CSR Ltd & Anor v Maddalena [2005] HCATrans 560 (5 August 2005)

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CSR Ltd & Anor v Maddalena [2005] HCATrans 560 (5 August 2005)

Last Updated: 10 August 2005

[2005] HCATrans 560

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P76 of 2004

B e t w e e n -

CSR LTD

First Applicant

MIDALCO PTY LTD

Second Applicant

and

ARTURO DELLA MADDALENA

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 9.36 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC: May it please your Honours, I appear with my friend, MR J.G. MENGLER, for the applicants. (instructed by Jackson McDonald)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.K. OVER, for the respondent. (instructed by Slater & Gordon)

GUMMOW J: Yes. Thank you, Mr Walker.

MR WALKER: Your Honours, this is a case where we say that error in approach leading to error in outcome stemmed from a very considerable failure to accord to the trial process the primacy which it should occupy and which it does occupy as a matter of law. In particular, this can be seen by reflecting on the outcome of the appeal, namely, that there is remitted to first instance the issue of assessment of damages where the damages are to be awarded for psychiatric injury, psychiatric injury having as its overall character depression.

Thus there will be a rehearing of matters at first instance in relation to, among other things, an assessment for the amenity of the continuing life of the plaintiff of matters such as resilience and character, including, in particular, such disparities as ought to be observed between exaggerated self-reporting in his language and what is in fact his state of mind, because it is clear in the Full Court, in passages to which I will come, that they actually find that there must have been exaggeration. Indeed, that is how they find in favour of the plaintiff on appeal overturning the credibility-based findings of the trial judge.

GUMMOW J: We have to go to page 87, do we not? Is that not where it gets - - -

MR WALKER: Yes, your Honour, you do.

GUMMOW J: Three reasons are advanced, it is said.

MR WALKER: The tripod is, as it were, there set out. Each of them is cut away. One could take them first in the order of the video material. In relation to exaggeration, if I could come straight to that point, page 79 of - - -

HAYNE J: Before you do, what evidence called at trial one would not be called at trial two if the Full Court’s orders stand?

MR WALKER: The Full Court’s orders do not dictate the manner in which - - -

HAYNE J: I understand that, but what - - -

MR WALKER: Subject matter, your Honour?

HAYNE J: Just so. Liability is determined on the Full Court’s order.

MR WALKER: Yes.

HAYNE J: But what do you not then get into at the trial of quantum?

MR WALKER: You do not get into diagnosis. You do not get into, therefore, the thing which affects his health and amenity.

HAYNE J: Oh.

MR WALKER: Causation is determined against us so that for causation to be determined against us it is clear from the findings of the Full Court that the thing the plaintiff is held to have been suffering from, whatever that syndrome be called, is found as a fact and found as a fact it must, it would appear, have the qualities of affecting his life ascribed to it by, for example, the experts not preferred by the trial judge but preferred in the Full Court, otherwise it would be impossible to embark upon quantification upon the diagnosis held to be correct by the Full Court because you would only have, as it were, a one line adapting some description from DSM IV.

It is for those reasons that when one considers – reflects on what actually would happen at the remitted hearing that one sees that instead of the primacy of the trial being reflected by the case being able to be completed either in the Full Court or on a remitted hearing without an impossible hybrid of credibility assessments and assessments of the character of the plaintiff, here we will have something which is, with respect, an almost impossible psychological exercise imposed on the trial judge how, having formed an impression for the reasons I gave of this plaintiff in relation to his complaints, in relation to his assertions about diminution of amenity, for a psychiatric illness about which experts differed before me, how do I now proceed on the findings which hold me to a diagnosis, hold me to a description of the disease given by the experts called for the plaintiff, hold me to causation and now I have to assess what damages ought to be awarded on that basis.

In our submission, at the very least, those problems should have resulted in a complete retrial not - - -

CALLINAN J: Psychiatric illness is so different from physical illness, is it not?

MR WALKER: Yes.

CALLINAN J: It inevitably involves credibility, if not in relation to the existence of the disability, certainly as to the extent of it and its true nature.

MR WALKER: Yes. At the heart of this matter, as well recorded at trial and in, with respect, by Justice Templeman’s reasons in the Full Court, is what was to be done about doubts raised concerning the self-reported state of affairs both as to physical exertion and particularly as to mental state of the plaintiff upon the basis of which diagnoses were attempted. When one goes, for example, to the way in which the video evidence, the first of the three legs of the tripod cut out by the Full Court is dealt with, and picking it up, for example, at application book page 73 one finds that the Full Court occupies that territory, as it were, at a first instance fact-finding level by saying that there were no reasons given by his Honour for reaching the conclusions he did.

In our submission, when one goes even cursorily to passages at 25 to 27, paragraphs 83 to 88, 86 – I will not read them - that is where there is great detail set out of Dr Febbo’s response to and observations of the video surveillance and then goes to page 29, paragraphs 94 to 96. The conjunction, read fairly, between 94, bearing in mind the previous pages, then 95 introduced by “In my view” and 96 “Having closely watched the videotapes I am satisfied”, those were reasons and appropriate reasons given.

That minds may differ about the effect of the impression formed by observing what was on video and comparing that with the undoubtedly exaggerated generalisations of self-report by the plaintiff concerning his capacity generally, when one observes that there are differences of mind produced in the psychiatrists called on either side this, rather than opening the door to the Full Court’s overturning of the trial outcome, was all the more reason to respect it and all the more reason to require something of the extreme kind exemplified in this Court’s approach in Earthline before one overturned what was plainly a matter of overall impression formed on the basis of detailed evidence and particularly with the highly demonstrative change of position of Dr Febbo.

Now, when one couples that approach, the first and most important leg of the tripod being cut away, when one couples that with the quite remarkable use of Full Court assessment of the cogency of expert evidence by reference to some standing that the Full Court took into account of the
experts then, in our submission, the first and really critical step towards reversing the trial outcome can be seen to have been unjustified.

In the application book at page 54, paragraphs 32 to 33, one has the reference to Professor German - - -

GUMMOW J: Yes, we have seen those references, Mr Walker.

MR WALKER: - - - and, of course, Professor German receives an endorsement at that page - - -

CALLINAN J: So does the other doctor, Dr Skerritt.

MR WALKER: Of course, at page 58, paragraph - - -

CALLINAN J: Why have a hearing? We know these men. We know these doctors.

MR WALKER: In our submission, your Honours, this is quite a telltale indication of the error of the kind that strips the primacy from the trial and sees it, as it were, as a record collecting occasion for the real argument which would be on appeal. In our submission, that is not what Warren v Coombes or any of the other well-known authorities requires or authorises.

GUMMOW J: I think we will hear from Mr Jackson at this stage, Mr Walker.

MR WALKER: May it please your Honours.

MR JACKSON: Your Honours, may I just deal first with what the Full Court was doing. Your Honours will see – if I could go to page 31 of the application book – that what was done by the trial judge was to take the view which you will see at page 31 at about line 36 that the plaintiff had not established that he had suffered a psychiatric injury and that was the heart of that aspect of the decision. There had earlier been a finding of no physical injury, as it were. That was the central aspect of it and it was that aspect which was the subject of the decision by the Full Court.

Before I go to what the Full Court said in that regard could I go, your Honours, to the remainder of paragraph 106 on page 31, at about line 34, where what your Honours will see is that the conclusion to which he came was that the opinion of Dr Febbo was to be preferred. What that opinion was is at page 27, paragraph 86. You will see that Dr Febbo there said that:

“The video material –

which was the surveillance material – and I want to say about, your Honours – I will come to this in a moment – just to say this that that was something that he observed, the judge observed and the Full Court was in exactly the same position of the judge in terms of looking at that material. You will see that the result of looking at the video material was that he had concerns because of what he saw on that.

One comes then to the Full Court at page 89 and then at page 89 what your Honours will see is in paragraph 169 that the trial judge’s finding was “set aside” and on that issue there was a finding that there was “a psychiatric injury”. Now, the quantum to be assessed in relation to the psychiatric injury and the exact nature of it was something that was to be determined, as your Honours will see from paragraph 171, for when damages were to be assessed.

Now, if I could just pause at that point, your Honours. The basis on which the primary judge dismissed the case was no psychiatric injury. The basis on which the Full Court allowed the appeal was that the evidence demonstrated that there was.

HAYNE J: Does it go further than that the issue as articulated in the last three lines of paragraph 169 or perhaps the last two lines of paragraph 165:

a psychiatric injury involving –

wonderful word –

anxiety and depression.

MR JACKSON: Yes. Your Honour, could I say two things about that? That is, essentially, what the Full Court has said. It said that and it really has not said any more.

HAYNE J: So on assessment would it not be necessary for the judge, were this to stand, the judge assessing damages to make a finding about what the psychiatric injury was and what the consequences were and for that purpose hear precisely the same evidence that was led at trial?

MR JACKSON: Your Honour, if I could just go back to paragraph 163 of that? I say two things about it, if I may. One is that the Full Court appears to have taken the view that had it not been for the adverse finding that had been made the evidence contained in the reports and so on of Professor German, and perhaps also Mr Skerritt, would have been ones that demonstrated the nature of the condition. That is the first thing. So it was not just saying “anxiety”, et cetera in the abstract, but saying as referred to in that evidence.

The second thing about it, your Honours, was this, that this is a case, of course, where all the evidence has been heard. It is not a case, in a sense, where at the moment the evidence has to be called on the question of damages so it is one where if it went back to the same judge then that judge would be required to arrive at a conclusion but it may well not, of course, and probably not, I suppose, in which case there would have to be some further evidence on the ambit of damage. It would just be a case where an issue of liability has been determined; the quantum of the damage has not.

Your Honours, could I just say, however, in relation to the case more substantively I want to deal with two things, one being – and I will deal with this as a second – the reference to the experience of Professor German and so on – but the former one being the way in which the Court of Appeal or Full Court approached it. Now, it is clear that the Full Court referred to the appropriate principles. Your Honours will see that reference to the case is page 86, paragraphs 154 and following, and the whole of the remainder of the case concerns the extent to which the principles might have application in the particular circumstances.

Your Honours, in that regard the essence of the primary judge’s finding that was in contention was that the respondent had not, in a sense as a matter of proof, satisfied the judge he had suffered a psychiatric injury. Your Honours have gone to those passages already.

CALLINAN J: Mr Jackson, I am sorry to interrupt you. Can I tell you one of the things that concerns me. It seems to be critical to the Full Court’s different conclusion that the judge misused the video evidence or gave it a complexion that it did not warrant. That seems to be the effect of it.

MR JACKSON: Yes. They took a different view of it from him.

CALLINAN J: Yes. I think somewhere his Honour Justice Templeman says that the tasks in which the plaintiff had been engaged were minor tasks and therefore it was not significant that he complained about them. That seems to be one aspect of the video evidence. The other one is that the trial judge did not explain – did not give proper reasons with respect to the video evidence. It seems to me that paragraph 56 on page 16 completely denies both of those propositions. He actually saw the man digging a trench on the video and, indeed, the trial judge has given full explanation of what appeared on the video.

MR JACKSON: Your Honour, could I just say in relation to this two things. The first is that one has to bear in mind that what the judge is seeing is a video. What the Full Court is seeing is a video. Now, each of them sees the same things. In our submission, there is no reason, either legally or factually why the Full Court could not express the view which it did in relation to this and may I say why, your Honours.

First of all, your Honour, in relation to the legal aspects of it, could I take your Honours to what the three members of the Court said in Fox v Percy [2003] HCA 22; 214 CLR 118 commencing at page 126 in the paragraphs – it is in our supplementary book of materials, your Honours – commencing relevantly at - - -

GUMMOW J: You see, it may be, Mr Jackson, if I can just interrupt you for a minute, but at the end of the day, and if the matter came here, you would persuade us to uphold the trial judge, albeit by different paths and different reasoning to the Full Court.

MR JACKSON: I am sorry, your Honour, uphold the trial judge? I think - - -

GUMMOW J: Yes.

HAYNE J: It is not in your interests to uphold the trial judge.

GUMMOW J: I mean Mr Walker could – yes.

MR JACKSON: Your Honour, that is possible, I suppose, but the point I am seeking to make about it is that one is deciding – the Court is deciding whether to take the case or not. What we are seeking to say is that if you look at the approach that was suggested by the Court in Fox v Percy then what the Full Court was doing was simply endeavouring to apply those principles. Now, it may be that a court would in the end take the view that the way in which they applied it was not right but it does not follow, in our submission, that every time the Court might take that view that the Court grant special leave.

CALLINAN J: Let all of that be accepted for present purposes, Mr Jackson, it does not seem right, nonetheless, that the trial judge did not give reasons for his findings and his conclusion in relation to the video evidence. That just seems to be wrong.

MR JACKSON: Your Honour, what one sees at the paragraph to which your Honour referred me was where what he is doing is to summarise what he saw and the best one can say about giving reasons is in relation to the first sentence of that paragraph where he says:

it depicts the plaintiff engaged in many activities which are inconsistent with these complaints.

He does not, your Honours go on to describe why that is so and he does not go on to give reasons why that is inconsistent with the diagnoses that there were of his condition.

CALLINAN J: Mr Jackson, it seems to me that it would be clearly implicit in paragraph 56 that he was able to perform work on the videos – seen on the video – which far exceeded his descriptions in evidence of what he could do and what he had said to doctors.

MR JACKSON: Yes, but, your Honour, if it be assumed that the Full Court was in error in saying he did not give reasons one still has a situation where the Full Court was itself entitled to look at the video and form its own view on the exactly the same questions. Your Honours, I will not go through it in detail.

CALLINAN J: Well, let me accept that, Mr Jackson, but if that is right you still have an error that infects the conclusion or may well have infected the conclusion of the - - -

MR JACKSON: Affects, with respect, rather than infects, if I may say so, with respect.

CALLINAN J: I do not know. It is one of three, Mr Jackson, one of three planks for the Full Court’s decision.

MR JACKSON: Your Honour, could I say, ultimately the view of the Full Court had to turn on questions of the effect of the evidence. It may be that one can say, “Well, the Full Court should not have said that he did not give enough reasons”. Perhaps that is right, perhaps that wrong, but, whether it be right or wrong, your Honour, at the end of the day the question is whether the view of the Full Court, taken from what they saw on the video, is one – that has to be demonstrated to be incorrect.

CALLINAN J: I am not unsympathetic to the view that the Full Court should conduct a review once there is a proper basis for doing it. That appears from my judgment in Fox v Percy.

MR JACKSON: Yes. Your Honour, the effect, I am simply seeking to say – what the Full Court did was to come to a view which was perfectly open. If one looks, for example, at the view that was formed by Dr Skerritt, say, when he saw the video – that is in his – there is no reason why the Full Court could not come to a similar view. You will see that view referred to, your Honours, in his report of 2 April 2001. It is in our supplementary book at page 23. Your Honours will see there in the last paragraph of his reasons the view that he took of it, and the Full Court was entitled to take a rather similar view, was as if like the work of the council workers of 40 years ago. He said if you looked at it:

Mr Della Maddalena believes himself to be handicapped . . . this is consistent with the demonstration of periods which were never more than a couple of minutes of physical activity interposed by periods of smoking, walking around and leaning on his spade.

Your Honours, the Full Court, having seen this, was perfectly in the position, in our submission, to say, “Well, look, once you see this it really could not be regarded as inconsistent with the complaints he has made and lead to the rather elusive result that was arrived at by the doctor whose view the judge was inclined to accept.

Your Honours, the other point one sees in relation to the views taken by the primary judge were that he had a most bizarre view, with respect, about the evidence of the position concerning the death of the plaintiff’s brother. Your Honours will see that referred to at page 88.

CALLINAN J: What paragraph?

MR JACKSON: At paragraph 161 it commences, your Honours. You will see the conclusion at paragraph 161 and then what that relates to is basic facts which are at page 84, paragraphs 143 to 146, and also paragraph 152. As to the other aspects relied on by the Court of Appeal could I just say these things. The first was that the question of the lung function tests seemed to be an irrelevance where the injury was psychiatric. The other feature about it, your Honours, was that the Court of Appeal’s decision on the question of breathlessness was based on written material and our submission is that, fundamentally, the appeal court was entitled to take the view the case was one where the judgment should be set aside and that it should perform its ordinary function of disposing of the case.

CALLINAN J: What do you say about apparent reliance upon the fact that the court knew some of the doctors better than it knew some of the others?

MR JACKSON: It would be pretty hard for the court not to, your Honour.

CALLINAN J: No, I know that but that is still - - -

MR JACKSON: No, your Honour, I understand that. I am just saying that is the first thing. It is pretty hard for the court not to. The second thing is that in making the observations which it did it made it clear that really all that was being said was that the psychiatrists were people of considerable experience and you will see that at page 54, paragraph 32. You will see in paragraph 32:

That is not to say he is infallible. However, a diagnosis and prognosis –

by a person who has been a psychiatrist for 40 years.

CALLINAN J: I must say for myself, no matter what the outcome of this application is I think it is highly undesirable that judges might give an impression that long acquaintance with a particular doctor as a forensic witness might give that doctor an edge over others - - -

MR JACKSON: Your Honour, could I just say one thing. That may be a first response to it, with respect, but these things have two sides.

HAYNE J: The other side is Vakauta v Kelly, is it not?

MR JACKSON: Yes, quite, your Honour. It is, your Honour. That is the first thing. It carries weight. The second thing is, your Honours, if one goes to page 60, paragraph 38, the judge is there referring to a question of experience. Your Honours, experience was relevant. It was relevant to, for example, the effect of the videotapes and seeing those, what effect that showed. Could I go to page 64?

CALLINAN J: The older I get the more I think experience might be important, too.

MR JACKSON: Your Honour, I would not disagree with that proposition, with respect. If your Honours look at paragraphs 52 to 54 it was a question of persons of considerable experience who had seen these videotapes and they said, “Well, you know, looking at that that really does not affect the view we expressed before and the videotapes do not show much.” Now, your Honours, in that regard, the court was perfectly entitled to take that into account. Your Honours, those are our submissions.

HAYNE J: Could I, just before you sit down, ask you whether on the assessment of damages questions about the nature and extent of the injury are still alive?

MR JACKSON: Extent?

HAYNE J: Nature that there is a psychiatric injury is concluded, that that psychiatric injury involves anxiety and depression I think may be regarded as concluded but beyond that the extent of that injury would that still be a matter for judicial determination in the course of assessment?

MR JACKSON: Your Honour, it is but in a way in which I might seek to explain. What I mean by that is that the court assessing the damages would need to distil from the evidence what its view was as to the extent of the injury. That will be disclosed by the evidence but in reality that will turn on the psychiatric evidence that has already been given and no doubt the court is required to analyse it but that is an analysis of the evidence already given.

GUMMOW J: Thank you, Mr Jackson. Yes, Mr Walker. Can we look at your proposed orders in the draft appeal at page 101?

MR WALKER: Yes, your Honour.

GUMMOW J: We are not an intermediate Court of Appeal. We do not sit here looking at videos of people trying to work cement mixers or run up ladders.

MR WALKER: No.

GUMMOW J: What, in fact, would happen in this case? If we take this case – it is really a visitation case for misfiring of process in the Full Court. Do we would simply send it back to the Full Court to do it again?

MR WALKER: That is a proper response to the success of one form of the argument, namely, that there was a miscarriage of a process which may, nonetheless, properly done, have produced an outcome in favour of my friend and that is a - - -

GUMMOW J: What I am putting to you is it is not our task to do it properly.

MR WALKER: No, I accept that entirely.

GUMMOW J: Our task is to encourage the people who should do it properly to do it properly.

MR WALKER: Quite. We accept that. So that if we were not – were leave granted – able to persuade this Court that there should have been a dismissal of the appeal – and that is our primary argument for reasons which are obvious – then we accept that it would be remitted to the - - -

HAYNE J: But that would require us, would it not, to launch into viewing the video in assessing the evidence?

MR WALKER: No, it would not, your Honour. No, the arguments would involve simply giving the appropriate weight to the approach taken by the trial judge who had seen the video and saying that whether or not appellate judges formed a different view, having seen the video themselves, these reasons should have led to dismissal, but the alternative is as Justice Gummow has put to me.

GUMMOW J: It is not in your draft notice of appeal. That is why I am complaining about it.

MR WALKER: No, your Honour.

GUMMOW J: You are lucky Justice McHugh is not here.

MR WALKER: There needs to be an alternative to (b)(i) at line 22 on 101 or, “alternatively, be remitted to the Full Court for redetermination”. May it please the Court.

GUMMOW J: We will take a short adjournment.

AT 10.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.11 AM:

GUMMOW J: Now, Mr Walker, as we see it, looking at the draft orders you seek at present in the draft notice at page 101, (ii) should go out and what should be remitted is the appeal and where it should be remitted to is, I guess, what is now the Court of Appeal in Western Australia.

MR WALKER: Yes, your Honour.

GUMMOW J: We see the matter as a half-day matter and we would expect some concentration or effort in producing an economical record, if I can put it that way. We will not, I think, be sitting there spending our half day with a cinema show.

MR WALKER: No, your Honour.

MR JACKSON: May I say one thing before your Honours - - -

GUMMOW J: Yes.

MR JACKSON: Your Honour, we may seek to invite the Court to do so by way of perhaps a notice of contention of course.

GUMMOW J: Yes, you may. On that footing, there will be a grant of leave in this matter and the parties should prepare themselves with a target date of the Perth sittings later in the year.

MR JACKSON: If it please the Court.

GUMMOW J: We will adjourn to take the establishment of the video link.

AT 10.13 AM THE MATTER WAS CONCLUDED