Fletcher v Besser & Anor [2005] HCATrans 99 (4 March 2005)

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Fletcher v Besser & Anor [2005] HCATrans 99 (4 March 2005)

Last Updated: 16 March 2005

[2005] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S200 of 2004

B e t w e e n -

JOANNA WILHELMINA FLETCHER

Applicant

and

MICHAEL BESSER

First Respondent

CENTRAL SYDNEY AREA HEALTH SERVICE

Second Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 2005, AT 12.12 PM

Copyright in the High Court of Australia

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR M.K. CONDON, for the applicant, your Honours. (instructed by Graham Billing & Co)

MR D.L. DAVIES, SC: May it please the Court, I appear for the first respondent. (instructed by Tresscox)

MR S.D. KALFAS: May it please the Court, I appear for the second respondent. (instructed by Ebsworth & Ebsworth)

McHUGH J: Yes, Mr Agius.

MR AGIUS: Your Honours, this application raises important matters both going to matters of public importance and going to the question of whether or not there has been a serious miscarriage of justice. Most questions relate to whether or not a finding of actual prejudice can be allowed to stand in circumstances where, one, there has been a concession properly made on behalf of the first respondent that the respondent can meet the plaintiff’s case and, two, where expert evidence in the plaintiff’s case to the effect that there is an absence of prejudice was not referred to by the primary judge in his judgment at all and was apparently rejected. It also raises the important legal question as to whether or not there is a dichotomy of view in the New South Wales Court of Appeal concerning the operation of Browne v Dunn and how in which that dichotomy ought to be resolved in circumstances where a plaintiff’s expert was not cross-examined.

The plaintiff’s case, as outlined, was really directed to three matters. The first on this issue of prejudice concerned whether or not there was a failure to deal with the evidence of the plaintiff’s expert concerning the effect of the absence of certain CT scans and x-rays. There was evidence from the plaintiff’s expert, a Dr Fitzgerald, to the effect that the absence of the CT scan and x-rays was of no significance on the issue of whether or not the first respondent ought to have adopted the procedure of a third ventriculostomy. It was the plaintiff’s case that as this plaintiff presented there was really no choice that the third ventriculostomy was not appropriate and that the only appropriate procedure was the use of a shunt. It was a clear-cut case.

The evidence of the plaintiff’s expert is summarised in the Court of Appeal judgment at application book 61, paragraph 41 and application book 68 at paragraph 58. Your Honours will not find it summarised in the primary judgment because it was not referred to. At 61, 41, Justice Bryson, who wrote the judgment with which the other two justices agreed, said:

In a further report dated 20 November 2001, Dr Fitzgerald reported to the effect that in his opinion the absence of x-ray and CT scan films was not of significance in the present consideration of Dr Besser’s decision in September 1982 to proceed by craniotomy and third ventriculostomy rather than by a shunt.

At application book 68, paragraph 58, particularly in the last sentence:

His evidence would also show that the absence of films or other records of the CT scans, other than Dr Lamond’s notes; is not of great importance.

The primary judge identified the plaintiff’s case at page 8 of the application book as including three elements, the first of which was:

that the very nature of the operative procedure on 30 September 1982 was inappropriate and that a shunt should have been performed instead –

The primary judge also found that the plaintiff had evidence sufficient to advance a case against the first respondent. It is our respectful submission that the primary judge ought to have dealt with the plaintiff’s expert’s evidence on the significance of the absence of the scans and films. He never did. This was especially so in circumstances where that expert was not required for cross-examination.

The Court of Appeal dealt with this issue at paragraph 59, pages 68 to 69 in a way which, with great respect, really makes little sense. At paragraph 59 at page 68 the point was made:

The appellant’s senior counsel contended that Studdert J had not fully addressed Dr Fitzgerald’s evidence and its implications and had made very few references to Dr Fitzgerald in the course of the judgment. It is true that arithmetically there were few references to Dr Fitzgerald while he and his evidence were plainly of great importance. Studdert J summarised Dr Fitzgerald’s views (See para.12 at p.12 of red appeal book). Dr Fitzgerald’s evidence and the strength of his views set the terms of the debate.

This is the sentence with which we take issue:

I see there being relatively few express references as a reflection of the overwhelming importance of Dr Fitzgerald’s evidence, not of any kind of disregard.

But the point was that nowhere in the primary judge’s judgment is there any reference to Dr Fitzgerald’s evidence that the absence of scans and x-rays themselves was an irrelevant consideration.

McHUGH J: Mr Agius, this Court does not sit as a general court of appeal and given our increasing workload we sit to determine important questions of law that affect the nation. As far as I can see, at the moment, this case is a question of fact case. It does not raise any question of law whatever.

MR AGIUS: Your Honour, the question of law here arises because in this case both the respondent’s counsel and the respondent himself made concessions which go directly to the issues in question.

McHUGH J: That is not a question of law. It is a question of fact.

MR AGIUS: But his Honour ought to have dealt with those matters in the course of his judgment and he never did. That clearly is a question of law.

McHUGH J: That was a matter for the Court of Appeal.

MR AGIUS: It is a matter which they have ignored and they ought to have dealt with it.

McHUGH J: They dealt with it. You may say they dealt with it unsatisfactorily and that is your point. We do not sit here simply to correct error, if error there be.

MR AGIUS: Your Honours, there is error but the error goes to a very important point in this case because the expert was not cross-examined.

McHUGH J: Because it goes to an important point from your client’s point of view, no doubt about that. This Court can only hear some 50 to 60 appeals a year and it has to select the ones that are truly important that have significance for the law generally.

MR AGIUS: The significance here, on a pure question of law, is the way in which the Court simply failed to deal with our Browne v Dunn point. There are two strands of thought in the Court of Appeal in relation to what is the effect of failing to cross-examine. One is a strand that is reflected in your Honour’s judgment in - - -

McHUGH J: Yes, I know, but the Browne v Dunn point does not really arise, does it? If you cannot get up on your first point, there was no mention of it, what is the significance of the Browne v Dunn point?

MR AGIUS: If what your Honour said in Levinge is correct, that the rule of Browne v Dunn prevents a court from refusing to act or disbelieving evidence which has not been the subject of cross-examination then we win the first point because there was no cross-examination of Dr Fitzgerald. The Court of Appeal has not applied that rule in Ellis v Wallsend District Hospital and although we took the Browne v Dunn point in the Court of Appeal the Court of Appeal is silent on the resolution of that issue.

McHUGH J: I expressed that view in Levinge 17 or 18 years ago when I was a member in the Court of Appeal. Ellis is a decision of the Court itself. They did not follow it. So what I said it is not the law in New South Wales.

MR AGIUS: Well, it is our contention that it ought to be, your Honour, and that raises a very important question of law. Your Honour was right in Levinge and this is your Honour’s opportunity to have that matter resolved, but quite seriously, this is - - -

McHUGH J: I am afraid I will have retired before this case would come on for hearing in this Court, or certainly I will not be sitting.

MR AGIUS: But in the circumstance of this case, the failure to cross-examine Dr Fitzgerald was a very important one because his evidence went to the only issue, that is, the relevance or otherwise of the scans and the films. He said clearly they are not relevant because in this type of case, you never consider a third ventriculostomy in the case of longstanding aqueduct stenosis and longstanding hydrocephalus.

Now, the plaintiff was entitled to have a judgment on that issue, and if the doctor’s evidence was to be rejected, the plaintiff was entitled to know why so that it could be the subject of an appeal - - -

McHUGH J: Yes, but it is not a special laeve point, Mr Agius, and the profession has to understand what is involved in a special leave.

MR AGIUS: If the law - - -

McHUGH J: Maybe we have led the profession astray somewhat because there have been a number of fact cases where it just seemed to the Court that there was such an argument of a miscarriage of justice that we intervened, and this seems to have prompted numerous applications of cases that are just pure fact cases. If we granted leave in this case, we would have to grant leave in thousands of cases.

MR AGIUS: Well, your Honour, that with respect would not be our submission. In this case, not only do we have no cross-examination which clearly raises the Browne v Dunn point, but it raises it in circumstances where in the supplementary appeal book at page 149, the respondent’s senior counsel conceded in response to a question from Justice Ipp:

You can answer a case that with her particular history, it is never right to proceed otherwise than by using a shunt?

DAVIES: We can answer that case.

HEYDON J: What about Justice Hodgson’s remark?

MR AGIUS: Well, your Honour, we were never asked whether or not we would concede that if granted leave we would so limit our case, and if there was such a limit placed upon us, so be it. But the fact is that we are being prevented from running a case where the respondent has said it can answer the case that we want to run, but where the primary judge without dealing with the evident at all, has found actual prejudice.

McHUGH J: Of course they can answer a case, but that is different from saying whether or not they are prejudiced. I mean, if they had the scans they would be able to run a better case, or they might be able to run a better case.

MR AGIUS: That is not what they say, your Honour. What they say is “We can answer that case” and they ought to be held to that. How there can be a finding of actual prejudice in those circumstances when one adds in that not only was not Doctor Fitzgerald cross-examined but there was just no reasoning disposing of his evidence at all, raises a serious question of public importance. One really needs to go to the beginning of this exchange, which starts at the bottom of the previous page, to see the context in which that concession ought to be read.

McHUGH J: But you commenced this action 10 years after the operation and, in accordance with standard practice, the films were destroyed seven years after the operation was performed. It would be surprising if the defence was not prejudiced in those circumstances and Dr Besser swore that he was. He just had no recollection or just a vague recollection of the operation. He knew general things about it, he did not know why he did this or he did not know that and he would know it if he had the films.

MR AGIUS: There is a problem with that evidence. Firstly, he did dictate a very lengthy operation report - - -

McHUGH J: Yes, he dictated a note, of course.

MR AGIUS: And he did say in his evidence, which was not referred to by the primary judge that, in effect, the purpose of the CT scans was to determine whether or not the third ventricular was of a sufficient size and shape to permit the ventriculostomy. This is important evidence because it just simply was not dealt with by the primary judge at all. He says, in the supplementary appeal book at page 75 through to 76, starting at line 52:

Q. So the only issue disclosed upon the CT scan was whether it was large enough for you to embark upon the sort of surgery you elected to do, is that right?
A. Yes, definitely.

Q. And may we take it then that the fact that you embarked upon the surgery would suggest to you that whatever was shown in the CT scan made you make that decision comfortably?
A. Yes, I think you could assume that.

Q. And similarly, I take it that the shape of the ventricles you have assessed were suitable for this procedure in preference to the shunt?
A. Yes.

Q. So that in terms of what the actual films may now show you, it is clear that your decision at the time was a carefully made one based upon the fact that the size of the ventricles was of adequate shape and size to embark upon this surgery.
A. Yes, and to exclude any other causes for her hydrocephalus.

There was no suggestion of any other cause for the hydrocephalus. What the doctor is saying there is that the purpose of the CT scan, and what he got from the CT scan, was that the ventricles were of a sufficient size and shape because unless they are of that size and shape you cannot perform the third ventriculostomy and there was other evidence to that effect. But that is the limit of the use of the scans and he says that. But that evidence was not referred to by the primary judge at all and it has simply been dismissed by the Court of Appeal. They simply have not acted on it.

McHUGH J: Yes, but everything you have just said indicates it is not a case for special leave. It is a fact case. It does not raise any question of general principle.

MR AGIUS: It raises squarely, in these circumstances where you have a concession made by senior counsel for the respondent, where you have a concession made by the respondent that he only would refer to the scans for one purpose, and one purpose only, which is a purpose not in dispute and you add to that no cross-examination of the plaintiff’s expert, it raises, as a question of law, what is the effect of that lack of cross-examination in that background. It is our submission that the effect of that is that there could
only have been one finding in the absence of cross-examination and that is that the absence of the scans did not lead to prejudice.

That concerns directly the question of law as to the operation of the rule of Browne v Dunn which, in our respectful submission, arises for decision and it can only be if Levinge and Ellis, if the dichotomy that is seen in those two judgments can be solved. The only court that can do it is this Court and it can do it in a case where the plaintiff has suffered hemiplegia in circumstances where the primary judge has found that things went wrong during the course of this very surgery. So it is an appropriate case for that issue to be resolved and one gets a case where the issue of non-cross-examination of a primary witness on an essential issue in the case is clearly isolated and clearly focused upon because of the concessions that were made. So this is about the best case of its kind that one can have to determine what is the application of the rule in Browne v Dunn in circumstances where an expert is not cross-examined. I see the light has come on, your Honours.

The second of the three points that was highlighted by his Honour was that the first respondent failed to cease operating when he sighted blood. This is a circumstance where, again, the primary judge did not review all of the evidence, where he made findings upon which the Court of Appeal has acted where not all of the evidence was taken into account and where that further evidence, again in the form of a concession by the first respondent, was not dealt with by the primary judge at all and we have addressed that and the other points in our written submissions and I cannot usefully add to those, your Honour.

McHUGH J: Yes, thank you, Mr Agius. The Court need not hear you, Mr Davies and Mr Kalfas.

We are of the opinion that this case turns on its own facts and in the way the primary judge and the Court of Appeal dealt with the evidence in the case. It raises no question of general principle that would justify the grant of special leave to appeal. The application must be dismissed with costs.

AT 12.31 PM THE MATTER WAS CONCLUDED