Agnew v Henricks S127/1997 [1998] HCATrans 225 (19 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S127 of 1997

B e t w e e n -

CRAIG AGNEW

Applicant

and

STUART JOSEPH HENRICKS

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 1998, AT 9.48 AM

Copyright in the High Court of Australia

MR K.J. RYAN: May it please the Court, I appear for the appellant in this matter. (instructed by Smallwood Cathcart)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR A.J. STONE, for the respondent. (instructed by Ferguson Holz)

GLEESON CJ: Yes, Mr Ryan.

MR RYAN: Your Honours, the appellant in this case suffered two spinal injuries in close proximity in 1989 and 1990, the second of those being a motor vehicle accident. There was no issue as to liability in the motor vehicle accident, being a rear end collision. The applicant did not make a claim on third party insurer until almost two and a half years after the limitations period had expired. The only issue really always has been, or the real factual issue, was whether there was any prejudice, or rather, there was undoubtedly some prejudice to the defendant. The issue was whether that was significant prejudice to the defendant.

It is submitted that in this type of case, a common law court sitting would take a broad-brush approach to the separation out as between the competing injuries of the current disability in the spinal area. The trial judge exercised his discretion and, in my submission, did so properly and explored, in some depth, the prejudice to the defendant and the issue of a fair trial. Could I just take your Honours to the areas where that issue was explored by the trial judge? Your Honours, the first of those areas is on page 2 of the application book at line 30, where the trial judge said:

I accept that some prejudice has been caused to the Defendant by virtue of having no opportunity to examine the Plaintiff in a case where confusion with regard to the real cause of the on-going condition of the Plaintiff is likely to have been further clouded by time, and that again on the face of it, the longer the Defendant was kept uninformed, the more prejudice was likely to have arisen out of that particular aspect of the case.

Now, the trial judge took up the issue again on the next page, page 3 at point 25, and here he made the comment that was attacked in the Court of Appeal as indicating that he had posed the wrong question in relation to this issue of a fair trial. He said:

My overriding concern however is the extent to which an injustice might be done to a Plaintiff in circumstances of this kind, if too much importance is attached to the defendant's prejudice.

Then he returned to the prejudice:

On balance, I am not persuaded that the prejudice to the Defendant is of a sufficiently substantial kind to justify refusing to grant leave for the matter to proceed.

He then dealt further, at the bottom of the page, with this issue of prejudice:

Secondly, and perhaps more importantly, the nature of the injury in this case and the inevitable difficulties created by the overlap of the two incidents, the work accident and the car accident and the fact that they both concentrated on the same part of the Plaintiff's body and generated what appear to have been broadly similar symptoms, does leave some doubt as to how much more certainty might have been produced from further medical examinations at the time, or closer to time, the injuries were actually sustained.

I acknowledge the difficulty which is implicit in Mr Stone's argument, that the very fact that the injuries were so similar made it even more important to get to them early in order to at least extract what refined distinctions medical experts might have been able to make. That opportunity having been lost, makes this a case of more serious prejudice.

But on balance, I am persuaded that the facts of this case tend to cut both ways in that regard and I am not sure in the end that the defendant can argue with any real confidence, that the defendant would have been all that much better informed with a much earlier opportunity to get to the Plaintiff for the purpose of medical examination.

In the submission of the appellant, his Honour, even though he perhaps did not pose the question correctly, would have arrived at the same result on the issue of prejudice and a fair trial, and that he did exercise his discretion on proper factors. In passing, I just refer to page 15 of the application book. A differently constituted Court of Appeal gave leave on the 19 May 1997, in these words:

The Court is of the view that leave should be granted in this case to enable the proposition assumed by the trial judge, namely that the Selida case bound him to apply the criteria set out in it, to be fully examined in an appeal. That is the primary reason for the Court granting leave, although the appeal which we give leave to bring will be one without restrictions.

Now, in the Court of Appeal, page 21, in the judgment of Justice of Appeal Cole, his Honour Justice Cole, on page 22 he referred to the factual background of the application, and in the second paragraph at point 25 he dealt with the various materials that had been before the defendant, or that the defendant had the advantage of having before them. The background shortly, if I could just point out, was that the workers compensation insurer, MMI, had a medical file over the time on the plaintiff's condition, and they made that available to the defendant at some time during the limitations period. With the advantage of that file, the defendant's or respondent's doctor, Dr Limbers, examined the plaintiff.

In the judgment there is a lot of discussion about the various amendments to the Motor Accidents Act, but they do not seem to be relevant any further in this matter. At page 33, going onwards, the court examined the relevant case of Salido and Brisbane South. Then, on page 35, the court posed the question of whether the trial judge had exercised his discretion properly. That issue, or that question, was disposed of in a very short space on page 36 beginning at line 10:

I do not think that the trial judge approached the question in that way. He approached it by -

"that way" being in looking at a "just and fair trial" -

He approached it by considering as is "overriding concern" ... "the extent to which an injustice might be done to a plaintiff in circumstances of this kind, if too much importance is attached to the defendant's prejudice".

In my submission, the appellant's submision, even though the trial judge used those words, it is submitted that he really did not use them in a way that suggested he was putting an over appropriate emphasis upon them. But, in any event, as I have said previously, if in fact he had posed the question properly he would have arrived at the same result. But he went on there to say that, in his opinion, in that very short space because of that incorrect posing of the question - - -

McHUGH J: But, Mr Ryan, does the case involve any more than that the judges of the Court of Appeal thought that the trial judge's exercise of discretion miscarried, and they exercised their own discretion?

MR RYAN: Yes, your Honour, in exercising their own discretion it is submitted that a manifest injustice resulted to the appellant. That manifest injustice is in very short compass. It is dealt with on page 38, the top of page 38. At the bottom of page 37 the trial judge found a prima facie case of prejudice and it is said at page 38:

His Honour was correct to so find. Further, there was evidence from an orthopaedic surgeon, Dr Limbers, that "unfortunately, it is impossible to distinguish between the effects of the work accident (for which your insurers are not responsible) and the effects of the car accident for which you are responsible".

Now, what his Honour did was extract from Dr Limbers' report that passage, and that passage only. In fact, Dr Limbers said a lot more. In fact, Dr Limbers arrived at a 50/50 separation out of the two effects, of the two injuries.

GLEESON CJ: Where do we see that?

MR RYAN: Your Honour, that is set out in the submissions. The full context of that judgment - there are attached documents, your Honour, which include Dr Limbers' two opinions. If I could just take your Honours to those. The first of those is 14 January 1997. On page 3 of that opinion by Dr Paul Limbers of 14 January 1997 under the subheading "Further Information", Dr Limbers there refers to the report of Dr O'Donovan, which had been obtained by MMI back in 1990. But then, he went over to his - and he refers at the bottom of page 3 to the assistance he had from various tests which had been taken, either within the limitations period, or close to it. But, in his opinion on page 4, your Honour, he said this, he acknowledged:

It is difficult to determine exactly when his back pain commenced.

The history and examination findings have been outlined. It would appear that in October, 1989 and in March, 1990 he had backache probably from early disc fissuring. However, it is likely that the car accident of June, 1990 caused sciatica, although the sciatic pain, I believe, did not occur for a week or two following that injury and whilst he was back at work.

Now, his Honour, in his findings, omitted that area and also what follows, and his Honour quoted only the next paragraph:

Unfortunately, it is impossible to distinguish between the effects of the car accident (for which your insurers are not responsible) and the effects of the car accident for which you are responsible.

He later on corrected that to mean the work injury and the car injury. But then, your Honours, he went on and, in my submission, gave rather cogent reasons for finding a 50/50 separation. He said:

It appears that this could only be ascertained on a 50% basis, namely, the initial problem when he sustained fissuring and backache at work. The car accident precipitated the protrusion and further work activities after the car accident aggravated that protrusion causing the onset of sciatica.

I believe that any effects from his back problems have to be equally divided between his work injuries and the motor vehicle accident.

GLEESON CJ: Well, he is just saying, "The best you can do now is 50/50".

MR RYAN: Yes, your Honour, but in these sort of cases in every day, that is the sort of broad-brush approach, in my submission, that is applied by surgeons or - - -

GLEESON CJ: But the point is what he said in his next opinion, when he was asked to clarify what he meant by the solicitors, and he said, "You may assume that if I had the opportunity of examining the patient" earlier, "I would have been in a better position" to deal with this issue.

MR RYAN: But, your Honour, he is only regurgitating there what the solicitors put in front of him.

GLEESON CJ: Yes, but what is wrong with what Justice Cole said, or attributed to him?

MR RYAN: Well, your Honour, what Justice Cole did was to select that one piece from the first finding, run together with that, if I can take your Honour back to the application book on page 38, his Honour quoted that one passage from the opinion of Dr Limbers, and then went on immediately to, on line 11:

He expressed the opinion that had he had the opportunity of examining the respondent within six months -

et cetera. Your Honour, what he has done is run together those two selected pieces out of two reports and has ignored the fact that what he has relied on in his judgment has been really just a regurgitation of what the defendant's solicitors had put to him. In my submission, your Honour, that has little or no weight and his Honour, in running that together with a selected passage from the first report, has misconceived the real evidence of Dr Limbers.

Even in that regurgitated second report, your Honour, Dr Limbers is not saying that it is not possible to separate them out, he is only saying that he would have had a better opportunity if he had seen the injured person within six months, or various periods after that. Your Honour, even if this man had brought his claim within the limitations period, in all probability, allowing for the delay that has occurred in this case between the application, or the claim rather, the injury claim under the Motor Accidents Act, and the examination by Dr Limbers, it would have been four years after the accident, your Honour. It would have been four years - - -

McHUGH J: That may be, but this seems to me to be an invitation to revisit the error which this Court exposed in Taylor.

MR RYAN: I appreciate, your Honour, but I have put it just on a factual basis. I appreciate I am not putting it as a matter of law. But, your Honour, we would have had a situation of Dr Limbers really seeing this man only two years earlier, or less than what he actually did, and an important thing is that he had the advantage of those reports that had been obtained by MMI. But, your Honours, the real point is, in my submission, that the Court of Appeal judgment has run together, selectively, those two opinions of Dr Limbers and has given no consideration whatsoever to the fact that that second opinion of Dr Limbers was extracted from him.

It is important in this case, in the overall justice of this case, your Honours, to remember this - this matter came before the trial judge on the 27 February 1997, I think it was, and that second opinion, indeed the first opinion of Dr Limbers, was given only a matter of two or three days beforehand. There was no opportunity to answer that second opinion of Dr Limbers. Your Honours, I am sure, would take judicial notice that in these common law situations, it would be quite easy to get another orthoapedic surgeon to say, "Yes, I appreciate you could have had a better opportunity, the closer the better, but in all the circumstances I would be quite happy to make this separation, whatever it might be". The plaintiff had never had that opportunity and it is said in the Court of Appeal judgment that all the material was before the Court of Appeal.

That is disputed. The way this case was run was that, both on the leave application and the hearing, there was never an appeal book. It was run on an affidavit by the respondent's solicitor to which various matters were attached. At the original hearing before the trial judge, the complete MMI file was placed before the trial judge and certain areas were flagged. The way this was run, in my submission, if the matter had been sent back to the District Court, it would have been quite reasonable that the District Court would have allowed further evidence on this point of prejudice because of the late service of Dr Limbers' reports, a matter of two or three days, before the actual hearing. In those circumstances, this evidence which has been seized upon by the Court of Appeal as being critical could have been, at the very least, neutralised in any further exercise of discretion before the District Court.

In our submission, your Honour, the Court of Appeal on page 38 has dealt with this point very narrowly and has done the very thing, perhaps, it has accused the trial judge of doing, of misposing the question, because it has run together, as I say, the selected passages out of those two reports, the second one having no weight whatsoever, in my submission, or little weight at the best, and has coupled it and come up with a finding that there has been prejudice, extreme prejudice, significant prejudice to the defendant. It is submitted that a fair trial could have been had - - -

McHUGH J: I think the siren has blow, Mr Ryan. It is full time.

MR RYAN: Well, your Honours, we say that your Honours should look at this. The High Court is here to look at injustice. There has been an injustice inflicted upon the appellant because of the selective running together of those two reports and the ignoring of that other very cogent evidence by Dr Limbers as to why he could find 50/50; in all the circumstances, he said, "I can find 50/50. There are reasons for it, medical reasons."

GLEESON CJ: Thank you, Mr Ryan. We do not need to hear you, Mr Jackson.

The application for special leave to appeal is refused. The Court is of the view that the principles governing the exercise of the discretion in the present case were settled in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 and the present application, which concerns the exercise of discretionary powers, raises no issue suitable for the granting of special leave.

Do you resist an order for costs?

MR RYAN: Yes, your Honour.

GLEESON CJ: I had better ask Mr Jackson whether he seeks costs?

MR JACKSON: Yes, your Honour.

MR RYAN: Your Honour, the reasons that the costs order is opposed has been set out on page 59, your Honour, but what it comes down to is this, that in giving special leave, it is submitted that the Court of Appeal effectively made this a test case and for that reason alone, in my submission, costs would not follow here. But in my submission, also, the case really went off - did not really go to that point in any event. It went off on a factual point.

GLEESON CJ: Exactly, and that is the basis on which you argued it here. It got into the interpretation of some medical reports.

MR RYAN: It got into the Court of Appeal, though, as a test case and really never became a test case, your Honour. It got there under false colours. It was dealt with under false colours. In my submission, the appellant should not bear the costs of this case. They should not follow the event, your Honour.

GLEESON CJ: When you say this case, you are not asking us to interfere with the order for costs made by the Court of Appeal?

MR RYAN: No.

GLEESON CJ: We are only concerned at the moment with the costs of the special leave application which turned out to be an argument about the interpretation of some medical reports.

MR RYAN: But, your Honour, it got into the Court of Appeal, and hence into here, as a test case on this point. It has never really been a test case on Salido juxtaposed against Brisbane South.

GLEESON CJ: Thank you. The applicant should pay the costs of the respondent to this application.

AT 10.12 AM THE MATTER WAS CONCLUDED