Soc v Lyle [2009] HCATrans 173 (31 July 2009)

Last Updated: 5 August 2009

[2009] HCATrans 173

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P2 of 2009

B e t w e e n -

MILORAD SOC

Applicant

and

MAX WILLIAM LYLE

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 31 JULY 2009, AT 2.17 PM

Copyright in the High Court of Australia

MR A.S. MORRISON, QC: May it please the Court, I appear with my learned friend, MR G. DROPPERT for the applicant. (instructed by Friedman Lurie Singh & D’Angelo)

MR P.E. JARMAN: May it please the Court, I appear for the respondent. (instructed by Jarman McKenna)

FRENCH CJ: Thank you. Yes, Mr Morrison.

MR MORRISON: Your Honours, for at least half a century the common law has eschewed the notion that foreseeability contemplates imagining the particular injury as distinct from some form of injury. Now, your Honours would recall cases such as Versic v Connors, drowning in the ditch following a motor accident; Kavanagh v Akhtar, the cutting of the hair and breakdown in the marital relationship; Shorey v PT, the minor accident in the shopping centre which led to someone imagining that they were paraplegic, even though there was physical reason for it. All of those were examples of case where the outcome was not foreseeable in the sense that you could imagine the particular injury, but where some injury was foreseeable and the court had no difficulty in finding that the tortfeasor was liable for the consequences.

Indeed, in Mahony v J. Kruschich this Court said that even negligence by a medical practitioner at hospital did not break the chain of causation from the original tort, and the principles were set out in this Court as far back as 1970 in Mount Isa Mines v Pusey. However, in the particular case the Court of Appeal President in Perth said he was unable to accept that since the impact was slight, the consequence of prescription and overuse of prescribed drugs was reasonably foreseeable. The factual findings of the trial judge were not challenged, were accepted, and that means that the accident caused injury, some injury was foreseeable, and prescription of drugs for the injury was a consequence of the accident.

The respondent conceded at hearing that the prescription of Oxycontin was appropriate, and we have in the supplementary application book at page 1 at about halfway down the page just drawn attention to that part of the transcript which indicates the concession as to the appropriateness of that prescription. The respondent’s case in fact, at first instance, was not a case on foreseeability, it was a case on causation. They were putting a case that it was suicidal. They lost on that case.

We say the approach of the Court of Appeal is wrong in law in finding that misuse of drugs makes the consequences too remote in the absence of a finding of an novus actus interveniens, and moreover the Court of Appeal then goes on to say that despite a finding by the trial judge of a lack of explanation about the drugs to the patient, and the medical practitioner knowing that she had a pre-existing tendency to hoard and overuse drugs, the finding of no fault on the part of the deceased should be overturned.

FRENCH CJ: Is there not a finding on causation adverse to you in paragraph 39 of Court of Appeal’s decision at page 52:

the deceased’s death was not a consequence of the appellant’s negligence.

MR MORRISON: In truth that is a finding on foreseeability if one analyses it correctly, because there is no doubt on the factual findings which are accepted by the Court of Appeal, and they say in terms that the factual findings of the trial judge were accepted, there can be no doubt that death occurred as a result of a prescription drug prescribed as a consequence of the accident, so causation is not the difficulty. It may have been described in causation terms but it is clearly a foreseeability issue that is being raised by the Court of Appeal, it has to be; causation was determined at first instance and not challenged.

KIEFEL J: The taking of analgesics predated the accident, did it not?

MR MORRISON: It did, but again, the finding that this particular analgesic was a consequence, not the consequence, but a consequence of the accident was not the subject of challenge on appeal, and the Court of Appeal accepts that. That is accepted absolutely squarely by the Court of Appeal at appeal book 47, line 13. The amount consumed, arguably, was within the directions given in any event. The pathology showed the equivalent of four tablets, the prescription was for 20 tablets to last a week. The President’s comment at page 52, line 14 that the patient was told to take two per day is only correct in one sense because the prescribing doctor said, in terms, and the passage is quoted at appeal book 16, at lines 16 to 24, and it might be worth just going there. This is cross-examination of the prescribing practitioner:

You told her she could use more than two a day, didn’t you?---Yes.

A little further down:

But you knew there was a chance that she would use more than the two a day?---Correct.

KIEFEL J: That does not mean that that was prescribed, that just means that he knew of her tendency.

MR MORRISON: It means more than that, the trial judge then went on to find that the directions given by the practitioner were either confusing or inadequate so that led him to be satisfied at page 17 line 25:

that the death of the deceased was accidental.

because he knew and expected that she would use 20 within a week, and did not expect that she would take them at an even rate during the period. he knew she would take more than the two which was the theoretical dose. It was entirely open to the trial judge to find that the death was accidental. It was entirely open to the trial judge to find that the directions given by the practitioner left great room for doubt as to what the patient could do, and there was no appeal from those factual findings.

If we then turn from there to the findings – and I might just say that the passage findings from the trial judge appear at 33 and commence at about 13 and go down to about line 20. The finding that there should have been contributory negligence is, in those circumstances, at odds with the unchallenged factual findings which produced no basis for criticism of the deceased, and we should remember that on this issue the respondent bore the onus.

In order to reverse the finding of no fault the Court of Appeal effectively had to reverse the onus. To say, as the President did at appeal book page 54, line 17, “that the trial judge” failed to give reasons for finding no “contributory negligence” ignores his factual findings leading to a conclusion of no fault on the part of the deceased. It also fails to require the respondent to prove fault, and that was fundamental.

FRENCH CJ: Just going back to the question I put to you earlier, Mr Morrison. Looking to paragraph 42 of the judgment of the President, how does one avoid the conclusion that that is a reasonably clear-cut view on the causation issue? I am not talking in terms of causality, but in terms of causation.

MR MORRISON: Well, it is at odds with findings which were not under challenge, namely - - -

FRENCH CJ: Well, are you saying it is wrong for that reason?

MR MORRISON: It has to be, it simply has to be wrong on causation. The only possible way of explaining what the President has done there is to explain it in terms of his having a view about foreseeability. A minor accident cannot cause a person to overdose. It cannot be explained in terms of the causal sequence because there are unchallenged findings for every step of the process, and those are accepted by the Court of Appeal expressly as remaining in place. There was no challenge to the factual findings in the Court of Appeal and the Court of Appeal noted that. Page 44, line 16:

There is no challenge to any of the findings of fact made by the trial judge.

How then can he say it is not causally related, when the trial judge has found the accident caused injury? The injury gave rise to symptoms, those symptoms led a practitioner to prescribe medication, that medication caused the death.

KIEFEL J: It is not sufficient just to have a thread running through from point A to point G, or wherever. Causation and fact requires you to take into account all the factors which operate in coming to a conclusion. One of those factors is that the deceased had unfortunately a habit of analgesic abuse and was in a position, if not likely, to take more than she should have, and that, in fact, occurred. You cannot leave that out of the picture.

MR MORRISON: Well, on the contrary, we rely on that because the respondent takes the applicant as it finds her. And just as in Kavanagh v Akhtar the unusual marital relationship was something which could not reasonably have been anticipated. That was the risk that the tortfeasor took. Just as in Mahony v J. Kruschich the possibility that there might be fault on the part of a medical practitioner does not break the chain of causation. It is not, we would say, acceptable law to say that merely because this was a reasonably low speed accident you cannot contemplate the possibility that someone will overuse drugs prescribed for that accident condition. The fact that there was a - - -

KIEFEL J: Has the Court of Appeal considered there was not a proper or sufficient connection between the abuse of the medication and the accident which occurred some years before? How do you overcome that?

MR MORRISON: Because there was a finding – appeal book 32, line 18:

The deceased was prescribed medication including painkillers in relation to her accident related injuries.

A finding by the trial judge not under challenge in the Court of Appeal, and the Court of Appeal said it was not challenged. We simply have to accept that the medication was prescribed for this injury. There was no appeal in relation to that issue. It is not open to the respondent to raise that issue. That would be a factual issue and would create difficulties for us if it were open, but it was not open, and the Court of Appeal accepted it was not open. That is why the only way of dealing with paragraph 42 is to understand it in terms of dealing with foreseeability, not in respect of causation. Despite its terminology, it cannot be the absence of a causal nexus because the causal nexus was established.

FRENCH CJ: You have to bash it around a bit to get it into foreseeability, do you not? I mean, either that or you say it is wrong, which is your position, as I understand it.

MR MORRISON: Well, it is simply wrong. Your Honours, this is not an issue which has come up for the first time. The fact of the matter is that in the New South Wales Court of Appeal in Myers, suicide was found not to break the causal nexus. In Telstra Corporation Limited v Smith attempted suicide did not break the causal nexus, but in Sarkis suicide was found to, so there was a conflict.

FRENCH CJ: This is where it is connected to a mental condition resulting from the accident?

MR MORRISON: Yes, but it does not have to be connected to a mental condition. It can be – because in the present case it was not suggested that it was intentional. If it had been intentional, then an issue of novus actus may arise, but we do not have that problem in this case. What we have is an accidental overdose, on the findings of the trial judge, not challenged, in circumstances where the accidental nature of it is well explained by the absence of proper directions by the doctor.

KIEFEL J: You frame it as a foresight question, not a question of causation in fact. How would you summarise as if you were pleading the matter the foresight which somehow captures the liability that you speak of?

MR MORRISON: It is best put in terms of the way in which it was expressed all those years ago in Mount Isa Mines v Pusey.

KIEFEL J: No, I do not want it as a statement of general principle. How would you express it in relation to this case – that the driver of the motor vehicle – where would you go from there?

MR MORRISON: The driver of the motor vehicle should have foreseen that some personal injury may flow. That is all that is needed. The nature of the personal injury does not have to be contemplated.

KIEFEL J: But from that point causation takes over, does it not?

MR MORRISON: Yes.

KIEFEL J: Then you are in the realm of causation.

MR MORRISON: The difficulty is that is not the basis upon which this case ultimately turned, because if one - - -

KIEFEL J: It seems to have for the Court of Appeal.

MR MORRISON: No. Page 51, line 34 sets out the true basis of the Court of Appeal decision:

In the present case, the kind of damage suffered was death as a consequence of the misuse of prescription drugs. I am, with respect, unable to accept that damage of that kind was reasonably foreseeable as a result of a very minor collision between two motor vehicles.

That was the basis of it. So when we come back to that later paragraph which refers to causation, it really is talking about foreseeability because all he is seeking to do is to explain - - -

KIEFEL J: No, I think it is dealing with both topics, is it not? It is a complete judgment.

FRENCH CJ: They swap over into each other, do they not?

MR MORRISON: Yes. Causation, we would say, is clearly established. The issue of foreseeability - - -

FRENCH CJ: On a but for test you mean, do you?

MR MORRISON: It is clearly established in the sense that where is the break in chain of causation?

FRENCH CJ: There is a normative decision involved in determining causation, is there not, so-called common sense?

MR MORRISON: That is what this Court has said in March v Stramare and elsewhere, but, importantly, there has been no case in which it has been said that merely because someone has misused prescription drugs – whether it results in death, whether it is suicide or not – that automatically means that the consequences are not foreseeable or that the chain of causation is broken. Cases such as Lisle v Brice in the Queensland Court of Appeal, Reeves in the House of Lords, Haber, the old case in Victoria, Myers, Telstra Corporation Limited v Smith in the New South Wales Court of Appeal are all inconsistent with which the President has said at page 51 commencing at line 34.

FRENCH CJ: Your own formulation of the special leave question really does identify it as raising issues of foreseeability and causal relationship and in the context of whether the death as a consequence of injuries from a relatively minor motor vehicle accident, the question is whether the death was reasonably foreseeable and/or causative related to the defendant’s negligence.

MR MORRISON: Yes.

FRENCH CJ: Does that not rather suggest that the special leave point is tied to those two questions and very much to the factual situation in this case?

MR MORRISON: Again, yes and no. Because the learned president used in one place foreseeability as his criteria and in another place causation, we have referred to both. We say in truth what he was talking about was foreseeability because causation was established and was not under challenge in the Court of Appeal. So, in truth, although he refers to it as causation he is, in fact, confusing the concepts, with respect to him. But at the end of the day it cannot be acceptable to say that because it is a minor accident, even though some injury is foreseeable because the particular injury is unusual, it is not foreseeable.

That is an error of law which requires this court to deal with it and correct it because, we would say, it is a significance heresy in terms of the historical approach of the common law and what this Court said in terms of Mount Isa Mines v Pusey, but, it is a heresy which gets some support from what was said by one particular bench of the New South Wales Court of Appeal in Sarkis. So, the Western Australia Court of Appeal is not entirely on its own, but there is no real way of reconciling the approaches of different benches of the New South Wales Court of Appeal and the Queensland Court of Appeal with what has been said in the Court of Appeal in Western Australia. It is not a case which turns on its facts. The facts are not in issue.

The causal nexus is so clearly established by the concession made by the Court of Appeal that there was no challenge to the findings of fact. In those circumstances, what we are really dealing with is whether or not you have to foresee the particular unusual outcome and that, we say, is quite contrary to the common law’s requirements and it is something which this Court should deal with, given that this is a problem which has been exercising a series of benches of Courts of Appeal throughout Australia with a variety of different outcomes.

FRENCH CJ: Thank you, Mr Morrison.

MR MORRISON: Thank you, your Honours.

FRENCH CJ: Yes, Mr Jarman.

MR JARMAN: May it please your Honours. This is a matter, in my respectful submission, which turns on its facts. It is not a matter where there are competing principles of law. The case of Sarkis which my learned friend, Mr Morrison, referred to was a case that is entirely distinguishable because it involved a case of both intentional self-harm and a novus actus interveniens. The principle of law is clearly established. There are no competing principles to warrant the attention of this honourable Court.

In an effort, in my respectful submission, to attract the jurisdiction of this honourable Court the appellant refers to a number of authorities which are almost all cases of intentional self-harm and clearly distinguishable from this matter. This is a matter of accidental harm and it is a massive overdose of medication. Out of the packet of 20 tablets that were picked up that afternoon, 12 of those tablets were missing the following morning when the deceased was found. There is nothing controversial in the law, in my respectful submission.

KIEFEL J: What do you say about the characterisation of this question as one confined to foreseeability?

MR JARMAN: The Court of Appeal has determined it as a question of foreseeability and intertwined, I think, the principles relating to causation. It is, in truth, a question of both matters, I think.

KIEFEL J: What do you say about the Court of Appeal’s approach? Did it deal with both issues?

MR JARMAN: In my respectful submission, the Court of Appeal expressed itself in paragraph 42 in terms of causation and was addressing the issue of a reasonable foreseeability and in that respect I agree with my learned friend. I have nothing further to add, thank you, your Honour.

FRENCH CJ: Thank you. Mr Morrison, anything in reply?

MR MORRISON: Just two matters. First of all, the massive overdose amounted to the equivalent of four tablets in the bloodstream. Hardly massive in circumstances where 20 were prescribed to last a week and it was contemplated that more than two a day would be taken by the practitioner who knew of this patient’s propensities.

Secondly, the fact that this is accidental self-harm is a very strong reason for believing that there can be no break in the chain of causation.

My learned friend rightly accepts that that passage that the Court referred to where causation is referred to is, in fact, really dealing with the foreseeability issue. The problem really here is that at the end of the day, the Court has confused causation with foreseeability and, we say, in an unacceptable way. That fact that this is a minor accident has got absolutely nothing to do with it and should never be a basis for determining whether or not physical injury – whether it is of a common place or an unusual kind – is a consequence of the accident.

FRENCH CJ: Thank you, Mr Morrison. The Court will adjourn briefly to consider this matter.

AT 2.42 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.53 PM:

FRENCH CJ: The question before the Court of Appeal of the Supreme Court of Western Australia concerned both the foreseeability and the causation of the death of the wife of the applicant following a motor vehicle accident two years earlier.

The deceased had been prescribed some medication for injury to her neck following the accident. She had taken medication for pre-existing problems and had a history of analgesic abuse. Her death was caused by acute drug toxicity after an overdose of the prescribed drug.

In this application it is said that the Court of Appeal adopted a wrong approach to foreseeability, but even if the Court of Appeal had come to a different conclusion on foreseeability, the result would not have been different. Given its view, the correctness of which we do not doubt, that the 1999 accident did not materially contribute to the overdose which led to the death of the deceased, special leave will be refused.

MR MORRISON: May it please the Court.

MR JARMAN: May it please your Honours, I seek an order in relation to costs.

FRENCH CJ: Mr Morrison, can you oppose that order?

MR MORRISON: No, your Honour.

FRENCH CJ: Yes, all right, there will be an order that the applicant pay the respondent’s costs for the application.

The Court would now adjourn briefly to reconstitute for the last matter.

AT 2.54 PM THE MATTER WAS CONCLUDED