State Rail Authority of New South Wales v Brown - [2006] NSWCA 220

NEW SOUTH WALES COURT OF APPEAL

CITATION: STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR v BROWN [2006] NSWCA 220

FILE NUMBER(S):
40522/05

HEARING DATE(S): 29 May 2006

DECISION DATE: 07/08/2006

PARTIES:
State Rail Authority of New South Wales - First Appellant
Rail Infrastructure Corporation - Second Appellant
Ian Brown - Respondent

JUDGMENT OF: Giles JA Santow JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 80/2003

LOWER COURT JUDICIAL OFFICER: Truss DCJ

COUNSEL:
Mr M. McCulloch SC/Mr D. Kelly - First and Second Appellants
Mr A. Hewitt SC/Mr B. Batchelor - Respondent

SOLICITORS:
Gillis Delaney Lawyers, Sydney - First and Second Appellants
Bale Boshev, Newcastle - Respondent

CATCHWORDS:
EVIDENCE & PROCEDURE – whether evidence of cross-examined expert could be preferred – whether rule in Browne v Dunn infringed – whether cross-examination was prematurely stopped
NEGLIGENCE – damages – whether rehabilitation expenses required under the Workers Compensation Act were “reasonably necessary”

LEGISLATION CITED:
District Court Rules 1973 (NSW), Part 24D, r20; Part 28, r9(2A)
Evidence Act 1995, ss 55, 102, 103
Supreme Court Rules 1970 (NSW), Part 51, r23
Workplace Injury Management and Workers Compensation Act 1998 (NSW), Chapter 3, ss 41, 43, 47, 57
Workers Compensation Act 1987 (NSW), s 151Z(1)(b)

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40522/2005
DC 80/2003
GILES JA
SANTOW JA
BASTEN JA
7 August 2006

STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR v BROWN

State Rail Authority appealed against a decision of the District Court awarding damages to Mr Brown, who suffered injuries when the train in which he was travelling collided with a derailed coal train. The appellants accepted liability before trial and the only issue in dispute related to the assessment of damages.
The trial judge found that Mr Brown sustained injuries to his neck, shoulder, back and a relatively minor level of psychological injury from the accident.
The issues for determination in the Court of Appeal were:

Whether the trial judge erred in preferring evidence of one expert as to the neck injury over that of another expert, who was not cross-examined;
Whether the trial judge erred in stopping cross examination which could have affected the respondent’s credit, and
Whether the respondent was entitled to recover rehabilitation expenses.

Held in relation to (i)
Per Giles JA (Santow JA agreeing):

No question of infringement of the rule in Browne v Dunn (1894) 6 R 67 arises. The judge’s point was not whether there had been cross-examination of the respective doctors, but that Dr Spittaler’s opinion had been elucidated and explained in oral evidence and Dr Millons’ opinion had not; and that she had thereby been assisted in accepting Dr Spittaler’s opinion over that of Dr Millons. This course was open to her: at [4], [8] & [9].
Browne v Dunn (1894) 6 R 67, distinguished.

Per Basten JA:

The rule in Browne v Dunn can be described as “a rule of practice or procedure, based upon general principles of fairness” and “a rule relating to the weight or cogency of evidence”: at [54].
Browne v Dunn (1894) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, considered
The preferable course in applying the rule is to identify the specific aspect in issue and the consequence said to flow in the particular case, and then characterise the principle so identified no more broadly than is necessary in the circumstances: at [54]
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, applied
Whether an omission in a particular case involves procedural unfairness or not will depend on the precise nature of the omission, and the circumstances in which it arises. Cross-examination is not the only way to demonstrate that there is in a practical sense, an issue in dispute between the parties: at [58].
It was not the respondent’s obligation to call Dr Millons to fill in a gap in the appellants’ medical evidence: at [66].
In the circumstances of this case, there was in substance no direction collision between Dr Spittaler and Dr Millons because the latter was based upon factual assumptions which varied in a small, but potentially significant respect. The trial judge did not err in preferring Dr Spittaler’s evidence: at [71].
M & EM Hull Pty Ltd v Thompson [2001] NSWCA 359; Manly Council v Skene [2002] NSWCA 385, considered.

Held in relation to (ii)
Per Giles JA (Santow & Basten JJA agreeing):

Under the Evidence Act 1995, evidence which is relevant only to the credibility of a witness is admissible if it has substantial probative value. Deception as to damage to his teeth in the accident would have had substantial probative value on the respondent’s credibility. The trial judge erred in not permitting the line of questioning: at [17] & [21].
R v Beattie (1996) 40 NSWLR 155, applied.
However the findings as to the extent of injury were based not on the acceptance of the respondent as a witness of truth, but on a careful consideration of the whole of the evidence. The inability to pursue the line of questioning did not occasion a substantial wrong or miscarriage: at [23]-[26].

Per Basten JA:

The Court of Appeal should not be astute to reconsider rulings as to the scope of cross-examination in relation to matters of credit, at least where there is no basis for thinking that the trial judge did not understand the purpose and nature of the questioning proposed : at [77].

Held in relation to (iii)
Per Basten JA (Giles & Santow JJA agreeing):

There is an important distinction between a challenge to expenses actually incurred, based on lack of causation of the injury, and a challenge based on the reasonableness of the services. Once causation is established, the only question is whether the rehabilitation was rendered reasonably necessary by the injury: at [84].
The “touchstone of reasonableness” will readily be resolved in favour of the plaintiff in circumstances where the treatment has been undertaken at the behest of his employer and the employer’s insurer, and pursuant to a statutory scheme which requires such steps to be taken: at [85].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40522/2005
DC 80/2003
GILES JA
SANTOW JA
BASTEN JA
7 August 2006

STATE RAIL AUTHORITY OF NEW SOUTH WALES & ANOR v BROWN

Judgment

GILES JA: The essential facts and the issues in the appeal are described in the reasons of Basten JA, which I have had the advantage of reading in draft.
I agree with his Honour’s reasons as to the third issue, entitlement to recover the rehabilitation expenses. It does not follow that a defendant is unable to challenge in evidence that rehabilitation expenses incurred under a statutory injury management programme were reasonably incurred. The appellants did not do so.
I agree in the result as to the other two issues and, drawing upon his Honour’s reasons, explain in what follows why that is so.
The finding as to injury to the neck
It was well open to the judge to accept Dr Spittaler’s opinion in preference to that of Dr Millons. Although Dr Spittaler had not seen the MRI scan from before the accident, he had seen the report that the MRI scan showed pre-existing degenerative disease. His opinion was given with the benefit of all relevant material, including the 2002 complaints of pins and needles and neck pain recorded by Dr Straughan, Dr Chandler and the physiotherapist. The opinion of Dr Millons, which at its conclusion was less than categorical (“I remain sceptical”), was given without the benefit of the complaints recorded by Dr Chandler and the physiotherapist. That Dr Spittaler was “impressive when he was subjected to a thorough cross-examination” could only enhance the acceptance of his opinion.
In their written submissions the appellants submitted that a number of contemporaneous and other documents failed to refer to any injury to the respondent’s neck (the ambulance report, the hospital attendance notes on the day of the accident, the workers compensation claim form and various medico-legal reports). They submitted that there was no allegation of neck injury until the fourth amended particulars of injury filed in the proceedings on 29 November 2004. They recognised that the respondent gave evidence that he told Dr Chandler from the beginning of pain in his back or neck, submitting that his evidence was “unconvincing”.
The judge concluded that, although the respondent’s evidence “ought to be scrutinised carefully having particular regard to the contemporaneous material”, she accepted him “by and large … as a witness of truth”. At the hearing of the appeal the appellants accepted that at the trial there was “effectively a contest between Dr Millons … and Dr Spittaler”, and that Dr Spittaler gave evidence which, subject to the matter next mentioned, could be accepted as supporting a link between the accident and the respondent’s neck condition.
The appellants said that “the kernel of [their] complaint” was that in preferring Dr Spittaler’s opinion the trial judge regarded as significant that Dr Millons had not been cross-examined. It is convenient to repeat the relevant paragraph of her Honour’s reasons -
“Dr Spittaler saw the plaintiff on three occasions and was in my view impressive when he was subjected to a thorough cross-examination. On the other hand, whilst Dr Millons prepared what I consider to be careful and detailed reports, his opinion was not tested by cross-examination. Having considered the evidence carefully and being mindful of the defendants’ submission that the Court should prefer the contemporaneous material to the plaintiff’s evidence, I nevertheless accept Dr Spittaler’s evidence and in particular his opinion that as a consequence of the accident the plaintiff sustained further damage to the C5/6 disc affecting the C6 nerve root as a consequence of which he has now recommended surgery.” (emphasis added)
It is necessary to understand what the judge meant. As a matter of fact, Dr Millons’ opinion was not tested by cross-examination. The comparison was with testing of Dr Spittaler by cross-examination. But the judge’s point, in my view, was not that there had and had not been cross-examination of the respective doctors, but that Dr Spittaler’s opinion had been elucidated and explained in oral evidence and Dr Millons’ opinion had not; and that she had thereby been assisted in accepting Dr Spittaler’s opinion over the scepticism expressed by Dr Millons. I do not think her Honour had in mind a party’s obligation to test by cross-examination. Rather, she had in mind the result, in particular that there had not been elucidated and explained whether Dr Millons’ opinion was affected by the fact that he had not been provided with the notes of the physiotherapist or Dr Chandler.
I do not think that any question of infringement of the so-called rule in Browne v Dunn (1894) 6 R 67 arises. That the respondent challenged the opinion of Dr Millons was plain from his reliance on Dr Spittaler’s opinion, and, as Basten JA has described, issue was squarely joined through the cross-examination of Dr Spittaler if not earlier. Nor was there any question of having to accept Dr Millons’ opinion because he had not been cross-examined. The respondent was entitled to submit that Dr Millons’ opinion should not be accepted because, not having the notes of the physiotherapist and Dr Chandler, its basis was unsound, and where issue had been joined as to the conflicting opinion of Dr Spittaler to submit that his opinion should be preferred.
Whether there was error in stopping cross-examination
The respondent’s second amended particulars of injury filed on 6 June 2003 included “[l]oss of five upper teeth and consequent need for denture” and “[r]estriction on ability to eat/chew”. In discussion during his opening, counsel for the respondent said that he did not pursue “the claim that was made in there for dental problems”, and that “[w]e can’t establish on the evidence that the dental problems were related to the accident”.
In cross-examination of the respondent, nonetheless, counsel for the appellants came to damage to his teeth -
“Q. Apart from any other problems, you’ve had some problems with your teeth have you not, over the recent years?
A. Yes.
Q. Indeed you’ve had to have a number removed?
A. Yes.
Q. A number of those extractions occurred at the end of 2002, did they not? That is about six months or five months after the train accident.
A. Yes.
Q. During the course of this case, you’ve attempted to have you not, to suggest that the damage to your teeth occurred in the train accident?
OBJECTION. QUESTION REJECTED.”
Any statement of the ground for the objection, submissions and reasons for the ruling were not recorded. However, matters moved on to counsel’s explanation of the line of questioning he wished to undertake, and the judge confirmed her ruling -
“KELLY: Your Honour the plaintiff has in pleadings and particulars and in histories to doctors, made specific allegations about precisely what occurred to him at the time of the train crash. There was, with respect, a clear lack of continuity on the medical evidence, to ever support that claim. Your Honour, I anticipate making submissions that a number of other allegations fall into the same category.
HER HONOUR: Yes.
KELLY: And if your Honour accepts that there have been, and I don’t suggest they’re necessarily made fraudulently, but if your Honour accepts that there have been, for example in relation to the teeth, the plaintiff’s made a claim later, that on the evidence is not consistent. In making submission that your Honour should have a similar regard to the medical evidence, contemporaneous evidence and view for example, complaints about problems elsewhere in the same light. Your Honour, I don’t propose to take a great deal of time on it other than to simply identify the fact that the plaintiff gave histories to doctors, clearly inconsistent with contemporaneous evidence.
HER HONOUR: Mm hm.
KELLY: And his abandonment of the claim is effectively a concession.
HER HONOUR: Yes, I note what you say Mr Kelly. I mean the fact is there was that allegation made. Mr Hewitt [counsel for the respondent] says that it’s not pressed because there was insufficient support. I mean the fact that the claim has been made, it’s there, it’s in the particulars.
KELLY: But your Honour with respect, I know that your Honour, it’s relevant then what the plaintiff has since said to doctors about what he recalls and what occurred to him is then relevant to what your Honour, with respect, will accept about what did indeed occur. Because of then making similar submissions about other complaints he makes. I agree with the way my learned friend --
HER HONOUR: But I can’t see what view I may form about the teeth could be relevant to the other matters in the case.
KELLY: Because if your Honour finds or accepts that the plaintiff is at best wrong in his recollection, or potentially at worst, has deliberately made it up, it may be relevant to whether your Honour accepts his complaints otherwise about the continuity of symptoms in other parts of his body.
HER HONOUR: Yes, yes.
KELLY: Because your Honour he makes similar complaints, in my submission, now about the other injuries he alleges. Your Honour in my respectful submission, that makes it entirely relevant. The fact that my learned friend isn’t making a claim in respect of it doesn’t mean it’s not an appropriate matter for cross-examination.
HER HONOUR: I note what you say Mr Kelly, my previous ruling stands.”
There was available to counsel for the appellants -
(a)a report of Dr Millons dated 13 August 2003 recording the history, “He had struck his teeth on the wall of the train and damaged four upper teeth”; and
(b)a report of Dr Wilcox dated 31 October 2003 recording the history that at the time of the accident the respondent “was bleeding from the mouth (broken teeth)”.
Apart from the late particulars, counsel was also in a position to put to the respondent that there was no mention of damage to his teeth in the ambulance report, the hospital attendance notes or the workers compensation claim form, or in the notes of Dr Chandler until 12 October 2002 and then in the terms, “Having teeth problems, right side upper area”.
Counsel returned to the matter later in the cross-examination. What was said is material not only to the basis for the judge’s ruling, but also to show what counsel proposed to do -
“KELLY: Your Honour I’m, just going to put a question, I don’t believe I’m cavilling with your Honour’s prior ruling in relation to an issue --
HER HONOUR: If it’s about the teeth you are. The teeth topic is closed.
KELLY: Your Honour I am propose to make submissions about it in any event and I just wanted to be fair to the plaintiff that’s all, to have put the proposition.
HER HONOUR: But you were wanting to put something to him before.
KELLY: Oh no your Honour I was just going to put a proposition to him and leave it at that and he can answer it however he likes, but.
HER HONOUR: All right well tell me what the question is and I’ll let you know if I will allow it or not.
KELLY: That when the plaintiff told the doctors that he’d struck his face and damaged his teeth in the accident it was untrue and deliberately untrue. And that’s all I want to put to him your Honour.
HEWITT: I still object your Honour. It’s not part of the case so how can my friend complain about it. It would only go to credit as such and my friend can’t call evidence to contradict it.
KELLY: Well your Honour there are reports that are already in and will be going into evidence in which the plaintiff has given a history. I don’t now propose to take him to each one of them because there are pages of them. I don’t propose to take him to each thing but they are there and I will be in due course saying they can only have been – that can’t have been true. And I will be making submissions about his credit and therefore – and as a consequence submissions about other matters that are still an issue. So I only wish to put that proposition to him, I know what his answer is going to be, or anticipate, but your Honour as a matter of fairness I thought I should put it to him because I propose to make the submissions.
HEWITT: Well I submit my friend can’t make those submissions, he’s not able to do it. He’s trying to make submissions about a matter that isn’t an issue in the case any longer, purely a matter of credit at most and he couldn’t prove what he’s trying to put.
HER HONOUR: Right so it’s not an issue in the case?
KELLY: Well the plaintiff --
HER HONOUR: The teeth because there’s no – I’m not asked to determine – it’s not part of his claim that he injured his teeth in the accident.
KELLY: Was till today your Honour.
HER HONOUR: Well it isn’t now.
KELLY: I understand that your Honour, I’m not trying to be difficult. I understand that. But your Honour the plaintiff’s recollection of events of and of what caused what is, I’m going to say crucial and whatever spin you put on it, whatever interpretation is placed upon what he subsequently said to doctors about what occurred is relevant, if nothing else, to his capacity for him to recall what happened there. I mean even accepting that he believes when having told doctors or believed that that had occurred, that he’d suffered injury to his face and teeth in the accident it clearly reflects then, even in those circumstances upon his – the accuracy of his recollection. There’s going to be argument and submissions your Honour about what’s recorded in documents about what they indicate.
HER HONOUR: Certainly, well that’s fairly obvious from your cross-examination yes.
KELLY: And documents that I have seen today, so your Honour I – in any event your Honour I can’t say any more than that.
HER HONOUR: I note what you say Mr Kelly, I won’t allow the question.”

As I understand the judge’s ruling, she rejected the question and the line of questioning because any view she might form about the teeth was not relevant to the other matters in the case. A finding that the respondent did, or did not, suffer damage to his teeth in the accident would not bring, or fail to bring, damages for injury in that respect. But the line of questioning was relevant to whether the respondent obtained damages for injury in other respects. There was considerable contest over the extent of injury suffered in the accident, not only as to injury to the respondent’s neck.
By s 55(1) of the Evidence Act 1995 evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings, and by s 55(2) it is not irrelevant because it relates only to the credibility of a witness. Although by the credibility rule in s 102 evidence that is relevant only to a witness’s credibility is not admissible, by s 103(1) the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
The relevance as put to the judge went to the respondent’s credibility, to show that his recollection was unreliable or he was being deliberately untruthful as to damage to his teeth, so the judge should not accept what he said about injury in other respects. Whether evidence is relevant only to credibility, or also to the existence of a fact in issue can be difficult, and although required by the Evidence Act the distinction is artificial (see Palmer v The Queen (1998) 193 CLR 1 at [51]-[57] per McHugh J). Given the way it was put to the judge, I assume relevance only to the respondent’s credibility, but even then evidence produced by the line of questioning was admissible if it had substantial probative value. If it could produce evidence of substantial probative value, albeit relating only to credibility, the line of questioning should have been permitted. The judge did not engage with that question, and in my respectful opinion erred in her consideration of relevance.
That, however, is not an end to the matter. Wrongful rejection of evidence would ordinarily mean a new trial, but a new trial must not be ordered unless it appears to this Court “that some substantial wrong or miscarriage has been thereby occasioned”: Supreme Court Rules, Pt 51 r 23(1).
Evidence produced by the line of questioning could have had the probative value, at its height, of concession by the respondent that he had not suffered damage to his teeth in the accident, but had lied to his solicitors and Drs Millons and Wilcox in order to pass on the problems with his teeth as accident-related and falsely get damages for injury in that respect. That could have led to other concessions; cross-examination can be a powerful weapon, to the extent that “[s]ome of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance” (Wakeley v The Queen (1990) 93 ALR 79 at 86).
It is difficult to conclude that, had the judge addressed the question with which she should have engaged, she would have maintained her ruling. The appellants would be bound by the respondent’s answers on a question of credit, and perhaps success in cross-examination to the extent of the above concession is unlikely. But the judge could not readily have excluded the possibility of that success, and as was said of a similar situation in R v Beattie (1996) 40 NSWLR 155 at 163, “the fact that the witness might have been unlikely to make any such admission did not affect the admissibility of the questions”. Deception as to damage to his teeth in the accident would have had substantial probative value on the respondent’s credibility. The appellants were entitled to seek to impugn the respondent’s credibility by the line of questioning, and the judge should have permitted it at least until the respondent’s answers showed that substantial probative value would not emerge.
However, and notwithstanding the apparent reason for her ruling, the judge’s reasons included -
“18. The defendants sought to challenge the plaintiff’s credit on a number of grounds including the following:
(a) …
(e) the fact that he had claimed that he had suffered significant damage to his teeth in the accident. A claim was made in that regard in the particulars. However, at the commencement of the hearing his counsel informed the court that the claim for dental work was not pressed. It is clear from the evidence that the plaintiff has undergone significant dental work since the accident and the defendants submit that an allegation by the plaintiff that he had suffered damage to his teeth in the accident did not arise until later. There is no suggestion of any facial or teeth damage in the hospital records. The first reference to teeth damage in Dr Chandler’s notes appears to be on 12 October 2002. In his first report of 13 August 2003 Dr Millons who examined the plaintiff on behalf of the defendants recorded that he had struck his teeth on the wall of the train and damages four upper teeth. The defendants submitted that this allegation casts doubt upon the plaintiff’s veracity in that he made such claim yet when the matter came on for hearing it was not pursued because of lack of medical support.
19. Whilst I do not consider that these matters necessarily dictate rejection of the plaintiff’s evidence, particularly in relation to his neck and arm symptoms with which I will deal later, I do however consider that his evidence ought be scrutinised carefully having particular regard to the contemporaneous material. By and large I accept the plaintiff as a witness of truth. In my view he did his best to respond accurately to questions when giving his evidence. I am however mindful of the psychological effects upon him of the accident and I agree with Dr Millons’ observation that he has become somewhat pain focused and anxious.”
That the judge did not fully accept the respondent appears elsewhere in her reasons, particularly as to receipt of social security benefits when working and in her Honour’s reference at [70] to “the multitude of symptoms of which the plaintiff now complains, some of which are not necessarily attributable to the accident”. In my reading of the reasons, the judge did find that, or at least proceeded on the basis that, the respondent had not damaged his teeth in the accident and there was “doubt on his veracity in that he made such a claim yet when the matter came on for hearing it was not pursued because of lack of medical support”. Speaking of a “matter” not necessarily dictating rejection of the respondent’s evidence accepts that there is a “matter”, an unfounded claim of damage to the teeth.
Despite this and other challenges to the respondent’s credit, the judge accepted that there had been physical and psychological injury, resolving the contest over the extent of injury suffered in the accident adversely to the appellants although not wholly favourably to the respondent. The reasons for her Honour doing so did not turn on acceptance of the respondent as a witness of truth, but involved careful consideration of the whole of the evidence. She came to her findings notwithstanding that the appellants had the benefit, without pursuit of the line of questioning, of much of what it could have achieved.
Conceivably the pursuit could have taken the appellants further, but from what counsel said in the second of the passages from the transcript earlier set out he expected the respondent to deny any deliberate falsity to the doctors and was not going to follow the line of questioning with any vigour. The words in the reports of Drs Millons and Wilcox were consistent with dental problems arising in the months after the accident and needing, as counsel’s opening indicated, proof of relationship with the accident, but the respondent had already said, in effect, that Dr Chandler’s notes were not a correct rendition of what he had told her. That the line of questioning would have brought any real concession is at best speculative. The appellants may well have had a benefit greater than would have been achieved if the line of questioning had been permitted. I am not persuaded that inability to pursue the line of questioning occasioned substantial wrong or miscarriage.
The appeal should be dismissed with costs.
SANTOW JA: I agree with the reasons of Basten JA, and with the additional reasons of Giles JA. I prefer the view of Giles JA at [9] that no question of infringement of the rule in Browne v Dunn here arises.
BASTEN JA: On 12 July 2002 the Respondent, Mr Brown, was on his way to work when the train in which he was travelling collided with a derailed coal train between Hexham and Beresford, near Newcastle. He suffered injuries in the accident, for which the Appellants accepted liability. The only issues in dispute when the matter came on for trial related to the assessment of his damages.
On 17 June 2005 Mr Brown obtained a judgment in the District Court in an amount of $294,543. The injuries found by Truss DCJ to have been sustained in the accident included injuries to his neck, right shoulder, back and a relatively minor level of psychological injury.
On the appeal, the Appellants focused on three matters, namely:
(1)whether the finding as to damage to the neck at the level of C5/C6 was supportable;
(2)whether her Honour had erred in stopping cross-examination which could have affected the Respondent’s credit, and
(3)whether he was entitled to recover the costs of rehabilitation expenses.
A separate ground challenging findings which respect to damage to the thoracic and lumbar spine were not pressed at the hearing of the appeal.
It is convenient to deal with the three issues in the order in which they are noted above. However it is necessary first to set out some background to the circumstances involved in the accident.
Factual background
The Respondent was seated on a forward facing seat at the front of the second carriage of the train. Apparently as the result of the sudden application of the brakes, he was flung forward out of his seat and against a metal wall adjacent to the doorway in front of him. He fell to the floor. As the trial judge noted at [11], Mr Brown was taken by ambulance to the John Hunter Hospital, where his right shoulder and elbow were X-rayed. He was later discharged into the care of his general practitioner, Dr Chandler.
Contemporaneous medical records and an accident report to his employer identified his primary concern as his right shoulder, collarbone and upper back. He also had a bruise over the right elbow.
Putting to one side the shoulder and thoracic back problems, the real dispute was as to whether he had suffered any injury to his neck in the accident. The assessment of that matter was complicated by the fact that he had suffered a work injury with a previous employer, Custom Choice Furniture, on 5 January 1998. On that occasion, a rack of timber had fallen on to his right shoulder as noted by Dr Ghabrial, an orthopaedic and spinal surgeon, in a report dated 20 December 1999:
“Mr Brown gave me a history of an injury to his neck, right shoulder and lower back when he was hit by timber in January 1998.
…
Examination of the neck today showed some limitation of the range of motion towards the left side and marked limitation towards the right side. The flexion extension movements were full but with discomfort. He had generalised tenderness all over his neck, more marked on the right C4/5, 5/6 and 6/7 facet joints.”
There was some dispute as to when, in relation to the train accident, Mr Brown had first complained about any pain in his neck. No specific complaint about his neck was recorded around the time of the accident. However, Dr Straughan, to whom his employer referred him, reported on 29 July 2002 that he complained of “pins and needles involving his right upper arm and upper half of his right forearm”. Further, a physiotherapist who also appears to have seen him in late July 2002 recorded a complaint of pins and needles “to arm”. These symptoms could have been consistent with a neck injury.
As will be noted below, an issue between the parties was the reliance placed by her Honour on the evidence of Dr Spittaler, a treating specialist who was subjected to cross-examination, in preference to opinions expressed in written reports by Dr David Millons, who was not cross-examined. Mr Brown argued that her Honour’s findings were justified in part because Dr Millons did not have access to material which suggested that there were symptoms of a neck injury in July 2002. The relevant symptoms relied upon for this purpose were the pins and needles in the right upper arm and upper half of the right forearm, which were noted both by Dr Straughan and by the physiotherapist, in July 2002. Dr Millons, it was contended, had provided no express comment on these symptoms.
In relation to his earlier injury, Mr Brown had had an MRI scan of the cervical spine performed on 18 April 2000. In a report of 20 November 2000, Dr Ghabrial stated that he had reviewed the scan and that it “showed right C5/6 disc prolapse, encroachment on the right C5/6 neural foramin and compromise of the right C6 nerve root”. He assessed the permanent impairment of the neck at 35% and suggested that surgery could be considered.
On 12 March 2003 Mr Brown was sent back to see Dr Ghabrial, who prepared a report, but made no reference to any neck injury. Nevertheless, in a further report dated 10 September 2003, Dr Ghabrial referred to his earlier report of 12 March 2003 and stated “Mr Brown reported continuing symptoms in his neck, right shoulder, right elbow, lower back and he developed symptoms in his right leg”. He undertook a physical examination of the neck which showed moderate restriction in rotation and lateral bending and generalised tenderness.
On 11 November 2003, a CT scan indicated “disc space narrowing” at C4/5 and C5/6. The report further stated:
“Osteophytes project posteriorly into the canal at C5/6. The disc is not herniating into the canal but the dural sac is deformed by the bony prominences. The cord is not compressed. There is slight narrowing of the exit foramen for the 6th right cervical nerve.”
Dr Ghabrial asked for a further MRI scan, which was performed on 16 April 2004. According to his report of 29 April 2004, it confirmed the CT scan findings performed in November 2003.
Finally, in a report dated 11 April 2005, Dr Ghabrial made the following additional comments:
“Mr Brown’s complaints were painful neck with radiation of pain to the right upper limb (as far as the right hand with pain in the index finger) … .
Regarding the neck, I believe he may require C5/6 discectomy and anterior spinal fusion at some stage.”
Once the neck problem had been identified, Dr Ghabrial expressed no opinion as to the extent to which it had been caused by the train accident.
The fact that Mr Brown had a condition in his neck was not in dispute. What was in issue was whether it was a degenerative condition unaffected by the train accident, or whether some deterioration had been caused by that accident. Dr Spittaler gave the following evidence (Tcpt, 25 May 2005, p 49):
“Q.Doctor, the other question which arises in the case is that given that the plaintiff already had an abnormal C5/6 based on the MRI taken before the train accident, what would your view be about the contribution, if any, which the accident had, the train accident that is, to the pre-existing abnormal cervical spine?
A.I haven’t seen the MRI from before the accident. I’ve seen the report. It’s clear to me that the patient certainly had pre-existing degenerative disease which I don’t know whether it was as symptomatic as it was when I saw him. Certainly he has gotten worse since the accident. I don’t know whether he would have gotten worse without the accident or not, I suspect he would have gotten worse at some point, but the accident has probably brought it forward.
Q.Are you able to say in terms of months or years, by how much it might have brought it forward?
A. Not with any certainty, but probably years.
Q.Would that last opinion be influenced by the assumption that he was able to take a heavy job in the week before the train accident, relatively heavy and repetitious job at Steggles, moving poultry and lifting?
A.Yes, I think that’s a fair point. That he was – he was normally employed in fairly heavy activities and was able to do that with little symptoms and that’s all been changed.”
For the defendant, Dr Millons’ report of 25 October 2004 referred to the MRI scan of 26 August 2004, being the latest then available, and stated:
“Those findings again are just degenerative in nature with what sounds like a discophyte present at C5-6. The impression is that the findings may be of long standing.”
On 8 March 2005, Dr Millons provided a final report. In it, he noted a view expressed by Dr Spittaler in a letter of 11 November 2004 that Mr Brown “has had a recurrence of his arm pain to a severe degree” and that he has “indicated he wants to go ahead with a right C5/6 foraminotomy and I have written to his worker’s compensation insurer for approval”.
On 8 March 2005, Dr Millons noted Dr Spittaler’s judgment, for which he expressed having “great respect” but differed from him on the advisability of a surgical solution. He reviewed the history of the neck problem at some length and concluded:
“Having said all that, I remain sceptical that either the cervical problems that he now claims to have or his right upper limb neurological symptoms which are non-specific, reflect the effects of the train accident on 12 July 2002.”
First issue: findings with respect to neck injury
The trial judge summarised the relevant medical evidence clearly and carefully. No complaint was made of that part of her Honour’s judgment. She then noted the respective submissions of the parties at [43]:
“The defendants urge the court to accept Dr Millons’ opinion because he had all of the relevant contemporaneous material … available to him and he considered it carefully and they also relied upon the fact that Dr Spittaler did not actually see the films taken in 2000. On the other hand the plaintiff drew the court’s attention to the fact that he [Dr Millons] was not provided with copies of the notes of either the physiotherapist or Dr Chandler.”
Her Honour’s conclusion was stated in the following paragraph:
“Dr Spittaler saw the plaintiff on three occasions and was in my view impressive when he was subjected to a thorough cross-examination. On the other hand, whilst Dr Millons prepared what I considered to be careful and detailed reports, his opinion was not tested by cross-examination. Having considered the evidence carefully and being mindful of the defendants’ submission that the Court should prefer the contemporaneous material to the plaintiff’s evidence, I nevertheless accept Dr Spittaler’s evidence and in particular his opinion that as a consequence of the accident the plaintiff sustained further damage to the C5/6 disc affecting the C6 nerve root as a consequence of which he has now recommended surgery.”
The Appellants’ complaint is that in the sentence beginning “On the other hand”, the trial judge appears to have discounted Dr Millons’ evidence because he was not cross-examined. That fact should rather, they contend, be held against the Respondent, who failed to require that Dr Millons be available for cross-examination. Indeed, they argue that the correct approach required her Honour to accept the unchallenged evidence of Dr Millons, there being no sufficient reason shown why she should not have taken that course.
This complaint asserted that the rule in Browne v Dunn (1894) 6 R 67 had not been followed. The provenance of that rule was helpfully outlined by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16-18. Browne v Dunn was a defamation case. The relevant issue involved a submission for the plaintiff that a particular retainer prepared for a solicitor was a sham and did not support a relationship giving rise to a defence of qualified privilege in respect of the defamatory statement. Although six signatories to the document gave evidence, no suggestion of a sham relationship was put to any one of them in cross-examination. In those circumstances, the Court held that the plaintiff should not have been permitted to put to the jury that the document was indeed a sham and that the witnesses should not be believed.

The present case is distinguishable from Browne v Dunn in that the witness whose evidence was in issue was not called, the defendant having tendered and relied upon his written reports. He was not cross-examined at all, because neither side asked him to attend. The consequences of that require attention to the opinion expressed in his reports, to which it will be necessary to return shortly.
Although the case-law is replete with reference to the unfairness to a witness in not putting to him or her potentially contradictory material, so that, if there is an explanation for any discrepancy, that can be given, the real issue is the fairness of the trial, as between the parties.
In Allied Pastoral Holdings Hunt J (at 18F) identified two aspects of the “rule” in Browne v Dunn. The first was described as “a rule of practice or procedure, based upon general principles of fairness”; the second was described as “a rule relating to the weight or cogency of the evidence”. However, as his Honour went on to demonstrate (at pp 23-24) the “rule” can have a number of entirely separate aspects, with quite different consequences. It is as well not to characterise it abstractly: the preferable course is to identify the specific aspect in issue and the consequence said to flow in the particular case and then characterise the principle so identified no more broadly than is necessary in the circumstances.
The underlying factual allegation, common to most cases which cite the “rule”, is that one party, usually (though not in Browne v Dunn itself) the defendant, has failed to challenge some part of the plaintiff’s case, either by failing to put a particular matter to the plaintiff or (which may involve different consequences) to a witness called by the plaintiff. The consequences which follow may, in particular circumstances, include:
(a)preventing the defendant from giving or calling evidence as to that matter;
(b) permitting the plaintiff to reopen his or her case;
(c)preventing the defendant from putting a particular submission to the tribunal of fact;
(d)setting aside the verdict of a jury which failed to act on, or rejected, unchallenged evidence, or
(e) setting aside a finding of fact by a judge on the same basis.
Describing the rule in Browne v Dunn as a “rule of professional practice” (Allied Pastoral Holdings at p 22F) or as “a rule of practice or procedure” (ibid at p 18E-F) may be too broad a characterisation. Similarly, to identify a failure to accept unchallenged evidence as “not a mistake of law”, in circumstances where an appeal lies only upon a question of law, may not be capable of generalisation: cf Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426D (Hope and Glass JJA). In particular circumstances, a different characterisation may be appropriate. For example, in Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 590A Kirby P (Waddell AJA and Samuels AJA agreeing) stated:
“I am inclined to agree with Burke CCJ that the practical rule of fairness enshrined in the Browne v Dunn principle required that the suggested contradictions in the worker’s history should have been put to the worker before they were used as a basis not of challenging the opinions resting on them but of challenging the truth of the worker’s evidence. No such challenge was put to the worker by counsel for the employer in his economical cross-examination. If the commissioner himself intended to rely upon the evidence in the way he did, procedural fairness required that he should have drawn the suggested inconsistencies which were troubling him to the notice of the worker or of counsel.”
Such an error, in accordance with established principle, is an error of law entitling an applicant to relief in the nature of prohibition: see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 297 (Kirby P, Handley and Sheller JJA agreeing), applied in Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 (Kirby P, Gleeson CJ and Sheller JA agreeing).
Whether an omission in a particular case involves procedural unfairness or not will depend upon the precise nature of the omission, and the circumstances in which it arises. Thus, cross-examination of the plaintiff may be one way in which to demonstrate that a particular matter is in dispute, in a practical sense. However, the circumstances of the case may otherwise demonstrate that there is in a practical sense, an issue in dispute between the parties and that the plaintiff should have known that, despite the lack of cross-examination on behalf of the defendant. On the other hand, if the purpose of the cross-examination is not to demonstrate that a particular issue is in contention, but to allow the plaintiff to explain away a particular fact which appears to be inconsistent with his or her testimony, other forms of “notice” of the existence of the issue, may not be sufficient.
In most cases, it will not be necessary to determine whether there has been procedural unfairness in the sense that might be required to establish prerogative relief. Thus, if a new trial is sought, it is sufficient that it appears to the Court that “some substantial wrong or miscarriage has been … occasioned”: Supreme Court Rules 1970 (NSW), Part 51, r 23(1).
In the present case, the Appellants could not assert that they did not know that the plaintiff claimed an injury, or aggravation of an existing condition, in relation to his C5/C6 joint. Nor could they assert that, when they went into evidence, they were unaware of the evidence already given for the plaintiff by Dr Spittaler which supported the plaintiff’s case at trial.
They did assert, however, that to the extent Dr Spittaler’s opinion relied upon the complaints of pins and needles in the right arm, reported within a month of the accident, they had no clear notice of that opinion, prior to the trial, and hence could not have obtained an answering opinion from Dr Millons. Their complaint is that, the plaintiff having led evidence (without objection) of this new proposition, the onus was on Mr Brown to have Dr Millons available for cross-examination, to put the new material to him.
There were, however, two stages before that question arose at the trial, which need to be addressed. First, there was the cross-examination of Dr Spittaler, which appears to have been directed to a significant extent to precisely this issue. Defence counsel sought to establish that the pins and needles of which complaint was made may not have implicated the C5/C6 area of the neck and that, if complaint was belated, present levels of degeneration were unlikely to be attributable to the accident. It is clear from her Honour’s comment that she considered that Dr Spittaler’s evidence in chief survived these challenges. A reading of the cross-examination reveals no reason to reject that finding.
The second stage was the evidence of the plaintiff, who was in cross-examination at the time that Dr Spittaler was interposed to give his evidence. Again, there was no doubt that defence counsel understood the issue raised and took the opportunity of cross-examining the plaintiff in relation to that matter. Thus, after Dr Spittaler had retired, the plaintiff was asked (Tcpt, p 62):
Q.I think you said earlier in your evidence that the problems in your neck and your back developed within 48 hours
A.           Yes within the – yeah first 48 hours.
Q.And if you’d experienced symptoms in your neck and your back you would’ve put them down in your claim form wouldn’t you?
A.           Not necessarily … .
Q.Well you know, don’t you, Mr Brown that a significant issue in this case is whether the problems you now experience and complain about in your neck and arm are related to the train accident?
A.           Yes, definitely.
He was then cross-examined further about his visits to Dr Chandler and complaints made about his neck and said that he had made complaints before November 2002. The cross-examination continued over many pages and at p 70 the following exchange occurred:
Q.… I’m suggesting that you didn’t suffer any injury to your neck in the train accident. Do you agree or disagree with that?
A. I disagree with that, very much.
Q.I suggest that if you subsequently developed any problems in your neck they came on at least weeks and in all probability some months after, do you agree with that?
A. Disagree with that.
By that stage, if not earlier, the issue was squarely joined. The five reports prepared by Dr Millons were tendered by the defendants (Tcpt, p 77) but the defendants did not seek to call Dr Millons to supplement his evidence in respect of the opinion expressed by Dr Spittaler in the witness box.
It is difficult to see on what principle the plaintiff was required to obtain Dr Millons’ presence for cross-examination in order to put to him something which had not been specifically addressed in his reports. As it turned out, there was a gap in the defendants’ medical evidence. It was not the obligation of the plaintiff to fill it. He was entitled to say that Dr Millons’ opinion in relation to his C5/C6 joint was based on incomplete material and should be discounted accordingly.
This situation was a far cry from Browne v Dunn and such cases as Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 371 (per Gibbs J, Stephen J agreeing) which involved failures by the defendant to cross-examine a plaintiff or the plaintiff’s witnesses.
The Appellants sought to rely upon a statement in this Court in M & EM Hull Pty Ltd v Thompson [2001] NSWCA 359 in which Rolfe AJA (Sheller JA and Davies AJA agreeing) stated at [21]:
“Prima facie if there is no cross-examination of an expert, (and indeed most witnesses), there is no basis for a Judge not to accept the unchallenged evidence. I say ‘prima facie’ because there are circumstances in which evidence in a report may be rejected or subject to criticism or doubt. This may occur where, for example, the report is ex facie illogical or inherently inconsistent; or where it is based on an incorrect or incomplete history; or where the assumptions on which it is founded are not established. However, in the absence of some such matters, there is no rational reason to not accept unchallenged evidence.”
This statement of principle can only be usefully applied by reference to specific circumstances. The Respondent’s argument accepted the premise, but said Dr Millons relied on an incomplete history.
In response, the Respondent also relied upon a statement by Heydon JA (Santow JA agreeing) in Manly Municipal Council v Skene [2002] NSWCA 385 at [20]-[23] in which his Honour discussed the difficulties which may face a trial judge who must deal with colliding reports of experts, none of whom are cross-examined. As his Honour noted, there are likely to be shifts in the evidence away from the assumptions made by (or presented to) an expert for opinion prior to trial. What the experts would then say, on the basis of fresh assumptions, can only be a matter of speculation. However, his Honour concluded:
“In these circumstances an appellant who complains of a particular choice by a trial judge experienced in the field for one body of medical opinion over another, which is expressed in a careful, thoughtful, balanced and detailed judgment not exhibiting any significant error of primary fact or of law and analysing all the relevant evidence, faces, and ought to face, a difficult task in persuading the Court of Appeal to jettison the trial judge’s view and substitute for that view another view.”
Whilst the courts bemoan the lack of assistance, and the consequent deterioration in the standard of justice, which is likely to follow from a failure to cross-examine medical experts, as Heydon JA noted at [22], it is no doubt “socially more desirable for doctors to spend much more time treating patients than giving, or waiting to give, evidence”. In relative terms, the amounts involved in the present appeal were not large. Furthermore, it was suggested without challenge that, pursuant to the District Court Rules 1973 (NSW), a party seeking to cross-examine an expert bears the cost of obtaining the presence of the expert, including conduct money and witness’ expenses. (Reliance was placed upon District Court Rules, Part 24D, r20 and the now repealed Part 28, r 9(2A).) Although this factor is not critical in the present case, it imposes an additional burden on a plaintiff seeking to challenge a defendant’s witness and may give some additional weight to the argument that it was really a matter for the defendants to put their evidence in order, to contradict directly the oral evidence of Dr Spittaler.
The criticism of her Honour’s judgment in this respect is unfounded. Her Honour was entitled to form a view about Dr Spittaler’s evidence, including his responses under cross-examination. In the abstract, it may have been incorrect to suggest that Dr Millons’ evidence should receive less weight because it had not been tested under cross-examination, but in the circumstances her Honour was dealing with, that meant in substance that there was no direct collision between his opinion and that of Dr Spittaler, because Dr Millons’ was based upon factual assumptions which varied in a small, but potentially significant, respect. This ground of challenge should be rejected.
Cutting short cross-examination as to credit
Counsel for the defendants cross-examined the plaintiff at trial with respect to problems he had had with his teeth, including the extraction of a number of teeth at the end of 2002, about five or six months after the train accident: Tcpt, p 45 (25 May 2005). He then asked Mr Brown:
Q.During the course of this case, you’ve attempted have you not, to suggest that the damage to your teeth occurred in the train accident?
That question was objected to, rejected and discussion followed.
Counsel for the defendants explained that he was seeking to show that in fact this claim fell into the same category as other aspects of the injuries alleged to have followed from the train accident. He continued (Tcpt, p 46):
“Your Honour, I don’t propose to take a great deal of time on it other than to simply identify the fact that the plaintiff gave histories to doctors, clearly inconsistent with contemporary evidence. … And his abandonment of the claim is effectively a concession.”
Her Honour responded:
“HER HONOUR: Yes, I note what you say Mr Kelly. I mean the fact is there was that allegation made. Mr Hewitt says that it’s not pressed because there was insufficient support. I mean the fact that the claim has been made, it’s there, it’s in the particulars.
…
But I can’t see what view I may form about the teeth could be relevant to the other matters in the case.”
Counsel then responded (Tcpt, p 47):
“KELLY: Because if Your Honour finds or accepts that the plaintiff is at best wrong in his recollection, or potentially at worst, has deliberately made it up, it may be relevant to whether Your Honour accepts his complaints otherwise about the continuity of symptoms in other parts of his body.
HER HONOUR: Yes, yes.
KELLY: Because Your Honour, he makes similar complaints, in my submission, now about the other injuries he alleges. Your Honour in my respectful submission, that makes it entirely relevant. The fact that my learned friend isn’t making a claim in respect of it doesn’t mean it’s not an appropriate matter for cross-examination.
HER HONOUR: I note what you say Mr Kelly, my previous ruling stands.”
The proposed cross-examination no doubt had two forensic purposes: one was to seek to break down the plaintiff’s account of his own injuries (namely, those which he still pursued) as being caused by the accident; the second was to permit the defendants to make submissions as to the plaintiff’s credit, relying in part on the claim made with respect to his teeth. Without putting the matter to the plaintiff, the latter course might have been seen to be precluded by Browne v Dunn and Precision Plastics. However, the latter submission was made. During addresses (Tcpt, 26 May 2005, pp 31-32) counsel for the defendants submitted:
“There’s a complaint about teeth to Dr Chandler some months after the event and, Your Honour, the evidence would establish again that the plaintiff simply didn’t hit his face and damage his teeth in the accident but he subsequently goes and tells doctors, with a view to obtaining money in this case, that he did and says, ‘I hit my face and broke my teeth and they had to get replaced’.”
There followed a debate as to what may have been said, based primarily on what was to be found in the medical reports.
The plaintiff’s credit was challenged on a number of bases, including, just prior to the attempt to cross-examine as to his claim in relation to his teeth, by a suggestion that he had sought to obtain social security payments to which he was not entitled. His evidence in relation to work undertaken between the first accident and the train accident was also explored. No doubt each of these matters was relevant to the plaintiff’s credit. However, in relation to the possible damage to his teeth, evidence about what he had said after the accident and the fact that no complaint was recorded in the ambulance report or the hospital records of his admission, was in each case available from the documentary material. The extent to which cross-examination was to be permitted on such an issue was very much a question within the discretion of the trial judge. A claim had been made and abandoned, no doubt because there was inadequate medical evidence to support a connection with the accident. If the line of cross-examination was to be effective, in showing that the claim was a fabrication, her Honour would have been required to make a determination, not as to whether there was a causal connection between the accident and damage to the plaintiff’s teeth, but whether there was any basis upon which he could reasonably have believed that such a connection existed. It would then have been necessary to consider whether, if the plaintiff were shown not to have a bona fide belief in the truth of such a claim, that fact cast doubt upon the claims which he was pursuing, and in what way.
Objection to the question was taken and ruled upon, presumably without full argument, because none is recorded in the transcript. However, her Honour allowed counsel for the defendants to canvas his objection to the ruling. There is no reason to think she did not have a full appreciation of the basis upon which the questioning was being pursued.
This Court should not be astute to reconsider rulings as to the scope of cross-examination to be permitted in relation to matters of credit, at least where there is no basis for thinking that the trial judge did not understand the purpose and nature of the questioning proposed. There is no reason to think that her Honour ignored or misunderstood relevant principles to be applied in making the ruling. This ground of challenge should be rejected.
Rehabilitation expenses
Chapter 3 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the 1998 Act”) establishes a system “that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries”: s 41(1). An insurer is required to establish and maintain “an injury management program”: s 43(1). The employer of a worker is required to meet its obligations under such a plan: s 43(5). Similarly, the worker must comply with obligations imposed on him or her by an injury management plan for that worker: s 47(2). Unreasonable failure to comply with such a requirement would deprive the worker of any entitlement to weekly payments of compensation: s 57(1).
One of the past expenses claimed by the plaintiff in the present case was an amount of $28,037, being the costs of rehabilitation, which had been met by the workers compensation insurer and which, it was submitted, the plaintiff was liable to repay out of an award of compensation obtained from the defendants: see Workers Compensation Act 1987 (NSW), s 151Z(1)(b).

The trial judge noted that the Court had not been provided with copies of the accounts or any details as to how the amount was calculated: at [94]. She then stated:
“The defendants conceded that it was open to the court to find that there was a reasonable need for rehabilitation in a reasonable amount”,
but that the obligation of the employer and its insurer did not “necessarily create a liability on the defendants’ part”.
In their written submissions, the Appellants disputed having made that concession, but did not dispute that Mr Brown “would be entitled to recover, if properly particularised and proved, the reasonable costs of rehabilitation reasonably required in consequence of the injury”. In effect, the debate resolved itself into one about whether it was sufficient for the plaintiff to prove that rehabilitation expenses in a certain amount had been paid, and to rely upon the statutory obligations on him to comply with requirements of an injury management plan, in order to establish that the expenses were reasonably incurred.
Her Honour stated at [97]:
“I consider that there is some force in the plaintiff’s submission that the rehabilitation should be characterised as treatment of the plaintiff carried out under the supervision of the licensed insurer thus giving rise to a presumption that the services were reasonably required.”
By “reasonably required” her Honour should be understood as saying that the services were reasonably required in relation to injuries caused in the train accident. In the course of submissions at trial, counsel for the defendants had taken the point that it might be necessary to break down the rehabilitation expenses, if her Honour found that the defendants were liable for some injuries, but not others. Thus counsel submitted (Tcpt, 26 May 2005, p 3):
“… I can’t separate it out it’s just a figure … but if Your Honour says, I don’t accept the neck to be related we have to go away and get that list revised, excluding any attendances, treatment etcetera for the neck.”
The need for that exercise did not eventuate, so that the issue was reduced to the reasonableness of the expenses actually incurred.
There is an important distinction between a challenge to expenses actually incurred, based on lack of causation of the injury, and a challenge based on the reasonableness of the services, accepting causation of the relevant injury. Once causation is established, the only question is whether the rehabilitation was rendered reasonably necessary by the injury. Indeed, as her Honour further explained, “the rehabilitation could be also categorised as reasonable expense incurred by the plaintiff in mitigation of his damages”: at [99].
Questions of the reasonableness of a plaintiff’s conduct usually arise in circumstances where treatment recommended by an appropriate professional has been refused: see, eg, Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, applied in State of New South Wales v Fahy [2006] NSWCA 64 at [140]. Where services have been used, the cost of particular services has occasionally been disallowed as not reasonably incurred: see generally Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [4.2.1]. In some cases it may be necessary to assess the benefits obtained by a particular form of treatment, against the costs incurred: see Sharman v Evans (1977) 138 CLR 563 at 573 (Gibbs and Stephen JJ). However, the “touchstone of reasonableness” to which their Honours refer will readily be resolved in favour of the plaintiff in circumstances where the treatment has been undertaken at the behest of his employer and the employer’s insurer, and pursuant to a statutory scheme which requires such steps to be taken for the ostensible purpose, as noted above, of “the timely, safe and durable return” of workers to the workplace. This was not the choice of some speculative or unproven remedy by an idiosyncratic plaintiff: it was treatment undertaken in compliance with a scheme mandated by the Parliament.
At trial, the defendants made clear their frustration with the requirement to pay such expenses. Counsel stated (Tcpt, 26 May 2005, p 39):
“Unfortunately, … as Your Honour would be well aware, the amendments to [the 1998] Act that imposed obligations on rehabilitation seem to have been an absolute boon for rehabilitation providers.”
Whether that complaint has merit or not, the answer is that the criterion to be assessed in relation to recovery of such costs from a tortfeasor is the reasonableness of the plaintiff in incurring the expenses: the fact that there is a statutory scheme is a highly material factor in that assessment.
The Appellants also contended that it was irrelevant that the plaintiff might have to repay out of any award of damages, moneys incurred on account of rehabilitation to the workers compensation insurer, pursuant to s 151Z(1)(b) of the Workers Compensation Act. Her Honour merely concluded that that factor was not “necessarily determinative”: at [95].
In circumstances where causation was at issue, that factor might be entirely irrelevant. If, for example, the insurer had paid dental bills, in circumstances where the trial judge later determined no injury attributable to the accident had required such services, the result would be that the insurer would be repaid and the expense would fall on the plaintiff, being the person who should have borne the expense in the first place. This, however, is not a case which turns on questions of causation, but on the reasonableness of the incurring of the expense.
Her Honour also noted at [98]:
“There is an additional reason why I consider that the amount is recoverable and that [is because] it could be regarded as a risk of loss reasonably foreseeable by a public transport service which conveys a large number of workers to and from their employment, particularly at around 6.30am.”
This reasoning appears to treat rehabilitation expenses as a form of statutory impost which would constitute a reasonably foreseeable loss, regardless of whether the expenses were reasonably incurred or not. As noted above, there is a more conventional way to approach this question and it is not necessary to comment on that alternative approach.
Conclusions
It follows that none of the three matters pursued by the Appellants at the hearing of the appeal has been made good. The appeal should be dismissed with costs.

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LAST UPDATED: 08/08/2006