Sianis & Anor v Barlow

[1990] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A44 of 1989

B e t w e e n -

NIKITAS SIANIS and

ASPASIA SIANIS

Applicants

and

DOUGLAS JOHN BARLOW,

IAN ARCH FLETCHER and

ROYAL ADELAIDE HOSPITAL

Respondents

Application for special
leave to appeal

MASON CJ DAWSON J

Sianis

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 1990, AT 10.50 AM

Copyright in the High Court of Australia

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MR M.F. GRAY, QC: May it please Your Honours, I appear

in this matter with my learned friend, MS J.M. RUSALEN

for the applicant. (instructed by Niarchos & Co).

MR B. MARTIN, QC:  May it please the Court, I appear with

my learned friend, MS R.S. COLTON, for the first

named respondent, Dr Barlow. (instructed by

Wallmans).

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MR M. QUINLAN, for the second and third

named respondents, Fletcher and the Royal Adelaide

Hospital. (instructed by the Crown Solicitor for

South Australia).

MASON CJ:	Yes, Mr Gray.
MR GRAY:	Your Honour, in this matter we seek special leave to appeal on the ground that the Full Court of the Supreme Court of South Australia erred in its
appreciation and application of the principles
which should govern the determination of appeals.

The plaintiffs' case in this matter as

Your Honours will have seen depended almost

entirely upon a favourable assessment of their

credibility, there being two plaintiffs, husband

and wife.

The trial judge's finding in that regard was

in their favour and it was that finding that was

set aside on the appeal. It would appear that the

grounds for setting aside the finding invo1ved the

appeal court in making its own assessment of the

credibility of both the plaintiffs although they

concentrated entirely upon the credibility of the

male plaintiff, Mr Sianis.

Your Honours will have seen that Justice Jacobs

in particular assigned to Mr Sianis' evidence the

description that it was so bizarre and incredible

as to be unreliable and in particular referred that

to the account that Mr Sianis and Mrs Sianis gave of what occurred in the doctor's surgery when the doctor performed a minor, although in what

subsequently transpired with Mrs Sianis in his

view, no doubt, a major operation by cutting, a
haemorrhoid which was either external or internal
and it was that episode which, as I understand it,
Justice Jacobs' and Justice Mohr described as - in
the case of Justice Jacobs, "bizarre and incredible"
and in the case of Justice Mohr, "so highly improbable

as to beggar belief".

It is relevant in then looking at that to

appreciate that Dr Barlow had no independent memory

of what had happened on that occasion nor at the

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time did he make any note of what had happened.

He subsequently in his notes, at a much later

time - in 1983 - put in against an entry in

September 1979, a note "Haemorrhoid incized;

excess bleeding due to aspirin" and that note

neither at the time it was made or - he did not

recall it triggering an independent memory of

what had taken place back in July 1979 and,

indeed, Your Honours will have seen in the

transcript a letter in 1982 which purports to

describe what Dr Barlow said happened which,

of course, he now has no independent recollection

of.

Put very shortly, what we say is it cannot be

suggested that the matters referred to by the

appellate judges~ as adversely reflecting upon

the Sianis' evidence were matters that could in·

any way have been overlooked or misunderstood by

the trial judge. He made very specific findings

with respect to that particular incident which

incident is described as being "so bizarre",and

11 to beggar be 1 i e f". Those findings are in the

application book at page 12 and they are, in our

submission, important in looking at the exercise

performed by the appellate judges in weighing

that against Mr Sianis' credit.

At line 31, the bottom two lines, the trial

judge said:

I find that Dr Barlow asked Mr Sianis

to remove his pants and underpants, to

get on to his bed and adopt the left

lateral position.- I am satisfied that

no nurse was present. Dr Barlow had to
hold apart the buttocks firmly with one

hand to expose the anal canal. I am left

in some doubt as to whether he gave a

local anaesthetic, and as to precisely

what instruments he used, but I have not

the slightest doubt that what he did caused

very excessive bleeding, and that Dr Barlow

was, or should have been, aware of it at the

time. The excessive bleeding continued,

possibly not to the extent alleged by

Mr and Mrs Sianis, but sufficiently to alarm

them, and to cause them to summons a doctor.

I think a locum arrived about 11.30 pm.,

probably as a result of answering Dr Barlow's

answering service, and that the locum told

Mr Sianis to go to the R.A.H. if the bleeding

did not stop. It did in fact decrease, and

Mr Sianis decided not to go to the R.A.H.	I
am satisfied that the locum told Dr Barlow
about this excessive bleeding.

Now, that is made in the context - - -

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TOOHEY J:	Mr Gray, could I just ask you this:	in view of

those findings, what is the basis for Justice Jacobs

saying both on page 39 and 40 that the lump was

external? You began, I think, with the proposition

that it was external or internal but Justice Jacobs

seems to be not only in no doubt but he refers to

"the indisputed fact"on page 39, at line 34.

MR GRAY:  Yes. The significance of this, we say, has been

misunderstood by His Honour. He said it did not

matter whether the lump was internal or external.

TOOHEY J: Well, that is another matter but clearly his

judgment proceeds on the basis that it was external.

MR GRAY:  I am sorry, which judgment, Your Honour?

TOOHEY J: Justice Jacobs'.

MR GRA¥:	He does but he draws a different - if Your Honour
goes on there, he says:

Dr Barlow described it as a peri-anal haematoma -

that is, something totally external to the anus -

and there was much evidence based on later

medical examination of the site by other

doctors, disclosing the presence of a skin

tag, to confirm that view. The learned

trial judge, however, has found that it was

a prolapsed thrombosed internal haemorrhoid.

DAWSON J:	But it was external.
MR GRAY:	Which,was, indeed, external but the importance of
that is that it relates to the nature of the
treatment because Dr Barlow said - well, it
peri-anal haematoma is incision. The treatment
seems to be accepted that the treatment for a
for a prolapsed thrombosed internal haemorrhoid
is either conservative; that is, no operation at
all or it is by excision; that if one incizes a
prolapsed thrombosed internal haemorrhoid, even
though it is external, the consequence of that
will be merely a filling of blood again. In
other words, it would not be the removal of a
blood clot; it would be merely the incision of something with blood in it which would then consequentially refill with blood and be the
same and that is the importance which His Honour -
His Honour does not seem to think that there is
much significance between the two conditions.
He says there is no significance but - - -
DAWSON J:	Because what the plaintiff was complaining about
was faecal incontinence which came from, so he
alleged, the cutting of his sphincter muscle

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and this had nothing to do with that or so

he says.

MR GRAY:	Yes, this was a step on the path to that occurring
because by not treating him properly, by Dr Barlow
incising instead of excising - and this is dependent
upon the inference that it was an internal prolapsed
haemorrhoid - but on him incising that, it had
no effect on the haemorrhoid which then filled
with blood again over that period of time where
Mr Sianis was not treated. Mr Sianis was forced
as a consequence of that haemorrhoid being,
it is said, negligently treated, to strain.
The consequence of the straining is to either cause or aggravate other haemorrhoids as well as having still this haemorrhoid which was not
dealt with which led, His Honour says, inevitably to the surgical intervention, which surgical
intervention was negligently performed by a
cutting of the sphincter which ultimately caused
the incontinence that Mr Sianis complains about.
So, it is the whole chain that His Honour reasons
from his finding of those primary facts dependent
upon Mr Sianis' credibility. If Mr Sianis is
credible, then that chain of reasoning that
His Honour has employed is open to him. Whether
other courts, other judges, would draw those inferences or not, that is another matter but
His Honour Justice Jacobs has, in our submission, we say missed the significance of His Honour's
inference with respect to the prolapsed thrombosed
internal haemorrhoid and that finding itself
is dependent upon the  acceptance of Mr Sianis'
excessive bleeding because the medical evidence, to a certain extent, went to say that if it was a prolapsed internal haemorrhoid, there
would be excessive bleeding;. if it was an
external peri-anal haemotoma, then the blood
clot would have just come out and there would
be minimal bleeding.
upon Mr Sianis is the linchpin from which all So, that finding dependent
this reasoning can be made.
DAWSON J:	But what Dr Barlow did did not cause the internal
haemorrhoids.  They were there, presumably, at
the time and they would have required treatment.
MR GRAY:	No, there is no finding as to whether he had
internal haemorrhoids at the time, other than
this one internal haemorrhoid which was prolapsed
and, therefore, external. What Dr Barlow did
was to not treat that properly.  By not treating
it properly, it led inevitably to the surgical
intervention to rectify it. That is as I understand His Honour's reasoning with respect,
Your Honour.

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MASON CJ:	Had it been treated properly, there would have been no occasion for subsequent surgery
MR GRAY:	There would have been no:occasion for subsequent
surgery. If, indeed, it was a peri-anal
haemotoma, then there would have been no occasion
for subsequent surgery. It had to b~ for the reasoning that I am putting to Your Honours,
a prolapsed internal haemorrhoid which was treated by incision instead of excision, the consequence
being that it made subsequent surgical intervention
inevitable.
DAWSON J:	That gets you part of the way but then would
not the negligence of the surgeon who performed
the oper.ation be a novus actus?
MR GRAY:	Well, that then depends upon whether or not you
can assign, as His Honour must have assigned,
foresight of some degree of negligence in the
operation having exposed the plaintiff to that
surgical intervention and we say His Honour must have been satisfied that - and to have
inferred - that there was a foreseeability that an operation of this nature, relatively simple
though it might be, might be unskilfully performed
and, if unskilfully performed, could have the consequences that it had here of incontinence.

Now, that is as I read the way His Honour

the trial judge reasoned, all 1:ased upon his view

of the credibility of Mr and Mrs Sianis.

MASON CJ:	Now, I have not followed at the moment where
the error of principle is in all of this,
Mr Gray.
MR GRAY:	The error of principle in the appellate process
is.merely substituting the appellate court's
assessment of the credibility of a witness for
that of the trial judge.
MASON CJ:	But is that not permissible in cases where the
appellate court comes to the conclusion that
the evidence of the witness is g~aringly
improbable?
MR GRAY:	Their Honours did not appear to put it on that basis, that is all nor do we say they can put
it on that basis because it seems to be reasoning
backwards to get to that. Their Honours might
be said to be saying that it was glaringly
improbable.  They do not use those words.

MASON CJ: Well, one judge says so much as to "beggar belief"

and the other refers to the "bizarre nature

of the evidence" with a result that I would

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have thought that they were clearly thinking along

the lines of the evidence being glaringly improbable.

MR GRAY:  We say just on an assessment of it that description

cannot be given to what Mr and Mrs Sianis deposed

to. And the only glaring improbability relates to

this incident at the doctor's rooms in July 1979.

MASON CJ: Well now, just stopping there for a moment. If that

be the case, then what you are really saying is

not that there was an error of principle, in other
words, the Full Court did not mistake the proper

principle but they made some mistake in the

application because they misunderstood the

significance of the findings made by the primary

judge and perhaps they misunderstood the nature of

the evidence.

MR GRAY:  I have actually got to do it both ways, Your Honour.

I say that they did, indeed, misunderstand

the significance of the findings of the primary

judge but their whole approach - and I can only say

that from reading the way they approached it - was

merely to look at this incident and say this

incident makes Mr Sianis's evidence, in what'

Your Honour has put to me, glaringly improbable

without - but never saying that, merely saying

that they are rejecting Mr Sianis as a witness of

truth because of their view about the incident.

Now, if they are actually underlying all of that,

just merely saying, "All we have to do is to decide

this case for ourselves on the material", we say

that is a true error of principle, and that is the

way one can construe the reasoning approach that they

have adopted. Involved also in that reasoning

approach is the other thing that Your Honour puts

to me which ·is more factual and that is that they

have, along the way also, misconceived the significance

of some of the matters that the learned trial judge

referred to in his steps to ultimately come to the

ultimate conclusion of negligence.

I suppose, also, I rely to a certain extent on

the way His Honour - His Honour Justice Mohr •

virtually, when you read his judgment, refers little
to the way that the Appeal Court should approach it

other than by saying that the findings with respect

to the witnesses made by a trial judge must be given

great weight and then just goes on to find that

Mr Sianis was not a credible witness. Justice Jacobs

approached it in what I would describe, with respect,
as a back-to-front way: he looked at the question

of causation and made some assumptions of negligence
saying, "Dr Barlow might have been negligent but

that negligence didn't cause" but the vice, with

respect, to that is that the primary facts relating

to that negligence are necessary to be accepted before

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you can come to a causal conclusion and His Honour

just merely - indeed, so did Justice Mohr to a

certain extent - spoke of, "Let it be assumed

that Dr Barlow is negligene but how does this

cause it?" Well, now, just put in those bald

terms, one might well agree with what he says but

that is not the point. The point is that there

were certain primary facts established by the

acceptance of Mr Sianis which are necessary for
the reasoning process to determine the causal

connection and Their Honours never at any stage

have accepted the possibility of those primary

facts because they have already rejected

Mr Sianis's evidence. Indeed, also, Justice Mohr,

in his terms, almost gives the impression that

Dr Barlow had, in fact, given evidence and the

reason for rejecting Mr Sianis was that Dr Barlow

would not be wrong. He gives a description of
what Dr Barlow said at the bottom of page 2 of

his judgment, where he says:

Dr Barlow's version is that having

administered a local anaesthetic he
incised what he described as a

perianal haemotoma and removed a

blood clot. He then applied a dressing.

The male respondent resumed his clothing

and he and his wife left. The respondent's

version is much more dramatic.

Now, Dr Barlow, of course, as I said, gave no

evidence of any independent recollection of what

had taken place. He gave evidence of what he

would have done if he was excising a peri-anal haemotoma. He said in that case he would have

applied a dressing and he said that presumably

the people would resume their clothing and leave

but it is not evidence that he gave. Now,

that is weighed, we say, impermissibly by

His Honour in the whole balance in coming to a

view related to the improbability of the

respondent's version because he couples that with

saying, "The respondent's version is much more

dramatic."

His Honour's only statement as to his appeal

function is at page 4 in the third paragraph:

Such a finding by a trial judge who

has had the benefit of seeing and hearing

the witnesses faces the appellants with

considerable difficulties. However, after

a careful consideration of the evidence and

the conclusions which must flow from such a

consideration I find myself unable to agree

with it.

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His Honour Justice Jacobs, as far as the appeal

process is concerned, deals with that at page 42

of the application book, the last paragraph, where

His Honour says:

One must, of course, acknowledge the

undoubted advantage which the learned trial

judge had in observing Mr Sianis in the
course of the trial, but that does not
absolve an appellate court of its duty to
decide the case for itself, giving due

respect to the opinion of the trial judge.

It would be idle to refer again to the

many cases on this topic, including the

leading cases referred to in the judgments

of the High Court in WARREN V COOMBES. One

citation from that case will suffice, from

the majority judgment at p.552.

His citation is not from URANERZ V HALE which is

the glaring improbability test but a case which

relates to the inference from established facts

or undisputed facts and the application of the appeal

process to those established facts or undisputed

facts. Now, this is a case where, at least initially,

the facts are established based upon a credibility

finding and it differs from the topic that was being

really considered in WARREN V COOMBES in that

regard. The other criticism that is made - - -

DAWSON J: Really~ in'the end - I know.that that is dealt with

at length ··· - what really matters is whether

there was a cutting of the sphincter muscle

which caused incontinence and on the facts as

found the Full Court found that you could not

draw that inference; that the doctors who were

present at the operation would have noticed if

there were. a cut which was of sufficient magnitude

to cause incontinence. They were reliable witnesses

and they did not see anything of the sort; that the incontinence would have followed immediately

was that it did not occur until some time later. after the operation but, in fact, the evidence	So, as a matter of inference the Full Court held
there was only one conclusion to be drawn and that
was that even if there were a cut to the sphincter
muscle it did not cause the incontinence. Now,
that is a matter of inference, is it not?

MR GRAY: It is to a certain extent a matter of inference. It,

of course, deals with the - part of it, of course,

relates to, again, the primary facts established

by your acceptance of Mr Sianis because there was

an attempt to establish that Mr Sianis was not

incontinent immediately after the operation.	An
explanation for the incontinence was proffered

related to "stretch neuropathy" which the trial

judge rejected as an inference. What His Honour

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had before him was the evidence of Mr Sianis which,
if accepted, would have Mr Sianis incontinent

immediately after the operation and to that had to

be judged in terms of whether or not those

conducting the operation would have seen it given

that all of them conceded the possibility that the

cutting could, indeed, have happened,as a

concession of possibility, and given that the only
other reasonable reason why Mr Sianis was immediately

incontinent was rejected ultimately by the trial judge.

It is in that context though, Your Honour, not just
in the context of saying there were these three

people at this operation, they saw nothing. They gave evidence that they saw nothing but that does not mean that an inference cannot be drawn that

something happened, having regard to the primary

fact of the acceptance of Mr Sianis's immediate

incontinence or relative immediate incontinence

consequential upon the operation.

DAWSON J: His was the only evidence of immediate incontinence.

The other evidence was all the other way, was it

not?

MR GRAY:  It was but that is why credibility - the belief in

relation to that is founded very firmly in a

trial judge's impression of that witness and why

that is important ultimately to the reasoning process

and why it is important also for an appellate court
to weigh that, not to merely say there was other

evidence to the other way and, in any event, we

do not accept Mr Sianis as a witness. It is that

inversion, we would say, of the process that

concerns us with respect to the way that this
matter has been determined.

I think the only other thing I refer Your Honours

to is at page 4 of the trial judge's judgment at

about line 15. His Honour says:

it is convenient here for me to make some
general observations about the credibility

of the plaintiffs and Dr Barlow.

And he says: 

Partly, if not wholly, because he has

been at all relevant times psychologically

disturbed, Mr Sianis has consistently both

in consultations with doctors and in the

witness box, exaggerated. The evidence of

any witness who tells a doctor, as I find

he did to Dr Barlow, that he "believes the

Gods have got him" and "the Devil hit him",

must clearly be most carefully scrutinized.

I think Mrs Sianis, for whose lot one

cannot help but have compassion, also

exaggerated. But after careful

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consideration, I have reached the

conclusion that the evidence of Mr Sianis

about his relevant medical history prior

to 27th July, 1979, and of both the

plaintiffs about what happened on that

date, and their evidence of the

subsequent medical history of Mr Sianis,

is, generally speaking, correct.

His Honour then goes on to discuss whether Dr Barlow's evidence impinges on that and finds that it does not

for a variety of reasons related to failing to keep

notes of consultations; failing to keep a note of

this particular procedure that he undertook, and

his general answers in interrogatories and general

matters in the witness-box. Now, all of that bears

on this very vital episode, ultimately, that is

described as "so bizarre as beggaring belief"

because all of that ultimately depends, we would

say, on an assessment of the witnesses who are

talking about that incident and it cannot be said,

in our submission, that that incident was so bizarre,

so beggaring of belie£ as to be so outstandingly

against what any reasonable person could find,

the glaring improbability test of the URANERZ' case. Those are my submissions, Your Honours.

MASON CJ:	We need not trouble you, Mr Martin, nor you,
Mr Solicitor.
The Court is not persuaded that the decision of the Full Court of the Supreme Court reflects any
error of principle. For that reason, the application
is refused.
MR MARTIN:	I make an application for costs, Your Honour.
MR DOYLE:	And, similarly.
MASON CJ:	You do not oppose that, Mr Gray?

MR GRAY:  No, I do not oppose that, Your Honour.

MASON CJ:  The application is refused with costs.

AT 11.21 AM THE MATTER WAS ADJOURNED SINE DIE

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