J:   It is not in the end; it is the beginning.  There is no other creature apart from the statute.

MR JACKSON:   Your Honour, I appreciate that.  I was really using ‑ ‑ ‑

GUMMOW J:   I just wonder what the Canadians were – what statute they were construing.

MR JACKSON:   In some materials that my learned friend has provided which are entitled in the next case – but the Saskatchewan provision that was then in force is amongst those.  There is a later provision which we have but that is, for practical purposes, in exactly the same terms.  It does not tell you much, really. 

Your Honours, what I was going to say was that one does has to start with the function of the court provided for by the statute, and one sees insofar as the courts are concerned, there is an obligation to conduct the appeal in accordance with the statute.

Now, the notion that there should be taken away from the intermediate courts of appeal the ability to do those things is one which no doubt there might be arguments either way and I suppose, in a sense, in the two cases that are on today each of us would argue one side at different times.  But it does have to be borne in mind that the appeals in Australia are appeals from a large number of courts and in a large number of courts.  Not all have permanent courts of appeal.  Not every permanent court of appeal has permanent judges sitting all the time and the persons are entitled to have their appeal dealt with according to the statute.

Your Honour, I do not know that I can take it beyond that.  We would simply say there is no occasion for making any alteration in the rules applicable.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Walker.

MR WALKER:   Your Honours, may I, in an attempt to do it briefly, start with that first topic. It applies in this case as follows. What the Court of Appeal did was pursuant to a statutory duty. The question in this Court was, was that duty carried out correctly which raises in turn the question of this Court’s constitutional duty and that, of course, raises quite different questions, but ultimately focus on exactly the same statute, section 75A of the Supreme Court Act of New South Wales. That is the statute that sets the mandate that is the duty of the Court of Appeal in this case.

GUMMOW J:   There seems to be a rule of court as well.

MR WALKER:   There are some important rules of court.

GUMMOW J:   Yes.

MR WALKER:   Would your Honour forgive me for deferring that argument to the next case?

GUMMOW J:   Yes.  I just wonder how it interacts with the section, that is all.

MR WALKER:   It is at the heart of the next case. Also, its interaction is important with section 75A. The best vehicle for me to argue it would be the next case.

Your Honours, can we say this about the Canadian position immediately.  It is no mere matter of a difference of emphasis which constitutes the real difference of jurisprudence between the Supreme Court of Canada and this Court.

Your Honour Justice Gummow asked what might, with great respect, be called “the first question” when reading a judgment of an ultimate appellate tribunal about how an intermediate appellate tribunal carried out its job.  First question:  what rules were laid down for that job?  But, with respect, you look in vain in that particular decision, that is the one to which our attention has been drawn delivered in March this year, Housen v Nikolaisen, for any discussion of that statutory issue.  However, that is understandable because it had been concluded by both Saskatchewan appellate and Canadian Supreme Court authority back in 1987.

May I anticipate your Honours by asking your Honours to go to the bundle which has been supplied to you headed in the next case, Whisprun v Dixon.  It is called our list of Canadian authorities.  It is slightly more than a list.  It contains, in very truncated form, bearing in mind the time, some passages which, if your Honours will forgive me, I will go to very quickly now.  It is, I think, then the complete answer to your Honour Justice Kirby’s question to my friend about what it is in Canada from which this Court might now derive assistance.  The short answer is, apart from the value which comparative law supplies in order to provide a different perspective on one’s own law, there is nothing concrete or pragmatic which this Court should take from the Canadian authorities so as to alter the position laid down in Warren v Coombes and in Abalos.

KIRBY J:   I wonder if the Canadian authorities do not show a greater scepticism about the value of the appearance of witnesses than has been exhibited in a number of decisions of our Court.

MR WALKER:   They do.

KIRBY J:   It is a scepticism which I certainly have myself.  I think the advantage of trial judges is their absorption of the entirety of the evidence and the time to think about it and so on.  I will never be convinced that it is the appearance of a witness in a witness box, never.  Science denies it.

McHUGH J:   Science may deny it, but science cannot replicate in the courtroom what happens, the effect of consciousness of guilt and feelings.  Every cross‑examiner, every police officer knows from an answer to a question, body language that you are on to something and a few questions ‑ ‑ ‑

MR WALKER:   When the cross‑examiner faces the policeman is where the interesting thing arises, your Honour.

McHUGH J:   Yes.

KIRBY J:   Well, science has replicated all of this and has found it is a lot of hocus.

McHUGH J:   Yes, well ‑ ‑ ‑

MR WALKER:   With respect, I was about to say one of the most famous dicta in the area refers, I think, to flicker of eyelids.  In our submission, that is a spurious or, at least, speciously precise reference to the kind of matter that both your Honours have referred to.  I do not wish to add anything to the arguments that could be mounted on both sides, and have been mounted, in judgments in this Court on both sides of that issue.

McHUGH J:   You even see it with counsel when they are asked a question.  Sometimes there is a gulp, counsel swallows hard.

GLEESON CJ:   They are probably just thirsty.

KIRBY J:   Or they have their hand on their chin.

MR WALKER:   I do not know how your Honours can tell…..is the invariable reaction, but.

KIRBY J:   Justice McHugh has done a course in amateur psychology.

CALLINAN J:   Mr Walker, I had a judge who made a finding of credibility on the basis that a witness drank a lot of glasses of water during ‑ ‑ ‑

MR WALKER:   In Queensland, your Honour? 

CALLINAN J:   No, New South Wales.  So all witnesses were subsequently warned to abstain from drinking too much water before the judge. 

MR WALKER:   Well, there is lots of advice about liquids for people in court, your Honour, but I had not heard that one.  Your Honours, the short ‑ ‑ ‑

KIRBY J:   Can I ask – I have not read these cases.  Do any of them talk about the issue of the appearance of witnesses and credibility? 

MR WALKER:   No.  My answer to your Honour’s earlier question needs to be elaborated.  Yes, the Canadian jurisprudence does refer to the question of demeanour, and yes, as in this Court, there have been judgments which expressed scepticism.  But, with respect, it is as in this Court, because it is clear, from what Justice Gummow has, with respect, accurately paraphrased as the “deference” principle in Canada – it is clear that the unique advantage, possessed for the reasons that Justice McHugh has noted just now, is the driving rationale for the principle and most solid part of Canadian jurisprudence – which is very similar to ours – and which, in this country, is Abalos. 

KIRBY J:   It does not have to be the driving rationale.  The driving rationale ‑ ‑ ‑

MR WALKER:   Well, it is on ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ can be that we sit in appeal courts – and I sat for 13 years in the Court of Appeal ‑ and you get little snippets of the evidence ‑ ‑ ‑

MR WALKER:   Your Honour, that is ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ whereas the trial judge sits through the lot. 

MR WALKER:   Yes.  That is very much the rationale of what is called “preserving the integrity of the trial process” in Canada.  Very much the rationale.  There are other rationales, some of which may flatter your Honours, some of which may not.  One of them in Canada, which has been essayed is that trial judges are more expert at finding facts than appellate judges – which may or may not say something about the recruitment to appellate benches in Canada.  I cannot answer that.  Another policy runs directly into the way in which the majority in this Court dealt with the matter in Warren v Coombes – finality – to which the majority in Warren v Coombes said, “Well, of course, finality in litigation is a good thing.  The way to achieve that in relation to appeals is to abolish all appeals.  But if you do provide an appeal, then it should be a reality, not an illusion”.  The main ‑ ‑ ‑

McHUGH J:   The surprising thing about the Housen decision is, it comes from Saskatchewan and section 8 of the Court of Appeal Act ‑ ‑ ‑

MR WALKER:   Is not referred to. 

McHUGH J:   Not only not referred to, but it says, in terms, that the court shall act upon its own view of the evidence. 

MR WALKER:   Could I take your Honours to the way in which that has fallen out.  The second last of the documents in the bundle we have given you is the Court of Appeal Act 1987 of Saskatchewan that we tracked down, because of the question that your Honour Justice Gummow was going to ask.  That says, in section 8, which is at the top of page 5 of that print, the things that Justice McHugh has just referred to, in particular, in the second half of the long sentence: 

it shall not be obligatory on the court to grant a new trial, or to adopt the view of the evidence taken by the trial judge, but the court shall act upon its own view of what the evidence in its judgment proves ‑ ‑ ‑

KIRBY J:   But is that all that different? 

MR WALKER:   No, it is not. 

KIRBY J:   Our statue says, “may”, and Julius v The Bishop of Oxford says that if it is an official body that has a function and a discretion, it is expected to act properly, using its powers. 

MR WALKER:   It says in plain English, your Honour: 

it shall not be obligatory on the court to grant a new trial, or to adopt the view of the evidence taken by the trial judge ‑ ‑ ‑

GUMMOW J:   It uses “shall” and “may” in the same sentence, so Julius cannot apply. 

MR WALKER:   Yes.  In our submission, it is clear that there is an attempt ‑ clearly, in vain – in Canada, by the democratically elected lawmaker, Parliament – in Saskatchewan, at least – to deny the Court of Appeal in Saskatchewan the right to apply its own self‑denying ordinance.  That failed signally, both in Saskatchewan and at the level of the Canadian Supreme Court.  The “may” in “the court may draw inferences of fact”, et cetera.  That: 

in its judgment, the judge who tried the case ought to have pronounced. 

That is a word of clear permission.  Again, the attempt by the legislators to deny the Court of Appeal the power to deny themselves that permission, but it failed, too. 

That was section 8.  The reason, no doubt, why it was not referred to in Housen can be seen from the very first paragraph in Housen where your Honours will see:

A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error.

Then they go on to paraphrase that.

Authority for this abounds particularly in appellate courts in Canada and abroad.

The only one abroad, alas, is from the United States to which I will come briefly.

GUMMOW J:   That would be a jury trial.

MR WALKER:   It may not or may not have been a jury trial, the particular case.  I will go straight to it.  It is cited in paragraph 13, one of the times it is cited in the Canadian Supreme Court:  Anderson v Bessemer City.  In Anderson v Bessemer City of course, there is the rule that – Federal Rules of Civil Procedure – I think it is 25E – positively requires the clearly erroneous test to be followed.  That is a matter of, in effect, statute.  It was not a matter in gremio the judges at all.

The reason why it was not referred to in Housen is because that judgment simply applies what is said to be unnecessary to restate, then they go on to restate it.  One finds that in the second of the authorities in the bundle, Lensen v Lensen (1987) 2 SCR 672. That was a case from Saskatchewan. If one turns to page 682e in the judgment of the Chief Justice for the majority in the court, one does find section 8 of the Court of Appeal Act both quoted and construed. About halfway down:

Despite its apparently broad language, s. 8 has been given a relatively narrow interpretation –

and there is the reference to the Saskatchewan appellate decision of Justice Sherstobitoff.  There there is a reference to section 8 doing something on its face which, with respect, we interpolate, is not a promising start to interpreting a statute, one would have thought.  The Court of Appeal said:

simple fairness and justice require a court of appeal to recognise that a trial judge has an immense advantage –

and that, I think, answers one of your Honour Justice Kirby’s questions –

as opposed to a court of appeal which is confined to an examination of a cold black and white record of a trial proceeding, completely devoid of the tension, emotion, colour, and atmosphere of a trial –

Some may say that that is an advantage as to some aspects.  Some may say it is always a disadvantage.  That, no doubt, is a matter of opinion. 

It is for these reasons that a court of appeal must extend very substantial deference –

that word again –

to the finding of facts of a trial judge.

It may be of course, your Honours, that in many ways that is exactly on all fours with Australian jurisprudence when it comes to Abalos.

KIRBY J:   Not quite, because it does not have that great love affair with appearances of witnesses, which has infected our jurisprudence.

MR WALKER:   I think that does, with respect; “tension, emotion, colour, and atmosphere” is precisely what might be called subtle influence of demeanour.

KIRBY J:   It seems much closer to commonsense to my understanding.

GLEESON CJ:   The late Mr Gruzman once in argument in an appeal in which I was sitting in relation to a person who he was alleging was a confidence trickster said, “Your Honours don’t have the disadvantage of seeing the witness in the box”.

MR WALKER:   That is right.  Counsel often do not have the disadvantage of having their witnesses in the box as well.  Pages 683 and 684 continue the theme.  Your Honours will see after the citation from Justice Lamer in Beaudoin‑Daigneault v Richard, halfway down that page there is a reference to:

a well-established principle that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it can be established that the trial judge made some “palpable and overriding error –

Much of that comes from the same English sources as obtains in this country but the departure can be tracked.  I will not spend much more time on it.

GUMMOW J:   At the bottom of that column 2, they come back to section 8?

MR WALKER: Yes.

GUMMOW J:   It does not mean what it says, that is what they are saying?

MR WALKER:   No.  So the Saskatchewan legislature, as I say, failed in its attempt to use plain words.

GUMMOW J:   It is not a high‑water mark for the purpose of construction?

MR WALKER:   No, nor is it a high‑water mark of the golden rule of interpretation, that if it is written in English, a good starting point is what does it mean in English?

CALLINAN J:   Mr Walker, I think it is right – and you might check this –but I do not think there is any reference in Abalos to section 75A, is there, of the New South Wales Supreme Court Act?

MR WALKER:   No, 75A is the Warren v Coombes song.

CALLINAN J:   Yes, but there is no reference, in fact, to the statutory provision governing appeals in an appeal from New South Wales in Abalos.  I think that is right.  You can check it?

MR WALKER:   Can I check that later, your Honour.

CALLINAN J:   Nor, I think, is there any reference to Warren v Coombes, although it is referred to in argument, and I do not think there is any reference to the earlier case of London Bank of Australia Ltd v Kendall 28 CLR which drew the clear distinction between findings of fact by a jury and a judge. 

MR WALKER:   Yes.  Your Honours, it will become apparent that our argument is that Warren v Coombes is sufficient to deal with the issues in this case, that Warrens v Coombes has not suffered any detriment to its authority in this country.

CALLINAN J:   Well, I do not understand why it was not – it was referred to by counsel but I do not think it is mentioned in the judgments in Abalos?

MR WALKER:   In one sense, it is assumed, your Honour.

CALLINAN J:   Well, I do not know about that.  I do not know whether it is entirely consistent with Abalos?

MR WALKER:   Well, I will go to Warren v Coombes in a moment, but it is clear in Warren v Coombes ‑ ‑ ‑

GUMMOW J:   There is no reference to 75A either, is there?

MR WALKER:   I am sorry, your Honour?

GUMMOW J:   There is no reference in 75A to Warren v Coombes, is there?

MR WALKER:   I think there is, your Honour. It is permeated with it. I will come to that, in a moment. It is a decision about the section 75A power, but one of the ironies of Warren v Coombes, of course – bearing in mind related doctrines – is that Mr Justice Aitken points out that the point that occupies most of the reasons of the majority was scarcely, if at all argued, at the hearing of Warren v Coombes, but it is nonetheless, authority and it is authority binding the Court of Appeal in this case about section 75A.

KIRBY J:   Now, this was an appeal from the District Court and therefore the power of the Court of Appeal to hear the appeal was derived from the District Court Act, I think, and 75A told the court how to do the appeal, but I think there is a provision in the District Court Act that gives the court jurisdiction to hear appeals from the District Court.  Could you check that up?  I am pretty sure that is the case.

MR WALKER:   Yes, we will check that, your Honour. It is section 75A which is at the heart of any argument, if there be one between these parties, any argument about the extent of power, and therefore the proper yardstick to measure the performance of the Court of Appeal in this case.

Your Honours, may I simply say this very briefly by way then of summary about the Canadian authorities, Stein v The “Kathy K”.  I will not take your Honours to it.  The passage would appear to be the start, as it were, of the binding orthodoxy at the highest level in Canada, in favour of the phrase, “palpable and overriding”.  Overriding appears to mean material, that is, effected the result.

KIRBY J:   “Palpable” seems to be there  ‑ ‑ ‑

MR WALKER:   Plain to see, clear.

KIRBY J:   We use a different – what is the word that is used in our cases?

MR WALKER:   Well, we actually use one of the old English phrases, which happens to use the same expression, that is, “a palpable misuse of the advantage of the trial judge”.

KIRBY J:   We use “incontrovertible” and words to that effect, I think?

MR WALKER:   Yes, words of colour.

KIRBY J:   Words of colour designed to show, “don’t jump in too readily”?

MR WALKER:   That is right.

KIRBY J:   But, if it is too awful altogether, then you are entitled to do it?

MR WALKER:   Well, it depends on whether one is talking about so‑called inferences, matters of law or findings of fact.  It is quite clear, for example, in England, that discussion about this area was much influenced by the 1955 article of Professor Goodhart who distinguished between perceptual and evaluative exercises, but none of that seems very overt at this stage in the jurisprudence either in Canada or in this country.

GUMMOW J:   We had better at some stage, if we are going to get into this, know what the English Court of Appeal has as its current mandate, at some stage.

MR WALKER:   Yes, we will give your Honour a note on the statute or rules which governs the method in England and Wales.

P (D) v S (C) is there only because it is referred to frequently but it in fact only collects authorities.  I do not have anything really to say about that.  Toneguzzo‑Norvell v Burnaby Hospital, the passage in question again refers to what is well established.  That is at page 121.  There is a catalogue that reads as follows, at letter f:

In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it.

That is, on that closer cataloguing of the matter, it may not be quite so preclusive as at first sight.  Then, at the foot of that paragraph:

A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence.

That, of course, sits oddly with section 8 of the Saskatchewan appellate statutes.  Then:

The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal.

In this country, in our submission, that is, in New South Wales, section 75A of the Supreme Court Act makes that not only dubious but positively unsafe to apply by even the broadest of analogies.

GUMMOW J:   Justice Callinan reminds me 75A is referred to in Warren v Coombes 142 CLR at 537.

MR WALKER:   Yes, your Honour.  Where they refer then to duty and function they are clearly referring to the statutory question.

GUMMOW J:   Yes, they say so.

MR WALKER:   Could I, however, in Toneguzzo‑Novell v Burnaby Hospital, draw attention to the middle paragraph on page 122, about letter e.  Your Honours may find that evocative, eg, this case:

I agree that the principle of non‑intervention of a Court of Appeal in a trial judge’s findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue.

Now, the jurisprudence does not pull all in one direction on this issue because it is clear that one of the differences between Canada and here is that that distinction between cases where credibility was at issue and cases where they are not, is more clearly drawn in this country than in Canada.

KIRBY J:   I notice in that article by Judge Kerans that you have given us, that he quotes the late Judge of Appeal, Judge Moir, who says that it is all right if the judge at trial is out in left field but it is not acceptable that he is out of the ballpark.

MR WALKER:   That is right.

KIRBY J:   Just to help you understand when courts of appeal can intervene.

MR WALKER:   The metaphor continues.

KIRBY J:   Sporting analogies are very helpful, I think.

MR WALKER:   The metaphor continues.

In Schwartz [1996] 1 SCR 254, again, one can pick up by now familiar material at the top of page 278, paragraph 32:

It has long been settled that appellate courts must treat a trial judge’s finding of fact with great deference.

And there is a citation from the same source that we are used to, Lord Shaw in Clarke v Edinburgh and District Tramways, and a reference to some of the other Canadian decisions.

At page 279, after citing The “Kathy K”, there is a reference to Beaudoin‑Daigneault, talking about “a specific and identifiable error”.  That, with respect, probably does not much advance matters.  Then at pages 281 and 282 but particularly culminating in paragraph 37, something peculiar to your Honour’s concerns, as opposed to the Court of Appeal’s concerns, which is says:

In my view, nothing justifies a second appellate court in showing –

and your Honours are a second appellate court –

that kind of deference to the assessment of the balance of probabilities made by the first appellate court.

And, in short, once you have got through the gate then the first appellate court does not enjoy the kind of deference which the first appellate court should owe to the trial court.  Your Honours there see the reference two‑thirds of the way down that paragraph to the advantage or privilege coming from seeing or hearing the witnesses testifying as well as the “general insight that comes from participating”.

GUMMOW J:   What does “deference” mean?  Does it mean suspension of scepticism, suspension of belief, abstaining from thought?

MR WALKER:   It may mean the kind of thing which is discussed in Warren v Coombes in passages to which I will go briefly.

KIRBY J:   It may be something similar to what this Court said in Guo.  It is a pale reflection of the American deference doctrine, vis-à-vis, administrative decision‑makers, that appellate courts have to remember their place.  They have to stick to their charter, in that case, error of law.  In this case, rehearing, but recognising the advantages of the primary judge so I think that is all that it means.

MR WALKER:   Yes.

KIRBY J:   Remember you are not a trial judge.

MR WALKER:   Yes.  On the other hand, we would urge with Warren v Coombes, remember you are charged with a statutory duty and if the statutory duty does not control, then all is lost, with respect.  The passage I have given from Justice Kerans’ book, Standards Of Review Employed By Appellate Courts, is because that book is cited frequently in the Supreme Court of Canada on this point.

The book, your Honours will be delighted to know, is in this Court’s library although its physical location is with us at the moment.  The passage we have given, and I do not suggest that is the only passage, but it is the one closest on point concerning these various tests for standards of review, in particular the passage at – I am sorry, the page numbers have been abolished - the discussion of the US “clearly erroneous” test coming from Rule 52 of the Federal Rules of Civil Procedure starting at page 40 under the heading, “U.S. ‘Clearly erroneous’ test”, and then there is a discussion of other ways in which the matter can be put and the “palpable error” discussion comes at what is page 42.  It is a subheading, your Honours, in italic roman (iii) and there is a reference at the top of the next page to:

The adoption of colourful adjectives like “palpable” and “overriding”, perhaps can be explained by the fact that, to some, a decision is unreasonable if they disagree with it.

In other words, merely calling it unreasonable will not get away from a simple charter of substituting your own opinion.

That equation reduces the standard to one of correctness, and effectively erases it.  Courts of first‑level review are sometimes accused of this.  Use of terms like “palpable” seem designed to discourage that sort of sliding from one standard to another.

But, your Honours, in our submission, the Canadian jurisprudence, though demonstrating difference, real difference, proceeds in a manner that, in our submission, should not be emulated in this Court because it is a manner which, with great respect to that court, can be seen at least from a distance to flout statutory words, to give them a meaning for reasons of policy, very frankly acknowledged by the Supreme Court, which one might suppose are reasons of policy which could at least as well and probably much better be taken into account by a legislature than by an appellate bench.

McHUGH J:   But Chief Justice Dickson’s judgment in Lensen seems to be entirely in accordance with a combination of Warren v Coombes and cases like Abalos.

MR WALKER:   There is much that is in common.  For present purposes, it is the question of inferences from facts that appears to be the main dividing factor.

McHUGH J:   I am not sure that is right with Chief Justice Dickson, because he said:

that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it can be established that the  trial judge made some “palpable and overriding error –

and then when he talks about section 8 he says that the task must be performed in relation to the facts found by the trial doe the task of drawing inferences.

MR WALKER:   Well, the latest case, however, is definitely a case of inference as well as primary facts.

McHUGH J:   Yes, I appreciate that.

MR WALKER:   And section 8 is not discussed and it would appear that is because it is thought it has become a dead letter.

McHUGH J:   But Lensen seems to me entirely in accordance with our cases.

MR WALKER:   Your Honours, I do not want to magnify a part of my argument which probably does not represent anything particularly contentious between the parties in this case.  It suffices to say that we urge, as we did in global terms in our written submissions, Warren v Coombes as that which lays down the charter.  In the majority judgment, for example, at the top of page 537 of 142 CLR, there is the starting point with the statute where their Honours said:

We are concerned, of course, with an appellate tribunal to which there is an appeal by way of rehearing –

and a reference to section 75A –

and which has the powers and duties of the court from which the appeal is brought, including those of drawing inferences and making findings of fact. –

again a reference to section 75A. Then a reference to that assimilating the position to:

the same position as the Court of Appeal in England and the Full Courts of the Supreme Courts of the other States.

Then a reference to it.  Your Honours, it would be a waste for me to read to you from Warren v Coombes.  In our submission, it is clear, for example, from the language on 537 and 538 that this is a matter of duty, not a matter where self-denying ordinance is an option.

McHUGH J:   Well, it is a question of inferences.  Warren v Coombes cites all the standard passages up till that time which recognised the advantage of the trial judge’s findings in terms of credibility, but then says, in relation to inferences, it is a different matter.

MR WALKER:   That is right.  That is really the whole of the reasons, but, for example, that is introduced with the announcement of the proposition for which the majority holds at the foot of 541 ‑ ‑ ‑

McHUGH J:   Warren v Coombes was an inference case, Abalos and Devries were credibility cases.

MR WALKER:   Yes, so where the question is, whether the particular inference should be drawn from proved facts, the appellate court has the right, and again they use the words, “and duty” to decide the question for itself.  Deference, in answer to your Honour Justice Gummow, would appear to, perhaps in Australia, perhaps, to summon up the kind of consideration which the majority, which was Acting Chief Justice Gibbs and Justices Jacobs and Murphy, quoted from Mr Justice Jacobs when he was President of the Court of Appeal.  The passage is set out at 549 of the report from Cashman v Kinnear.  It may be that in those passages there is the Australian approach to what “deference” means, which is, as it were, you do not ignore what has gone on below and where it is a near thing it may be that the fact that the trial judge thinks differently to the appellate judge’s inclination will be enough for a refutation of error.

CALLINAN J:   Mr Walker, it may be significant that in Abalos there were some in-court demonstrations at the trial too, which was a matter that was commented upon by Justice McHugh in the High Court.

MR WALKER:   Yes.

CALLINAN J:   It might signal Abalos out, to some extent; I know the statements of general principle, but it was a different case for that reason.

MR WALKER:   Yes.  Abalos is really not in issue between the parties to the present appeal.

KIRBY J:   What is not in issue is the issue of malingering, but there still is the impression, which the trial judge had of Dr Yeo and Dr Phillip’s and ‑ ‑ ‑

MR WALKER:   Totally irrelevant in the sense that it is not any differential impression between how they presented in-chief, cross‑examination and re-examination differentially between those phases of their evidence, which plays any part in the judge’s reasons.

KIRBY J:   What about the subtle influences of demeanor?

MR WALKER:   Well the reasons for which we could cite, and we have in our written submissions cited one of your Honour’s Court of Appeal judgments, if it is going to be important, there should be at least some hint if it does not appear obviously from the nature of things.  It never appears obviously from the nature of things that one would prefer what a witness says in-chief before he or she is confronted with other material in cross‑examination.  That is contrary to commonsense, contrary to the nature of things and so the reliance we place on answers extracted in cross‑examination, in particular from Dr Phillips, but not only from him, is a reliance which was perfectly legitimate in the Court of Appeal, regardless of other loss, regardless of Devries; not that they were able to be put to one side, but that with full honour to them, full observance of them, this was still the material, the drawing of inferences, reasoning in a commonsense way about causation, which is precisely the conclusory exercise where the Court of Appeal has a duty, not merely a discretionary capacity, to decide the matter for itself.

McHUGH J:   I am not sure about that, Mr Walker.  As I put to you on the special leave application, the effect of some of the answers of Dr Phillips in cross‑examination may depend upon the way the answers were given.

MR WALKER:   Your Honour, there is always a possibility that a cross‑examiner goes too far.  There is always a possibility that matters appear to be extracted in a dental fashion in cross‑examination which a trial judge is perfectly entitled, for reasons including those you have just mention, not to favour where there is a choice of various things said by that witness, but one would always expect some reference to that, particularly when the witness is a crucial one on a critical issue.

McHUGH J:   That is contrary to what Lord Sumner said in Hontestroom’s Case 75 years ago.

MR WALKER:   But, with respect, his Lordship was not there speaking in the same milieu of civil juries being almost gone and the expectation that one will have reasons, however concise – one will have reasons for factual decision, and particularly in relation to answers extracted in cross‑examination one would expect that before they are either (a) ignored, which would probably be error on its own, or (b) swept to one side without reasons, there will be some explanation of the process.

There was none here and, in our submission, if the subtle influence of demeanour approach were held by this Court to insulate Abalos style findings of fact based upon testimony, that is live witnesses, even worse, based upon affidavits or reports uncross‑examined, then it would in fact have entrenched upon Warren v Coombes in a way that Abalos does not purport to do.  It would entrench upon it because in Warren v Coombes documentary cases and cases of inference from established facts were precisely those things where no advantage was conceded by this Court to the trial court.

In the Supreme Court of Canada, even, we are entitled to say, from the passages I have taken your Honours to where it is conflicting testimony – and the very word is used – of experts a lesser standard is required.  That could not follow if the mere fact of it being testimony introduces the subtle influence of demeanour and that was a preclusive bar to differing from a trial judge.

Your Honours, I simply wanted to give the final reference in Warren v Coombes 132 CLR to 552 and 553, that being the passage where the reference to ‑ ‑ ‑

KIRBY J:   Which page?  I did not hear the page?

MR WALKER:   Pages 552 and 553.  At the foot of 552 and the top of 553, where their Honours refer to two reasons of policy which had been urged in favour of the view espoused by Chief Justice Barwick and Justice Windeyer in the authorities that were discussed, and one might say disposed of, in that judgment.  It ends up with the notion of a statutory appeal being “a reality, not an illusion”.  Your Honours, as all of that applies to this case ‑ ‑ ‑

McHUGH J:   But the critical adjective in Warren v Coombes which is often overlooked by those who do not like Abalos and that is that their Honours spoke about drawing inferences from established facts.

MR WALKER:   Yes.  My argument will be completely orthodox on that basis, your Honour.  The Court of Appeal did not proceed on the basis of anything other than that which was available, much from evidence tendered by the plaintiff, much from evidence which was, to use another of these words, relevantly incontrovertible, in the sense discussed in Earthline.

KIRBY J:   The primary judge only mentioned two witnesses whose evidence he had expressly stated he relied on.  That was the plaintiff and her daughter Tracey.  This is at 1444 to 1446.

MR WALKER:   That, of course, goes in particular, not only as my friend puts, but in particular it goes to the malingering issue upon which, in deference to Abalos, we make no challenge in this Court.  However, what is clear about the way in which Judge Dodd structures his reasons is that there was no dispute before him, there was no dispute in the Court of Appeal about the accuracy of the admissions of the plaintiff out of court recorded in a plethora of medical notes, the important ones of which were put to her in cross‑examination.  In other words, the material that both Justice Handley in the majority and Justice Davies in the minority in the Court of Appeal drew upon in large part was material which can be treated as established or incontrovertible in relation to the principles of appellate intervention.  But we do not need to go beyond the fact that they were established, we do not need to go to incontrovertible, because we are not, in fact, asking for any credibility‑based finding or a finding which can plausibly be regarded as materially influenced by the subtle influence of demeanour to be disturbed.  Rather, it is the reasoning of the judge and, your Honours, as so often, we wish to take you back to the same page as my learned friend has taken you to but in order to point out why Justice Handley was right, not wrong, in the approach taken to the trial judge’s finding of so-called primary facts from which thereafter the trial judge went wrong in inferences as to causation, and the Court of Appeal the majority got it right as to inferences of causation. 

KIRBY J:   So your theory is that it was the failure to address correctly the requirement of causation that is the error that authorised the Court of Appeal to substitute its own conclusions on ‑ ‑ ‑

MR WALKER:   That is right, but it was not an error of what I will call a grand or fundamental kind such as the difference between “sole cause” and “a cause”.

KIRBY J:   It certainly was not because we were taken to passages where the primary judge repeatedly referred to “cause”, “consequence” and so on, “results”.  This is 1457.

MR WALKER:   Your Honour, what I have just said is it was not an error to do with the grand elementary question of the difference – or as the difference between “a cause” and “the cause” or “sole cause”.  That is not where we locate error.  We locate error in relation to the finding of causation as a matter of the commonsense that my learned friend has spoken about by reference to evidence expressed metaphorically but ultimately pinned down by cross‑examination, in particular from two witness, that is Doctors Phillips and Yeo, but there is a third, Dr Dyball, referred to by his Honour below and referred to in the Court of Appeal who needs to be looked at.

When properly understood, their evidence gave rise to the question for the court:  applying these legal standards not in dispute to the facts that could be treated as established, can it be said that this lady’s non‑physiological laming – “she can walk if she wants to” is an almost verbatim quote from two passages in the trial judge’s reasons – can that be said to have been caused by the negligence which led to the fall and which certainly led to physical injury for which compensation has been assessed?

Now, I think it was Justice Kirby asked about the compensation assessed by the Court of Appeal.  Pursuant to requirements of rules in that court, your Honours will find at 1475 in a document starting at 1474 – this is in volume 6 – the table which yields, as you will see under numbered “HEAD OF DAMAGE” the “JUDGMENT QUANTUM”, Judge Dodd had awarded $555,000–odd and the appellant was urging $68,000‑odd.  There was a reference to failing correctly to consider the issues of foreseeability and causation.  There was a reference to failing “to correctly consider the issues of foreseeablity and causation”.  It is causation that subsists in this court as an issue.

At 1476, with the figures at 1477, one finds the answering document from the plaintiff as first respondent, the bottom line of which, as recorded by Justice Handley at the outset of his reasons, was just over $2 million.  So that the issue between the parties in the court, by reason of the appeal and cross‑appeal, was not liability or not but was, on the one hand, causation of the loss for which compensation had been assessed at $555,000 and, second, on the cross‑appeal, the quantum of the compensation for which $555,000 had been assessed.

My learned friend is delicate, with respect, when he says that Justice Davies seemed inclined against enhancing the damages.  Justice Davies, it will be remembered, not only with the majority dismissed the attack based upon the proposition of malingering, but also went on, in the way that my learned friend has demonstrated, to give the answering argument, upon which he now relies, to the painstaking analysis of Justice Handley of the established facts.  But it all culminated, at page 1527 of volume 6, for Justice Davies in passages which really show that in certain respects his Honour was making the same kind of findings about Mrs Shorey as we rely upon to vindicate Justice Handley’s approach, concurred in by Justice Powell.  At line 21, his Honour said: 

Mrs Shorey is disabled because she thinks she is disabled and she suffers pain because her mind told her she suffered pain and the pain has become established.  However, I do not think that it would be proper to allow the substantial claims for house modification or for future care which were put forward.  These items would tend to confirm to Mrs Storey her view of her condition.  The treatment that she requires is treatment to change her mindset.  Moreover, in this case, there is at least a considerable possibility that, once the legal proceedings have been concluded, Mrs Shorey may well show signs of recovery.  There is the further point that Mrs Shorey was, I believe, susceptible to a psychosomatic disorder. 

Et cetera, et cetera.  Refers to – his Honour himself using the records that Justice Handley and Justice Powell are criticised for going to.  There is no fair criticism, in our respectful submission, for those documents having been gone through in the Court of Appeal at all.  Now, when one turns then to 1528, paragraph 104 of Justice Davies’ reasons, it is very clear that his Honour, who was the only member of the court whose conclusions had made it necessary to consider the cross‑appeal – his Honour was not merely inclined against, but was firmly against the matter. 

Now, that does not, of course, answer the question, if we fail in this Court, should there be a remitter to the Court of Appeal to consider the cross‑appeal?  But, in our submission, if there be a discretion involved, then it is a discretion which, for the reasons put by Justice Davies, your Honours could well exercise by declining to permit interference with the $555,000.  That is all I wished to say about the question of relief, if we are unsuccessful in this Court. 

Your Honours, the way in which the trial judge went about the matter was in accordance with a convention which may be deplorable but is widespread:  to describe as “liability” what might be more accurately called breach of duty.  So, at 1444 of volume 6, line 10 or thereabouts, proceeded, having found so‑called liability, “to consider and assess damages”.  It is clear that under that expression, “considering and assessing damages”, there are, for the reasons already expounded by my learned friend, very plain questions asked by his Honour about causation, without which, of course, there would not be liability.  Liability as such is not in contest in this case because of our concession of the aggravation of the underlying degenerative disease caused by the fall, causing compensable loss, sounding in damages, ultimately, of $68,000‑odd. 

KIRBY J:   This was common law negligence, was it? 

MR WALKER:   Yes. 

KIRBY J:   The slippery floor case? 

MR WALKER:   Yes. 

KIRBY J:   That was the basis on which the plaintiff succeeded. 

MR WALKER:   Yes. 

GLEESON CJ:   Is this a convenient time to adjourn, Mr Walker? 

MR WALKER:   It is, may it please your Honour. 

GLEESON CJ:   How long do you expect to be?  In this case, I mean. 

MR WALKER:   My learned junior thinks I may need an hour.  I could try to truncate that, your Honour. 

GLEESON CJ:   We will adjourn until 2 pm. 

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, for the reasons put in our written submissions we support the way in which Justice Handley analysed the material.  In order to make good the vindication of that approach, may we address some of the matters of fact and evidence to which my learned friends went this morning.

KIRBY J:   How long did the appeal take in the Court of Appeal?

MR WALKER:   One day.  In essence, this was a case where a number of doctors ‑ ‑ ‑

KIRBY J:   What worries, Mr Walker, is there are six volumes here.  There are six volumes.  Now, how are we to absorb all of that material?  How was the Court of Appeal to absorb all that material?

MR WALKER:   Often the volume is not commensurate with the amount of - the number of pages that need to be gone to.  Regrettably, that is true in this Court in this case.

KIRBY J:   Decision making is a curious phenomenon and it results from the subconscious mind working on a vast mass of information.  What do we have to do?  We just get bits and pieces read to us?

MR WALKER:   No, your Honour has, rather, the contest before you of people who are concerned to put forward and draw to the tribunal’s mind, be it first instance or appellate, those things which are thought to advance the position and if there is a case of an excessively narrow focus by one party one thing is for sure that there will be a response pointing that out on the other side.

In this case there were a number of experts who saw and reported upon the plaintiff.  Your Honours have seen lists of names.  A number of them were called so as to be cross‑examined.  The trial judge does not at any stage indicate that there is any use being made of answers, whether in‑chief, cross or re‑examination which differed according to the phase of the testimony in the respect which his Honour was paying to them.  Rather, in the orthodox fashion, there are attempts at paraphrasing the reasons for judgment but, in our submission, for the reasons demonstrated by Justice Handley, there were failures, ultimately, at the level of conclusory reasoning.

The reasoning, ultimately, is about the cause.  The cause, ultimately, is about the loss, but the loss could be crystallised in this case as being the consequences, personal, sounding in general damages, and, financial, sounding in special damages, flowing from this so‑called conversion disorder.

It would appear from the context that the conversion in question ‑ though I cannot point to material other than what has already been shown to the Court – is the converting of the unresolved conflict into an apparently quite different physical state – a physical state which, as in this case, has no organic foundation.  She can work if she wants to.

Now, in our submission, that causation question involved close attention to what the experts could add about a syndrome which quite plainly was at all stages in danger of being alternatively characterised as malingering.  That was a live issue at trial and at the intermediate appeal. 

What the experts had to say was, as your Honour the Chief Justice has observed at the outset of the argument, sometimes expressed by metaphor.  Metaphor is none the worse for being used in legal analysis so long as it indicates by its rhetorical force the point being made, but your Honours will bear in mind that the three relevant metaphors which were used and which one finds bandied about in the reasons below are not particularly precise.  “Sentinel”, that is someone who keeps guard or perhaps marks something; “trigger”, that is something which gives rise to a sudden event like an explosion by being pulled; and “a focus”, that is something that draws attention to and narrows the perspective of a particular thing.  Those three words were metaphors offered by the experts, but for the following reasons, in our submission, when one looks at the evidence and bears in mind the forensic course, which was quite peculiar, then it is clear that the Court of Appeal was simply doing its job.

It was peculiar in this sense, that really critical matters in relation to psychiatric treatment, but also to a degree in relation to reports of orthopaedic symptoms, were not given to these critical experts by the plaintiff until extremely late in the day, literally at night for at least one of them.  It is clear that far from these matters being comprehensively and usefully put to them in‑chief in the passages to which your attention has already been drawn, it was put in a way which elided the critical matters which were later demonstrated by the cross‑examiner to destroy the usefulness of the opinion in a way which is entirely familiar.

May I start, because he was the orthopaedic surgeon – and the case after all started and was run until 1998 on the pleadings and particulars as if this was an organic ailment.  May I therefore start with Dr Yeo.  For those purposes, may I ask your Honours to turn to volume 2 of the appeal book.  Most of these pages your Honours are already familiar with.  I simply wish to highlight some matters differently from the way my learned friend did. 

The relevant passage starts at page 453 in-chief.  There is, using the line numbers on the right as my friend did, at lines 5 and following that general answer, not tied to this case in terms of “there is usually a physical trigger of some sort” for what is called a “psychosomatic case of this nature”.  The way in which that then fell out, in our submission, is critical, bearing in mind the deference this witness paid to Dr Phillips, true deference.  Then there is a very large set of assumptions given starting at line 11 and following.  Could I take you to the middle paragraph of that large assumption, about line 21 or so:

In the meantime there have been other factors which could be expected to have had some significant psychological effect upon her, in particular –

and then these seem to be in order –

her husband was diagnosed with cancer in July 1988.  He died on 1 January 1989.  She, at least for a period believed, or had a sense of guilt, about his death because she had been given the morphine by a nurse –

et cetera.  Then line 29:

There was also some disturbance within the family in relation to the home –

Line 33:

I also wish you to assume that that matter had resolved by the end of 1990 –

we are not given a date for the resolution of what is called “at least for a period” in relation to guilt and the husband.  I think the only other matter that needs to be referred to is the brother’s death. 

Now, it turns out that that was, how shall I say, a much less than adequate summary of the matter, particularly in relation to the unresolved conflict, the guilt exercise in relation to her late husband, and for the reasons which the cross‑examiner then goes to demonstrate with great fairness and plainness Dr Yeo ‑ ‑ ‑

GUMMOW J:   This is in‑chief.

MR WALKER:   I am sorry, no, this is in‑chief – but for reasons which the cross‑examiner later demonstrates clearly, this is an exercise where both Dr Yeo and Dr Phillips, to whom he defers on the point, were miscarried by the assumptions they were given.

At the foot of that page, 453, line 51 or so, there is a question at the end of those long assumptions:

are you able to express a view on what you see as the trigger for the onset of her present condition?

Now, that presumably means the starting thing without which it would not have happened.  Counsel’s use of that metaphor must be the sine qua non point.  Over the page in the course of that long answer, page 454, line 20 or so, there is the reference to:

The three main psycho‑social episodes that you describe could well have sensitized this lady to becoming more profoundly disabled –

Now, that is the orthopaedic specialist talking about matters where he later defers to specialists.  He is now talking about those episodes having some so‑called sensitising effect.  The ultimate expert opinion is quite to the contrary of that.

So that here we have, I believe, a very reasonable scenario of a physical disability and coupled with the complexity of emotional crises which are understandable and which led this lady to present as profoundly paraplegic which we know is not from an organic cause.  In my opinion the main trigger point for this present level of serious disability is the fall –

That was the evidence‑in‑chief.  We then go in cross‑examination, and start, say, at page 460.  This is the doctor whose specialty is limbs and how they move.  At the top of page 460 line 5 or so:

The extraordinary thing about this lady is she says, “I am unable to move my legs” but she crawls around the house.  That doesn’t make sense.

The doctor is being led through ‑ ‑ ‑

GUMMOW J:   What was the expertise of Dr Yeo?

MR WALKER:   He was an orthopaedic specialist, your Honour.

McHUGH J:   No, Dr Yeo?

MR WALKER:   Dr Yeo?

McHUGH J:   Orthopaedic?

MR WALKER:   Yes, spinal.

McHUGH J:   Spinal.

MR WALKER:   Yes, it is an orthopaedic skill, your Honour, yes.

KIRBY J:   I thought he was a neurosurgeon.

MR WALKER:   No, he is not a neurosurgeon, he works with neurosurgeons.

GLEESON CJ:   He is the head of the spinal unit at some major hospital.

MR WALKER:   He is the director of the, I think, the most famous one, or was.

GUMMOW J:   What does he know about hysteria?

MR WALKER:   Not a lot as he says.  Although he says he got a credit in psychiatry that was a long time ago.

KIRBY J:   The word “orthopaedic” is used at 451, line 9?

MR WALKER:   Yes, your Honour.

KIRBY J:   That is a question.

MR WALKER:   Yes.

GUMMOW J:   Was there any expert? 

MR WALKER:   Was there any expert?  Yes, there was. 

GUMMOW J:   With the hysteric side of things.

MR WALKER:   Yes, Dr Phillips, and that is why I am coming to him ‑ ‑ ‑

GUMMOW J:   Yes, I see. 

MR WALKER:   I am coming to Dr Yeo first, because of the way in which Dr Yeo leads to Dr Phillips.  The forensic course in this case was of real significance, and is of real significance, to the way in which it presented in the Court of Appeal.  At page 461, line 15 or so, he ends up – a long answer: 

a lot of people in the community whose initial pathology is complicated by psychosomatic illness and this lady is one of those people. 

Line 25 or so: 

no question in my mind that this lady is able to utilize muscles that she doesn’t really believe she is using.  This is surely a truly psychosomatic illness. 

Page 462, lines 10 and following: 

Q.  But as far as your specialty is concerned, which is physical medicine, you can’t nominate a physical cause for this lady’s presentation? 

A.  I can only identify a trigger point in her clinical history that initiated this scenario that we are now presented with. 

Over the page, 463 – I am sorry.  The deference answer is on that same page – I apologise.  Line 5: 

Q.  But what you are saying by that answer is that in terms of diagnosis of a psychological problem in this lady, you would defer to those in that specialty? 

A.  Yes, I am. 

Page 463, lines 45 and following: 

Q.  So that if she were walking with a stick and had pain on 20 June 1988 –

now, that is after her release from hospital, following the fall –

that would be consistent with some aggravation physically based on her preexisting degenerative condition? 

A.  Yes. 

That is, of course, what we accept, and what the $68,000 has been paid for –

Q.  Certainly not necessarily suggestive at that stage of any psychological problem? 

A.  No. 

Then, at the foot of 463, top of 464: 

she was noted to be putting weight on her bad leg –

that is, non-antalgic gait.  She is limping irrationally, I suppose is one way of putting it or not usefully limping.  Page 465, about line 30 or so: 

Q.  Is the other possibility which you would have to consider that the presentation in June 1990 was psychologically mediated? 

A.  Yes. 

Q.  In terms of what may have been the aetiology for that psychological basis, you would, would you not, defer to the specialists in that field? 

and then an interesting answer –

A.  Not necessarily. 

The answer then starts with an “If”, a big assumption: 

If a patient came to you with those symptoms and she had had a disturbance in the family circle or there was some deep psychological or not so deep psychological problem going on which she may be prepared to discuss with you should you have the time and wisdom to do that, it is very common to have your pain threshold lowered –

So this is simply about the pain threshold.  Line 45: 

If you have a stress level that is high you have a pain threshold that is low. 

The cross‑examiner goes on: 

Q.  You can also have pain simply produced by psychological causes, can’t you? 

A.  Yes. 

Q.  It would be very difficult without knowing the precise history here to say, well this lady may have had a pain with a psychological basis, may have had some connection with the earlier fall.  I mean you could not say which it was with any certainty at this time, could you? 

A.  No no.  I hope I have not misled the Court in suggesting that I am knowledgeable to this degree.  I was not there.  I have not seen the reports.  I have merely answered the questions on your presentation which, of course, must accept that I am speaking with limitations. 

Although he addressed that stricture to the cross-examiner, it could perhaps more justly have been directed to the question to him in‑chief.  At 469 he was asked by his Honour in relation to the malingering opinion, about line 30 or so, was it:

based on your own assessment?
A.  Your Honour it was in part from my own assessment but I required Dr Phillips’ opinion to consolidate that opinion.

Q.  What was it about your own assessment –

and this is about malingering and he gives an answer at line 35 and following.  Then referring to signs of malingering, line 43:

Q.  Those signs were absent?
A.  Those signs were absent with this lady and as I said I was also anxious to have the opinion of Dr Phillips who I respect.

What Justice Handley said about the relation between Dr Yeo and Dr Phillips as to their expertise and their testimony was accurate and fair and, in our submission, the proper course for an appellate court to follow in trying to untangle what on any view of it, bearing in mind the ever‑present alterative possibility of malingering, was a difficult factual issue, a factual issue where, after all, what was at stake was in the order apparently of $2 million.

Re-examination is also illuminating.  At the top of page 474, the end of the cross‑examination, about line 5 or so:

Q.  Such that if within a period of 9 months after the fall there is an intervention, the emotional intervention of activities that Mr Morrison explained to you . . . any ongoing psychosomatic problems would be readily explicable by the intervention of those emotional factors?
A.  That seems to be the major contributing factor.

We are now using language which is not metaphorical and that does not seem to be entirely consistent, to put it mildly, with a sentinel, whatever “sentinel” really means.  At 474 line 36 or so:

Q.  So in real terms this lady’s prognosis depends upon the opinion of a psychiatrist rather than a specialist of your specialty?
A.  That is correct.

As for prognosis, in our submission, also for diagnosis.  Over the page at 475, re‑examination, he refers to:

the present functional loss being mainly associated with psychological disorder as described by Dr John Phillips.

The re-examiner is reminding the doctor of the incorporation of Dr Phillips’ expertise.  It then goes on:

Are we to take it from that that you envisage some physical contribution, but see the bulk of the problem being in the mind?

I think that is also what his Honour Justice Callinan calls a “Sydney re‑examination”.  Answer:  “Yes”.  But then something that happens to everyone who re‑examines, whether you are in Sydney or not:

May I add something, your Honour?

The witness knew who to ask.  Counsel perhaps would not have been so obliging.

HIS HONOUR:  Yes.
A.  It has been my interpretation that this lady’s paraplegia, while of psychological origin or psychiatric origin, is paraplegia because of the identification of her back as a problem area –

this is the third of the metaphors, focus, which we get later from Dr Dyball –

and it proceeded with the precipitation of her psychosocial problems over subsequent years to florid paraparesis.  Had she not had her back injury she may have developed her psychological problems in other areas.

That, in our submission, is precisely what his Honour at first instance overlooks in the causation conclusion which he draws, really in about half a sentence, for reasons to which I will come.

KIRBY J:   That does not help you much, does it, because she did have the back injury?

MR WALKER:   No, it does help.  I know that is what the judge said below.

GLEESON CJ:   He did not overlook it; he repeated it on page 1458, line 20.

MR WALKER:   No, what he overlooks, with respect, your Honour, is the fact that if she could have had it in any event it is impossible to say that but for it, it would not have happened.  Quite impossible to say that.  He says it is beside the point to say it may have happened in some other way.  We challenged that.  It is very much to the point.  It makes the fall adventitious in the history of what she claims the major damage is for.

GLEESON CJ:   I took what the trial judge said at 1458, line 20, to be virtually a repetition of what Dr Yeo said at 475, line 18.

MR WALKER:   It is drawn from both that and other sources, yes, your Honour, but the way in which the learned trial judge puts it, particularly at line 21 on 1458, “would have displayed itself in some other way”, that seems to me beside the point.  It is what we challenge, of course.

That is where the matter rested with what I will call the “physical man”.  We can then go to the “mental man”, which is Dr Phillips.  Your Honours have already been given a conspectus of his evidence, I can be quick I think.

GLEESON CJ:   Who called Dr Dyball?

MR WALKER:   We called Dr Dyball.  He brings up this sentinel event at 505 of volume 3 of the appeal book, line 10 or so.  That is brought up in answer to the question in‑chief which starts at 504, line 19, and which has a supplement, as you will see, after its first answer at 504, line 19.  That is more or less the same assumption that you have seen with Dr Yeo.

In relation again to the grief and unresolved conflict in relation to the husband, all one finds is at 504, lines 33 to 41, and it is of importance to see how Dr Phillips uses this.

GLEESON CJ:   At page 505, line 10, with the sentence beginning “Well”.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   I am not sure whether Dr Phillips mixed that metaphor himself, but what exactly does the word “sentinel” mean?

McHUGH J:   I have been thinking it is probably a mistake for “seminal”.  This would be a recorded – transcribed, would it not?

MR WALKER:   I do not know.  At least “seminal” would be a more readily understandable metaphor.  Perhaps “sentinel” simply means it stands out.  If it simply means it stands out, then, for the reasons that follow, it was in error.

KIRBY J:   Was it used again?

MR WALKER:   Yes, I think it is, your Honour.

McHUGH J:   Yes, it is, somewhere or other.

MR WALKER:   Your Honours, perhaps it would be a good idea to go to the way in which he expressed himself in writing in that case.  That is volume 4 of the appeal book.  It starts at page 908 relevantly.  The list of presentations are to be found on 909, starting:

She no longer can walk.

In fact, she can, but she does not.  Under the heading, “OTHER INFORMATION” at the foot of 909, we can see that this his history from Mrs Shorey.  That continues on 910, all still history.  Your Honours will see at about line 27:

She noted that her husband died . . . This had come as a “big blow” for her.  She grieved in a painful manner for several months . . . She thought that she had “got on top of things” after approximately six months.

Now, that statement to the doctor is reproduced by the trial judge but appropriately attracting from Justice Handley the observation that if his Honour reproducing that as a statement of the plaintiff were intended to be a finding of the fact then it was clearly wrong and without going into the detail which is completely collected in Justice Handley’s reasons, and referred to in our written submissions, it is plain that that was completely an accurate estimate of when she had “got on top of things”.

At page 912 the significance of some of the cross‑examination to come is set up by the fact that in setting out the paper work that he had, previous opinions, at lines 35 and line 40 on that page you will see reference to a psychiatrist, Dr Edwards, and talking about a “grief reaction” subsisting much more than six months afterwards.  There is a choice made by Dr Phillips and he prefers the patient’s history which, of course, is wrong.  At page 914, about line 20 ‑ ‑ ‑

GLEESON CJ:   I thought it was page 913, line 40 that he put his way of looking at it.

MR WALKER:   Yes, that is an expression of his diagnosis.  On the question of the opinion called for by the forensic use of his expertise, namely the causation question, it is the paragraph at about line 20 on page 914 that the plaintiff relied upon and which was then the subject of cross‑examination.  The problem significantly exacerbated, according to the psychiatrist, was pre‑existing orthopaedic pathology.  Aggravated degenerative disorder is accepted, of course, by us.  Subsequently developing a major depressive disorder there referred to and later refined into a conversation disorder is, in our submission, nothing to do with eggshell - for the reasons to which we will come – eggshell skull.

Page 914, line 20, or thereabouts, is where the written language was used by the expert.

The fall of 2 April 1988 is central to understanding Mrs Shorey’s symptomatology.  It was that traumatic incident which set in train –

another metaphor:

the events (physical, psychological) which have lead to the patient’s disability.  I do not share the view of Dr Edwards or Dr Dent, who believe grief relating to her husband has been of aetiological importance.

This is what he said before cross‑examination:

I am satisfied that she had grieved her husband in an appropriate manner.  I suggested that matter can be set aside.

GLEESON CJ:   You do not think “sentinel” could mean “central”?

MR WALKER:   Yes, that is why I draw it to attention.

GLEESON CJ:   I am talking about an error in transcription.

MR WALKER:   Yes, that is what I am suggesting, your Honour.  I do not know whether it is right or not.  It is a word that has some sound similarities to “sentinel”.  I am not quite sure how it would fit into the transcript.

CALLINAN J:   Mr Walker, could I ask you this:  there would be no distinction in principle between a pre‑existing cause and a supervening cause?

MR WALKER:   I am not sure whether that could be answered as a generality, your Honour.

CALLINAN J:   Well, I had in mind the passage in Purkess v Crittenden at page 168 which imposes an obligation upon the defendant to do the disentangling, and it is speaking in terms, I think, of a pre‑existing disability, but I do not see any reason why there would be a distinction?

MR WALKER:   As to disentangling?

CALLINAN J:   Yes.

MR WALKER:   No, that is clearly correct.

CALLINAN J:   Do you say you have satisfied the requirement there?

MR WALKER:   Yes.  We did disentangle, but in any event, in this Court, we are entitled to rely upon the proposition that neither a trial nor in the Court of Appeal was there, as it were, a Watts v Rake challenge thrown out for us to grapple with or for the Court to hold against us.

CALLINAN J:   Although, perhaps arguably, it might have been, but your fallback position is that you can satisfy it, anyway?

MR WALKER:   Exactly, we did disentangle.  In fact, the facts ‑ ‑ ‑

CALLINAN J:   And that is what you are doing now, really.  You are saying that the cross‑examination of Dr Phillips, in particular, was an effective disentanglement?

MR WALKER:   Yes, that is right.  Now, it may well be, therefore, that the word at 505, line 11, should have been transcribed as “central” rather than “sentinel”, although I am told, not withstanding daily corrections to transcript, that was not one of them.  Now, at line 17 or so, he ends up in‑chief:

the accident, in my view, was the psychological trauma of principal importance.

It is, I think, one of the only passages where one gets a notion of the accident being of psychological importance.  It obviously had physical trauma.  Whether one uses the expression “trigger”, “sentinel”, “central”, the question is did that opinion “principal importance” did that survive?  “Prime importance” is the way it was left in the last words of his examination‑in‑chief at line 27 or so.  At 506 there is the material, about line 50 or so:

The central understanding of conversion disorder is based on failure to resolve conflict.

No one is suggesting the accident set up conflict.  Then he was asked about putting out of his mind the significance of the husband’s death, which of course he had done emphatically in the report to which I took you:

you recorded a history in relation to that matter at about halfway down page 3 –

I have taken your Honours to that.

That is right?
A.  Yes.

And what you were operating on was that she grieved in a painful manner for several months.  There had been times when she wanted to join him but she’d got on top of things after approximately six months?
A.  Yes.  That was her history.

Now, the cross‑examiner very fairly gets explained the reason why that quite striking last paragraph of his report was written as it was, and it is because the assumption made was in accordance with the patient’s history rather than according to the diagnoses of other people – ascriptions of other people.  Your Honours will find the same word “sentinel” which if, of course, if the same transcriber is making the same error, could also be “central” at 507 line 8 or so.  At 508 the forensic course is well mapped at line 35:

Q.  So up until last night, you knew nothing about the administration of morphine to the husband by her?
A.  She told me nothing about it.

Q.  You didn’t know that she felt tremendous guilt associated with that?
A.  Not at that stage, no.

Q.  Did you know that around about this time in April 1991 she was presenting to a physician in a depressed state, feeling that the medical community had let her down and she had not been provided with sufficient grief counselling?
A.  No.

I will not go on and pile up examples.  They are set out in our written submissions in the judgment.  It is clear that an orthodox approach, careful and fair, was being taken by the cross‑examiner and it was beginning to have an effect.  Page 509, lines 10 and following:

A.  If the chronology is correct and in fact she was expressing guilt elsewhere two years after the death of her husband –

and she was –

then obviously I have to reconsider the stressor, the death of her husband.

And the sequence continues on that page:

is capable of causing an unresolved psychological conflict, isn’t it?
A.  That is always possible.

that looks exactly as though that has happened –

at line 24:

certainly possible.

Only getting “possibles”, and then he points out the obvious difference between attribution and cause, that is attribution by a patient, and actual cause, and the passage is down to line 45 also.  At the top of page 510 – I hope I do not need to concern your Honours with that.

KIRBY J:   But is not the basic problem here though that, leaving aside issues of credibility and impression, there certainly was evidence that authorised the primary judge to conclude that this was a very vulnerable woman and, in that sense, very susceptible to the effect of an apparently trivial event?

MR WALKER:   Your Honour, again the forensic course is important.  For reasons which may be obvious, the plaintiff did not run a case of having a pre-existing susceptibility to conversion disorder – did not run that case.  There is reference to it, interestingly, in Justice Davies reasons for not increasing the damages to $2 million, but it was not run as her having a pre‑existing psychological disorder and, with great respect to those, he took that decision on the basis of the material in question. 

Bearing in mind what was said by the experts at that time and bearing in mind the reasoning that might follow in favour of the defendant, one can understand that, but the expert material did not support her having had a pre-existing psychological disorder.  To talk about vulnerability may be simply to apply hindsight and say, “Look at what awful thing happened.  For that to have happened she must have been vulnerable.”  Well, if that means that she must have been in a position where this could happen to her, then the answer is yes, and it may well apply to a lot of us.

KIRBY J:   Yes, but you do have evidence, both of psychiatric and orthopaedic character, which says this was a change agent, a sentinel event, a special incident and that you cannot understand this woman’s ‑ ‑ ‑

MR WALKER:   Dr Phillips does not say that ultimately.  Dr Dyball does not say that ultimately.  The judge did not have other material and did not use other material.

KIRBY J:   He certainly had Dr Yeo.  Dr Yeo said it in terms.

MR WALKER:   Well, Dr Yeo does not say that he is able to ascribe etiological significance to what he called “the trigger”.  That is what he finds in the chronology.  He did not have the other material.  He did not have – and why would one cross‑examine in relation to material that he defers to psychiatrists on, that is, grave psychological disorder and unresolved conflict, years – not mere months – years after the event.

Now, at page 511, about line 15 or so, the cross‑examiner elicits from Dr Phillips the mere anniversary aspect of orthopaedic intervention and later perceived paralysis.  This is the focus point that Dr Dyball develops, namely that, as it were, the legs are latched upon because that is what had happened in her history.  We put the proposition that, as a matter of commonsense causation, that adventitious association is not causation between the fall and the florid psychological disorder; it is just a circumstance like the force of gravity or the kind of food one eats, which does not mean that either the supplier of the food or anybody responsible for gravity caused some loss.  At page 511 the passage starts, continuing to the top of page 512, by which the dismissal, putting to one side the death of the husband, is utterly reversed.  It has got to the point at line 4 on page 512:

I accept it as a potentially significant stressor.

Then – I will not take your Honour to it in detail – 514, I think is probably the next best place to go, lines 20 and following.  There is a typographical error there, June 1988:

no suggestion by the treating orthopaedic surgeon of any psychological factors . . . you would have to consider, would you not, that the significant event which occurred in the intervening period may have been the death of her husband, her guilt feelings associated with that, and the threat of being displaced from the home?
A.  Yes, one would have to consider that.

That is a reversal from setting it to one side.  Line 30 or so:

It can’t be ruled out.

Line 40:

but they are very significant matters, aren’t they?
A.  I don’t dispute that at all.

And then line 50:

armed with all this additional information which you didn’t have until last night and indeed, some of which I don’t think you had until I put it to you, is that right?:
A.  Yes.

Q.  Sit down and work through all that with her and it would only be at that point in time, wouldn’t it, that you would be able to say with any confidence 1, what condition this lady has, and 2, what the etiology of that condition is?

So those are two things.  The answer is instructive at the top of 515:

Well you are perhaps even a little bit more optimistic than I would be.  I certainly agree that armed with additional information to go back and carry out a further examination would be very useful.  Whether I could achieve those two end points –

that is 1 or 2 of the questioner –

I’m not quite sure but I would probably be in a stronger position than I am now.

GLEESON CJ:   Just before you pass on, that is what Justice Handley characterised as his withdrawal of his evidence.

MR WALKER:   Yes, and it is because it is saying in the position I am now placed ‑ ‑ ‑

McHUGH J:   Well, it is not.  Really.

MR WALKER:   Can I seek to persuade your Honour that it is for this reason.

McHUGH J:   How can you possibly say that?  I mean at 1511 and 1513 Justice Handley says that Dr Phillips withdrew his opinion during cross‑examination.  That is just simply wrong.

MR WALKER:   Your Honour, can I try to persuade you that it is actually right.

McHUGH J:   Yes, you can.  You will have some trouble though.

MR WALKER:   That is why I am going to try, your Honour.

KIRBY J:   His Honour has not even seen the witness.

MR WALKER:   He does not suffer that disadvantage, no.  The report to which I took you ended up dramatically setting aside the husband’s death as something that needed to be considered.  There is no gainsaying that.  That is what he went into the witness box on.  He has given another chance with an inadequate, as we put it, set of assumptions talking about the husband’s death.  He is given another chance.  He still does not give it any significance to speak of.  They are later events.

He is then taken through a number of things, including material he had already had plus other material he did not have and by the time one gets to 514 he had converted matters that he described as susceptible of being properly put to one side, setting them aside.  Page 514, line 40, he had accepted they were very significant.  Now, that is a change.  Question: has he discarded his opinion?  His opinion, your Honours will recall, was to the effect that you can set aside the death and the fall was the central, the trigger event.  That was it.

He is then asked about the “riddle” and he agreed with the word “riddle” at line 45 on 514.  He is asked about what he “would really prefer to do”.  He is obviously being a true expert on his oath and he naturally says that he would like to “work through” all this material, some of which he has only just come across.  There are two tasks:  what is her condition and what is its etiology.

Now, both of those are the subject matters of his report, his written report, so the question now is, is he cleaving to his report by his next answer.  His report said, “I have diagnosed her and the etiology does not include the death of the husband”.  He now says in that answer at 515, lines 3 and following, “Well, I can’t.  I don’t know that I’d be as optimistic as you are.  I don’t think – I’m not sure I will be able to do it.  What I am saying is I can’t do it now”.  That, in our submission ‑ ‑ ‑

McHUGH J:   He is not saying that at all.  All he is saying is, “I would probably be in a stronger position now that I have to express a more confident opinion about these two matters”.  He does not ‑ ‑ ‑

MR WALKER:   Your Honour, that is about whether he could achieve the two end points.

McHUGH J:   Yes.

MR WALKER:   …..with any confidence, not confidence ‑ ‑ ‑

McHUGH J:   He says:

I certainly agree that armed with additional information to go back and carry out a further examination would be very useful.

To say he withdrew his opinion overlooks what was said at 519 in re‑examination, which Justice Handley says ‑ ‑ ‑

MR WALKER:   I am coming to that in one moment, but the importance about the last line at 514 is that he was asked whether he could “say with any confidence”, not confidently but “with any confidence”.  Now, that is why it amounts to withdrawal of the report because in his report he had spoken very confidently in the last paragraph to which I have drawn attention.  I then come to the re‑examination and at 519, lines 22 and following, another assumption is sought to be put, that is another set of assumptions.

KIRBY J:   Which page are we on now?

MR WALKER:   Page 519.

KIRBY J:   This is just before the withdrawal of everything you have said?

MR WALKER:   Yes.  That was the facetious statement.  At 519 lines 22 and following he is given an assumption “of a steady downward decline in terms of physical ability”, then at line 27:

notwithstanding the existence of other stressors during that period albeit limited in point of time to some degree in terms of death of her husband –

It has not moved on from the point in-chief.  He has not been asked to address the things that my learned junior had the witness very properly say, “I’m going to have to go back and look at this”.  So, notwithstanding:

is it reasonable to attribute or continue to attribute that decline –

that is a steady downward decline in terms of physical ability.  It is as if the cases were turned to an organic cause, which of course had been abandoned before the hearings start:

to the point at which the decline started, namely the fall –

In other words, did the decline start where the decline started?  The answer is yes.

McHUGH J:   There is where Abalos is of great importance in this case.  The judge sees the witness cross-examined, he hears the answers, he forms a view as to whether or not the doctor is departing or withdrawing his opinion.  Reading the transcript, it does not appear to me that he is and the judge obviously took the view that he did not.  It never seems to have occurred to him.

MR WALKER:   No, your Honour, that does not emerge in the reasons at all.

KIRBY J:   I must confess I read “I withdraw everything I have said then” as a bit of a joke in answer to his Honour’s statement.  He says before that medicine, being realistic, accepts that there are multiple stressors.

The law would like us to have a single cause - -

HIS HONOUR:  I don’t know about that?
A.  I withdraw everything I have said then.

I think that is only a reference to ‑ ‑ ‑

MR WALKER:   As I said, that is facetious.  That has nothing to do with the case.

KIRBY J:   Exactly.  That is how I read it.

MR WALKER:   It has nothing to do with this case, is no part of my case.  That is not the withdrawal that Justice Handley was talking about.

KIRBY J:   He is responding to the judge’s ‑ ‑ ‑

MR WALKER:   That is not the withdrawal Justice Handley was talking about.

KIRBY J:   It is not?

MR WALKER:   No.

KIRBY J:   Well, where is the withdrawal?

MR WALKER:   I have already taken your Honours to that.

GLEESON CJ:   Page 515, you say?

MR WALKER:   Yes, 515.

KIRBY J:   It does not seem to jell with what he then says at 519.

MR WALKER:   That is what I am addressing at the moment.  The assumption put in the middle of 519 is an assumption which does not grapple with any of the matters that the evidence at 515 did grapple with.  It is re‑examination on a basis which was false, introduced by that expression “notwithstanding” and talking about:  did the start of the physical decline coincide with its start?  That is what the question asked.

McHUGH J:   This is a common law trial.  Counsel are cross-examining, the judge is there.  We are not in the Equity Court.  It is not a demurrer ore tenus about some pleading.

MR WALKER:   No, it is using language to find what people think, your Honour.

McHUGH J:   When Mr Morrison refers to the death and stressor, what would the witness and what would the judge think he was referring to other than the material that has been put in cross‑examination?

MR WALKER:   Your Honour, that expression “notwithstanding”, in my submission, disables that question from being a test of anything that went before in cross‑examination.  The sentence as a whole asks:  did the decline, which was physical – that is what it says, “physical decline” – coincide with its start, did it coincide with its start, to which the answer is, not surprisingly, yes.  The question miscarried.  The question is not a rehabilitation, to use that hateful word of re‑examiners, of anything that happened in cross‑examination.  He never said, “Look, forget what I said to Mr Jones.  Of course I wouldn’t want, in order to have any confidence in my opinion, to look at this material about other stressors”.  He said he did want to and he wanted to to have a capacity to do that which, without it, he had done without basis in‑chief.  In our submission, it is an orthodox destruction of an expert opinion on grounds that do credit to the expert as to his frankness but, in our submission, also lead totally justifiably to the approach taken by Justice Handley to exactly the same material.  Your Honours, in light of the time I will ‑ ‑ ‑

KIRBY J:   It still leaves you Dr Yeo to overcome.

MR WALKER:   Dr Yeo is the one who in relation to the psychological matters said he would defer to the psychiatrist.  He relies on Dr Phillips.

McHUGH J:   Is that an accurate statement?  He said in part it was his own opinion but he wanted Dr Phillips ‑ ‑ ‑

MR WALKER:   That goes to malingering, your Honour, that goes to malingering, which I drew attention to when I came to that passage.  He also says in terms that he would defer to the other specialties.

KIRBY J:   The key to this appeal then is between page 515 and 519 and whether or not Justice Handley erred in saying that that involved withdrawal by Dr Phillips of his earlier testimony?

MR WALKER:   Yes, your Honour, and I have put what I can about the material in the book on that.  Of course, Justice Handley also ‑ ‑ ‑

McHUGH J:   It seems curious that the judge does not record any submission by your side that there was no evidence to support causal connection because Dr Phillips had withdrawn his opinion.

MR WALKER:   I am not quite sure that is fair, your Honour.  I will come to the way in which the arguments below are ‑ ‑ ‑

KIRBY J:   But in the Court of Appeal, unless there is a credibility or other inhibition, it is not a “no evidence” claim, it is a matter of rehearing the case and reaching a conclusion on the evidence, respectful of the rights of the primary judge to reach his conclusion and not invading areas where the appellate court must keep out.

MR WALKER:   That is right.  Drawing inferences from established facts in this case.

KIRBY J:   Not a jury verdict.  This is a judge’s reasoned decision.

MR WALKER:   Your Honours, may I simply give some references without taking you to it in volume 3 of the appeal book, page 652, lines 36 to 653, line 23, in relation to Dr Dyball.  He is the gentleman who talked of the notion of a “focus”, which is important because it showed that – this is picked up by exactly what Dr Yeo said – in re‑examination of the answer to which I drew attention.  If it had not been her back, it would have been something else.  Dr Dyball uses a very telling analogy.  Somebody with a minor cardiac irregularity who, in need of whatever histrionic invalidism inspires a conversion disorder, turns that into being completely bedridden ‑ a cripple – that being because the pre‑existing physical condition was cardiac.  In this case the pre‑existing physical condition was the degenerative disorder, temporarily allayed by Dr Sengupta’s surgery, aggravated by the fall, and then from time to time its pain intermittently recurring, as degenerative disorder pain would in the nature of things.

In our submission, that is why it is a red herring to raise this question of how long, according to either the judge or Justice Handley, the aggravation persisted.  Aggravation is having an effect on an existing disorder and for those reasons, in our submission, one needs to go to the way in which the trial judge put it because of the criticisms that have been expressed of the way in which Justice Handley dealt with it.

The conversion disorder was the subject of a finding at the beginning of the passages to which my learned friend went, page 1457, volume 6.  This case:

arises from unresolved psychological conflict.  In the plaintiff’s case this involved various aspects of the aftermath of her husband’s death . . . and I find mainly because of the plaintiff’s fear of being thrown out of the family home.

So, there is the paragraph about the suffering from the kind of conversion disorder found at line 6.  Lines 10 and following he finds what it arises from:

Is this condition caused by the fall?

He asked.  Dr Yeo thought it was:

the main trigger point, Dr Phillips said the fall was the “sentinel event in the causal chain”.

Perhaps central.

Dr Dyball said ongoing back pain provided a focus for psychological problems.

Now, that focus means a focus to the site.  Dr Dyball does not anywhere suggest that the back pain caused the psychological problems but is the explanation as to why they fastened upon the back and legs rather than the heart or eyes.  Then he finds:

that the plaintiff suffered severe back pain as a result of the fall –

Not challenged.

I find that this pain due to physical factors continued to some degree for approximately twelve months after the fall.

There it is, “pain, due to physical factors” from the fall “continued to some degree for approximately twelve months after the fall”.  That is the first part of why Justice Handley was right in his reading of the judge’s reasons.  That is the first part.  Then he goes on:

None of the experts seem to quibble with that except perhaps as to the period required for recovery.

That is recovery from the fall.

I also find in accordance with the opinion of Dr A L G Smith, that she continued to experience back pain and leg pain from time to time as a result of degenerative disease of the lumbar spine.

In other words, the pain later is the result of degenerative disease.  That is, later, after the 12 months of pain due to the fall.

I find that this degenerative disease was aggravated by the fall in 1988.

That does not mean, of course, that things continued caused by the fall after 12 months.  Of course it was aggravated by the fall in 1988.  It caused her to suffer severe back pain as a result.  That is the first line of that paragraph.

Justice Handley, with respect, is reading the material both in accordance with Dr Sengupta – as Justice Handley points out – and in accordance with the trial judge, when he says that this effect called “aggravation” caused by the fall does not indefinitely continue.  There is a degenerative disorder. 

KIRBY J:   How did Justice Handley find the cut‑off point, though?  What evidentiary point did he latch onto to say, “Well, there, and no further”? 

MR WALKER:   It is all approximation.  His Honour refers to a number of doctors, but relies particularly upon Dr Sengupta, whose own evidence is in terms of approximation.  In our learned friend’s written submissions at paragraph 28, there is a reference to Dr Sengupta – reference to “temporary aggravation” being a “prognosis, rather than history”.  We would challenge that, and I would give your Honours a reference.  It appears to be a description and diagnosis by Dr Sengupta, in volume 4, page 791, line 19.  That is an answer to your Honour Justice Kirby’s question about the source for Justice Handley.  But it is that paragraph I have just looked at, at 145 ‑ ‑ ‑

KIRBY J:   What I understood that to mean was that that was, as it were, looking prospectively.  He expected it to be a temporary aggravation, but, as it turned out, perhaps because of the vulnerability of the appellant ‑ ‑ ‑

MR WALKER:   No one says there is any physical reason ‑ ‑ ‑

KIRBY J:   I appreciate that ‑ ‑ ‑

MR WALKER:   No one says there is any physical reason ‑ ‑ ‑

KIRBY J:    ‑ ‑ ‑ but that is not unusual.  It is not unusual. 

MR WALKER:   Your Honour, I know that does not win the case for me, far from it.  It is a causation question.  But no one says that after the 12 months or so, apart from the recurrence of pain from the degenerative disorder, no one says that there was a pain causing crippledom due to organic causes; whereas the aggravation of the pain due to the fall is obviously organic.  It is trauma.  That is the distinction I was seeking to draw.  Now, it does not matter, though, because by the time the case was decided, it was being run on the basis of a conversion disorder:  “She can walk if she wants to”. 

So it does not matter how long the physically caused pain for which we are liable by being responsible for the fall – it does not matter how long that continued – the evidence bears out the proposition that it continued for about a year – does not matter whether it is 18 months or 6 months, because, with respect, the date of the husband’s sickness and the date of the husband’s death – those are fixed points, incontrovertibles, and they match the chronology in the way that Justice Handley points out, in a way that ‑ given the time, it is not appropriate for me to go to in detail.  We respectfully adopt it. 

What it shows is that the exacerbation of this pseudo‑crippledom comes after the death.  It is the unresolved conflict of the death, and Dr Phillips does not deny that.  More to the point, in relation to deference paid to the trial judge, if that be an appropriate expression at all, at 1457, line 10, his Honour finds that in that paragraph.  The question then is, how does he answer – the next question is, “Is this condition caused by the fall in 1988?”  At 1458, having referred to the recurrence of pain from a degenerative disease recurring “from time to time”, as one would expect, having referred to that, he notes that we had argued: 

that the effects of the fall are spent when the back pain due to physical causes ceases. 

That remains our case:  that we are liable for, but only for, the physical effect we had, because of the bizarre nature of what then occurred.  His Honour dealt with that in this fashion.  At 1458, he says: 

leaving that aside –

so it is clear that the pains taken today in relation to the dating of physically caused pain continuing played no part in the reasoning below, and, with respect, his Honour the trial judge was clearly correct.  It turned out to be irrelevant to the formation of this bizarre mental disorder –

it seems to me that the plaintiff’s slide into her now full‑blown bizarre symptoms of psychiatric disorder commenced at some stage in 1988 when she began use of a walking stick, and her husband became very ill and was diagnosed with cancer, or at the latest on or shortly after his death on 1 January 1989. 

Now, for the reasons set out by Justice Handley, it is not possible to prefer, in light of those incontrovertibles about presentation to doctors, what was and was not noticed concerning ambulation, concerning limping, concerning walking.  It is not possible to prefer the admittedly generalised and quite impossible to test assertions that there was something in the nature of perfect gradualism in her physical decline, whether psychologically or physically caused.  It is for those reasons, in our submission, when one sees that that is the only reasons one finds for this point in the trial judge’s judgment that the Court of Appeal proceeded in orthodox and correct fashion.

Intertwining, the metaphor used at 1458, line 16, does not advance matters, not least because, as your Honour Justice Callinan has pointed out, that may simply mean that you have to try and untwist them.  Then his Honour holds:

The psychological factors would not have manifested as they did without the back pain.

We obviously emphasise the words “as they did”.  That is partly a sine qua non finding of a kind that advances the plaintiff’s cause but if there is no suggestion, and there can be no suggestion, that this was peculiarly exacerbated because of so‑called back pain as opposed to something cardiac or ocular, then the question is, does it make us responsible so far as causation is concerned for everything that occurred after the simple trip and slip.

While it may be true to say that had she not had back pain the plaintiff’s psychiatric disorder would have displayed itself in some other way that seems to me to be beside the point.

Well, that emphasises the adventitious nature of the relationship between our negligence and the fall, on the one hand, and on the other hand, her bizarre disorder for which she sought so much by way of damages.

She did have back pain.

Well, so she did, but that, as Dr Dyball suggests, simply displays what she will focus on, presumably unconsciously because of no malingering, by way of the conversion disorder.  Then his Honour appears to assimilate this

to the ordinary case of mental sequelae of disease or injury.  In our submission, it is no such case at all.  Then, without further reasoning, he concludes that:

the conversion disorder was caused by a variety of factors, including the fall.

In our submission, bearing in mind what he has already said about that it might be true to say – and that appears to be in accordance with the evidence before him -  that it would have displayed itself in some other way without the fall, that, in our submission, means that one simply cannot say that it was the fall that caused the disorder.  It will not even pass, in our submission, an ordinary commonsense sine qua non requirement.

Now, your Honours, paragraphs 42 and 43 of the written submission against us refers to Justice Handley’s criticism of the failure by the primary judge to refer to all the objective evidence in the records which were analysed in the Court of Appeal.  It is not a refutation of Justice Handley to make the reference in volume 6 to 1456 which is made.  That is an extremely perfunctory paragraph that expresses nothing as to reasons in relation to that objective evidence.  What it does is demonstrate that this case was on those matters, that is, how were her orthopaedic symptoms, what was her orthopaedic treatment and what was her psychological state over a number of a great many medical and hospital attendances.  That was a documentary case of a kind that the Court of Appeal is not only fully at liberty to but, in an appropriate case, is obliged to decide for itself.  For those reasons, in our submission, your Honours would find that no error was committed by the Court of Appeal.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Jackson.

MR JACKSON:   If it please, your Honours.  Your Honours, may I deal first with the matter to which my learned friend has last been referring and that is the question of the medical evidence, the going to hospitals and so on.  Your Honours, if one looks at that medical evidence – and I will do so very, very briefly – what one can see is that there were from an early point indications that she was suffering from something which was beyond what one might expect.

Could I just take your Honours for a moment to Justice Handley’s reasons, the parts that he extracts?  It is in volume 6, page 1497.  What he does first is to look at the hospital records from Blacktown Hospital on the one hand and he follows that with Westmead.  If one goes to page 1497 in the paragraph commencing about line 24 what he refers to about line 29 is:

Her twelfth admission to Blacktown Hospital occurred on 15 November 1988 –

and then your Honours will see at the end of that paragraph how she is described:

She is described as a “well looking lady” and her condition on admission was described as “walked in ward has a limp”.

Now, this is November 1988.  If I could pass over then to page 1498, the paragraph commencing about line 18:

Her next admission to that Hospital was on 7 March 1991 and she remained there until 19 March . . . There is an ambiguous reference in the clinical notes to: “right leg pain – calf/hip on walking –

Well, I do not know how ambiguous that is, your Honours, but it simply says:

“right leg pain – calf/hip on walking –

Then, your Honours, if one moves over to the next page, 1499, your Honours will see about line 34 that he is referring to the consultant psychiatrist who saw her at one point, but then goes on to say about line 37:

Entries for 12, 18 and 19 March –

and this is 1991 –

referred to her use of a walking stick.

Then, your Honours, page 1500, the next page, the last four lines on the page:

On 25 September –

1991 –

Dr O’Brien of the Hospital’s dental clinic . . . recorded a history of “back problems . . . impaired use of right leg” –

and at the top of the next page she –

“Arrived to the ward with walking stick”.

She was again admitted to Blacktown Hospital on 5 April 1992 via the casualty section complaining of severe low back pain.

If one goes, your Honours, on the same page to about line 27:

16 September 1993.  She was admitted from emergency with complaints of back pain . . . The history notes from the emergency staff record that she had been in a wheelchair for the last 12 months and –

so on.  Now, your Honours, that is Westmead Hospital in that paragraph.  If one goes over to the next page, 1502 about line 10:

again admitted to Westmead Hospital for back pain on 3 October 1993 . . . noted that she walked with two sticks and her right leg dragged.

Now, your Honours, the whole of the rest of that page refers to occasions when she had been walking with a stick and so on and a reference, for example, to a “limp” about line 25 and at the top of page 1503:

using a stick in her right hand and a quadruped in her left, but was still driving a car.

Now, I will not take your Honours beyond that, but your Honours will see if one looks at the evidence that there was in relation to what had happened there is a pretty consistent version of her having presented from an early point with conditions which support the conclusion arrived at by the primary judge.

KIRBY J:   That sounds a little bit like the fallacy of post hoc propter.  I mean the fact is that she had these manifestations and they were getting worse, but it does not resolve the causation question.

MR JACKSON:   No, but, your Honour, the point I am seeking to make about it is this, that it does not, in the end, resolve the causation problem but it is not an argument against it.

KIRBY J:   No, that is true.

MR JACKSON:   Our learned friend’s argument and the majority in the Court of Appeal seem to have said, “Look at what happened.  She didn’t, every time she went to hospital, say there was something wrong with her in this area”, but the fact of the matter is, we would submit, that she did, on a number of occasions say there was something wrong with her at appropriate times and as we have sought to say in our written submissions in paragraph 43, the recitation of them by Justice Handley on the one hand, Justice Davies on the other, really shows that one can draw both sides of the argument from them and it certainly is not against us to take that view.

Your Honours, could I go then to the matter raised by our learned friends concerning the interpretation of the judge’s reasons at first instance at page 1457.  The argument appeared to be that what had been said in the paragraph commencing at about line 27 was that the “severe back pain” comprehended, as it were, the aggravation of the degenerative disease and that Justice Handley was right in the way in which he dealt with that.  The difficulty with that, your Honours, is twofold:  the first is that it is apparent enough, in our submission, if one reads that paragraph and the succeeding one that goes on to 1458, that, in fact, they were two different things and that the accident aggravated degenerative disease was continuing over a long period.  The second thing is that it is apparent that if one looks at the passages that we have referred to in our written submissions at paragraphs 26 and 28, other passages from Justice Handley’s reasons, that he had misunderstood what the primary judge had said, because he took the view there was only a temporary aggravation and the finding is to the contrary.

Your Honours, if I could turn then to what was said about the evidence of Dr Phillips, and may I take your Honours to volume 4.  It may be, your Honours, that entranced by the skill of the cross‑examiner, that Dr Phillips perhaps did not appreciate, or did not say, what one sees in his later report at page 915 and at page 915, in the third paragraph of his report, he is referring to Dr Dyball’s report, and you will see in that paragraph that he records the fact that Dr Dyball’s view was that:

a pathological grief reaction . . . took her 2‑3 years to resolve –

And what your Honours will see from the part of the report under the heading “Opinion”, commencing at page 916 and going on to page 917, that that did not affect his view and he said there was a difference between himself and Dr Dyball about the terms of the psychiatric condition.  I am reading, your Honour, at page 916, line 34.  Dr Dyball thought she did not have a psychiatric disorder; he thought she did, and your Honours will see that referred to again in the succeeding paragraphs.  Your Honours, one sees that this was not, one might think, quite the dramatic event in the whole scale of the case that was put.

At page 913 your Honours will see also, at about line 21, that there is the observation made by Dr Phillips that:

She was undoubtedly vulnerable to further deterioration –

Your Honours will see under the heading “Opinion” on that page, she had:

advanced orthopaedic deterioration involving the lower region of her spine.  She already had substantial problems . . . She was undoubtedly vulnerable to further deterioration –

and so on.  So he is dealing with a situation where she was a person who was vulnerable to injury to the spine and broadly speaking, a vulnerable person.

Your Honours, our learned friends say that in some way the case was not conducted on the basis that she was a person who had a predisposition to this.  Well, your Honour, that is a bit - to something happening; a little bit difficult to see that made out, your Honours, in the circumstances where the whole of the case was that she was a person whose nature was such that if something of this kind happened then the result that flowed was one of the results that might flow from that type of event.

Your Honours, if I could go then – staying with Dr Phillips for a moment – to volume 3 at page 512, and your Honours will see in a passage I do not think your Honours have been referred to in the course of going through it, commencing at about line 25 – you will see the answer at about line 30:

I think if we are looking at the development of conversion disorder, we can’t, as it were, separate the physical and the psychological entirely.

Now, your Honours, that is in the middle of the cross‑examination to which reference has been made and one sees then at the bottom of page 514 and page 515 the evidence relied upon by our learned friends.  Your Honours, our submission is that the effect of that evidence, in the light of the re‑examination, in the light of the whole of the evidence of Dr Phillips, was quintessentially one of the things that the trial judge was able to assess, bearing in mind the evidence that he really clearly accepted of the daughter who gave evidence of a steady downhill progress since the accident.

Your Honours, could I then go back to Dr Yeo’s evidence for a moment in volume 2 at page 453.  Now, one sees at line 10 the question and answer where he said – and I will come to his experience in a moment, who is a man of considerable experience – he was asked:

Q.  Is it your view that in a psychosomatic case of this nature there is usually a physical trigger of some sort, physical in the sense of some traumatic injury of some degree?
A.  Yes.

Your Honours will see, for example, also, his answer at the bottom of the same page.  Now, your Honours, the way in which he is speaking of a “physical trigger” and also at the bottom of page 454 is, in our submission, pretty plainly in the sense of identifying what were the causes of the condition of the appellant and your Honours will see that at the bottom of page 451 he speaks of it not being:

possible to identify specific pathology at various areas in her body that would be causing the plethora of symptoms that she has.

So plainly speaking in terms of what causes it.  His qualifications, your Honours, appear at page 450 to the top of page 451 and he is a man of very considerable experience in the general area, including, as your Honours will see there, rehabilitation of the seriously injured.

Your Honours, could I then deal with a number of other matters that have arisen in the course of the case.  Your Honour Justice Kirby asked what was the relevant District Court Act provision giving a right to appeal. It is section 127 of the District Court Act 1973. It does not tell your Honour anything about the conduct of the appeal.

So far as Abalos was concerned, your Honours will see that there was a reference in argument in that case at page 168 to the page – I am sorry, reference in Abalos at page 168 to Warren v Coombes, and the relevant page is the one that contains section 75A.

Your Honours, could I just say one other thing about Warren v Coombes.  Your Honours will recall that the occasion, as it were, for the Court’s decision in Warren v Coombes was in a sense to put down, if I can put it that way, a hare which had been set running in a sense by some judgments in the Court, in particular an approach taken by Chief Justice Barwick.  That was an approach that the test to be applied was whether the decision was wrong.  The start of that was the Court’s decision in Whiteley Muir & Zwanenberg which is referred to in Warren v Coombes, and three Justices in Warren v Coombes were saying that that was an inappropriate test.  That is dealt with between pages 542 and 551.

Finally, your Honours, so far as the future disposition of the matter is concerned, if it be that our appeal is successful, our submission would be that the appropriate course is, as is set out in our written submissions, for the matter to be remitted to the Court of Appeal to deal with the aspect of the case, namely the cross‑appeal on damages, as yet undealt with.

GUMMOW J:   There is a problem about the composition of the court, is there not?  Justice Davies engaged himself with the question I suppose.

MR JACKSON:   Your Honour, it would have to be dealt with by a fresh court.  The issue has not been decided by the Court of Appeal.

GUMMOW J:   No, but what I am saying to you is it could not be the same bench again, could it?

MR JACKSON:   Very unlikely, your Honour, yes.  I do not think Justice Davies ‑ ‑ ‑

GLEESON CJ:   Justice Davies was only an acting judge of appeal anyway.

MR JACKSON:   Yes.  It would have to be a new court.  We would accept that would have to happen, but it is an issue that has not been dealt with in any event.  Our learned friend referred to if this Court has power to do so.  The relevant power seems to be section 37 of the Judiciary Act.  Assuming for the moment that that confers power on the Court not to remit the matter, this is not a case where it would be appropriate to take that course because the reality is that the issue has not been dealt with by a court on appeal.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter.

AT 3.23 PM THE MATTER WAS ADJOURNED