CATCHWORDS Appeal - adequacy of award of damages - alleged miscarriage of trial - whether evidence of respondents' medical witnesses -inconsistent with respondents' case as opened and cross- examination of appellant's witnesses - element of surprise - whether failure by respondent to put to appellant's medical witnesses medical evidence to be called ~ whether true joinder of issue on psychiatric and orthopaedic evidence - law as to miscarriage of trial - function of pleadings - pleading matters relating to general damages - need for exchange of medical reports in accordance with Supreme Court Rules Cross~appeal - contributory negligence - special damages - amount of costs after offer to consent to judgment - whether "special reasons" for awarding costs to appellant after offer to consent where appellant received less than amount of offer Rules of The Supreme Court of the Northern Territory of Australia — 0.26 r.6A, 0.34 7.30 BESIM NAGA v. PHILIP JOHN QUINTELL and MARINELAND N.T. PTY. LIMITED No. NTG 36 of 1983 MUTRHEAD, TOOHEY €& McGREGOR JJ. 13 JUNE 1984 DARWIN IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA . DISTRICT REGISTRY GENERAL DIVISION JUDGES MAKING ORDER DATE OF ORDER WHERE MADE THE COURT ORDERS THAT: No. NTG 36 of 1983 www ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN: BESIM NAGA Appellant and PHILIP JOHN QUINTELL and MARINELAND N.T. PTY. LIMITED Respondents Oo R D E R Muirhead, Toohey & McGregor Jd. 13 June 1984 DARWIN i. The appeliant's appeal be dismissed. we a ee ee Oe tee on ne cement. nnn Re ee ee ' The appellant pay the respondents' costs of the appeal. The judgment of the Supreme Court of the Northern Territory of Australia be varied by providing that the respondents pay the appellant's costs of the Supreme Court action up to but not including 4 October 1983 and that the appellant pay the respondents' costs of the action thereafter. Otherwise the respondents' cross-appeal be s dismissed. The respondents pay two thirds of the costs incurred by the appellant by reason of the cross-appeal. IN THE FEDERAL COURT OF AUSTRALIA NORI'HERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION ) ) ) ) No. NTG 36 of 1983 ) ) ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN: BESIM NAGA Appellant and PHILIP JOHN QUINTELL and MARINELAND N.T. PTY. LIMITED Respondenta CORAM: Muirhead, Toohey & McGregor JJ. 13 June 1984 REASONS FOR JUDGMENT MUIRHEAD J. I have had the opportunity of reading the judgments of Mr Justice Toohey and Mr Justice McGregor, which upon the issues which have arisen in the course of this Appeal are in substantial agreement. Mr Justice Toohey. I agree with the orders proposed by I certify that this is a true copy of the Reasons for Judgment herein of his Honour Mr Justice Muirhead WAT Associate Dated: 13 June 1984 a nn eS ey TR a tere I chp NO ae ete IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA _. DISTRICT REGISTRY GENERAL DIVISION No. NTG 36 of 1983 ae ee ee ees ON APPEAL from the Supreme Court of the Northern Territory of Australia BETWEEN: BESIM NAGA ' Appellant and PHILIP JOHN OUINTELL and MARINELAND N.T, PY. LIMITED Respondents CORAM: Muirhead, Toohey & McGregor JJ. 13 June 1984 REASONS FOR JUDGMENT TOOHEY J. On 28 April 1979 the appellant was injured in a motor vehicle collision. On 28 October 1983, in the Supreme Court of the Northern Territory, $18,556.95. he was awarded damages in the sum of ee eee Orne OEE Ores Oe The appellant has appealed against the adequacy of that award. The respondents have cross-appealed in relation to the finding of the learned trial Judge that there was no contributory negligence on the part of the appellant and they have also appealed on matters of special damages and costs. I shall deal with the cross-appeal later in these reasons. Grounds of Appeal The appellant's notice of appeal, as filed, challenged a number of findings of the learned trial Judge relating to the injuries he suffered in the collision and the disabilities that resulted therefrom. The appellant also challenged components in the assessment of general damages as "manifestly inadequate". When the hearing of the appeal began, the appellant sought and obtained leave to add additional grounds of appeal. In effect these grounds contended that the trial had miscarried in relation to the medical issues because of the respondents' failure to notify the appellant in advance of certain matters put forward in the course of medical evidence called on their behalf and the failure of the respondents' counsel to cross-examine the appellant and witnesses called on his behalf in relation to those matters. In the result, the appellant contended, he "failed to secure a fair trial of these issues". ae ee ey ae ee oo As the appeal emerged, the 'appellant's challenge to the judgment of the learned trial Judge was confined to the matters the subject of the added grounds of appeal. Because of the importance these grounds assumed, it is necessary to set them out in full and it is necessary to trace in some detail the course the hearing followed in the Supreme Court. In the application to amend the grounds of appeal, the additional grounds were numbered 11 and 12. In fact they should have been identified as grounds 13 and 14 and I have so described them. "13. The trial miscarried in relation to the medical issues because of the fact that the appellant did not receive notice of nor were he or his witnesses cross-examined in relation to:- (a) Dr Shoulder''s opinion that the appellant was deliberately fabricating his symptoms; (b) Dr. Shoulder's opinion that the appellant's condition was caused by an inadequate personality disorder; (c) De Fry's opinion that the absence of punctate lesions observable in the appellant's left knee was a factor aiding his conclusion that his left knee problems had not been caused by the motor vehicle accident; (d) Dr. Fry's opinion that the appellant had suffered a further trauma or series of minor traumas to his left knee in about late 1980. In the result, the appellant failed to secure a fair trial of these issues. be attached to the evidence of Dr. Shoulder and Dr Fry the learned Trial Judge failed to attach any significance to the matters set out in paragraph 11 hereof." 1 ri = ' . 4, 14. In assessing the weight, if any, to | \ Statement of Claim To understand what took place during the hearing of the claim, it is necessary to make some reference to the statement of claim as originally pleaded and as amended from time to time. As endorsed on the writ of summons, the statement of claim pleaded that the appellant sustained the following injuries: "(a) Fractures to the left sided ribs; (b Bruising to the chest; (c) Concussion; (d) Tissue injury to the right knee; {e) Loss of memory; (f) Continual headaches; (g) Loss of balance; (h) Pain and suffering." There was no plea of any residual disability other than might be inferred from the description of the injuries themselves. The hearing began in the Supreme Court on 7 March 1983. On 3 March the appellant had obtained an order in chambers for NAR ee AP neem ED leave to amend the statement of claim by adding two additional items of injuries. They were: "(i) traumatic patellomalacia, meniscal, laxity of the medial ligament and patello-femoral crepitus of the left knee; (j) post-traumatic neurosis." These were additions of some importance because they asserted residual disabilities. The appellant had originally sought, in the chambers application, to addas a particular of injury ""pre-frontal and/or temporal lobe brain damage". The order for leave to amend the statment of claim did not extend to this particular, apparently because it was not pressed on behalf of the appellant. When counsel began to open the appellant's case on 7 March, he applied to add as a further particular of injury "(k) damage to the frontal temporal and limbic cerebral cortex". Counsel for the respondents objected on the ground that his instructing solicitor had been given an assurance on the Friday preceding the commencement of the hearing (which began on a Monday) that there would be "no allegation of organic brain damage". Counsel for the respondents complained that he had, in the preceding 10 days, received not less than 10 medical reports, delivery of which was in breach of the requirements as to time in 0.34 r.30 of the Rules of the Supreme Court of the Northern Territory of Australia. a ne ee re ee Counsel made a further complaint that, although the "statement of claim made no reference to loss of earning capacity, he now understood that such a claim was to be made. I shall say something more of this matter later. Against the respondents' objection, the application to add the additional particular of injury was allowed. On 10 March the statement of claim was further amended, at the instance of the appellant, by adding as an additional particular of injury "(k) soft tissue injury to the neck". At the same time the existing particular (k) was deleted, thus removing any allegation of brain damage. Sequence of Hearing The hearing occupied 7, 8, 9 and 10 March 1983 and was then adjourned. At the time of the adjournment the appellant had completed his case which comprised 17 witnesses including Dr. James, a psychiatrist, and Dr. Baddeley, an orthopaedic surgeon. The respondents had called 4 witnesses, none of whom was a medical practitioner. The action was further heard on 4, 5, 6 and 7 October. The respondents called Dr. Fry and Dr. Shoulder, the persons mentioned in the additional grounds of appeal, and another witness. Although Dr. Fry was called first, it was with Dr. oP ee ee ee ere wae tes es a - e Shoulder''s evidence that the appellant's argument was mainly concerned. I shall therefore consider the implications of his - testimony before that of-Dr. Fry. The Psychiatric Evidence Although the appellant abandoned any allegation of brain damage as a result of the collision, there had been since just before the hearing began an allegation of post-traumatic neurosis. The appellant sought to make good this part of his case through his own testimony and through a number of witnesses who had known him for some time and who were able to speak of changes in his personality since the accident. He also relied upon the evidence of a psychiatrist, Dr. James, who in the course of his examination-in-chief, was asked this question about the appellant: "Tf one assumes that he had a relatively happy life, and a relatively well adjusted personality prior to this accident, and that he suffered a crushing type injury to the chest which involved two fractured ribs, a laceration to the forehead, a whiplash type injury, and what may at first have appeared to be relatively minor injuries to both knees, and that subsequent to that the symptoms of anxiety and depression became apparent for the first time, to what would you relate causatively the onset of those symptoms?" To this Dr. James answered: je ee "Well, I think that the accident and its after effects precipitated this neurotic illness". Speaking of the appellant, Dr. James said: "So he presents a fairly typical picture of an individual with a depressive neurosis". Dr. dames was cross-examined at some length. The cross-examination did not attack the doctor's conclusion of a depressive neurosis. Rather it directed attention to'a number of disturbing incidents in the appellant's life, including an unhappy marriage and a history of problems with a fishing boat on which the appellant had spent a great deal of time and on which he had lavished much affection. Dr James acknowledged the stresses that could result from such difficulties but concluded: ",.. I'm still perfectly satisfied that the accident and the physical disabilities caused by it, are that that accident; the emotional shock of the accident, then being a sick person and having physical disabilities, that that is enough stress to trigger off; to precipitate a depressive neurosis". That line of cross-examination assumed a neurosis but attacked the medical opinion that it was related to the motor vehicle collision. Such an approach was consistent with what counsel for the respondents said in opening: eee a RR Re "The defendant's case is further that no psychiatric disability flows from that cause, namely the subject accident and that the causes for what is an acknowledged depressive condition on the part of the plaintiff is to be found in other areas". Dr. Shoulder was called as a witness on 4 October 1983, the first day of the resumed hearing. His report had been made available to the appellant's solicitors some time between 10 March {the day the hearing was adjourned) and 29 April. It is not clear why a more precise date was not availabie. The report is dated 9 « March 1983. In it Dr. Shoulder refers to a consultation with the appellant in Sydney on 2 March 1983 and having had available to him some 13 medical reports concerning the appellant. The report is a lengthy one but, for present purposes, it is enough to refer to these extracts: "1. The report of B. Dawson the Psychologist, dated 3.4.81. I would disagree substantially with the summary expressed by Mr Dawson. I think that the results that have been achieved are the end result of conscious distortion by Mr Naga. 3. Dr. Raymond James, dated 7.2.83 and 25.2.83. I agree in general with Dr James factual report of Mr. Naga's early life. I agree with his opinion that there is no evidence for organic damage. I disagree completely with his assessment of Mr Nagqa's genuineness and degree of disability. ... In my opinion Mr Naga is fabricating, deliberately his symptomatology in terms of his present distress, with the a a ren me net, ene somemeiincnaneteemeieninatn natn anne mu 10. exception of the symptoms to do with his left knee on which Iam not able to comment. I could not support any contention that he is suffering organic brain damage, from any cause at any time. I do not support any claim that Might arise from an accident in 1979 that he might make for compensation, within the areas that are relevant to my speciality". It is apparent, from Dr. Shoulder's report that, if called as a witness, he would not acknowledge any traumatic neurosis in the case of the appellant and indeed that he would express the opinion that the appellant was simply a'malingerer. This would be a radical departure from the respondents' case as outlined in counsel's opening and as implied in the cross-examination of Dr. dames. When Dr. Shoulder was called as witness on 4 October, counsel for the respondents elicited his formal qualifications and then sought to tender his report of 9 March. Counsel for the appellant objected on the ground that the opinion proposed vc be given by Dr. Shoulder regarding the appellant was inconsistent with the respondents' conduct of the litigation to that point. In particular it was inconsistent with the cross-examination of Dr. James and statements made by counsel for the respondents during his opening. Counsel for the appellant added that "in anticipation that Dr. Shoulder would be called we have made arrangements for Dr. James to return to the Territory for the purposes of giving rebuttal evidence if this evidence is allowed'. oem vies © ot 11. His Honour commented to counsel for the respondents: "...I'd be disposed to permit you to tender that report and call evidence from Doctor Shoulder, but I would also permit you to tender that report and to call evidence from Doctor Shoulder, but I will also be disposed to permit Doctor James to be recalled". Although his Honour did not, in express terms, overrule counsel's objection to the tender of Dr. Shoulder's report, clearly it was assumed by counsel that he had done so and the report was tendered in evidence through the doctor. ' Dr. Shoulder was asked some questions in amplification of his report and then the following question was put to him in examination-in-chief: "I think you have come to a conclusion, yourself, as to the nature of the problem that you see him as suffering from?" This is a question that would not have been asked unless counsel had some foreknowledge of the answer. Dr. Shoulder replied: "Yes. My own diagnosis of Mr. Naga's condition is that he has an inadequate personality disorder and that coupled with that he has a tendency to project onto the outside world, outside beings, outside bodies, the kilame or cause of any incident that happened in his life. A ee te 12. I think that any event in a person's life who is a repetitive projector is likely to attract blame for things that may well be due to something that person himself has caused; they're unable to accept their own participation, and I think that Mr Naga is focusing on a life event and attributing all his life's problems to that single event". Later the witness expressed the opinion that the appellant was inno way incapacitated for work by virtue of any psychiatric problem. Examination-in-chief concluded late on the afternoon of 4 October. Counsel for the appellant then asked for an adjournment overnight on the ground that "the thrust of his evidence is quite different from what I had anticipated ...". That adjournment was granted. When the hearing resumed on the morning of 5 October, counsel for the respondents arose to complain that at the end of the preceding day he had been handed a copy of a further report from Dr. James, a report dated 29 April 1983. Counsel complained that not only was delivery of the report so late in the day "a flagrant breach of the rules" but that the report had been withheld from him until he had completed the examination-in-chief of the witness he had called as to the psychiatric condition of the appellant. No decision was called for by the court on those matters at that stage as Dr. Shoulder's examination-in-chief remained to be completed. It was completed and cross-examination then took place. weer ee itera nee pate te ei et ene mene « 13. Cross-examination ranged over a number of matters including Dr. Shoulder's opinion that the appellant was . deliberately fabricating his symptoms and also his thesis that the appellant suffered from a projective personality. At the conclusion of Dr. Shoulder's evidence, counsel for the respondents applied for leave to further cross-examine the appellant. The basis of the application was that, since the appellant had given evidence, Dr. Shoulder's report had become available with its allegation of malingering. There was also available a film taken of the appellant in July 1983 which was said to cast doubt on his evidence of limitation of activities. Furthermore, the respondents wished to put to the appellant the matter of an earlier accident in which had been involved, a matter on which they proposed to call evidence. The application was granted and the appellant was further cross-examined. He was re-examined but only on matters arising out of the film. Counsel for the appellant chen informed his Honour that there would be no application to recall Dr. James. The hearing was adjourned to the following day and on 6 and 7 October counsel made their final addresses. It is important to see how, in relation to Dr. Shoulder's testimony, the appellant put his case that the trial micarried. In essence it was that until Dr. Shoulder's report was received by the appellant's legal advisers, which was after the f— re ne ne aes eres ns en oe merce: dae hemanee et oe appellant's case had been completed and the respondents' case had beaun, there had been no suggestion that the respondents would argue malingering on' the appellant's part. In that sense Dr. Shoulder's evidence added an entirely new dimension to the hearing. It was the appellant's further complaint that, in the eourse of his evidence-in-chief, Dr. Shoulder developed a new theory to explain the appellant's condition, the notion of projective personality constituting an inadequate personality disorder quite unrelated to the accident. In the appellant's submission, not only was this thesis a further departure from the basis upon which the hearing had been conducted, but the notion of projective personality was inconsistent _ with the theory of malingering. The former relates to unconscious thought processes while the latter involves a conscious fabrication. In the appellant's submission, the extent to which the trial miscarried is reflected in the conclusion of the learned trial judge as follows: "I accept Dr. Shoulder''s opinion that the plaintiff has deliberately fabricated his symptomatology in the psychological area and also that his projective personality leads him to blame anything or anybody other than himself for things that go wrong in his life". It is apparent that the learned trial Judge was persuaded by Dr. Shoulder's evidence to reach these conclusions: he cn Fe 8 ent ee wt eee etree ' 15. "His serious depression, if genuine which I doubt, probably postdated the collision by more than 18 months. ... The plaintiff's lack of ability to concentrate and remember have no basis in organic brain damage. I think he suffered disability in this area fora short time after the collision but that, as with other present claimed disabilities, the effect of the collision was quite rapidly dissipated and that after that he has exaggerated or fabricated his claimed symptoms. I do not regard his present claims in this area as genuine". It is also apparent that it was as a consequence of these findings that his Honour assessed damages for pain and suffering at $8,000 and for interference with enjoyment of life at $5,000, amounts which would have been unduly modest had the appellant established a traumatic neurosis as a result of the accident. - Equally his Honour 's conclusions that "Any collision-caused loss of earning capacity had dissipated at the latest by the end of 1979 ... I do not accept that any present loss of earning capacity is due to injuries suffered in the collision" were a consequence of his rejection of the submission that the appellant had suffered and was continuing to suffer a traumatic neurosis as a result of the accident. His Honour's assessment of $5,000 for loss of earning capacity was a direct reflection of the unfavourable view he formed as to the genuineness of the appellant's complaints. 16. But, the appellant argued, issue was never truly joined on:-the medical evidence. Neither the proposition that the appellant was deliberately fabricating his symptoms nor the proposition that sought to explain them in terms of unconscious thought processes was put to the appellant or his witnesses. Indeed, araued the appellant, until Dr. Shoulder gave evidence the case had proceeded on the clear footing that the appellant had an acknowledged neurosis. the only area of dispute being whether it was aresult of the motor vehicle collision in which he was involved. ' The Orthopaedic Evidence The additional grounds of appeal made a somewhat comparable complaint concerning the evidence of the orthopaedic surgeon, Dr. Fry. This matter did not assume such large proportions in the submission of the appellant's counsel. But, in his submission, Dr. Fry's opinion that the absence of punctate lesions observabie in the appellant's left knee was a factor aiding his conclusion that the left knee problems had not been caused by the motor vehicle accident. and his further opinion that the appellant had suffered a further trauma or series of minor traumas to his left knee in about late 1980 were not put to the appellant or his witnesses. lay or medical. "Punctate lesions" I understand to be damage in the form of depressions resembling punctures. BR nee on re ee 17. At the instance of the appellant's counsel, Dr. Baddeley was recalled. This took place just before Dr. Fry gave evidence. _Dr. Baddeley's further testimony related to an arthroscopy he had performed on the appellant's left knee since the adjournment in March. In cross-examination he was asked whether he had observed any lesions in the appellant's left knee though, as I read the transcript, the expression "punctate lesions" was not put to him. In examination-in-chief Dr. Fry was asked what significance he attached to the absence of punctate lesions in the appellant's left knee. He explained that when there is an injury to a knee, as a result say of a motor vehicle accident, there will very often be damage to both patella and femur which are in contact. He said that punctate lesions thus produced are: -»» an indication par excellence that there has been a traumatic contact between those 2 surfaces". In Dr. Fry's view, the absence of such lesions -.. tends to suggest - suggest that if there are degenerative changes or changes to the articular surfaces there, they occurred from other reasons". In my view the evidence adduced from Dr. Fry in evidence-in~chief on the matter of punctate lesions was reasonably foreshadowed in the cross-examination of Dr. Baddeley. No complaint was made at the time by the appellant's counsel of the oan 18. evidence-in-chief, the witness was extensively cross-examined on the matter, and no application was made to recall Dr. Baddeley. There 1s no justification for concluding that the trial miscarried by means of Dr. Fry's testimony. Dr. Fry's evidence as to the possibility of a further trauma or series of minor traumas arose in this way. The appellant's brother Sadriya Resulagic was called to give evidence in support of the appellant's clain. In cross-examination he was asked about the method of fishing used by him and by the appellant. This involved leaning over the edge of the fishing boat with knees pressed hard against the side of the boat. The witness agreed that this could be "very rough" on the knees though protective clothing was worn. When this description was put to Dr. Fry by the respondents' counsel, the witness agreed that it could cause damage to the patello-femoral joint. In cross-examination Dr. Fry explained that, if there were a "lot of minor trauma", there was no reason why punctate lesions should be formed. The possibility of the condition of the appellant's left knee having been caused by fishing activities should have been put to Dr. Baddeley in cross-examination. But it was offered by Dr. Fry only as a possible explanation since he was adamant that the motor vehicle collision had not heen responsible for the condition. 19. The real difference between the opinions of the two orthopaedic surgeons lay in the matter of continuity of symptoms. His Honour put it this way: "Mr Baddeley says that when degenerative change in the patello-femoral compartment is caused or exacerbated by trauma, there is often a symptom free period. Mr. Fry says that this is not so and that if degenerative change, as seen by arthroscopy by Mr. Baddeley and described by hin, is caused or contributed to by a blow to the knee, the symptoms of pain are continuous following the trauma". ' The evidence showed a period after the accident when the appellant, in his Honour's words, was "relatively, if not entirely, symptom free in this knee ...". The learned trial Judge expresed his preference for the evidence of Dr. Fry over that of Dr. Baddeley without indicating the basis or that preference. He concluded that he was not satisfied on the balance of probabilities that "the plaintiff's present left knee condition came about as a result of a blow to the left knee which he rece1ved on the occasion of the collision. Mr. Fry may well be right when he suggests that the plaintiff may have suffered a further trauma to his left knee in about December 1980". 20. Apart from the broad ground of appeal that the trial miscarried, this conclusion was not challenged before us. No dJoinder of Psychiatric Evidence? I return now to the argument that there was no joinder of the psychiatric evidence. The respondents answered the appellant's arguments in this way. They said that the trial followed a difficult course, Mainly because of belated amendments to the statement of claim and the late notice the respondents received of many medical reports, some of which in the end were not tendered nor the authors called. The allegation of post-traumatic neurosis was added only four days before che hearing and even then a weekend intervened. The respondents said that all this placed them under great difficulty in the preparation of their case including the assessment of medical evidence to be called in answer to the appellant's claim. Dr. Shoulder's report was not available when the appellant was first cross-examined. They said that cross-examination of a number of witnesses called in the appellant's case carried an underlying assumption that the appellant's credibility was directly in issue. The respondents further argued that the appellant had been in possession of Dr. Shoulder's report for some months before the resumed hearing, providing ample time to consider the recalling of witnesses had that been thought necessary. Counsel pointed out that the learned trial Judge had ee ke ee eee 21. offered the appellant's counsel the opportunity to recall Dr. James but the offer was not availed of. As to the theory of projective personality, the respondents' counsel contended that this was not a substantial departure from anything said by Dr. Shoulder in his report of 9 March 1983. In any event, said counsel, the likelihood of some such explanation being offered for the appellant's behaviour was to be found in a passaqe from Dr. Shoulder's report in which he said: "I think that the results that have been achieved are the end result of conscious distortion by Mr. Naga". The respondents arqued that there had been a clear joinder of issue on the psychiatric evidence as to whether the appellant was incapacitated for work by reason of his psychiatric condition and that, aqain, the learned trial judge preferred the evidence of the witness called by the respondents to that of the witness called by the appellant. It was at the forefront of the respondents' case in reply to the appellant that the attack in the original notice of appeal on various findings made by the learned trial Judge had not been pursued. Not only that, but the general ground of appeal that damages were manifestly inadequate was not pressed. In consequence, the appellant was driven to making good the eee ee re ee ee ere 22. proposition that the trial had miscarried, failing which the appeal must be dismissed. I do not accept that the thesis of projective personality was implicit in Dr. Shoulder's report or that it was consistent with the opinion that the appellant was fabricating his symptoms. As mentioned earlier, counsel for the respondents argued that the reference in the report to "conscious distortion" indicated that Dr. Shoulder might express the views he did about the appellant''s projective personality. This is not so. As counsel for the appellant rightly pointed out, conscious distortion cannot be equated with a theory of personality explained in terms of unconscious thought processes. But while this aspect of Dr. Shoulder's evidence could not have been anticipated, the projective personality theory was not crucial to his evidence. The reference in the report to "conscious distortion" is synonomous with the later reference to the appellant "fabricating, deliberately his symptomatology". And a reading of his Honour's reasons for judgment shows that it was essentially a rejection of the genuineness of the appellant's claim that led to what would otherwise be a very low award of general damages. I refer in particular to such language as "His serious depression, if genuine which I doubt", "he has exaggerated or fabricated his claimed symptoms", "I do not regard his present claims in this area as genuine". wen 23. It was of course open to counsel for the appellant to point out to the learned trial Judge the inconsistencies in Dr. Shoulder's evidence and to invite his Honour, for this and any other reasons thought appropriate, to reject that evidence in favour of Dr. James'. A reading of the transcript of his final address suggests that this was done. But his Honour' chose to accept the opinion (or opinions) of Dr. Shoulder. His decision to do so was not challenged before us except in so far as it might throw light on the wider proposition that the trial miscarried. But the appellant further contended that if one put the projective personality concept to one side and focused on the notion of deliberate fabrication, there was nonetheless a failure by the respondents to cross-examine the appellant and the witnesses called by him in such a way as to alert the appellant's advisers that this case would be put against him. In the cross-examination of the appellant, some attacks were made on the credibility of his evidence. It was put to him that he had fished "more or less continuously" between May and September 1979; it was also put to him that in late 1981 or early 1982 he had ferried a refrigeration engineer between the appellant's boat and the shore. After the film was shown to the Court, the respondents obtained leave to recall the appellant and cross-examine him on matters shown in the film. It would not be right, therefure, to conclude that there was nothing in the cross-examination of the appellant from which an attack on the eo nwcmarecmentes ave sense tt epee 24. genuineness of his claims, as opposed to their origin, might have been anticipated. In saying this, it must be recognised that the further cross-examination of the appellant took place at the end of the hearing. The appellant called a number of witnesses to speak as to changes in his personality and general outlook following the accident. Some were members of his family, some were friends and others were persons who had known him through work. The picture that emerged from their evidence was of a change in someone who had been a reasonably outgoing and friendly person to a person who seemed depressed and was given to complaining about his physical and mental condition. The evidence of those witnesses was not the subject of any extensive cross-examination. Counsel for the appellant was entitled to invite his Honour, by reason of the content of the evidence of those witnesses and the absence of any real challenge to it, to conclude that the appellant had undergone a substantial change in personality since the accident. Of course the question still remained - to what extent was the accident responsible for that change? The learned trial Judge did not refer to the evidence of the lay witnesses in his reasons for judgment. It is apparent that he was unimpressed with the appellant who, in his Honour's view, "demonstrated what seemed to me to be a selective memory and a = oe ee ee 25, +.» exaggerated many of his complaints". On the other hand, his _ Honour placed great 'reliance upon the evidence of Dr. Shoulder that the appellant was fabricating his symptoms and the evidence of Dr. Fry that the condition of the appellant's left knee was not brought about by the motor vehicle collision. These views formed by his Honour were not challenged before us except in the context of the broad submission that the trial had miscarried. Counsel for the appellant complained that, had he been alerted to Dr. Shoulder's theory of projective personality, he would have directed questions at the lay witnesses aimed at rebutting that theory. There is some force in this complaint but, at the same time, such evidence as was elicited from those witnesses was at variance with the notion of a projective personality. This was a matter his Honour was entitled to take inte account. But, as I have already said, it was outweighed by the unfavourable impression the appellant made in Court and the great weight his Honour attached to the evidence of Dr. Show'der and Dr. Fry. So far as the notion of malingering is concerned, the appellant's legal advisers had some six months in which to consider recalling any of the witnesses who had given evidence in March and also to consider what further evidence the Court might be asked to receive on that matter. I do not underestimate the difficulties of making such decisions in the course of a hearing but the appellant had the advantage of a long break between March eee 26. and October 1983. After Dr. Shoulder had given evidence, his Honour gave leave to the appellant, to recall Dr. James but he was not recalled. That is not to he critical of counsel for the appellant. They made an assessment that there was nothing to be gained by recalling Dr. James. I have no doubt that was an assessment carefully made but the fact remains that he was not recalled and the fact is that his Honour preferred the evidence of Dr. Shoulder. Miscarriage? ' An appellant who seeks to persuade an appeal court, not that the trial Judge erred in particular respects but that in some way the trial miscarried, assumes a heavy burden. In McCormack v. Federal Commissioner of Taxation (1978-1979) 143 CLR 284 at p.305 Gibbs J. (as he then was) commented: "It is of great importance in the conduct of litigation that a litigant should be bound, on appeal, by the manner in whch he, or his counsel, has conducted the proceedings at first instance". See also Uranerz (Aust.) Pty. Ltd. v. Hale (1980) 54 ALJR 378. It is apparent from McCormack's case itself that the principle may yield to other considerations such as the lack of any opportunity properly to assess the credibility of the — + ~~ rey appellant. 27. In Mapley v. Radial Industries (1982) 61 FLR 189 a majority in the Federal Court allowed an appeal from the Supreme Court of the Northern Territory in a workers' compensation claim because the matter had not been properly tried in the Supreme Court. Deane, J., one of the majority, said at p. 200: "Ultimately, it seems tome that the combination of four considerations governs the outcome of this appeal. I have already referred to three of those considerations. The first is that the appellant's case, on the question of permanence of loss of use, was never properly put in the Supreme Court. The second is that the failure properly to put the appellant's case in the Supreme Court was the result, to a significant extent, of the unfair manner in which the respondent''s case evolved in the Supreme Court. The third is that the unsatisfactory nature of the evidence in the Supreme Court was such as to lead to the case being determined not by - positive findings of relevant questions of fact but by reference to the onus of proof on the issue of whether the persisting loss of use of the appellant's arms was permanent. The fourth consideration is not truly independent of the first three. It is that 1t seems to me that, notwithstanding the importance and desirability, from the point of view of both State and litigants, that there be finality in litigation, the overall objectives of justice under the law would, ain the present case, be best served by a complete rehearing of the matter 1n the Supreme Court". ' Earlier in these reasons I concluded that Dr. Fry's evidence could not properiy be the subject of complaint by the appellant. The proposition that the trial miscarried must, in the Mee en te eet ate a ee le ee 28. end, revolve around the evidence of Dr. Shoulder. I do not regard Dr. Shoulder's notion of projective personality as consistent with his written opinion that the appellant was deliberately fabricating his symptoms. But that was a matter which might fairly expose him to cross~examination and to comment. His view that the appellant was a malingerer had been known to the appellant's advisers for nearly six months before the resumed hearing. Even though the appellant had then concluded his case, there was, I think, by the airing of these matters before the learned trial Judge, and the recall of some witnesses an opportunity to meet what was undoubtedly a new answer to the claim arising from Dr. Shoulder's report. it was a difficult trial in many respects, not least by reason of the late exchange of medical reports and the substantial amendments made to the statement of claim so late in the day. But I am not persuaded that the interests of justice require that there should be a further hearing on the question of the general damages to which the appellant is entitled. Once that conclusion is reached, the appellant's appeal must be dismissed for no reliance was placed upon the original grounds of appeal. State of the Pleadings Most if not all of the difficulties that faced the parties during the hearing of this action would have been avoided "I , 29. by a proper regard for the state of the pleadings and a compliance with the rules of the Supreme Court requiring the exchange of medical reports. The object of pleadings was described by Mr. F.G. Brennan, Q.C. (as his Honour then was) in "Written Pleadings" (1975) 12 UWAL Rev. 33 in these words: "The system is designed to empower the parties toa dispute to state for the purpose of decision the issue between them. It is a bilateral system. The Court, though interested in the process, assumes no primary responsibility. The pleading is, as it historically has been, formulated by a party or his legal adviser. If the formuiation accords with the rules, the formulation is conclusive. If the formulation offends the rules, the Court may exercise a corrective power, though it may not reformulate the pleading. The rules are designed to assist in the statement of the issues for decision. This is the object of pleadings. It was the object under the common law, and the rules under the Judicature Act were designed to attain that object more efficiently". In the end, pleadings must yield to broad considerations of justice. But the fact is that the statement of claim in this action, as originally formulated, failed to identify what was later alleged to be the most serious injury sustained by the appellant, an injury described as traumatic neurosis, though this might be said more accurately to be a condition resulting from injury. a ee, ae eee . 30. In the area of damages, the statement of claim did no more than allege injuries and some items of special damages. There was no plea of residual disabilities and no plea of economic loss. While ordinarily it is not necessary to quantify loss in the nature of general damages, if a plaintiff proposes to allege that there are special circumstances by reason of which he has suffered damage which would not ordinarily flow from the defendant's wrongful act, he must plead those circumstances to avoid surprise. The matter is well illustrated by "Domsalla Vv. Barr (1969) 3 All E.R. 487, a claim for damages as a result of an industrial accident. At the hearing, it was said that by reason of the accident the plaintiff had been deprived of the opportunity to set up in business with his father's financial assistance and that he was confined to some such job as that of a crane driver. At p.492 Edmund Davies, L.J. said: "The statement of claim does not begin to suggest anything of the sort. Should it have done so? In my judgment, it should. Where it is proposed to allege that there are any special circumstances which will probably lead the plaintiff to sustain in the future losses over and above those which in the ordinary way would reasonably be expected to flow from the accident, I hoid that those special circumstances should be pleaded. This duty cannot be neglected simply by saying: 'those losses relate to the future; they are therefore part of the general damages and accordingly need not be pleaded'. So to hold would be to ignore the basic object of pleadings, which is, to crystallise the issues and a is a ee ee et ee ee te ' 31. so enablje both parties to prepare for trial, and, indeed, to decide whether they should go to trial at all or rather seek to compromise their differences, and, if they fail to do that, to guide the defendant on the important matter of payment into Court". The fact that a defendant may seek particulars or interrogate on matters of damage as well as Liability does not relieve a plaintiff of the obligation to plead in such a way as to indicate that there will be a claim for deprivation or reduction of loss of earning capacity. In my view, the principle also holds good in relation to the non-financial aspects of general damages where the plaintiff proposes to rely upon disabilities which cannot reasonably be inferred from the injuries he or she has suffered. Exchange of Medical Reports Again the rules requiring the exchange of medical reports well in advance must yield to any particular order made by the Court. But the rules are designed to serve a valuable purpose, to alert the parties to the respective cases to be made out, to narrow the areas of dispute, to enable the parties' legal advisers to assess the evidence to be led and to permit decisions to be made about compromise, the making of a payment into Court or of an offer to consent ta judgment and the acceptance of any such payment or offer. 32. It is difficult to cesist the feeling that, in the present case, had the statement of claim pleaded at the outset the injuries, disabilities and economic loss said to have been suffered by the appellant and had there been an exchange of medical reports in compliance with the rules, the parties would not be before this Court, at least not to argue for and against the proposition that the trial miscarried. The respondents cross-appealed in respect of three matters. Cross-Appeal : Negligence The first concerned a finding by the learned trial Judge that there was no negligence on the part of the appellant contribuving to the collision in which he was injured. The collision occurred at about 6 pm, in daylight and in good weather conditions. The appellant was driving north-west in McMinn Street, heading towards Stuart Highway. The first respondent, who was driving in the course of his employment by the second respondent, was travelling south-east in McMinn Street intending to turn to his right into Bennett Street. In his reasons for judgment, the learned trial Judge described Bennett Street as entering McMinn Street "from the north east forming effectively a T-junction". His Honour continued: "the vehicles met head on in proximity to the T-junction on the north-east side 1 33. of McMinn Street". It would seem, having regard to the locality, that the references to "north east" should read "north west". His Honour accepted the evidence of a police officer who arrived on the scene shortly after the collision that "the point of impact between the two vehicles was approximately opposite the centre line of Bennett Street". The damage to the two vehicles would suggest that the repondents' vehicle had begun to make its turn into Bennett Street when the collision occurred. The appellant had seen the respondents' vehicle approaching. He did not see any indicator giving a warning of the first respondent's intention to turn into Bennett Street. The first respondent claimed to have used his indicator but, having examined the evidence, his Honour concluded that he was not satisfied on the balance of probabilities that "the turning indicator was operating so as to be seen by the plaintiff if he looked". That conclusion was not challenged before this Court. Before the Supreme Court and before this Court the respondents argued that, since the first respondent was travelling slowly, the appellant should have seen the respondents' vehicle in time to do something to avoid it. Of this submission his Honour said: - "I think that this puts the plaintiff's duty of care for his own safety in the circumstances too high". I respectfully agree. If the turning indicator was not operating, the appellant had no reason to suppose that the oncoming vehicle intended to turn and he was entitled to assume that it would continue past him in McMinn Street. Even had the indicator been operating, the appellant was entitled to assume that the respondents' vehicle would wait until he had passed although, no doubt, reasonable care would have demanded some closer attention to the other vehicle. But in view of his Honour's finding that the indicator was not operating, it is unnecessary to pursue this aspect. I can see no basis upon which to interfere with the learned trial Judge's conclusion that the appellant was taking reasonable care for his own safety and that it was the negligence of the first respondent that brought about the collision. In my opinion this part of the cross~appeal should be dismissed. Cross-Appeali_ : Special Damages It was a further ground of cross-appeal that the learned trial Judge erred in awarding the appellant the sum of $556.85 by -way of special damages, there being no evidence before the Court of the nature of those damages or of the appellant's liability for them. The amount appears to have been in fact $556.95. * ' ° 35. As the appellant's case was concluding on 10 March 1983, his senior counsel said: "The final evidentiary matter, Your Honour, is that I am instructed that special damages have been agreed - as to quantity not as to liability - at $556.95". ' Such an arrangement is common enough in personal injury claims where liability is an issue. The items of special damages related ta ambulance, hospital and medical fees and the charges of a physiotherapy clinic. In view of the agreement reached between counsel, it was open to His Honour, once negligence had been found against the respondents, to include the items of special damages in his judgment. The respondents did not press this part of the cross-appeal with any enthusiasm andin my view it should be dismissed, Cross-Appeal : Costs The next and last ground of cross-appeal concerned his Honour's treatment of the costs of the hearing. This ground arose from an offer to consent to judgment filed by the respondents in accordance with Order 26 Rule 4A of the Rules of j the Supreme Court of the Northern Territory. to 36. In February 1983 (the date shown in the offer is 15 February but the Index to the Appeal Book gives 27 February) the respondents offered to consent to judgment in the sum of $37,500 plus costs to be taxed. Under the relevant rule the appellant had 14 days in which to accept the offer. If he failed to do so and recovered less than the amount of the offer, he was liable for subsequent costs unless the Court held that there were "special reasons" prevailing. (Order 26 Rule 6GA(1)). When his Honour delivered his reasons for judgment on 28 October 1983, he concluded by saying that "there will'be judgment for the plaintiff in the sum of $18,556.95 and costs to be taxed". Counsel for the respondents then drew his Honour's attention to the offer to consent. His Honour expressed the view that "by operation of law, when the costs come to be fixed, they cut out on that date". The reference to "that date" was a reference to the date of offer of consent to judgment. With respect to his Honour that was not so; the judgment entered by him, in its terms, entitled the appellant to all the costs of the action. Before this Court counsel for the appellant did not seek to defend the learned trial Judge's comments regarding the rule. Rather he sought to persuade us that there were "special reasons" why the appellant should have the costs of the hearing. The special reasons offered were twofold - the nature of appellant's . 37. psychiatric condition which made it difficult for him to appreciate the implications of the offer and the element of surprise brought about by the evidence of Dr. Shoulder and Dr. Fry. Order 26 Rule 6A(1) does not confer on the Court a discretion in the matter of costs where there has been an offer of consent to judgment. Where such an offer is made and the plaintiff recovers less than the amount of the offer, the defendant is entitled to subsequent costs unless the Court is able to find special reasons why that should not be the result. See durowski v. Sallis (No.2) (unreported decision of Supreme Court of South Australia dated 24 February 1984). See also Page v. Incorporated Nominal Defendent (1981) V.R. 170. Counsel for the appellant did not argue that his client was mentally incapable of appreciating the amplications of the action in the Supreme Court. That is not to be wondered at, for if it had been so, no doubt a next friend would have been appointed. But he did submit that, given his client's psychiatric condition, it was hard for him to assess the reasonableness of the offer. In my view this does not constitute "special reasons". The acceptance of such an argument would remove a sanction which the Supreme Court Rules have given to defendants. As to the element of surprise, I am of the opinion that Dr. Shoulder's report did change the character of the respondents' answer to the appellant's claim for damages and that the provision of the report and reliance upon it constituted "special reasons" within Order 26 Rule 6A(1). The appellant should have the costs of the action until the receipt of that report and the provision of an opportunity to assess its implications. There was a substantial gap between the receipt of the report and the resumed hearing in October and no doubt during that time work was done by the legal advisers on both sides. But in terms of the hearing the report was not available until after the adjournment. It seems to me that, in the circumstances, it would be just that the appellant have the costs of the action up to but not including 4 October 1983 when the hearing resumed and that the respondents should have the costs thereafter. Conclusions In summary then: (1) The appellant's appeal should be dismissed. (2) The respondents' appeal on the issue of liability should be dismissed. (3) The respondents' appeal on the matter of special damages should be dismissed. ann Da (4) The respondents' appeal on the matter of costs should be allowed and the judament of the Supreme Court varied by awarding the appellant the costs of the action up to but not including 4 October 1983 and the respondents the costs of the action thereafter. As to the costs in the Federal Court, I can see no basis upon which the respondents should be deprived of their costs of the appeal. They have succeeded in part on the cross-appeal but on amatter which should have been resolved by referring the learned trial Judge to the relevant Supreme Court rule at the time of judgment or immediately thereafter. They have failed on the other mutters on which thev cross-appealed. Substantial justice would, I think, be done by ordering the respondents to pav two thirds of the costs incurred by the appellant by reason of the cross-appeal. I certify that this and the thirtyeight preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey A fetig er) C Associate Dated: /3 June 1984 Iw £ IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA No. NTG 36 of 1983 DISTRICT REGISTRY wee ww rw GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY BETWEEN: BESIM NAGA Appellant AND: PHILIP JOHN OUINTELL and MARINELAND N.T. PTY. LIMITED Respondents REASONS FOR JUDGMENT CORAM: Muirhead, Toohey & McGregor JJ. DATE: 13 June 1984 MCGREGOR J. This is an appeal by BESIM NAGA (plaintiff) against part of a judgment of the Chief Justice of the Suoreme Court of the Northern Tecritory of Australia given on 28 October 1983 in an action for damages for personal injuries suffered by the plaintiff in a road accident on 28 April 1979. The plaintiff's claim as originally filed included a al Canna tt Statement of Particulars of Injuries and Special Damages thus - Particulars of Injuries (a) (b) (c) (d) (e) (f£) (g) (h) Fractures to the left sided ribs. Bruising to the chest. Concussion. Tissue injury to the right knee. Loss of memory. Continual headaches. Loss of balance. Pain and suffering. Particulars of Special Damages St. Johns Ambulance $26.70 Medical Fees: Dr. Yaksich 30.00 Department of Health - Darwin Hospital 294.00 Medical Fees: Mr. G. Johnstone 29.00 Darwin Physiotherapy Clinic 163.00 His Honour entered judqment for the plaintiff in the sun of $18,556.95 made up as follows - Special damages $556.95 Pain and suffering 8,000.00 Loss of earning capacity 5,000.00 Loss of enjoyment of life 5,000.00 $18,556.95 ae - eee a 3. The plaintiff contended that the learned Chief Justice mane errors in estimating the last three components of the verdict: thus the plaintiff recovered less than the amount to which he was properly entitled. There is a cross-appeal by PHILIP JOHN QUINTELL, driver, (first defendant) and MARINELAND N.T. PTY. LIMITED, owner (second defendant) of the relevant vehicle complaining of certain errors in the decision of the learned Chief Justice in failing to find the plaintiff was guilty of contributory negligence; including in the verdict the sum of $556.85 avarded by way' of special damages, there being, so it is said, no evidence before the Court of the nature thereof or of the defendants' liahility therefor; and in respect of an order for costs made at the trial. The facts relating to negligence and contributory negligence may be shortly stated. On 28 April 1979 the plaintiff was driving northwest in McMinn Street in the City of Darwin, heading towards the Stuart Highway. The first defendant was driving southeast in McMinn Street intending to turn to the right into Bennett Street which then formed a "T" junction with McMinn Street. That would have required the first defendant to turn right, across McMinn Street and that portion of McMinn Street upon which the plaintiff was travelling ina northwesterly direction. According to the evidence to which the learned Chief Justice referred, the point we ee ee 4, of impact between the vehicles was approximately opposite the centre line of Bennett Street: the defendants' vehicle was not "cutting the corner"; and the plaintiff's vehicle went. almost straight along its original path, His Honour found that the first defendant did not see the plaintiff's vehicle until very shortly before the impact and the plaintiff did not realise tne defendants' vehicle had turned until a very short time before that. His Honour further found that the plaintiff had previously seen that vehicle some distance off, driving normally ard approaching on its correct side of the road: the next time he saw it it was right in front of him and the collision was inevitable. These findings were not questioned before us. dudgment was entered for the plaintiff. However, upon these facts, the leacned Chief Justice posed for himself the question as to whether the plaintiff was quilty of contributory negligence in fazling to see and to try to avoid the defendants' vehicie after it had started to turn. His Honour considered that a crucial matter was whether or not the first defendant had caused to operate vhe turning indicator on his vehicle. Though the first defendant had said in evidence he had done so, his Honour had doubts about this evidence. He said that he was not satisfied on the balance of probabilities that the turning indicator was operating so as to be seen by the plaintiff if he had looked. The learned Chief Justice. however, did not regard this as concluding the question of contributory negligence. He oe ee 5. considered further whether even if the turning indicator was not operating, the plaintiff might have had no reason to suppose that the first defendant was going to turn. He decided the plaintiff would have had no reason to supvose that the first defendant 'sas going to turn. He concluded that he should not find the plaintiff was guilty of negligence contributing to the occurrence of the collision. The grounds of appeal as filed were - "2. His Honour the Learned Trial Judge erred in finding that the degenerative changes in the patello femoral compartment of the Appellant's left knee were not caused by injuries received in a motor vehicle accident on 28 April 1979, 3. His Honour the Learned Trial Judge erred in finding that the effect of the accident on the Appellant's neck and head had dissipated not long after the intervention of a physictherapist during January 1980. 4. His Honour the Learned Trial Judge erred in preferring the evidence of Mr. Fry and Dr. Shoulder to that of Mr. Baddeley or Dr. James respectively where they were in conflict. a ne a os te 10, 6. His Honour the Learned Trial Judge erred in assessing the extent to which his findings with respect to the Appellant's medical condition should depend on the Appellant's own evidence and credibility. His Honour the Learned Trial Judge erred in finding that the Plaintiff deliberately fabricated his symptomology (sic) in the psychological area. His Honour the Learned Trial Judge misconceived the effect of the evidence of Dr. Shoulder. His Honour the Learned Trial Judge erred in failing to take into account sufficiently or at all the evidence of the lay witnesses as to the changes in the Appellant's personality and behaviour following the accident. The assessment of the Plaintiff''s damages for pain and suffering at $8,000 is manifestly inadequate. The assessment of the Appellant's damages for loss of ordinary enjoyment of life at §5,000 a ee li. 12. The grounds of appeal as filed refer to the detail of the plaintiff's contentions in this appeal. They express, for the most part, results for the plaintiff flowed from the Counsel sought to raise these claims grounds of appeal which the Court permitted to be added after the 7. is manifestly inadequate. His Honour's finding that the Appellant's loss of earning capacity caused by the injuries he received in the motor vehicle accident had dissipated at the latest by the end of 1979 was against the evidence and the weight of evidence. His Honour's assessment of economic loss at $5,000 was against the evidence and the weight of evidence and is manifestly inadequate." hearing began. These were - "13. The trial miscarried in relation to the medical issues because of the fact that the appellant did not receive notice of nor vere he or his witnesses cross-examined in relation to:- which in the submission of senior counsel shortcomings in the trial. more specificatiy in amended 8. (a) Dr. Shoulder's opinion that the aprellant was deliberately fabricating his symptoms: (b) Dr. Shoulder's opinion that the appellant''s condition was caused by an inadequate personality disorder; (c) Dr. Fry''s opinion that the absence of punctate lesions observable in the appellant's left knee was a factor aiding his conclusion that his lefrc knee problems had not been caused by the motor vehicle accident: (d) Dr. Fry''s opinion that the appellant had suifered a further trauma or series of minor traumas to his left knee in about late 1980. In the result, the appellant failed to secure a fair trial of these issues. 14. In assessing the weight, if any, to he attached to the evidence of Dr. Shoulder and Dr. Fry the learned Trial Judge failed _to attach any significance to the matters set out in paragraph 13 hereof." We have been considerably assisted by the parties' 9. outlines in writing of their submissions which were developed by counsel during argument. The main thrust of the argument offered by counsel for the plaintiff was that the trial miscarried. for reasons he developed. He said that in reaching certain findings that some of the complaints of the plaintiff were not qenuine, e.g. as to headaches and other matters, the trial Judge was influenced by the evidence of Dr. Shoulder, a psychiatrist called in the defendants' case. The trial Judge, he said, accepted Dr. Shoulder's opinion that the plaintiff had deliberately fabricated his symptomatology. Counsel pointed out that Dr. Shoulder described the plaintiff as having an inadequate 'personality revealed by his habit of projection; that was irreconcilable with his earlier expressed views that the plaintiff was a malingerer. The witness, he said, when using the word "malingerer" sought to explain the plaintiff's complaints in terms of conscious fabrication whereas his other opinien explained them in terms of unconscious processes. He submitted that Dr. Shoulder's use of the s'yords "deliberately fabricating" and "nalingering"" was not in accordance wrth accevted medico-legqal definitzoans: that the findings of the trial Judge were "tainted" by a misapprehension of Dr. Shoulder's evidence. He referred to Federal Commissioner of Taxation v. Nixon (1979-1980) 30 ALR 400 at pp.405-406. Ile submitted that the trial Judge in his Reasons referred to the plaintiff's "serious depression" and went on - ",..e-if genuine which I doubt, probably postdated the collision by more than 18 months." - oe 10. This opinion was apparently based on something the plaintiff may have said to a psychiatrist, Dr. McGregor. I shall refer to this later. These findings, counsel for the plaintiff said, overlooked a substantial body of lay evidence to the contrary to which the trial Judge made no reference, thus contributing to his misapprehension of the effect of Dr. Shoulder's evidence. He submitted that the plaintiff had failed to obtain a fair trial of the issues relating to his medical condition. This failure, he argued, was the result of the course which the proceedings took and, in particular, the fact that neither of the theories advanced by Dr. Shoulder to explain the plaintiff's condition was put in cross-examination to the psychiatrist who gave evidence in the plaintiff's case. He cited Browne v. Dunn (1894) 6 R.67; Allied Pastoral Holdings Pty. Ltd. v. Commissioner of Taxation (1983) 1 N.S.W.L.R. 1. He referred to the finding of the learned Chief Justice that the plaintiff's left knee condition was not caused by the accident. Implicit in this finding, so he said, was an acceptance of the "hypothesis" advanced by Mr. Fry that an event just prior to January 1981 was responsible for the plaintiff's condition; yet this hypothesis was not put to the plaintiff in cross-examination: nor was there any evidence of it. He referred to the evidence of Mr. Fry who had relied upon the absence of punctate lesions in coming to his opinion that the plaintiff's left knee condition was not caused by the accident. Their absence was regarded as significant by Mr. Fry but this was not put by defendants' counsel in cross-examination to the orthopaedic specialist called in the plaintiff's case. Ye eee il. submitted that these omissions materially reduced the weight which might have been attached te the evidence of the witnesses called in the defendants' case: that this was overlooked by the trial Judge and thus contributed to the plaintiff having failed to secure a fair trial on medical issues. He said he did not seek to arque that individual components which made up the total award of damages were, on the material which the trial Judge accepted, inadequate; rather, the plaintiff sought a new trial on the issue of damages generaliv. Counsel for the defendants referred first to the cross-appeal. He submitted the learned trial Judge should have found that the plaintiff by his own negligence had contributed to the collision. Counsel said, upon the evidence, the first defendant had not been "cutting" the corner; the plaintiff though travelling at 30-35 m.p.h. and having seen the defendants' vehicle some distance away, had not realised the defendants' vehicle had turned until shortly before the impact; yet, on the evidence. the plaintiff next saw the defendants' vehicle when 1t was right in front of him, and travelling at only 5-10 m.p.n. He submitted that the plaintiff should have seen the vehicle in time to avoid the collision: that he had not been able to do so because he had not keot it under observation as the vehicles closed. He referred to Municipal Tramvays Trust v. Ashby (1951) S.A.S.R. 61 at p.63., He submitted the plaintiff was approaching an intersection which at that moment was not busy; that there were no other motor cars in the vicinity. On the basis of i ee ee ee ee ne ne ce an a er. 12. factual findings actually made. he submitted the defendants should have been found to have discharged the onus of proof. He referred to Offord v. Felkl (Supreme Court of South Australia (Full Court)) unreported, delivered 10 November 1983, at pp.4-6 per Wells J. and at pp.4-5 per Bollen J. As to special damages, he submitted there had been an agreement as to quantum but not as to liability. It is convenient at this stage to dispose of the cross-appeal other than so much of it as refers to costs of the hearing at first instance. In my view, the learned Chief Justice has not been shown to be in error in refusing to find contributory negligence; or in including the sums of special damages in the amount of the judgment, a mattec it seems specifically conceded by counsel for the defendants at the trial. Nefendants' counsel referred to the arguments offered by counsel for the plaintiff seeking a new trial of the action. He submitted that the plaintiff had been found not to be a credible witness; that he exaggerated, was selective as to what he remembered ; that his evidence in relation to some of his complaints, e.g. as to headaches and neck pain, had not been regarded by the learned trial Judge as of much moment. He said that on the evidence and the findings of the trial Judge it was clear that any problems which had been caused by the accident had receded relatively quickly. So far as the plaintiff being depressed or worried. this was referable. he said, to misfortunes 13. unrelated to the collision, e.g. marital unhappiness, unsuccessful fishing and fishing boat refrigeration failure. On the evidence accepted by the trial Judge, the condition of the plaintiff's left knee, he argued, was not caused by the collision. Having regard to the opinion of Dr. Shoulder which, he pointed out, had been accepted by the trial Judge, a facet of the plaintiff's inadequate projective-type personality was that he blamed anything or anybody other than himself for what went wrong in his life. He submitted that any collision-caused loss of earning capacity was, upon the evidence and as found by the trial Judge, dissipated by the end of 1979. As to the use to be made of the credibility of the plaintiff in assessing medical evidence, he referred to Dibbins v. Dibbins 80 L.S.3.S. 165 per Bright J.; cited and adopted by White J. in Donierkovic v. Adelaide Steamshio Industries Ptv. Ltd. (1980) 24 S.A.S.R. 347 at pp.353-354, a judgment which he said was substantially upheld on appeal by the Full Court of South Australia. He submitted thac the Notice of Appeal related largely to factual findings which were, in turn, dependent upon the credibility of sritnesses: yet otherwise the basic findings were unchallenged. As to the role of an appellate court considering conclusions of the learned trial Judge, he referred to Warren v. Coombes 53 A.L.J.R. 293 at p.295; Uranerz (Aust.) Ptv. Ltd. v. Hale (1980) 54 A.L.J.R. 378 at p.381; Watt or Thomas v. Thomas (1947) A.C. 484 at pp.486-7. He sought to support his submissions generally with an analysis of the evidence of Dr. James and Dr. Shoulder. He pointed out that the trial Judge had preferred the evidence of Dr. Shoulder —_—— 14. and Mr. Fry to that of Dr. James and Mr. Baddeley. He submitted that if the plaintiff were successful, contrary to his submissions, the matter should not be remitted for re-hearing; that on the evidence e.g. as to the value of fishing hauls, the plaintiff had not demonstrated incapacity for work. He submitted the appeal should be dismissed. There was, separate to the questions as to liability and damages, an issue about costs, Counsel for defendants argued that the trial Judge. having regard to Order 26 Rule 6A of the Rules of the Supreme Court of the Northern Territory,: should have made an Order for costs after a certain date in favour of the defendants. There were no "special reasons", he submitted, within the meaning ef that Rule. He referred to Jurowski v. Sallis (No. 2) an unreported decision of Jacobs J. of the South Australian Supreme Court. In particular, I note pages 5 and 6 of that judgment. Counsel for the defendants sought to have this matter rectified, submitting that it was necessary for the Couct to enter judgment in respect of the costs after the certain date. Senior counsel for the plaintiff submitted that "special reasons" had been shown to exist in that the evidence of Mr. Fry and Dr. Shoulder led to the amount of the judgment being lower than was offered, and Mr. Fry'''s opinion vas partly the result of the evidence of Mr. Baddeley. The evidence of Dr. Shoulder, he said, indicated that the plaintiff could hardly be held responsible for failing to appreciate the worth of his claim. I do not agree; nor, in my view, are there any "special reasons" here. is. I have not attempted fully to restate counsels' submissions. A statement of the order of events after the cause of-action arose will assist in understanding their submissions. The accident occurred on 28 April 1979. The Writ was assued on 7 July 1981. On 11 January 1982 the plaintiff may have told Dr. McGregor, a psychiatrist, that he had been feeling depressed for about one year (but note that any such depression would not thereby precede the collision). On 4 February 1983, Dr. James, a psychiatrist, interviewed the plaintiff for Lh approximately 1-1/2 hours. On 15 February 1983 an offer to consent to judaqment for the sum of $37,500 was filed. On 2 March 1983 the plaintiff, at the request of the legal adviser to the defendants, was examined in Sydney by Dr. Shoulder, a specialist psychiatrist. His report was not immediately available. On Thursday or Friday the 3 or 4 March 1983, in Chambers, an amendment was sought and granted to the Particulars of Injuries set out in the Statement of Claim; the plaintiff was permitted to add claims for - traumatic patellomalacia, meniscal, laxity of the medial ligament and patello-femoral crepitus of the left knee; post-traumatic neurosis; (to be "(il"and ™%k)" in the Particulars of Injuries). alleqed to have been suffered by him following and as a result of the accident. On Friday 4 March 1983. it seems, the defendant=-' a = a aon ate enter 16. instrucing Solicitor was-advised that the olaintiff would make no claim for organic brain damage, The hearing beqan on Monday 7 March 1983, still with the report of Dr. Shoulder not available to the parties. Senior counsel for the plaintiff immediately made an application to amend the Particulars of Injuries by adding a further particular, viz. "Damage to the frontal temporal and limbic cerebral cortex". Defendants' counsel vigorously opposed the application, referring to the assurance given to his instructing Solicitor on Friday that there would be no allegation of organic brain damage. He pointed out that within the last ten days there had been received no less than ten medical reports which he said were "inexcusably late, almost contemptuousiy late....." He referred to Order 34 Rule 30. He referred to four further reports similarly received including two by Dr. James of 7 and 25 February 1983. He said, after other references to some of the claim related to lost earning capacity - "We are ina very difficult position by virtue of the proposed amendments. We came up here anticipating as late as the middle of last week that the case would be fought on pleadings alleqing fractures to the left side of ribs, bruising to the chest, concussion, right knee injury, loss of memory, headaches. loss ot balance, pain and suffering. There is no suggestion of organic brain damage in any event; there is no suggestion of an injury to the left knee; no suggestion of psychiatric problems; no suggestion of this very specific type of ..... (he then referred to the last particular related to damage to the frontal temporal anda limbic cerebral cortex.)" He adverted to the possibility of an adjournment and stated that it might be a matter of his reserving rights to an adjournment at rr 17. whatever time prejudice and embarrassment arose. His Honour granted the amendment but on the basis that it was not going to cause any prejudice to the defendants. Their counsel said that he was not even in a position to take instruction at that time from experts as to how he might cross-examine the plaintiff's experts; and after further discussion that he would prefer to continue and meet what case "we can meet", given the information available and then consider his position as to seeking an adjournment. After opening remarks, evidence for the plaintiff was called. During his evidence on 8 March 1983 Dr. James was interposed. The report of Dr. Shoulder was not available to the parties. As might have been exvected, there were no questions put to Dr. James in cross-examination on the written report of Dr. Shoulder or his later expressed viva voce evidence that he was a malingerer (one who fabricated his symptomatology) or that he had an inadequate personality, or of his alleged projection habit. Dr. James, whose evidence was that he was able to support the opinions in his report without reference to reports of other doctors which he had read, was referred to a psychometric report by a Mr. Dawson. He agreed that the contents of it were perfectly consistent with his diagnosis; and that the performance of the plaintiff to twhich it referred was one of the things he might have expected if his diagnosis was accurate: though "poor performance" could * be variously produced. Assuming that the plaintiff had had a happy Life, had suffered 18. certain injuries and that subsequent to the accident symptoms of anxiety and depression became apparent for the first time, he stated that he thought that the accident and its after effects precipitated "this neurotic illiness". He was referred to the plaintiff's birthplace ard where. he grey up and was asked whether there was a cultural element in this illness. He said - "When they get a psychiatric disorder, be it a major disorder such as schizophrenia or neurotic disorders such as anxiety and devoression, that there are hysterical features that they present at times in a dramatic and histrionic wavy with physical symptoms of headache, pins and needles in the hand, weakness of body parts for which no physical cause is found. So I consider that some of his svmptoms are probably exaggerated responses to genuine physical disabilities and some of them are probably genuine hysterical symptoms for which there is no definite cause." He continued that it was common in the slaintiff's cultural group to see this type of presentation with an hysterical element to it. Other aspects of the plaintiff's post-accident performance, he found to be typical of a person with the plaintiff's tyvoe of neurotic cendition. In cross-examination he would not agree that the plaintiff's neurosis was caused by social factors: "he aid agree that predisposing factors to its development were chronic physical disorders, chronic psycho-social stresses, other mental disorders and/or personality disorders and that latigation would tend, in many cases, to exaggerate the neurosis and prolong its course. He was not able to say whether the condition preceded the litigation; though the history of the plaintiff had given him was that he was "coping" alright before, but then after the accident, he had various problems. He agreed the effect of his cae ae 19. evidence was that if the history given him of psychiatric symptoms shortly after the accident should be wrong, then his opinion would "fall", It was put to him that various other events might have caused the neurosis, e.g. the failure of the refrigeration on the plaintiff's fishing boat, and then its loss, problems with persons who had financed him, an anability to repay the loan because he could not make money, or the plaintiff's marital difficulties. In cross-examination the witness stated he was still perfectly satisfied that the accident and ensuing physical disabilities, e.g. emotional shock, being a sick person, were enough stress to trigger off or precipitate a depressive neurosis; but that the other stresses referred to could produce such a neurosis; and that until the cross-examination he was nor aware of the plaintiff''s worry about refrigeration or that he had been threatened to be sued bv the Northern Territory Development Corporation. He agreed that hankruptcy was a further anxiety producing factor. I note also that the plaintiff himself was cross-examined about his various difficulties and worries such as fishing boat refrigeration failure, loss of his boat and problems in his marriage. As to his left knee, he stated that he did not remember ever having sustained any other injury to it. To same extent, inconsistent with earlier cross-examination, it was suggested to the plaintiff that he had at one stage told the "A.M.P." that he would be better off without the boat; -it was put to him that he set fire to it. It was not put to him that he was a malingerer. or that he had the qualities which are referred to as projection. 20. On 10 March 1983 plaintiff's counsel made application to amend the Particulars of Injuries so as to include a claim for soft tissue injury to the neck. When granting the amendment, his Honour noted that Particular (k) which related to brain injury had been deleted: and the new Particular took that letter. Defendants' counsel then made a brief opening as to what would be the defendants' case. He said - "The defendants acknowledge that there 1s evidence upon which it would be permissible for Your Honour to find the defendant Quintel guilty ot negligence...We say that the evidence also shows a proper basis for findings of contributory negligence...." Continuing his opening upon medical issues, he submitted there was no significant injury to the left knee; though there might have been some minor injury to. the left leg, medically, it was not significant. He submitted there was no history of anv injury to the left knee of sufficient sionificance to warrant being mentioned to medical practitioners; that a witness he wouid call, Mr. Fry, would say that the 20 month gap (referring as I understand it to the time which elapsed from the date of the accident to the development of left knee symptoms) was too long on the balance of probabilities to relate an insignificant left knee injury to the problems later observed. He said also - "The defendants' case is further that no psychiatric disability flows from that cause, namely the subject accident and that the causes for what is an acknowledged depressive condition on the part of the plaintiff is to be found in other areas. The Kelvinator problem, financial stresses, press from the NTIDC over being sued, poor returns 21. from fishing, family problems and the loss of the boat...." Then, also on 10 March 1983, evidence was called for the defendants. About mid-day, counsel for the defendants sought and was granted the adjournment already foreshadowed. The hearing was resumed on 4 October 1983. During the interval the report of Dr. Shoulder had come to hand. This had been made avarlable to the Solicitors for the plaintiff. At the opening of proceedings, plaintiff's counsel sought to tender a report by Mr. Baddeley referring to the results of a further arthroscopy of the plaintiff's left knee. This had been forwarded to the defendants' Solicitors on 30 May 1983. Defendants' counsel objected; that he had not been supplied the last occasion with a covoy going to give evidence; and, received from Mr. Fry in the plaintiff's counsel also mentioned until the close of the hearing on of the report on which Mr. Fry was he said, a fucther report had been adjournment which agreed with Mr. Baddeley's opinion but disagreed upon causation. His Honour permitted Mr. Baddeley to qive further evidence. Reference was made to calling Mr. Fry. Counsel for the plaintiff in relation to some other tender. stated as to Dr. Shoulder, that - "...ehe just says malingerer.... my client's a deliberate ....(his) report is one which we've been provided with since the last hearing. He - how it could be possibly relevant to totally escapes us, evidence 1s that his evidence. Your Honour, with great respect. His Mr. Naga is fabricating, deliberately, his symotomatology in terms of his present distress, with the exception of the ee et ee ke 22. symptoms with his left knee. That's his opinion: this man is an out and out malingerer." wae he After the tender of these documents, Dr. Shoulder was called. His report of said - Counsel f 9 March 1983 was tendered. Counsel for the plaintiff "I'd like to formally object ta it, your Honour. The report as I've already said, concludes that Mr Naga is fabricating deliberately symptomatology in terms of his present distress with the exception of the symptoms to do with his left knee on which I am not able to comment. Your Honour will recall that as part of the plaintiff's case he called a specialist psychiatrist from Queensland, a Dr. James; he gave fairly extensive evidence 'and it was never for a moment suggested to him that the plaintiff was fabricating, deliberately or otherwise, his symptomatology. It was never put to the plaintiff that he was fabricating deliberately....3 the case was not conducted on that basis at all. Indeed, the basis upon which the case was conducted is best reflected in my learned friend's opening words at page 389 of the transcript where he ssid this, in about the middie of the page "The defendants' case is further that no psychiatric disability flows from that cause, namely the subject accident and that the causes for what 1s an acknowledged devoressive condition on the paru of the plaintiff 1s to be found in other areas. The Kelvinator problem, financial stresses, press from the NTDC over being sued. poor returns from fishing, family problems and the loss of the boat which ---~" and so on. That's the bas2zs upon which I object to it I have to say this, of course, that in anticipation that Dr Shoulder would be called we have made arrangements for Dr. James to return to the Territory for the purposes of giving rebuttal evidence if this evidence 1s allowed, and the airline pilots strike permitting he 17111 be here, we hope, on Thursday afternoon. He had in fact set aside the week for the purpose of coming to Darwin to give evidence in this case." or the defendants made variovs submissions in reply to 23. this objection, including that we" had not received the (Shoulder) report when he made his opening address. After argument, his Honour admitted the report into evidence. He said that he would allow counsel to call evidence from Dr. Shoulder and would be disposed to permit Dr. James to be recalled. Defendants' counsel in remarks indicated that he had not the Shoulder report when he cross-examined the plaintiff and Dr. James. Dr. Shoulder then gave evidence including - "I think you have come to a conclusion, yourself, as to the nature of the problem that you see him as suffering from?----Yes. My own diagnosis of Mr Naga's condition is that he has an inadequate personality disorder and that coupled with that he has a tendency to project onto the outside world, outside beings, outside bodies, the blame or cause of any incident that happened in his life. There seem to be two different wavs that people handle a problem when it arises, which of course 15 not totally one wav or the other. it's a spectrum: but people introject or project, and at the extreme of introjection it's the taking into self of hlame such that people may even quite believe that they've committed some sin which their peers vould not see aS a_ reasonable conclusion. They will blame themself for all sorts of thinas. Is this likely to be a long-standing condition, in your view?----Yes. The tendency is a basic pattern that can be seen throughout a person's life." He was asked whether his conclusion that the plaintiff was fabricating deliberately was inconsistent with the above conclusion which he had just drawn. He said "No." I note that these questions and answers were given without objection by Plaintiff's counsel. At the conclusion of Dr. Shoulder's evidence-in-chief, there being still half an hour left of the ordinary hearing time, counsel for the plaintiff asked for an --He — ee a te oe ee, 24. adjourment until the next day upon the basis that the thrust of Dr. Shoulder's evidence was quite different from what had been anticipated. That adjournment was granted. On the resumption on 5 October 1983 counsel for the defendants referred to a matter which had come to his notice with some "horror and concern", viz. that it had been foreshadowed the plaintiff might recall Dr. James; and he had been given a copy of a further report dated 29 April 1983 from Dr. James for the farst time the previous night. Counsel complained of the failure to disclose this report earlier. He referred to Order 34 Rule ll (1) and to the report having been in existence for four months, and withheld - " ..until after I had completed my examination-in-chief of my psychiatric witness." Counsel sought to ask further questions in chief of Dr. Shoulder. This vas not objected to and was vermitted by the learned trial Judge. Dr. Shoulder was extensively cross-examined including upon the subject of the plaintiff's mwalingering and projection. Counsel for the defendants sought to cross-examine further the plaintiff as to an alleged earlier accident and a film taken of him. That application was opposed. So far as the cross~examination might relate to malingering which might be discerned on the film, counsel for the plaintiff asked rhetorically why the alleged malingering had not been put to the a re pe 25. plaintiff at the last hearing; he submitted also this should have been put to Dr. James. His Honour said that he did not quite understand that it should have been put to Dr. James and he did not accept that submission. Counsel for the plaintiff adverted te the possibility of recalling Dr. James but considered he would do no more than disagree with Dr. Shoulder's report. Later he stated that it had been decided not to recall Dr. James and for the reason he had stated; though I note counsel's earlier statement quoted above that there had been some arrangement to recall him. I am aware that if recalled Dr. James would have had to come from Brisbane. Hig Honour gave leave for the olaintiff to be recalled to be cross-examined. He vas recalled on 5 Octoher. He was cross-examined about what the film (referred to above) showed and also about a motor vehicle accident said to have occurred between 1969 and 1975. After the showing of the film and the cross-examination, the plaintiff was re-examined very shortly, but only upon the question of what the film had shown. Following that, on 6 October 1983, defendants' counsel announced he would not be recalling Mr. Fry; and that he understood plaintiff would not seek to recall Mr. Fry. The evidence then closed and addresses began. I shall assume for the purpose of this decision that this Court in its appellate jurisdiction has power to grant a new 26. trial in a case where it is said that the trial has "miscarried". See Federal Court of Australia Act 1976 s.28(1)(f). See also Mapley (infra). Counsel for the plaintiff submitted that the trial had miscarried because the learned trial Judge had not had the advantage of hearing adequate cross-examination of two witnesses, Mr. Baddeley and Dr. James, who were of great importance in the plaintiff's case. He relied on Browne v. Dunn (supra) to which I refer later. This decision, which was an appeal in respect of a jury trial, 1s regarded as of great importance 1n the conduct of litigation in our courts where the adversary system operates. However, the "rule" in Browne v. Dunn 1s subject to limitations. It is of more importance in a jury trial than it is where factual issues ere decided by a single Judge, adjyournments may be souqht and granted, and witnesses recalled. Counsel for the defendants maintained that he had sufficiently cross-examined Mr. Baddeley in the relevant sense. He referred to the evidence. On this aspect of the case which I provose to consider first I do not find it necessary to refer further to counsels' argurents. Mr. Fry's evidence was that 1f there had been an injury sufficient to cause the relevant deterioration, there would have 27. been observable punctate lesions in the plaintiff's knee; that having regard to the arthroscopy performed by Mr. Baddeley, he was able to say there were no such lesions. Mr. Fry's opinions, on my reading of the transcript, did not depend finally on the presence or absence of punctate ("a word...sugqgestive of shape...a small area") lesions. He did not agree that the motor vehicle accident as a cause of arthritic changes in the left knee could probably he ruled out only because of the absence of punctate lesions but, as he said, - "ET thought it could be ruled out altogether because - asa result of no significant symotoms occurring at the time, and punctate lesions being at that stage, was one example of it." Further, Mr. Fry said that had there been such an injury there would have been a history of continuing problems witn that knee from the time of the initial trauma before the knee's deterioration was marked: whereas Mr. Baddeley's evidence was consistent with there being a period of some twenty months of remission as opposed to continuous pain. The learned Chief Justice was entitled to infer that since Mr. Baddeley did not refer to the presence of punctate lesions (in fact rather indicated there were none) and attributed the deterioration to the injury, that Mr. Haddeley must have considered that punctate lesions or their presence were not essential to his diagnosis. It was to be inferred that had he been asked specifically therefore in cross-examination a question relating to their presence, he would have said that the absence a aoe. 28. of punctate lesions did not rule out a causal connection between the trauma in 1979 and the subsequent deterioration. Nor am I satisfied that defendants' counsel did fail relevantly to cross-examine Mr. Baddeley or that the latter was not given an opportunity to refer to the significance of the lack of such lesions. Mr. Baddeley agreed in cross-examination that in his latest arthrascopy he had examined the femoral condyles. His answers thereafter were to the effect that he did not observe anything more than degenerative changes and "oniy minimal problems with the mediai femoral condyle". He was asked if there were any punctate lesions in the femoral condyles. His answer was in the negative and, later, he stated that the only lesions he observed in -the femoral condvles were generalised. Moreover, Mr. Baddeley, whose address was given in evidence as at Darwin, could have been recalled if it were thought necessary or advantageous and asked to comment specifically on the significance of the absence of these lesions in determining the cause of the condition he found. This would have achieved the specificity which plaintiff's counsel implied was necessary to raise the appropriate issue. A reading of the transcript suggests a great deal of weight was attached by Mr. Fry to the absence of continuation of symptoms immediately following the motor accident. I notice that in submissions to the Chief Justice, counsel for the plaintiff appeared to have accepted an issue from his Honour as to this matter. His Honour vput it to counsel for the plaintiff that the thrust of Mr. Fry's evidence was that whatever condition the plaintiff now had, it could not enn nr ee ant ct nt 29. have occurred from the collision because otherwise there would not have heen the pain free interval of time. Counsel accepted that as being the "real nub of the issue". This subiect had been fully explored by him with Mr. Fry. The rather more important issue to the plaintiff on this appeal, as I gather from his submission as I understand it, concerns the relationship between the plaintiff's alleged post-traumatic depression and the injury. The plaintiff's case is that the former was related to the collision; the defendants' . case is that the plaintiff fabricated his symptomatolagy or was a malingerer in the sense used by Dr. Shoulder, or that any depression was related to other external causes. Further, he was said to have an inadequate personality, being the type of person who blamed events exterior to himself for misfortunes. Dr. Shoulder said the malingering and inadequate personality were not inconsistent. It is correct that these excressions of opinion were not put to Dr. James. Yet it is to be remembered that the claim of post-traumatic neurosis had been put forward on the Plaintiff's behalf only some four days before the hearing commenced and that although he had been examined by a psychiatrist on behalf of the defendants, that witness's Medical report was not then available. It would have been, therefore, not possible for the defendants' counsel to cross-examine the plaintiff's witness on the material later appearing in the Shoulder report or as to his viva voce evidence. The plaintiff's counsel further submitted that there was an inconsistency between Name ee 30. the assertion on the one hand that the plaintiff was a malingerer, consciously fabricating symptoms and, on the other, the assertion that he had the unconscious tendency or practice always to attribute his misfortunes to events exterior to himself. Dr. Shoulder @id not accept that there was an inconsistency in these assertions. I do not agree that the evidence establishes or that the allegation 1s that projection, or plaintiff's projection, is essentially or wholly unconscious, The plaintiff's advisers considered and had the opportunity, it would appear, to call Dr. James in reply to the defendants' case. The earlier quoted words of counsel indicate that it was decided during the hearing not to do so. I do not suggest that this was a wrong decision. Presumably, Dr. James, having regard to the clear-cut manner in. which his evidence appears. would have adhered to his previous ovinz:on; thus there would have been a conflict, as the learned Chief Justice accented, between the psychiatrists. If, on the other hand. Dr. James on recall had agreed with the opinions expressed by Dr. Shoulder, the plaintiff's case in this area would thereby have been diminished. I notice Dr. James accepted in evidence that there may have been some kind of conscious exaggeration by the plaintiff of symptoms; presumably he regarded this as not inconsistent with post-traumatic neurosis developing from the injury; so he was not denying some form of what might be described as fabrication; but rather treating this as part, perhaps a manifestation, of the accident-induced neurosis. Sad a 31. In my view the competing testimony of these two psychiatrists established a clear enough issue and his Honour was entitled to choose between their testimony as he did. As indicated earlier. counsel for the plaintiff placed much reliance on Browne v. Dunn (supra). One aspect of what it decided is referred to in the speech of Lord Herschell at pp.70-71 thus - "Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that awitness 1s not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to exolain, as perhaps he Might have been able to do if such questions had been out to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed. to argue that he is a witness unworthy of credit. My Lords. I have always understood that 1f vou intend to impeach a witness you are bound. whilst he is in the box, to give nim an opportunity of making any explanation which is Oren to him; and, as it seems to me, that is nat only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." In the instant case 1t was not suagested that the medical witnesses called to give evidence in the plaintiff's case were not speaking the truth; nor was their evidence unchallenged. If Mr. Baddeley was not fully cross-examined it was because counsel for the defendants vas not in possession of material he later received. Lord Halsbury in Browne. v. Dunn (supra) (pp.76-77) refers to the failure to give witnesses "an - 32. opportunity of explanation and....lo defend their otm character." Counsel here could hardly give an opportunity to explain something of which he himself had not been instructed; and no question of the character of medical witnesses arose at any stage. Authorities which have referred to Browne v. Dunn and underline its place in our procedures are collected in Alized Pastoral Haldings Pty. Ltd. v. Commissioner of Taxation (supra). What Browne v. Dunn decided 1s referred to by Newton J. in Bulstrode v. Trimble (1970) V.R. 840 (Bulstrode) at p.846 - "The rule in Browne v. Dunn has, in my opinion, two aspects. In its first aspect the rule in Browne v. Dunn is a rule of practice or procedure designed to achieve fairness to witnesses anda fair trial between the parties. In its second aspect it is a rule relating to weight or cogency of evidence." It hac been summarised in Cross on Evidence 2nd Australian edition (1979) at p.245 - "Any matter upon which it is sreposed to contradict the evidence-in-chief given by the witness must nurmally be put to him so that he may have an ; opportunity of explaining the contradiction, and failure toa do this may be held to imply acceptance of the evidence-in-chief. It may be that in jurisdictions which permit evidence in rebuttal liberally, this rule will be applied less strictly..." (underlining is mine). I note that Newton J.. in Bulstrode at p.847, referred to the possibility of remedying the situation, where the "rule" has been breached. by recalling witnesses. 33. In the instant case it was not "proposed" to contradict the evidence of Dr. James and Mr. Baddeley. In the case of the first, the appropriate material was not available; in the second, Mr. Fry's evidence relied upon Mr. Baddeley's evidence as to the absence of punctate lesions. This was not a situation where these matters could "normally" have been put. The failure to do so did not imply acceptance. However, I do not accept there was a failure to cross-examine Mr. Baddeley relevantly. There remains one further submission by plainviff's counsel i.e. that the Chief Justice ignored the evidence of lay witnesses. I do not agree as contended that this has been made out. (cf. Lord Simonds, Watt or Thomas v. Thomas (supra) at p.492). The Chief Justice finally decided that the defendants' medica2 evidence was preferable to that cailed on hehalf of the plaintiff, as he was entitled to do. fT have wondered whether the learned Chief Justice drew more from the remark said to have been made to Dr. McGreqor than he should have done. I have referred te this earlier. It 1s possible to infer that his Honour found from this remark some support for his view, tentatively expressed, that the plaintiff's depression post-dated the collision by more than 18 months. However, such considerations Dear upon the weight to be attached to the various areas of evidence. Wor is this a case where one thing was taken to be the question to be determined by a jury (or Court deciding factual issues) and afterwards raising another question. At all times the case for the defendants was that the condition of depression ro 34. sutfered by the plaintiff was not causally related to che collision; in fact, defendants' counsel said in his opening (which I have set out in part earlier) that although the condition of depression was accepted, it was to be explained by reference to other areas, meaning, perhaps, the plaintiff's various misfortunes. Two other matters, as it eventuated, were the assertion that the plaintiff was a malingerer of which some notice, though not in time to be used when Dr. James was being cross-examined, was given by providing a _ report; and the assertion as to an inadequate personality of which no notice was given; but viva voce evidence concerning it was admitted without objection. A factor which affected his Honour's assessment of damages was, clearly, his unfavourable view of the plaintiff as a witness. So the Shoulder evidence was more acceptable to his Honour; it coincided with his Honour's own estimation of the plaintiff, a task which was, of course, most significant in the assessment he made as to the various components of the damages award. Counsel vreferred to Precision Plastics Ptv. Ltd. v. Demir (1974-1975) 132 C.L.R. 362 (Precision Piastics) per Gibbs J. at p.370. It appeared that ina jury trial a plaintiff had wished to establish how long she proposed to remain in employment if she had not received her injuries, this being relevant and admissible evidence upon the question of impairment of earning capacity. She answered - ve 35. "Until the age of fifty-five years old. Of course, until the last day until I died I like to work as far as work is concerned." There was no cross-examination upon this answer. Gibbs J. said at pp.370-371 - "If it had been intended to suggest that she was not speaking the truth she should have heen cross-examined on this matter so that she might have had an opportunity of explanation (cf. Browne v. Dunn (1893) 6 R.67, at pp.76-77), but she was not in fact cross-examined on her answer." He commented that the plaantiff's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible; in his opinion the jury, acting reasdOnably, were bound to accept her evidence, uncontradicted and unchallenged in cross~examination, that she had the present intention of working until she reached the age of fifty-five. I note that in this case Stechen J. agreed with the decision of Gibbs J. for the reasons stated in it: however, Barwick C.J. dissented, McTiernan J. founded himself upon a different aspect of the material as did Murphy J.; though Murphy J. did say that he agreed "generally with the observations on the verdict" made by Gibbs J. In Precision Plastics the person who should have heen cross-examined was the plaintiff, not, as here, a "mere witness" - cf. Horner v. Canadian Northern R. Ca. (1920) 55 D.L.R. 340 at ».358 where the failure to cross-examine was not thought to call for a new trial. However, 1n the circumstances outlined here, counsel for the defendants did not have in his possession material which would have enabled him to cross-examine 36. Dr. James as specifically as he might have done. Furthermore, the evidence was that of an expert and not factual evidence; and there is much to be said for the view that to put precisely what was expected to be the evidence of Dr. Shoulder in the cross-examination to Dr. James would have done no more than bring about a refutation from Dr. James of the opinion put forward by Dr. Shoulder. This is implicit in the evidence given by Dr. James and vas the substance of the comment by counsel for the Plaintiff I have quoted earlier. In my opinion, the claim made on behalf of the plaintiff that the trial miscarried or miscarried in part because of the failure fully to cross-examine Mr. Baddeley and Dr. James has not been made out. This was a case of experts who simply reached a point of view different to those of experts caliec. by the other side after consideration of the material before thei. Much reliance was placed upon the decision of this Court in Mavley_ v. Radial Industries (1982) 61 F.L.R. 189 (Mapley). Tnere it appeared the appellant suffered personal injury 'from an accident arising out of employment by the respondent. He applied for comoensation toa Tribunal. His claim was dismissed. He appealed to the Supreme Court of the Northern Territory. During much of the proceedings, the case was conducted by both sides on the basis that the appellant's injury was permanent. That Court dismissed the appeal because "in the present state of the evidence" the Court "was not satisfied on the balance of probabijlites" that the appellant's injury was vermanent. It is ne ee, —-- ~— 37. necessary to notice how the issue in that case arose, as sev in the judgment of Deane J. (as he then was) at p.197, - "The expert medical evidence before the Chief Justice took three different forms. There was a number of written reports which had been tendered before the Tribunal. There vas the transcript of oral evidence. including the oral evidence of three medical experts, given before the Tribunal. There was oral evidence given before the Supreme Court. The reports and oral evidence which had been tendered or given before the Tribunal do not appear to have been discussed in any detail before the Chief Justice: they were simply included in a bulk tender, made by consent, of all the material that had been before the Tribunal. The oral medical evidence before the Supreme Court consisted of the evidence of one expert (Dr. Yaksich) who had also given evidence before the Tribunal and of 'another (Dr. Lowe) who gave evidence for the first time before the Chief Justice. The proceedings before the Tribunal appear to have been conducted on the basis. common to both sides, that any persisting loss, by the appellant, of use of his arms for the vcurposes of his employment was permanent. Up unril the time when the last medical expert, Dr. Lowe, gave his evidence, the proceedings before the Chief Justice were plainly conducted on that basis." His Honour said further at p.200 - "No suggestion of these matters was made in cross-examination of the appellant or Dr. VYaksich when they gave oral evidence in the appellant's case in the Supreme Court. The first suggestion of these matters came in the evidence of the last witness, Dr. Lowe, in answers which were strictly unresponsive to questions which he was asked. It was unfair to the aopellant that the respondent's case should be so conducted. That unfairness was, no doubt, unintentional on the part of those sikho appeared on behalf of the respondent and, at least in part, the result of changes in the identity of counsel and the fact that Dr. Lowe was an expert called from the south. It is imporvant, however, in that it does much to explain the failure by counsel, who then appeared for the appellant, either to cross-examine Dy. Lowe on-the new natters which he had raised or to call or recall expert out eee ae ce 38. evidence to.deal with them." The basis, as I read it, for his Honour's judgment, is to be found at p.199 where he said - "A reading and rereading of the material before the Supreme Court has persuaded me of the validity of the submission that the appellant's case, on the questions which emerged for the first time in the evidence of Dr. Lowe, was never properly put." His Honour, for reasons which he gave, decided that it would be wrong to lay the responsibility for the unsatisfactory state of the evidence in relation to the questions raised by Dr. Love's evidence, wholly at the door of the appellant or his legal advisers. He stated that ultimately the combination of four considerations governed the outcome of the appeal, viz. the appellant's case on permanency was never properly put to the Supreme Court; this was, to a siqnificant extent, due to the unfair manner in which respondent's case evolved: the unsetisfactory nature of the evidence in the Supreme Court led to the case being determined by the onus of vroof rather than by positive findings on relevant questions of fact; and finally the overall objectives of justice would be best served by a rehearing. In my opinion the first three reasons are absent here; the fourth step is a reference to the issue in this or any appeal. The plaintiff's case to the learned Chief Justice, apparently thoroughly argued by counsel then representing him, was that there was a deterioration of the left knee and we ae a rt ee eri en et i cere te fat Pan A nn a tet tp ea ry 39. post-traumatic neurosis due to the accident and its consequences. Those who asserted to the contrary, viz. Mr. Fry and Dr. Shoulder, were fully cross-examined: though, admittedly, the defendants' case in specific terms was not precisely put to Dr James. To have recalled the witness. Dr. James, and asked his view of the Shoulder opinion would, it séems, have been no more than an academic exercise; unless, of course, Dr. James accepted the Shoulder opinion. To some extent the plaintiff's advisers must accept responsibility by their late introduction of the so-called "post-traumatic neurosis". And they did not recall Dr. James or Mr. Baddeley. The third consideration of Deane J. does not apply here. In the sense that he used the expression. there was no "unsatisfactory nature of the evidence": nor was there unfairness. Litigants should be bound on appeal by the way they have conducted the hearing at first instance. See per Gibbs J. (as he then was) in McCormack v. Federal Commissioner of Taxation (1979-1980) 143 C.L.R. 284 at p.305. The learned Chief Justice did not determine this matter by reference to onus but rather by a choice of evidence which he founu in two witnesses as opposed to two others. Furthermore, he formed an unfavourable view of the plaintiff. Federal Commissioner of Taxation v. Nixon (supra) referred to the pre-eminence of the trial judge's view in matters of credibility. The strictures set out in that case at p.406, I consider, offer timely caution against making a finding different to that of the learned Chief Justice in matters of weight and credibility; particularly against interfering with his assessment as trial judge of the plaintiff as a witness. fr ee ee 40. Moreover, 7 wonder whether what emerqed from Dr. Shoulder's evidence subsequently was really the assertion of a psychiatric disability. Those who consciously falsify symptomatology are not necessarily thereby manifesting a psychiatric disability. They may be behaving in an improper manner for gain. An inadequate personality with projection is not readily to be perceived as a psychiatric disability. It could be a weakness from which all suffer in varying degrees. I note that Gallop J., who was one of the majority in Maplev, examined the evidence and the findi'gs of the primary Judge from syhom the appeal was brought to the Full Court. Having referred to the primary Judge's 'adverting to medical evidence which he compared with that of Mr. Lowe who gave the new evidence related to permanency, Gallop J. at p.208 said - "In my view, his Honour has failed to appreciate the full extent of the evidence of the medical witnesses except Mr. Lowe." He said, at pp.210-211, after examination of the meaning of the word "permanent" in authorities - "It does not appear that the Chief Justice was referred to any authorities on the meaning of the word "permanent™ in comparable legislation, and further, that his Honour may have applied the notion of a perpetual state of affairs rather than the ordinary meaning of lasting indefinitely, enduring or persisting." Later in his judgment. his Honour said that if notice had been given on behalf of the respondent of an intention to lead evidence tending to show that the appellant's loss was not permanent, a ruling could have been sought that the respondent should be bound by the course it had deliberately adopted, 41. meaning, as TJ understand him, bound to accept the evidence that the condition was permanent. He referred to Rowe v. Australian United Steam Navigation Co. Ltd. (1909) 9 C.L.R. 1 at p.24. Having regard to this summary, [I do not agree, with respect, that Mapley, so far as the Reasons for Judgment of Gallop J. reveal, is applicable here. I conclude that the claim on behalf of the plaintiff that the trial miscarried has not been made out. IT am aware of the Orders proposed by Toohey J. and, with respect, concur in them. 1 éectrfy that this and the £0 freceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice McGregor, ih ne Cooler Assoclata Dateda !3 Tune (734 oO