JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: WILLIAMS -v- DAWSON [2000] WASCA 205
CORAM: KENNEDY J
PARKER J
WHEELER J
HEARD: 24 MARCH 2000
DELIVERED : 4 AUGUST 2000
FILE NO/S: FUL 160 of 1999
BETWEEN: PHILLIP JOHN WILLIAMS
Appellant
AND
MELVYN DOUGLAS DAWSON
Respondent
Catchwords:
Damages - Negligence - Personal injury - Motor vehicle accident - Relevance of rule in Browne v Dunn - Whether vertigo caused by accident - Findings of fact - No error shown - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: Mr N W McKerracher QC & Mr C P Shanahan
Respondent: Mr P R Momber
Solicitors:
Appellant: Butcher Paull and Calder
Respondent: Peter Momber
Case(s) referred to in judgment(s):
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Browne v Dunn (1867) 6 Rep 67
Bullstrode v Trimble [1970] VR 840
Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231
Dunn v Maritime Services Board, unreported; CA SCt of NSW (Priestley, Powell and Stein JJA); Library No CA40435/97, BC 9802256; 9 June 1998
Matthews v Sputore, unreported; FCt SCt of WA (Malcolm CJ, Pidgeon and Rowland JJ); Library No 920067; 5 February 1992
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
Thomas v van den Yssel (1976) 14 SASR 205
Case(s) also cited:
Antoun v New South Wales Insurance Ministerial Corporation, unreported; Ct of Appeal SCt of NSW; No CA 40496/96; 4 March 1999
Ascic v Westel Co-operative Ltd, unreported; FCt SCt of WA; Library No 920132; 11 March 1992
Balenzuela v De Gail (1959) 101 CLR 226
Bush v R (1993) 43 FCR 549
Devries v Australian National Railways Commission (1993) 177 CLR 472
Foamlite Australia Pty Ltd v Campbell, unreported; FCt SCt of WA; Library No 7686; 31 May 1989
Heppingstone v Commissioner of Railways (1901) 3 WALR 63
Re Lilley [1953] VLR 98
Miller v Cameron (1936) 54 CLR 572
O'Donnell v McKenzie & Co 1967 SC 63
Palmer v Clarke (1989) 19 NSWLR 158
Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844
Pettitt v Dunkley [1971] 1 NSWLR 376
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Ramsay v Watson (1961) 108 CLR 642
Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768
Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219
Simpson v Midalco Ltd, unreported; FCt SCt of WA; Library No 7421; 7 December 1988
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stojkovski v Fitzgerald [1989] WAR 328
Sun Alliance Insurance v Massoud [1989] VR 8
Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324
Tubemakers of Australia v Fernandez (1976) 10 ALR 303
Western Australia v Watson [1990] WAR 248
KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Parker J, with which I am in agreement. I would…
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- Williams v Dawson [2000] WASCA 205
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- [2000] WASCA 205
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CaseChat Overview and Summary
The court's reasoning involved a detailed analysis of the rule in Browne v Dunn, which mandates that expert evidence should be disclosed to opposing parties before it is relied upon. In this case, although the video recordings were not put to the plaintiff's medical witnesses during cross-examination, they had been made available to the defence prior to the trial. The court found that this did not amount to a breach of the rule, as the plaintiff was not unfairly surprised or prejudiced by the use of the videos. Furthermore, the trial judge did not base his findings on the videos alone but considered the overall evidence presented, including the medical opinions provided by the witnesses.
The court concluded that there was no error in the trial judge's approach and that the failure to put the videos to the plaintiff's medical witnesses did not render the findings of fact unsafe. The weight and cogency of the evidence were appropriately assessed by the trial judge, and there was no requirement for the court to accept uncontradicted evidence not subjected to cross-examination. The appeal was dismissed, and the findings of the trial judge were upheld.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PARKER J
I also note that the view I have reached in this respect accords with the decision in Dolan v Australian and Overseas Telecommunications Corporation (1993) 114 ALR 231 at 236 where non-compliance with the rule in Browne v Dunn was raised because a video recording was relied on to demonstrate a lack of incapacity in the claimant even though there had been a failure to put the video recording to the appellant and medical witnesses. It was the case, however, that the video recording had been supplied to the other side before the hearing. Because of this Spender J rejected the submission that by virtue of the use of the video recording in this way there had been a failure to observe the rule in Browne v Dunn. In particular his Honour observed at 236 - "Further in my opinion, not putting the video to the medical witnesses in the course of their cross-examination, produced no unfairness to the applicant. This was not a case where Mrs Dolan was ambushed by the respondent's reliance, in submissions, on a piece of evidence, the existence of which the applicant was unaware until the completion of the evidence of her witnesses." There is a second aspect of the operation of the rule in Browne v Dunn, that is the weight or cogency which should be accorded evidence where there has been a failure to observe the primary aspect of the rule. I understand this is also relied on by the appellant in this case in particular in so far as it is contended that the trial Judge "did not have the benefit of any expert medical evidence ... as to the significance of the video tape evidence upon which his finding relied" and that such expert evidence was necessary before his Honour "could make the finding that the video tape evidence supported the respondent's (defendant's) case that the appellant (plaintiff) was not 'as disabled as he claims to be'", see ground 1(d). What has been said already is enough to indicate the reasons for my view that such a contention seeks to read too much into his Honour's reasons. It is not shown that his Honour did make findings adverse to the appellant by virtue of the videos. It has not been shown that this is a case where his Honour reached out to make factual findings involving medical issues based on his own appreciation of the videos and without the benefit of medical expertise or assistance on the issue from the medical witnesses. Because of this the second aspect of the rule in Browne v Dunn really has not been shown to have any relevant application. The only issue pointed to by the appellant in this respect is the failure to put the videos to the appellant's medical witnesses and that cannot be material for the reason indicated. Nevertheless, there are other difficulties with the submission in so far as it is apparently contended that the finding made by his Honour was not open to him because the videos were not put to the appellant's medical witnesses. Reference was made to Dunn v Maritime Services Board, unreported; CA SCt of NSW (Priestley, Powell and Stein JJA); Library No CA40435/97, BC 9802256; 9 June 1998. At 5 Stein JA, Priestley and Powell JJA concurring, said:"The second issue in the appeal concerns the application of the rule in Brown v Dunn because none of the medical practitioners were cross-examined as to the content of the film. It is submitted that her Honour ought to have relied on the failure to cross-examine the doctors and, accordingly, have accepted their opinions. …"The reasons continued, however,"… there is no requirement that the Court must accept evidence not subject to cross-examination, especially if that evidence is contradicted by other evidence, see for example, Bullstrode v Trimble [1970] VR 840."