Bridges, Application by [2004] HCATrans 571 (3 December 2004)

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Bridges, Application by [2004] HCATrans 571 (3 December 2004)

Last Updated: 28 January 2005

[2004] HCATrans 571

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S504 of 2003

In the matter of –

An application for leave to appeal by JACQUELINE ELLEN BRIDGES against the refusal of leave to issue a proceeding

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 11.40 AM

Copyright in the High Court of Australia

MRS J.E. BRIDGES appeared in person.

McHUGH J: Will you proceed with your submissions.

MRS BRIDGES: Your Honours, I would like to point out the error of law that the trial judge made regarding my credibility.

McHUGH J: That is not the issue, Ms Bridges. What has happened here is that an order has been made by a Justice of the Court that your attempt to rehear the special leave application should not be served on any other party. That direction was made under Order 58 of the Rules of Court, and it is a rule that is designed to protect other persons from having to defend actions which should not have been brought in the Court. Now, you have to get leave to proceed. Justice Heydon heard your application for leave to proceed and he was of the view that there was nothing in your application and he refused to give you leave to proceed. What you have to show is that he was wrong in some respect.

MRS BRIDGES: Yes, well, I am here to show that, your Honour.

McHUGH J: Yes.

MRS BRIDGES: Justice Gaudron on page 21 in my application book said that I have to show “that there has been some error and an error of law”.

McHUGH J: Yes.

MRS BRIDGES: That is at 45 in the column. She said that two years ago at my special leave hearing. She said I have to show it was “a failure to have proper regard to the law that was to be applied”. The trial judge relied on an expert opinion that was not supported with any scientific or standardised criteria.

McHUGH J: Well, it seems to be getting away from what is the issue here. Justice Heydon was exercising a discretion. You have to show that he made some error. Now, what is the error that you point to?

MRS BRIDGES: I think - Justice Heydon did not have this material, because when I applied, I did not include any of this material.

McHUGH J: Well, that is not an error on his part, it is an error on your part.

MRS BRIDGES: But I did not think that I would have to include the material because I was not asked. I was just saying that I did not get a fair hearing last time, because this material I did present last time, but I did not get heard.

McHUGH J: That may be, but you have to put your material before the Judge. He can only - - -

MRS BRIDGES: But that is what I - - -

McHUGH J: He can only decide the case on what you put before him.

MRS BRIDGES: The reason why I did not put the whole material before the judge was because I was under the impression that since the respondent was not there, that all I had to do was show why I did not have a fair hearing last time in that what I had to say was not given a chance to be heard.

McHUGH J: What you had to show was that you had at least an arguable prospect of succeeding in an application to rehear the special leave application.

MRS BRIDGES: And that is what I have got here. That is what I would like to show, how I have got the prospects to have that.

McHUGH J: Yes, but what is the error in Justice Heydon’s judgment?

MRS BRIDGES: The error in his judgment is – well, I am not saying there is an error in his judgment according to what he looked at, although he did have the – see, he did not have a copy of my summary of argument from last time.

McHUGH J: But the moment you concede that, Ms Bridges, that is the end of your case here for leave to appeal. You have to show he made an error.

MRS BRIDGES: Well, I am showing that – I have already quoted him in my summary of argument where I have said that if a certain – if an expert opinion report is to be useful, it has to comply with the prime duty of experts in giving opinion evidence to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions, and the expert opinion that the trial judge relied on for my credibility did not have any standardised criteria, and yet the trial judge did not look at another expert opinion which did have standardised criteria.

McHUGH J: But what you are talking about went to the issue of damages, did it not? I mean, your case failed because Judge Boyd-Boland thought that you would have proceeded with the operation, even if you had been told of the risk.

MRS BRIDGES: And the reason why he said that was because he took notice of the defendant’s expert medical opinion, which was not based on any scientific criteria which he said – the opinion from that was that I had a personality disorder which says - the definition is leads to an impairment of functioning, which means that I cannot tell what is right and what is not right. He did not take - - -

McHUGH J: He had expert medical opinion in front of him, the judge was entitled to act on it.

MRS BRIDGES: But the expert medical opinion did not have any standardised scientific criteria to back it up, and I am - - -

McHUGH J: That may or may not be the case, I do not know because you have not put the material – we do not have the transcript of the trial before us, but it is beside - - -

MRS BRIDGES: The transcripts of the trial is in the book, earlier in the book.

McHUGH J: Yes, but your application has to be dealt with on papers in the application book. Now, you have an application book and you have a supplementary application book.

MRS BRIDGES: I have the transcript and I have the quote from Justice Heydon himself when he was in the Supreme Court, where he actually saw an appeal case in Makita v Sprowles said that because the expert opinion was not backed up with any scientific or standardised criteria, it was useless and therefore, the judge’s decision was turned around the other way.

McHUGH J: Well, you had your case considered by the Court of Appeal of New South Wales; they dismissed your appeal.

MRS BRIDGES: Yes, they did, and then that is why I went to apply for special leave - - -

McHUGH J: Yes.

MRS BRIDGES: - - -and I brought up this matter, I brought it up, I had it here, I had everything there and if you want evidence of that, I have got it in the transcript. I can tell you the pages where I brought it up because I had the other material in front of me which I have still got, and which if I get back to the special leave stage, I will produce all of that.

McHUGH J: But Ms Bridges - - -

MRS BRIDGES: The reason I am here to show – I am here to show that this expert medical opinion was based on absolutely no standardised or scientific criteria, that the defendant produced.

McHUGH J: Justice Gaudron and Justice Gummow took the view that you had not made out a case for special leave.

MRS BRIDGES: Justice Gaudron told me what to do. She said, “You have to show that”. That means I have to show that and I am here to show that. She did not say, “You’ve got no case”. She said, “You have to show why” – she said, “You have to show based on the credibility”, not on any of the other grounds that I had, just on the credibility one - - -

McHUGH J: But - - -

MRS BRIDGES: - - -where it was wrong, and that is what I am doing here, and that is what I - - -

McHUGH J: No, but the judge took the view that your course of conduct both before and after the surgery established on the balance of probabilities that you would have proceeded with the surgery come what may.

MRS BRIDGES: Yes, and he took that view because he was relying on the expert opinion of Dr Skinner who was the defendant’s person, psychiatrist, and he was influenced by that, and I have put in all the pages of where he has referred to that opinion all along the way to come to that conclusion. He did not take any notice at all of another psychiatric report which said I had an anxiety disorder and was backed up with standardised scientific criteria saying I had a condition called DSM4.

McHUGH J: Well, whether or not - - -

MRS BRIDGES: Dr Skinner – if Justice Heydon said in 2001 in one case, and that case was allowed to –went around the other way because of Professor Morton, who was talking about some rubber on some shoes, did not have any scientific criteria to back it up with, so he said that that was not useful, it could not be used. There is another quote that he quoted where Lord President Cooper in Davie v The Lord High Provost in 1953:

Expert witnesses . . . their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment –

And that is what he did not do, and it is not in that report. If you have a look at Dr Skinner’s report, you will not find it anywhere. There is no scientific evidence – she did not even have all the facts. I have put that in there too, but I am only concentrating on this particular one because it is the easiest one to see. She had no scientific criteria, and there was a report there that did have the standardised scientific criteria and that is in this book too, in the supplementary book. And based on this, that she did not, that makes the trial judge in error of the law and furthermore, I put in pages where the appeal judge just went along and just agreed, but did not even look at – find the same thing themselves even though at that stage it was not pointed out to them. So I am saying now that I am entitled , for that reason alone – and there are other reasons in here but I do not believe that I have to show any more than one – that this gives me at least to go back to where I was and be heard properly.

McHUGH J: No, Justice Gaudron and Justice Gummow read your material. They formed the view that you did not have a case for special leave and they rejected your case.

MRS BRIDGES: No, they did not.

McHUGH J: Well, they did reject your case.

MRS BRIDGES: Justice Gaudron said that I have to show based on credibility and I actually started to. Justice Gummow, when I said I would like to this, he said, “No”, and that is in the transcript too. I can tell you the page if you would like to look it up.

McHUGH J: At page 11 of your application book, Justice Gaudron’s reasons are set out and she said:

The factual findings in the present case depend in large part upon the trial judge’s assessment of the applicant’s credibility.
To the extent that the factual findings depend on issues of credibility, the proposed appeal enjoys no prospect of success.

MRS BRIDGES: Yes, she did say that and she also said - - -

McHUGH J: That is the beginning and end of it.

MRS BRIDGES: No, that is her summing up but she told me – and I have quoted her - I have quoted what she said that I had to do and I have just told you what was wrong and I do not believe that I can say that any clearer than what I have said it. That is the.....in black and white and if you can hear what I am saying, and you look at it, you can see why would.....apply for one person and not for another person and Justice Gaudron and Justice Gummow did not give me the chance to say that one. I had two instances of where there was scientific criteria that the judge did not take any notice of but because Justice Gaudron narrowed it down and said to do with my credibility, I thought perhaps I made it too complicated last time because there were so many grounds and I was trying to do the whole lot of them, so I just brought it down to this one regarding my credibility. Would you like to look at those two reports to see for yourself - - -

McHUGH J: They are not in the book, are they?

MRS BRIDGES: They are in this book. They are in this supplementary book here.

McHUGH J: Yes.

MRS BRIDGES: In the index – Dr Skinner’s is on page 25 and following that directly is Dr Moore’s on page 34. On page 37 of Dr Moore’s he sets out the standardised scientific criteria that he has based his opinion on.

McHUGH J: Yes, but Dr Skinner said at page 33:

Mrs Bridges is presently not suffering from any psychiatric illness or disorder. It appears that - - -

MRS BRIDGES: And on page 32 she says:

Mrs Bridges has a personality disorder with histrionic and dependent traits.

Present tense.

McHUGH J: Yes.

MRS BRIDGES: She says one thing and then she says another thing and, even though she says both of those things, neither of them are backed up with any scientific criteria.

McHUGH J: But this is an expert witness, a psychiatrist, who is entitled to give that opinion.

MRS BRIDGES: Well, the other person in the Makita v Sprowles is an expert witness too, entitled to give his opinion but Justice Heydon said:

If Professor Morton’s report were to be useful, it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.

McHUGH J: Ms Bridges, this sort of evidence that Dr Skinner gives is given almost daily in the Court. Expert witnesses, doctors, do not have to provide standardised reference works for every statement that they make. It depends on the issue. This is a simple issue and, what is more, it does not seem to have had any bearing on the judge’s view of you that you would have proceeded with this action even if you had been warned of the risks.

MRS BRIDGES: A prime duty of experts is what Justice Heydon says, prime duty of experts in giving expert opinion evidence. As you can see, I have also got one with standardised worldwide criteria. Why is he not taking any notice of that? If the judge says this and quotes this and quotes the Lord President Cooper as well about the expert witnesses which I have already said is “their duty is to furnish the judge or jury with the necessary scientific criteria”, it is their duty and the reason why is because they could be just saying what they want to say.

McHUGH J: Well, that may be. The leading case on expert witnesses in this Court is a case called Adamcik v Commissioner for Government Transport. One witness, Dr Haines, said the trauma caused the surgery. Every other witness – and they were famous witnesses – said the contrary. This Court said the jury were entitled to act on Dr Haines’ evidence even though it was opposed by a large body of highly expert opinion. Dr Skinner is a consultant psychiatrist, she expressed an opinion. It is far from clear that the judge relied on that particular evidence. He saw you in the witness box, he saw the sort of person you were and he obviously formed the view - - -

MRS BRIDGES: The person I am?

McHUGH J: Yes, you are an intelligent woman, determined that you were wanting to have this plastic surgery done and that you would have gone ahead even if you had been told the risks.

MRS BRIDGES: Well, I am sorry, but the reason why that is all wrong is because the defendants, who sent me to see a psychiatrist two weeks before the court case, who wrote stuff which did not even – she was misinformed about the facts. She took irrelevant facts into consideration, she omitted to consider relevant facts, and I have got the proof in these books how she omitted to consider relevant facts. She did not even have a copy of the report by Professor Morrison because the defendants did not give her that report, and it is in this book, where he says that I definitely needed something doing after what Dr Pelly had done to me and he writes down what Dr Pelly had done and where there is muscle damage, et cetera, and then he says that it definitely needs to be done, and that is in this book. If you would like to have a look I can guide you to that page too. I can show you where - in Dr Skinner’s report she has got down a list of all reports she had and she did not have that one as well as some other ones that she did not have. They were selective, the defendants, in giving her material, so she did not even get to see it properly. I have quoted from Professor Heydon again where he says, regarding these inaccuracies of facts:

In R v Turner...Lawton LJ said: Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless.

Now how can Dr Skinner make an informed decision when she did not have all the facts?

McHUGH J: You keep referring to Dr Skinner but the point is - - -

MRS BRIDGES: I do because that is what this is all about, Dr Skinner.

McHUGH J: No, the judge said that you had “failed to discharge the onus of proof”, that is on page 14 of the application book and he said:

The risks were, in statistical terms, fairly minor and I am of the view the plaintiff’s course of conduct both before and after the surgery establishes on a balance of probabilities that she would have proceeded to surgery come what may.

MRS BRIDGES: That is because he read Dr Skinner’s report and - - -

McHUGH J: No, he does not say anywhere that he relied on Dr Skinner’s report in making that finding.

MRS BRIDGES: He does say that. He says that on page 21, for example. It is one of many places where he says it. You just turn the page back to page 21 of your application book. Down the bottom at 65, he says:

Dr Skinner provided –

This is only about the.....

further support for her views in the evidence she gave before me, which I found highly pursuasive...Accepting those views, as I do, and having regard to the plaintiff’s history as I have recorded it -

And on the other pages in the supplementary book in pages 6 to 17, all the parts of where he has been influenced and I have underlined them and I have marked them so that you can see - - -

McHUGH J: Yes. Well, you time is up, Ms Bridges.

MRS BRIDGES: - - - where he has been influenced by Dr Skinner who did not have any scientific or standardised criteria to back her opinion up. If people can get away with doing what she has done, well, you know, it is a sad and sorry state.

McHUGH J: Thank you.

This is an application for leave to appeal against an order of Justice Heydon who refused the applicant leave to issue proceedings, an order having been made by Justice Callinan under Order 58 rule 4(3) in respect of those proceedings. We have examined the papers in this matter and heard the applicant. In our view, there is no ground to doubt the correctness of what Justice Heydon has said. Indeed, we are of the view that his judgment is correct.

The application for leave to appeal is refused.

AT 12.02 PM THE MATTER WAS CONCLUDED