Whisprun Pty Ltd v Dixon

[2002] HCATrans 466

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S216 of 2002

B e t w e e n -

WHISPRUN PTY LIMITED (Formerly NORTHWEST EXPORTS PTY LIMITED)

Appellant

and

SONYA LEA DIXON

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 2002, AT 3.27 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS S.E. PRITCHARD, for the appellant.  (instructed by Hicksons Lawyers)

MR D.F. JACKSON, QC:   If the Court please, I appear with my learned friend, MR K.J. RYAN, for the respondent.  (instructed by Walker Kissane & Plummer)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, this is a case where the trial judge comprehensively disbelieved the plaintiff, who may also be called “the patient”, in relation to what she told the court of a kind necessary to make good the assumptions underlying and justifying acceptance of the opinions upon which she relied from her expert witnesses.

The way in which the case was run, had the matter not gone awry in the Court of Appeal, was, in our submission, a demonstration of pragmatic efficiency.  One of the consequences of the approach taken by Justice Heydon in the Court of Appeal is that that pragmatic way of getting through cases involving the evidence of professional people with other professional calls on their time, such as patients in the practice of medicine, will not be so easily possible and could no longer be called pragmatic.

This was a case where none of the doctors in question was cross‑examined, the reports were all tendered.  The high significance of that in relation to narrated history declines a little in the light of the way in which the parties before your Honours accept the case was run.

Could I take your Honours to paragraph 23 of my learned friend’s written submission in this Court.  There, in answer to arguments by us that I will touch on very briefly, the sting is really removed by my learned friends very properly putting the matter thus.

GUMMOW J:   That is what Mr Hughes says.

MR WALKER:   I am sorry, your Honour.

GUMMOW J:   He always says his opponents have put something very properly.  He means he is latching on to it.  None the worse for that, I suppose.  It lacks the charm of ‑ ‑ ‑

MR WALKER:   Yes, I am sorry, it is late in the era, your Honours.

GUMMOW J:   It sure is.

MR WALKER:   Section 23(a), in a list which ends up no evidence at issues arose, is that:

the statements recorded by the medical practitioners to them had prima facie been made.

That is true, a record of the fact that the patient had told the doctor something.

(b), that the observations made by them had been made.

That is true:  temperature, pallor, whatever.

(c) the examinations carried out by them had been carried out by them with the results which they recorded.

That is true as well.  All of that was true.  What was not true, which is why it does not appear in this list, is that they were tendered as evidence of the truth of the out‑of‑court statements by patient to doctor which constituted the histories given to the various doctors.

The significance of that, of course, is that there is a suggestion which does not need finally to be tracked as to its conclusion.  In the reasons of Justice Heydon, because there was a retrial order, there is a suggestion that those histories somehow had a role to play as evidence of the truth of the statements narrated in them.  That is not the way the parties ran the case.  It is not the way in which it is put, properly or otherwise, by my learned friends in that paragraph 23, the accuracy of which and the exhaustiveness of which we accept.  That is why no Evidence Act issues arose.

In our written submissions we touch upon some of the provisions which would otherwise have been key ‑ section 72 ‑ where contemporaneity would have been hotly contested as to most, if not all, of the history.  Section 60, which would have the effect of in for one, in for all, but which always excites concern under section 135 or section 136; 136 in particular.  None of that was done at the trial because it was not put forward as evidence of the truth of the histories narrated, and for excellent reason, which after all underlies one of the many exceptions to hearsay in the Evidence Act, for excellent reason because the plaintiff was going to be called in the usual way to give evidence to substantiate that sufficient or adequate accordance with the history given to an expert – the assumptions made by an expert – which, in accordance with well‑established authority, is necessary in order to enable that opinion evidence to be useful at all in determining the dispute between the parties.

KIRBY J:   I thought the Evidence Act had modified the strictness of that common law rule. 

MR WALKER:   Unquestionably, your Honour.  For the reasons I have just put, the pragmatic response to it is not to go through the charade of having to have a doctor present in order to say with some surprise, “Well, yes, my notes are as accurate as I can recall them being of what she told me”.  To go through the time and trouble of arguments about section 60, and applications under, and orders under, section 136 of the Evidence Act ‑ none of that is necessary.  My learned friends say, and say correctly, that no Evidence Act issues arose at the trial.  They do not arise here either.  Justice Heydon was, in our submission, never entitled to treat the histories before the treating doctors as having any status other than that of a recitation, a record, of what the patient had told them.  Nothing more. 

GUMMOW J:   Where did he do that, impermissibly? 

MR WALKER:   It is difficult to be ‑ ‑ ‑

GUMMOW J:   As you say. 

MR WALKER:   It is difficult to be precise about ‑ ‑ ‑

GUMMOW J:   That is what I was wondering. 

MR WALKER:   Yes.  Could I take you in particular to, starting at 642, paragraph 42, under the heading, “Impression of sincerity”: 

None of the medical experts cast any doubt on the plaintiff’s account of the symptoms or on her sincerity. 

I will come back to that, because that is another matter of considerable ramification in the practical world of litigation.  Then, line 36: 

It would be strange if a condition of perfect health could be concealed from so many doctors over so many years.  Indeed, not only did no doctor doubt her sincerity, but some were positively impressed by her credibility. 

I suppose one answer to that is that the other side of credibility is credulity.  Page 643, paragraph 43: 

While it is not the role of a medical practitioner to probe and question the details of the history given by a plaintiff in the way that counsel for a defendant cross‑examining that plaintiff might do, there is little point in medical diagnosis unless the history under consideration by the medical adviser is thought to be correct. 

Now, in our submission, the suggestion there is that by repetition, presumably, of a history of a certain kind, either to the same doctor or to a number of different doctors, something is gained in terms of credibility in court of those things – being evidence‑in‑chief, we may assume – said to be consistent with those out‑of‑court statements recorded by doctors.  This Court has said, time and time again, that the history gets into evidence the assumptions upon which the doctor diagnoses.  Of course, no doctor is going to act contrary to the plaintiff’s interests by believing something which is manifestly false, and thus, for example, taking seriously a physical complaint which is plainly mental only.  That is, do not treat only for broken arm, if the arm is simply not broken but there is something else at play. 

So it is not to the point for his Honour to have observed that medical diagnosis would be useless without faith in the history.  The question is, what was the issue before the court to which these parties and their advisers had pragmatically and usefully brought their resources, not including doctors, to court, with these histories recorded?  The short answer was:  they were cutting straight to the chase.  They were going to the heart of the matter which would render these opinions relevant or useful at all. 

They were asking the plaintiff to narrate to the court the relevant part of the history, and doing so for an orthodox reason, which Justice Heydon himself has expounded in Makita v Sprowles – to which we have given reference – namely, to ensure that there is evidence before the court, proved admissibly by the expert or by some other means, of the assumptions, more or less with the tolerable deviation that the authorities speak of, such as to render the opinion to which those assumptions are basal relevant to the adjudication of the dispute.  Nothing remarkable, and has been done in a way which was, in the usual way, efficient.  Now, the ramifications of any different approach are obvious.  I have taken your Honours in particular to paragraphs 42 and 43 of his Honour’s reasons, because they are also relevant to this next point. 

His Honour seems to suggest that something should have been done, which itself involves the assumption that something could have been done, by way of calling doctors to opine about sincerity or credibility of history.  Now, as your Honours know from the written submissions and the reasons for judgment in the court below in this case, at the heart of this case was the history given by this plaintiff patient – plaintiff to the court, patient to the doctors – of what I will call lethargy, lassitude, withdrawing from life’s active or pleasurable activities, general malaise.  In other words, the kind of thing which will have a number of different aspects to them about which doctors could do very little in a consulting room without turning into the cross‑examiner that his Honour protested he was not suggesting they should become.

Apart from obvious objective diagnostic techniques such as blood tests and the like, when someone says, “I have not been able to do X, Y and Z for a long time”, the doctor, unless it is a very small community and there has been a sufficient number of unhappy coincidences for the plaintiff, will not know whether that is true.  Nor, in the ordinary course, would one expect a procession of corroborative witnesses to be brought into a medical consultation.  Then the question arises, is a doctor any better than a judge?  Is a doctor any better than a juror at knowing whether somebody is sincerely telling the truth, is a plausible liar, or, as so commonly the case, is unreliably but honestly narrating something?

No one could suggest that.  In our submission, what his Honour has started is a hare concerning section 79 of the Evidence Act permitting doctors to talk about the sincerity or, if it be different, credibility, of the patients.  Of course, it always goes further than sincerity and credibility, as the case just argued before your Honours well demonstrates.  One may sincerely but with total lack of reliability narrate something, that is, you earnestly believe it to be true but it is demonstrably not true.

So, when his Honour talks about sincerity and credibility, presumably credibility wraps up in it, also, reliability.  And so a case within a case would be constructed by a doctor being asked, one asks, in‑chief, and if so, by what question, “Did you believe your patient, doctor?” I suppose, to opine on what was said out of court all for the course of a proceeding where in any event the plaintiff is going to be called to give the evidence.

One is reminded, with respect, of an allied approach to which your Honour Justice McHugh referred simply in passing, and I give the reference equally in passing in Rosenberg v Percival where in paragraph 30 your Honour deals with an argument which in effect might be called a reverse catch 22, if the plaintiff was not reliable in the witness box, then that is probably symptomatic of the very thing the plaintiff was complaining about and attempting to demonstrate through the opinions based upon the assumptions not otherwise made good in the witness box.  Your Honour, with great respect, gives it short shrift. 

Now, we are not on all fours with that approach but there is something of that kind in the argument deployed against us here by seeking to uphold the approach taken in the reasons of Justice Heydon and of the court, that of the court, because in effect what is being said is that something went amiss in the process of justice called a miscarriage, requiring a retrial.  The case was not properly dealt with by reason of what we do not shrink from saying on both sides was the pragmatic efficiency of not requiring doctors to come and on both sides was obviously…..the unthinkable proposition, that you would ask a doctor, “Doctor, did you believe the plaintiff?  Did you believe your patient?”

Now, in our submission, in terms of sections 56 and 55 of the Evidence Act, the question would not be relevant in any event unless an issue arose concerning, for example, the treatment of a doctor – the treatment by a doctor.  But, as to the fact in issue, was the plaintiff forced to withdraw from the pleasurable and active pursuits of life, for example, then the doctor’s view of that, based upon a consultation of which there is a relic or a vestige and a record of the doctor would be irrelevant and inadmissible, and, it has not yet been essayed to suggest that there is any profession – any profession which is expert at ascertaining whether somebody is telling the truth, let alone expert at ascertaining whether what someone says is accurate.

Now, against that general background, may we approach the question of the errors by the Court of Appeal in the following way.  First, this was a statutory appeal under section 75A, the provisions of which governing the matters at hand are set out in paragraph 54 of our written submissions in this Court.  Subsection (5):

by way of rehearing.

Subsection (6):

powers and duties –

of the first instance court concerning:

the drawing of inferences and the making of findings of fact –

and they are at the heart of the exercise that was being performed pursuant to the well-established principles laid down by this Court for such statutory appellate jurisdiction.  The two authorities upon which we rely in that regard are Warren v Coombes and Abalos.  In our submission, the question here is whether there was anything of a kind identified by the teasing out of those principles in cases such as Earthline in this Court, was there anything in what Justice Newman did which could possibly fairly attract the strictures by which one could order a retrial, notwithstanding the very wholesale distrust of the plaintiff as a witness leading to positive disbelief of her on critical matters, which is at the heart of the way in which the case was disposed at trial.  It is for those reasons that it is significant that there was not, in terms, an Earthline or an exception to Abolos approach taken by my learned friend in the Court of Appeal.  I will come back to that matter separately.

Returning then to the statutory setting under section 124 of the Supreme Court Act there is a rulemaking power and Part 51 rule 23(1) is also set out in the appeal book, because it was that that by its negative condition was the basis of the decision against us to order a retrial. There is a prohibition on ordering a new trial, relevantly on any ground other than those specified in (a), (b) or (c), none of which applies:

unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned

“thereby” meaning on account of the ground established.  The relevant ground is variously articulated, but may fairly be paraphrased as a failure to deal properly with the case by reason of the non-exploration of various matters which are called “objective” by his Honour, against which one could then have measured the testimony as to those very same symptoms and habits of life.

GUMMOW J:   How does Part 51 rule 23(1) operate consistently with section 75A(10)?

MR WALKER:   Your Honour, I think the answer to  ‑ ‑ ‑

GUMMOW J:   It would be different if it had always been in the rules which started out life as a schedule to the Act.

MR WALKER:   Yes.

GUMMOW J:   But 75A came later, did it not?

MR WALKER:   Yes.  Well, the first thing is – did your Honour say subsection (10)?

GUMMOW J:   75A(10), yes.

MR WALKER:   Yes.  First of all, subsection (10) empowers the Court to:

make any order . . . which the nature of the case requires.

That would appear to be the heading under which retrial can be ordered, if at all.  That is peculiar to the appellate tribunal and it is not, of course, the assumed power of the court below.

GUMMOW J:   I just wonder how this criminal appeal provision got in, what it is, where it comes from.

MR WALKER:   Yes.  It is a question whether the rule falls within the regulatory category as opposed to a simple contradictory category.  The former is permitted, the latter is beyond power.

GUMMOW J:   Anyhow, we might not have to solve it here, but it seems to be essential to what was done.

MR WALKER:   Yes.

GUMMOW J:   Did not the Court of Appeal fix upon paragraph (d) of Part 51?

MR WALKER:   Yes.  We do not challenge the power of the rule‑makers to have promulgated Part 51, rule 23(1).  It may be an unsatisfactory answer to your Honour, but it is not an issue that we wish to advance at all.  I think, however, perhaps a slightly better answer to your Honour’s question is that under the power to make ‑ ‑ ‑

GUMMOW J:   It may be authorised specifically by paragraph 124.

MR WALKER:   Yes, section 124 must provide the source of power. It is in very general terms, which I think may only give the verbiage of the inquiry your Honour is making rather than an answer to it. Section 124:

any further or additional rules may be made, by the Rule Committee, for the purpose of carrying this Act into effect and, without limiting the generality of the foregoing, for the following purposes: 

(a)  for regulating and prescribing the procedure . . . and the practice to be followed in the Court . . . and any matters incidental to ‑

I am only reading material parts –

or relating to, any such procedure or practice ‑ ‑ ‑

GUMMOW J:   Well, it seems to go to power, not practice.

MR WALKER:   Yes, it does.

GUMMOW J:   But, anyhow, it is a problem for another day.

MR WALKER:   I think on that other day the phrase will be “for the purpose of carrying this Act into effect”.

GUMMOW J:   Well, it cuts down what otherwise would have been the liberty of action under 75A(10).  I do not see how that facilitates it.

MR WALKER:   With respect, we understand the nature of the issue but it is not a contention which ‑ ‑ ‑

GUMMOW J:   All right.  Well, let us get on to these other exciting issues.

MR WALKER:   Now, your Honours, at trial and in the argument in the Court of Appeal this case was run in relation to a fatigue syndrome, not a chronic infection, that is, there had been a chronic infection.  That which is said to constitute a condition requiring compensation was the fatigue syndrome.  That had the following importance in relation to evidence and particularly and most importantly for the plaintiff’s case for the evidence making good the assumptions upon which her clinicians and the experts opined. 

It meant that this was not a case which could be determined by blood tests.  Blood tests could determine that she had been exposed to the micro‑organisms.  Blood tests could not determine that she was suffering from the fatigue syndrome.  To use a word employed by the medical profession of its own processes, that was something that could be diagnosed only clinically, meaning it was a diagnosis formed by taking into account a number of matters not all of which and not the principal part of which could be objectified by references to scores or physical descriptions – blood tests, the nature of tissue, histology, et cetera.

For those reasons, at the heart of the plaintiff’s claim to be suffering the relevant ailment, without which she did not have her claim, was the expert evidence as to whether she had it and that in turn was based upon assumptions about what she had and had not been able to do during a relevant period.  She gave evidence about those matters in‑chief, and it seems not to be disputed in this Court, as it could not sensibly be disputed in the Court of Appeal, that the way in which the trial judge expressed himself was as comprehensive a disbelief of a plaintiff on matters of fact concerning the plaintiff’s own doings as one might imagine.  What his Honour does is shown at, first of all, in volume 3 of the appeal book, page 639 ‑ ‑ ‑

KIRBY J:   Which page are you going to?

MR WALKER:   Page 639, paragraph 33.  It starts with:

If one then abandons the assumption that all the strictures which the trial judge made of the plaintiff are sound –

the reasons why that should be done at the beginning of this argument is not clear –

and move to a detailed analysis of his reasoning, two difficulties arise.  The first difficulty is that he failed to bear in mind that the plaintiff’s unsatisfactory testimony may have been caused by a genuine syndrome.

That is a comment that does evoke what your Honour Justice McHugh said in Rosenberg v Percival.

GUMMOW J:   Namely?

MR WALKER:   That that argument is an argument that in effect says that when somebody is not credible in the witness box, that can be called in aid by them in favour of the basic credibility of their version.  The question rather should be expressed more simply:  is the testimony of the plaintiff to be accepted concerning these events in her life?  That is to be tested not by assuming that the more she lies the more likely it is that she is telling the truth.  In any event, as to that so‑called first difficulty, it would require surely some detailed explication of how that was run below.  If there is one thing which must be clear when a plaintiff runs a case of this kind, it is the way they choose to present this evidence as a way by which they are going to be bound.

There has been no attempt, in our submission, to point out as to any of the particular matters on which this plaintiff was held to be a black liar indeed.  There has been no attempt to prove that that is the very kind of thing which itself is symptomatic, that is on that particular kind of matter.  In our submission, it will not constitute a difficulty, to use the expression of Justice Heydon in paragraph 33 of his reasons, simply to say generally that this is a fatigue syndrome which has detrimental effects, for example, on concentration or recall.  Those of course are not matters which can easily be made consistent with finding that someone is a grossly unsatisfactory witness in terms of their adherence to the truth.

The second difficulty talked about in that paragraph is introduced thus.  His Honour said:

Secondly, to some extent, he –

meaning Justice Newman –

placed weight on trivial discrepancies and made misconstructions of the evidence in arriving at his credibility findings.

That then needs to be gone to in detail, as we have attempted to do in our written submissions, but, in our submission, at the outset that is very difficult to square with a faithful observance of Abalos or of Devries or of Earthline.  It can be seen at the outset that this is not an Earthline approach where one says there is an essential and important, that is a material, misfit between the adjudicated disbelief of a witness and other evidence which had to be accepted, the so‑called incontrovertible material.

That has not been done here.  To place weight on trivial discrepancies is, in our submission, a merely derogatory description of some of the many matters which a first instance judge is entitled to and uniquely advantaged to take into account when finally expressing the global view of a witness, whether her word is to be trusted on critical matters.  In our submission, the use of the word “trivial” is nothing other than the expression of an appellate judgment that the appellate judge thinks that he or she in a similar position would not have treated that as gravely as the trial judge did.  That is precisely the kind of approach which, in our submission, ought not to be permitted by reference to the statutory rehearing under section 75A and on authority both in Warren v Coombes and in Abalos.  Nothing in Warren v Coombes suggests that the advantage of the trial judge in relation to assessing the honesty of testimony is something which is to be swept aside in order to fulfil the statutory approach.

Could I then take your Honours to the top of page 640.  That is where his Honour says in paragraph 36 that there was some, what he called:

objective evidence which the medical experts took into account in forming their opinions.  It was not discussed by the trial judge.

There are at least two elements that we would wish to attack in relation to that approach by his Honour.  The first is, what exactly was this objective evidence so far as its objectivity is concerned and how could that disturb the credibility finding, and the second is, is it true, ultimately, that those matters were not sufficiently adverted to in the course of the trial so as to answer the description that had been taken into account by the trial judge.

There is a third and consequential question:  if it was not, was this due to the forensic course taken below and chosen, set by the plaintiff, starting with her evidence‑in‑chief?  Now, the so‑called objective evidence – and whether one uses the word “sign” or “symptom” is not going to matter – is selected as an epithet in order to contrast it with “subjective” and those two words which are difficult enough on their own, but more difficult as a pair, are intended in cases of this kind clearly to convey the notion that there would be some corroboration outside the sole testimony of the person in question for so‑called objective evidence.  Classically a machine that weighs somebody is called objective, notwithstanding it may err and, on the other hand, something subjective is said to be untestable other than by one’s faith in the narrator. 

Now, that may be a crude dichotomy but it appears to be that which underlies the use of the word “objective” in this context.  Presumably the reasoning by which this gives rise to a retrial because of miscarriage is that it is unfair in some generalised way for a person who enters the witness box to have their testimony looked at without comparing it with what may be called in aid by way of corroboration either by other testimony, by documents or by, for example, expert opinion.

Now, this Court is well used to the notion that there are many narrated events or phenomena by plaintiffs claiming damages for personal injury which lack any or any respectable way of being tested other than by looking to the credibility of the version presented by the plaintiff.

His Honour started with one that sounds at first sight measurable, objective, weight loss.  The first thing to be said, of course, is that it is a highly non‑specific symptom of any disease, one would have thought, and it may not be surprising therefore that it did not play a large part in the trial.  We will stand corrected if these references are wrong, and I will apologise, but on our search there is no evidence‑in‑chief about it.  That is how the plaintiff chose to run her case on that point.  That is why there was no cross‑examination and that is why there is nothing in the appeal book containing the judge’s reasons on the point.

What Justice Heydon says at 640 under the heading “Weight loss” is a finding at paragraph 37:

there was a large fall in her weight.

The very next sentence demonstrates, with respect, why the practical commonsense of those who ran the trial ought to be preferred in this Court rather the speculation raised by his Honour in the Court of Appeal.  She told Professor Boughton.  She may have.  What makes that objective?  Weight loss is not objective unless somebody other than the person whose weight is in question has measured at two points in time and the number is lower the second time.  To say, “I have lost weight” is, of course, an untestable proposition because it depends upon the accuracy and, in some cases – and this plaintiff would be one – the truth telling of the person who said, “I have lost weight”.

Now, the doctor can measure, that is the objective evidence, the weight at the time of the consultation, but no doctor I have ever come across can guess your weight some time in the past.

In our submission, at the very beginning of this list of so-called objective symptoms, the omission of which, from his Honour’s approach below, is said to have caused such a miscarriage as to require a new trial, at the very outset they are shown to be bereft of any weight.

McHUGH J:   But is not your better point that it is total irrelevancy, that on the judge’s findings, she suffered from Q fever between July 1994 and February 1995, so it is quite consistent with her losing some four to five stone in weight during that period and just not putting it on again.

MR WALKER:   Yes, your Honour.  That is not the only one that falls under that rubric as well.  These are supposed to be a collection of matters which, as it were, smash open the otherwise fortress of the judge’s careful observance of the demolition of this woman’s credibility and it is meant to smash it open because these are meant to be matters of such weight and of such objectivity, in the sense I have tried to explain, that they would stand against what otherwise his Honour, with respect, correctly directed himself, with the appellate restrictions upon him and upon which we rely, but upon examination, not least for the reason Justice McHugh has pointed out, they just do not do this work at all.

An example of the confusion one gets into as soon as this road is taken can be seen two pages over, 642 line 9.  Now, your Honours, this is where another topic has been turned to, but weight comes back:

Though the doctors did not comment on this point, she told some of them things about her weight which reveal her poor memory in the sense that they were plainly wrong.

Now, with great respect, under the heading “Objective Evidence”, one would view with great suspicion, the notion that one of them is constituted by this woman’s reports of her weight to doctors under heading (a), which is then dealt with under heading (d) in the fashion we have just noted.  This underlines the subjectivity of the matter and subject only to the way in curious argument introduced under heading (d) is put, to which I will come later, would be sufficient, in our submission, to destroy the modus operandi which has been used.

GLEESON CJ:   Maybe Justice Heydon thought that it would be unlikely that someone would claim to be 16 stone if they were not.

MR WALKER:   Well, I think this is rural society, I think, your Honour.

CALLINAN J:   Sometimes you cannot deny it.

MR WALKER:   I am not going to go there, I think, your Honour.  Your Honours, on the question of weight loss, some of these references are in writing.  I will just give you ‑ ‑ ‑

GUMMOW J:   What is paragraph (d) there for; what work ‑ ‑ ‑

MR WALKER:   What is it there for?

GUMMOW J:   Yes.

MR WALKER:   That is the reverse catch‑22:  “If she was unreliable, well, she would be, would she not?”

GUMMOW J:   The Mandy Rice-Davies principle.

MR WALKER:   Well, I think it probably is like that, yes.  It is almost impossible to know where to grasp the piece of wool to unravel that one, because if the issue is reliability of narration of events in the past ‑ and there is no doubt about that:  “I did or I did not drive five days a week”.  That is one of the ones in question.  So these are events ‑ phenomena.  If the issue is the reliability of that in order to evaluate an opinion that says, well, if she, among other things, has not been able to drive anymore, then that probably means she has the syndrome, how sensibly a common law court can proceed by saying, that would be proved by her telling tales, in our submission, is impossible to understand.

Of course, it may be that one day a highly special case will be run in which, as it were, the Munchausen’s aspect of one’s syndrome will be part of what you claim for.  Presumably you would be sent to Coventry if you lie too much and presumably that will have devastating effects upon your work.  I would have thought the advice on evidence would be a fairly devastating task for junior counsel too.  Obviously, one would be relying on the evidence other than the plaintiff.  In our submission, there is an essential, illogical, what I call lack of foundation to (d), which makes it impossible to draft and the way your Honour Justice McHugh dealt with a similar point in Rosenberg is perhaps the proper approach to be taken here as well.

This was not a case run below on the basis that this poor woman could not get her facts straight.  And that was one of the symptoms.  She was not, as it were, accompanied by some kind of credibility chaperone in the witness box, as it were, to indicate the difference between when this was an accurate narration of an event – “I can or cannot drive” – and just another of the fabulist exercises, which only goes to show how badly affected she was.  Your Honours, in relation to the doctors and what they were told, demonstrating that, on any view of it, there would have been a lively contest had weight loss been put in her case in‑chief, as one of the assumptions that needed to be made good to make the opinions relevant – we would simply give the references to Professor Boughton.  These are all in volume 2 – I am not going to take your Honours to them, in light of the time.  Page 259, line 21 – Dr McGuirk; 290, line 21 – Dr Kotsiou; 256, line 37 ‑ Dr Lloyd; 292, line 51 – Dr Kendall; 308, line 40; and Dr Henke, page 316, line 42. 

GUMMOW J:   Your complaints about (a) and (d) on pages 640 and 641 are not necessarily good for (b) and (c), are they?  Namely, what seemed to be objective observation at a fairly late time of ‑ ‑ ‑

MR WALKER:   No, that is right.  You have to go through them separately; they are each different.  In fact, (b), to which I am about to come, is a mixture, for reasons I am about to demonstrate.  Could I add Dr Sutherland to those weight loss ones:  page 436, lines 24 and 25.  So if that stood alone – not a reliable test, I know, but it is where we have to start ‑ if weight loss stood alone, the notion that it is objective in any useful sense would be rejected.  The notion that a failure by the trial judge to deal with it, bearing in mind the plaintiff did not talk about it in‑chief, would suggest the point ought to be rejected, and the notion that that failure, in turn, could attract the time‑honoured expression “miscarriage of justice”, is, in our submission, bizarre. 

It, of course, does not stand alone, and I accept that five nearly good points may make one good point.  The question is whether, at the end of the day, my friend or I have persuaded you of that proposition or its contrary.  The next one, (b), is a mixture of objective and subjective.  Could I simply remind your Honours of what it is like to be poked by a doctor.  Sometimes you cannot help yourself, and, to use the language of the medical profession, there is “guarding”, that is, an almost involuntary reflex, by which either tensing or bending or avoidance.  That is a pretty good sign, which is recorded by clinicians.  However, your Honours can take judicial notice, surely, of the fact that occasionally a doctor does something horrible with his finger, and asks whether it hurts.  That is up, one would have thought, to the report of the patient, as to what the doctor is going to record ‑ subject, of course, to the doctor doubting the reliability of the patient, and using words like “stoic”, for example. 

So tenderness – muscle and abdominal tenderness – is a classic example of the kind of thing where the forensic course chosen might be very important, because there, on the one hand, might be records of truly objective record of muscle or abdominal tenderness, and, on the other hand, as the references which I could give your Honour in globo will make it clear, there will be others where it depends upon the report of the patient.  “Does it hurt here?  Yes”.  “Does it hurt here?  Yes”.  “Does it hurt here? 

Yes”.  Your Honours will not be surprised to know that this plaintiff, for at least one doctor, made it almost impossible to touch her at all – raising, of course, the question of making it up, bunging it on.  The kind of issue which, had it been raised at trial – been made an issue by the way the plaintiff undertook to prove her history, the assumptions upon which the expert opinions would then be founded – that could have been tested.  But, in our submission, none of that was done. 

GLEESON CJ:   Is that a convenient time, Mr Walker? 

MR WALKER:   May it please your Honour. 

GLEESON CJ:   You will, in due course, be coming to say something, will you, about what appears on page 650, between lines 30 and 35? 

MR WALKER:   Yes, your Honour. 

GLEESON CJ:   The assumption that doctors could have been asked about the extent of the inroads made on the plaintiff’s reliability in cross‑examination seems a little difficult. 

MR WALKER:   Yes.  My answer will certainly include the bald proposition that section 79 of the Evidence Act did not permit any such thing. 

GLEESON CJ:   Just for the benefit of the next case on the list, could I ask you, Mr Jackson, this question.  How long do you think you will be, Mr Walker? 

MR WALKER:   I have about another half an hour, I think, your Honour. 

MR JACKSON:   Yes, an hour ‑ ‑ ‑

GLEESON CJ:   Well, we will say, not before 11.30 for the next case.  We will be resuming this case in this Court, and then the following case will be in Court No 1.  We will adjourn until 10.15. 

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 7 NOVEMBER 2002