Tal v Beck & Anor S107/1996 [1997] HCATrans 52 (13 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S107 of 1996

B e t w e e n -

EUGEN TAL

Applicant

and

ALFRED RUDOLPH BECK

First Respondent

GARRY McDOUGALL

Second Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 13 FEBRUARY 1997, AT 2.35 PM

Copyright in the High Court of Australia

MR M.F. HOLMES, QC: May it please the Court, I appear for the applicant. With me is MR D.F. ROBINSON and MR P.E. STICK. (instructed by Carroll & Knudsen)

MR J.P. POULOS, QC: May it please the Court, I appear for the respondent. (instructed by Bartier Perry & Purcell)

MR HOLMES: Your Honours, two narrow questions are raised in the application. The first relates to the question of causation in law relating to a condition found in the applicant after the motor vehicle accident in 1991. That condition was functional overlay. The trial judge found that the functional overlay was not causally related to the motor vehicle accident. The application seeks to attack that finding on two bases: one, as a matter of definition, where you have a genuine condition of functional overlay it can only arise out of a genuine injury so that the functional overlay is overlain on an organic injury and so that as a matter of necessity the nature of the condition is such that it must have in law arisen as a result of the motor vehicle accident.

BRENNAN CJ: Why in law?

MR HOLMES: The condition is functional overlay which is a genuine belief in symptoms which arises out of organic symptoms which have long passed. In other words the functional condition overlays genuine organic condition, the minor ligamentous injury and therefore one led to the other. One cannot have a functional overlay without it being overlaid on the condition which his Honour found was caused by the accident.

TOOHEY J: That might be correct if you use the terminology of "overlay" because that suggests something over which it is lying. Does that dispose of it to put it in that way?

MR HOLMES: If your Honour looks at the application book at page 9, line 12:

I find that the plaintiff has psychiatric problems before July 1981 as described by Dr Rivai in Exhibit 11 and that the functional overlay and psychogenic phenomena referred to in the various reports are not causally related to the motor vehicle accident in July 1981.

TOOHEY J: So, you have to marry that with what is said on page 8, about line 32, do you not?

I accept Dr Mellick's opinion that there was no sign of cervical pathology and no disorder of function which could be attributed to an underlying pathological process.

MR HOLMES: That is in respect of the function being attributable to an underlying pathological process rather than being attributed to a mental process. He then goes on to find that the applicant was, in a sense, an eggshell skull plaintiff.

GAUDRON J: But he does not, really, does he because if you go back to page 8, he accepts:

that the psychogenic phenomenon.....and the bizarre functional disorders, arise as expressions of the plaintiff's normal personality - - -

MR HOLMES: Your Honour, that is the second ground for attacking it, namely, that there was evidence that he had a psychiatric disorder before but there was no manifestations of the kind which were onset immediately or six months after the accident. He did not deal with the question of what caused the onset of those manifestations and all that Dr Mellick said was that these arise as expressions of the plaintiff's normal personality and temperament but their onset of expression, their onset of manifestation, what precipitated it, no one said that. There was no evidence that a psychiatric condition which was a pre-existing condition would become manifest at that time because of its inherent nature.

BRENNAN CJ: Mr Holmes, is this the proposition, that before the accident the man was, in some way, psychiatrically fragile; he then has the accident and he has minor ligamentous injury and he has a florid psychiatric condition and the judge should have found that the florid psychiatric condition was the result of the infliction of the ligamentous injury?

MR HOLMES: Yes.

BRENNAN CJ: Now, those are sheer questions of fact, are they not?

MR HOLMES: That is a question of fact.

BRENNAN CJ: What is the question of principle that should attract the attention of this Court?

MR HOLMES: We say that as a matter of fact it should have been found.

BRENNAN CJ: Maybe it should have been found. Accept that if you like.

MR HOLMES: I withdraw the word "should". As a matter of law - - -

BRENNAN CJ: Why law? What is the legal principle?

MR HOLMES: The legal principle is that the only evidence for the onset of the florid condition is the motor vehicle accident and the minor ligamentous injuries.

BRENNAN CJ: That is fact. There is no legal principle that, I think, you can articulate which - - -

MR HOLMES: The only one I am articulating is that it was not open on the evidence because there was no other evidence - - -

BRENNAN CJ: That may be so, it was not open on the evidence. You can say that you have had a wrong finding of fact made against you.

MR HOLMES: Yes. That is all I am putting, your Honour, as your Honour - - -

BRENNAN CJ: Then have you any special leave point?

MR HOLMES: Your Honour, as to the special leave point, when the matter went on appeal and the applicant sought to raise the question that, as a matter of causation, it was only open to be found one way, there having been found to be a genuine psychiatric condition manifest after the accident, the Court of Appeal when addressing that did not appear to give the applicant a rehearing in the sense that they impliedly upheld the decision without addressing it specifically. Your Honour will have noted that in my written submissions - the applicant's written submissions - there is "impliedly" referred to in the special leave question; whether the Court of Appeal erred in law in impliedly upholding the trial judge's finding on that, because on the applicant's reading of the Court of Appeal's judgment - - -

GAUDRON J: How can that even be correct? These were issues on which your client bore the onus of proof.

MR HOLMES: Yes.

GAUDRON J: Ultimately, it was not accepted, from his evidence or that of his doctors, that the conditions which arose six months later had anything to do with the accident. Surely that is the end of the case. There cannot be any error if the Court of Appeal simply allows factual issues, on which your client bore and obviously did not discharge the onus of proof, to stand.

MR HOLMES: In my submission, the application is based on the submission that it was not open to the court not to find the condition of functional overlay and then find a functional overlay conditions which was not caused by the accident. The question of credit which was specifically referred to by the trial judge at page 9 of the application book. If your Honour look at line 55, the trial judge said this:

I have considered all the medical reports and I have examined a video film which showed the plaintiff walking in agile fashion transferring what appeared to be a small suitcase easily from hand to hand.

As was conceded in the Court of Appeal and pointed out by the Court of Appeal, the video film did not show a transfer at all, whether it be easily or not easily. That was in argument, but when the appeal court came to deliver their judgment the following morning, there was no reference to the trial judge's finding of credit, which was upheld, being fundamentally flawed by the very matter that he specifically drew attention to at the time.

TOOHEY J: But in a sense you are not saying any more, I think, Mr Holmes, than that this Court should embark upon a sort of review which the Court of Appeal embarked upon.

MR HOLMES: In a sense, that is correct. The reason, in answer your Honour the Chief Justice's question about what is a special leave question, it is that it does not appear, on the reading of the Court of Appeal's decision, that this question was specifically addressed in the nature of the Court of Appeal exercising its jurisdiction to give a rehearing on the appeal. What has been referred to in the Court of Appeal judgment is there were adequate bases for the trial judge's findings rather than them entering into it and making their own mind up. So that there does not appear to have been an exercise of that power.

So far as the other matter of special leave is the question of the miscarriage of justice. If, as the trial judge has found, this man had a florid condition from the age of about 33 until the trial in his mid-40s, then his working life or the major part of it has been taken away from him in circumstances where it must have arisen from the motor vehicle accident. That is the only matter I can point to on special leave, if your Honours please.

BRENNAN CJ: Thank you, Mr Holmes. We need not trouble you, Mr Poulos.

This application raises no more than issues of fact which, in the submissions of the applicant, ought to have been resolved in his favour by the trial judge and by the Court of Appeal. No question of principle is raised which warrants a grant of special leave. Accordingly, special leave will be refused.

MR POULOS: I would ask for costs.

BRENNAN CJ: You have nothing to say about that, Mr Holmes? With costs.

AT 2.47 PM THE MATTER WAS CONCLUDED