NICKLESS vy GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 6 July 1994, 3 August 1994 [1994] NSWCA 233 MISCARRIAGE OF JUSTICE — BIAS FACTS The appellant, Ian Malcolm Nickless, sued the Government Insurance Office of NSW for damages in respect of injuries which he suffered on 29 May 1985. The trial was concerned only with the assessment of those damages. His Honour awarded the appellant $19,000 in an ex tempore judgment. The main issue on appeal is that the appellant contends that the trial miscarried because his Honour was concerned with the irrelevant issue of whether the appellant was a practising homosexual. His Honour gave a cryptic Jones v Dunkel warning after the appellant was cross-examined on blood tests the appellant undertook every 4 to 6 months as part of a prospective study run by Professor David Cooper. His Honour devoted a part of his judgment to the appellant's sexual preference and made a finding that the appellant is a homosexual. At the end of his discussion, his Honour decided that any issue of the appellant's sexual preference had no significance in the case. HELD Once the appellant gave evidence (which was corroborated by Dr Beveridge) that every blood test over a period of eight years had returned an HIV negative result the subject of the appellant's sexual preference went to no issue in the trial. It was irrelevant in the assessment of damages as the appellant's sexual preference had no impact on life expectancy. His Honour's concentration on the appellant's sexual preference could only have led the appellant and indeed, any fair minded observer sitting in the back of the court, to believe that the judge had been influenced in his assessment of the appellant by his conduct in the witness box and the ultimate conclusion that he was a practising homosexual. Although it may be, as the judge said, that he was totally successful in putting the inferred fact out of his mind, the appellant would have left the court with the firm belief that the judge had decided the case adversely to him because he was a homosexual. The evidence also indicated that his Honour's assessment of the appellant's credibility was wrongly affected by the appellant's failure to announce to the court that he was a practising homosexual and the judge's perception that in answering questions which should have led to the revelation the appellant was evasive. This was not correct and the judge's reliance on these matters on the critical question of the appellant's credibility led to a flawed conclusion. Clarke, Handley and Sheller JJA On 2 and 3 March 1992 Judge Mahoney QC tried an action in which the appellant, Ian Malcolm Nickless, sued the Government Insurance Office of New South Wales for damages in respect of injuries which he suffered on 29 May 1985. At the end of the submissions by counsel his Honour delivered an ex tempore judgment in which he awarded the appellant damages in the amount of $19,000. The trial was concerned only with the assessment of those damages and the appellant has contended that the trial miscarried and, as a consequence, his Honour's assessment was erroneous. The first two grounds of appeal relate to an issue which does not seem to us to have been of any relevance in the trial and that 2 UNREPORTED JUDGMENTS was whether the appellant was a practising homosexual. Initially the appellant contended that his Honour had wrongly admitted evidence given by a doctor of his belief that the appellant was a homosexual but as the objection to the relevant question was withdrawn before the doctor gave his answer (for reasons which are quite unclear to us as the evidence was clearly inadmissible) that ground of appeal was withdrawn. That left two other challenges which were, first, that his Honour misused evidence going to the question of whether or not the appellant was a homosexual and, secondly, that his Honour erred in drawing adverse inferences against the appellant 'in what his Honour saw as attempts by him to hide his homosexuality'. There is also a ground of appeal asserting that the trial judge erred in finding the appellant was not a witness of credit but, putting to one side the issues relating to homosexuality, it seems to us that there was material upon which it was open to his Honour to reach that conclusion. Indeed, we would go further and say that if the homosexuality issue had not intruded into the trial the appellant would be hard put to make good any of his other challenges to the verdict. For this reason it is appropriate to focus on the really contentious issue to which we have referred. In order to facilitate a proper evaluation of the appellant's submissions it is necessary to refer specifically to the evidence given by the appellant. At a fairly early stage of his evidence-in-chief the appellant was asked the following questions and gave the following answers: "Q. Did you continue to attend upon Dr Barnes? A. Yes, I visited him on frequent occasions. Not on a regular basis but frequently I went for personal reasons - otherwise. and also have references and treatment while I was there. Q. What did he do for your injuries flowing from the accident? A. Basically repeats, prescriptions for the pain killing tablets." Later in his evidence-in-chief he identified the prescribed tablets as Voltaren but was not asked, nor volunteered, to amplify his 'personal reasons'. The cross-examiner in his questioning established that Dr Barnes was at Kings Cross and then asked the following questions and received the following replies: "Q. Why did you go all the way to Kings Cross? A. Because he was my regular GP. I had not been in Sydney very long and he had been recommended to me as a good GP. Q. Had you seen him in Sydney before the accident? A. Yes, I did. Q. For what complaint? A. Very personal reasons. I had gone for different testing that was done, mainly blood tests and so forth. Q. Is that, in effect, what you are saying, that from the time of the accident to today the only ailments you have said are the only ailments you have had? A. Plus continuing blood tests I go for on a continuing basis. Q. Is it correct you see Dr Barnes in connection with blood tests? A. I have been to see him frequently for blood tests but not to do with anything that was involved with the car accident. Q. Do I take it that you only saw him for matters involved in the car accident only on the date of the accident: A. No, each time I went to see him after that he always repeated the prescription for me and if I needed them he would - I would go over and he would have them ready for me to pick up." After a few more questions his Honour intervened and asked the following questions to which the quoted answers were given: "Q. Are you still under treatment from Dr Barnes? A. He is not my doctor now. He has moved from the surgery. Another doctor has taken his surgery. Q. You are still under treatment for the same condition? A. Yes. UWROKLESS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark& Handley and Sheller JJA) Q. What is the condition they are treating you for? A. Pardon. Q. What condition are they treating you for? A. Its a series of blood tests that I have done. Q. That is what they do, what is the condition? A. There is no condition. That is why I'm having blood tests done to make sure. Q. Why would you be going to the doctor for constant blood tests if there is nothing wrong with you? A. Because I was asked to be in a survey which I had joined prior to the time of the car accident, which includes having blood tests done on an average of every 4 to 6 months." The cross-examiner asked two questions and then his Honour continued: "Q. Let me come back to this other matter. Mr Nickless, I am told your date of birth is 20 April 1943. That means that you are now, what, 47 years of age? A. 48 going on 49. Q. You will be 49 in April. One of the things that I am entitled to take into account is roughly how long people live. The Commonwealth Actuarial tables indicate that anybody who gets to 48 usually has 25 to 30 years life expectancy. A. Sorry I can't hear you. Q. The Commonwealth Actuarial statistical tables indicate roughly that anybody who gets to be 48 years of age has about 25 to 30 years of life left in them, do you understand that? A. Yes. Q. Of course, putting your case at its highest, that would be one way in which I could be asked by your counsel to address the damages to take that into account, do you understand that? A. Yes. Q. But if you're part of some controlled test or some testing programme which calls for you to be blood tested every 4 to 6 months that might seem to indicate that you do not share the same longevity as everybody else in the community? A. No, its not that case. It is involved with the HIV testing groups. Q. Well then, can I just make this clear to you and your counsel. Your lawyers will hear this. If the matter is left up in the air like that I have to proceed upon the basis that you, as the plaintiff, having brought this case have an obligation to prove such evidence as it (sic) required to entitle you to damages, do you understand that? A. Yes " Mr Walsh, counsel for the respondent at the trial, then asked: "Q. When you have this blood testing are you asked to state what your symptoms, if any, are at the time you have the testing?" and received the following answer: "A. No, its a series run on HIV testing in which case every test has come back negative." His Honour then continued: "Q. Do you know why you have been drafted into the programme? A. Because I was asked would I join it. They wanted a thousand people in it at the time. I was approached by the doctor, would I join it. HIS HONOUR: Mr Leatherbarrow, I am directing these remarks to you. It is 1992 in Sydney. There is a matter of general knowledge in Sydney, there is an inference which is crying out to be drawn in accordance with the principles in the Jones and Dunkel (sic). Your client, even if he has not understood what I have been getting at, is in the position of you knowing fairly and squarely what I am arriving (sic) at and if the matter is left there that is the way in which I will have to come to assess the case." 4 UNREPORTED JUDGMENTS Pausing there we wish to make the following observations. First, no one asked the appellant whether he was a homosexual, much less a practising homosexual. His evidence was that he had responded to a request that he participate in a survey which involved his being subjected to blood tests once every four to six months. This evidence was not contradicted. On the contrary Dr Beveridge corroborated it saying: "Q. I think at the request of his solicitor over night you have obtained the results of various HIV tests that the plaintiff has undertaken since 1984 from St Vincent's Hospital, is that right. A. Yes. Q. Those tests have been undertaken every 6 months, is that correct? A. Yes. Q. What is the result of each of those tests? A. Every test has been negative every six months since 1984. CROSS-EXAMINATION: WALSH: Q. Do the records disclose why this man is subject to 6 monthly testing? A. He is part of a prospective study run by Professor David Cooper. He is a volunteer. He has agreed to do it. Its a community service that he is providing." It is, of course, possible that he was involved in the survey because he was homosexual but that is a matter of speculation, particularly as the suggestion was never put to the appellant. It may also be that it is probable that he was not simply acting as a control in the light of his evidence that he was having blood tests done 'to make sure'. But even accepting that it by no means follows that he was a homosexual. One must accept that a number of persons who are HIV positive in the community are homosexuals but equally persons who are not homosexual suffer from that condition. What is of singular importance is that none of this evidence had any relevance in the case. Once the appellant gave evidence (which was corroborated by Dr Beveridge) that every blood test over a period of eight years had returned an HIV negative result the subject of the appellant's sexual preference went to no issue in the trial. Unfortunately, his Honour did not seem to appreciate the possible, and narrow, area of relevance of the questions which counsel, and he himself, had asked the appellant because he then proceeded to make the statement which we have also set out. We must confess that upon a first reading of his Honour's statement we found it somewhat difficult to understand what, to use his words, he was 'getting at' but reference to the judgment makes it perfectly plain. What should, however, be emphasised at this stage is that there was no material which enabled the trial judge to draw an inference that the appellant was a homosexual, much less a practising homosexual. The only evidence on this issue was given by Dr Beveridge who said: "Q. I do not mean to embarrass the gentlemen but is he of a particular sexual proclivity? OBJECTION. RELEVANCE. HIS HONOUR: Q. What is the relevance of Mr Beveridge's evidence in the first place? LEATHERBARROW: To corroborate the plaintifFs evidence that the tests that he has been undertaking are negative and for what purpose they are for. (Discussion ensued. Objection withdrawn.) ABOVE QUESTION MARKED * READ BACK WITNESS: I am not sure what you mean. WALSH: Is he homosexual? A. I believe so." UWROKLESS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark& Handley and Sheller JJA) This evidence did not justify an inference that the appellant was a practising homosexual. Nor would such an inference, if drawn, have had any relevance to the issues in the case. The reference to Jones and Dunkel (Jones v Dunkel, 101 CLR 298, esp at 312 and 314) is puzzling. That was a case in which the defendant failed to call an apparently available witness to contradict the plaintiffs evidence and gave no explanation for that failure. The High Court held that in those circumstances the plaintifFs evidence could be more readily accepted by the tribunal of fact and that inferences favourable to the plaintiff might, assuming the inferences to be open, more readily be drawn. The decision was, with great respect to the trial judge, completely irrelevant in the circumstances of this case. The point which should be made at this stage is that his Honour regarded the exchanges which had immediately preceded his statement as of such importance that he was compelled to give the appellant's counsel the cryptic warning which we have set out. Notwithstanding the significance which he, erroneously, attributed to the evidence on the subject of blood tests which had been given by the appellant there could have been no valid complaint if his Honour had put the matter out of his mind. Unfortunately he did not do that. On the contrary he devoted part of his judgment, to which we will now turn, to the subject. Before doing so we should explain, briefly, the structure of that judgment. First, he set out the respondent's history. This was followed immediately by his Honour's finding that the appellant suffered injuries of a soft tissue nature to the cervical and thoracic spines and a soreness down the right hand side of his body and particularly of the right knee. His Honour then expressed the opinion that the appellant was not a witness upon whom he could rely implicitly and uncritically. Having given a number of reasons to support that opinion his Honour directed his attention to the evidence which we have earlier set out and then made his final evaluation of the appellant's case. In fairness to all concerned it is important that we set out in some detail those passages from his Honour's judgment dealing with what we might call the subject of homosexuality. In so doing we will, however, omit some passages which are, to our minds, strictly irrelevant to the problem under consideration. His Honour said: "A significant amount of time was spent in the case dealing with the blood tests and I mentioned earlier that I would come back to that. The plaintiff himself had been singularly silent in volunteering why he was tested for blood and why he is being tested for blood. When given the opportunity of making a frank disclosure he took a course which was perfectly legitimate and open to him, namely of not being completely frank and open about why the testing was being carried on, or why the tests were being carried on. He was pursued on the matter and he volunteered just a little more about how he came to be tested on this regular basis. On the basis of Jones v Dunkel 101 CLR 298 it seems to me that it is open for me to draw an inference from such evidence as has been adduced in the case, that the plaintiff is a practising homosexual and has been during the period of the blood testing. This inference is open and it is an inference I draw. Having drawn it, I then want to indicate the drawn inference and its position in the overall context of the case. As far as I am concerned it could only be relevant in two respects. Firstly, in respect of his longevity with respect to any continuing pain and suffering flowing from the motor vehicle accident; and, secondly, with respect to his longevity affecting any future income-earning capacity reduction factor. As far as I am 6 UNREPORTED JUDGMENTS concerned the sexual preference of the plaintiff is relevant in no other respect whatsoever, and is no more relevant in a claim of this nature than as may be adherence to an idiosyncratic philosophy, adherence to a non-mainstream religious belief or to a mainstream religious belief, and it is no more relevant than adherence to political persuasions of one nature or another, and it is no more relevant than might be one's preference to wearing brown suits as opposed to navy suits. There are only two respects in which his sexual preferences are relevant. I have identified those and they are only relevant to the extent to which his longevity comes into consideration in the assessment of damages, and in this regard his sexual preference would only be relevant, as I understand the law, in relation to a consideration of the vicissitudes of life. And one would have to take account of the fact that, being as commonsensical as one can be, such vicissitudes are partly good and partly bad. However, my findings in this case are such, as I will explain in a moment, that the plaintiffs sexual preference has absolutely no significance and no influence whatsoever on the verdict that I propose to award in his favour. I say this because I am satisfied that the effects of such injuries and the pain and suffering flowing from them as are referable to the motor vehicle accident have all long since passed." We have already said that, to our minds, the evidence concerning the blood testing had been shown to be totally irrelevant to the issues in the case before his Honour made his controversial statement. His Honour's approach was somewhat different but in the end he decided that any issue of the plaintiffs sexual preference had no significance in the case. Why in those circumstances his Honour devoted three pages of his judgment to dealing with the matter and making a positive finding is something we find difficult to comprehend. Nonetheless, his Honour did spend time on the matter and what he there said could, in a sense, be regarded as having coloured his judgment. In these circumstances it is necessary to make the following comments about specific passages in the judgment. First, his Honour made highly critical comments about the manner in which the appellant responded to questioning about the blood testing. He found that the appellant, to whom an opportunity had been given to make a frank disclosure, was instead evasive and not completely frank. Although this was not said in the context, and assessment, of the appellant's credibility it is plain beyond doubt, in our opinion, that it was a finding relating to credibility and that his Honour took an extremely adverse view of the manner in which the appellant gave his evidence on the topic. The subject matter of the disclosure is not entirely clear. The words immediately following would suggest that the appellant was evasive about the reason for the tests but having regard to the statement made at the end of the evidence in question and the inference which his Honour went on to draw in the passage in his judgment following the reference to the appellant's lack of complete frankness it seems to us that the more likely disclosure to which his Honour was referring was a disclosure that he was homosexual. On either view the finding that he was evasive was quite unfair to the appellant. He responded to the specific questions which were asked of him and although one could infer that he was not happy to volunteer information as to his private life that, in our opinion, was hardly a matter for criticism. It is not an unusual experience to find a plaintiff protesting to the judge about questions directed to aspects of his or her private life which seem irrelevant to the claim and, for UWROKLESS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clarke, Handley and Sheller JJA) obvious reasons, such protests do not, in the absence of complicating factors, lead to adverse inferences. It is true that the appellant did not protest but if there was an apparent lack of willingness to volunteer material that is readily explicable on the same grounds. If, however, his Honour was suggesting that the appellant was not completely frank insofar as he did not disclose that he was a homosexual, as we think was the position, then the criticism was totally unjustified. If, the respondent's counsel, or even the judge, considered that that was a relevant matter it was open to either of them to ask the respondent directly whether he was a homosexual. In the circumstances the question would, or should, have been objected to but that is of no present consequence. No one confronted the respondent with the suggestion and it is impossible to regard his failure (if that be a correct word) to volunteer the disclosure as reflecting adversely on his credit. Indeed it should not be overlooked that it was not established that he was a homosexual. If, indeed, he was not it would be hard to sustain the criticism that he was evasive in not making the disclosure which the judge believed he should have made. What is more the finding, which the judge made, that the appellant was a homosexual was utterly irrelevant to the issues confronting the judge, for reasons other than those given by the judge. It is, perhaps, trite to say that a homosexual person is as entitled to a fair and impartial hearing as a heterosexual person. The sexual preference of the appellant had nothing to do with a fair assessment of his damages. It was a matter that should not have been pursued by counsel, much less the judge, at least after it had been shown that he was HIV negative. Furthermore the fact that he may have been a homosexual was irrelevant to the vicissitudes. There was no evidence referred to that demonstrated that homosexual men, and in particular those who are HIV negative, have shorter life expectations than heterosexual men. In those circumstances even if the inference that the judge drew had been open, and we have said that we do not think it was, that would have provided no basis for making a greater discount for vicissitudes than would be made in the case of a heterosexual man, or one whose sexual preferences were unknown. We recognise that if the evidence had been that the appellant was HIV positive a question whether there had been a diminution of his life expectancy may have arisen. That was, not, however, the evidence and there was no basis in the evidence for treating the respondent as though he was, in some way, at risk of an early death. Even if one assumes that homosexual men are more likely to become HIV positive than heterosexual men (a view which seems to underlie his Honour's observations) that fact provides no basis for treating the appellant as being at greater risk simply because he was, as we assume for the purposes of this discussion, homosexual. It would be necessary to go further and establish that circumstances existed which gave rise to a probability, or real possibility, that he was a particularly vulnerable member of society. Counsel for the respondent was prepared to accept that his Honour may have erred in the manner in which he dealt with the homosexual issue, both during the hearing and in the judgment, but in his submission the error had no effect on the judgment. The trial judge had said as much in his judgment and there was no legitimate basis for this Court to reject the trial judge's statement. This argument cannot be lightly rejected. In particular, as it seems to us very exceptional circumstances would need to exist before this Court could hold that it was unable to act on a trial judge's statement that a particular matter had not influenced his judgment. Nonetheless, while we can readily accept that the trial 8 UNREPORTED JUDGMENTS judge was astute to ensure that the inference he drew did not influence his assessment of the appellant's damages there remains a real question in our minds whether the course of the trial and the manner in which the evidence emerged may not have sub-consciously influenced his Honour's assessment of the damages. It is unnecessary to pursue this difficult question as in our opinion the judgment should be set aside on other grounds. The first ground involves the application of an old principle which is as important today as it was in the past and that is that justice must not only be done but must also manifestly appear to be done. As Devlin J said in Reg v East Kerrier Justices; Ex parte Mundy [1952] 2 QB 719 at 724, questions of form arise so that "a person who is guilty should know that there has been no injustice". For the purposes of considering the application of that principle in the present case we will assume that his Honour's decision was not influenced by the course of the trial and the exchanges on the controversial question. Yet his Honour not only closely questioned the appellant on his medical treatment but once it had become, or should have become, apparent that the evidence concerning the blood testing was irrelevant his Honour delivered the cryptic warning to the appellant's counsel. Later, and more importantly, he devoted a significant portion of his judgment to a discussion of the issue during which he drew the irrelevant inference (which was not open) that the appellant was a practising homosexual. This concentration upon the issue of sexual preference could only have led the appellant, and, indeed, any fair minded observer sitting in the back of the court, to believe that the judge had been influenced in his assessment of the appellant by his conduct in the witness box and the ultimate conclusion that he was a practising homosexual. Such a conclusion would have been strengthened, and not, as the judge seems to have expected, diminished by the later revelation that the inference which the judge drew, after warning the appellant's counsel, was utterly irrelevant. Why, the observer would ask himself, or herself, would the judge have drawn an irrelevant inference if it hadn't been regarded by him as in some way of importance. Although it may be, as the judge said, that he was totally successful in putting the inferred fact out of his mind we have little doubt that the appellant would have left the court with the firm belief that the judge had decided the case adversely to him because he was a homosexual. Our second ground is concerned with substance. Our reading of all the evidence, in particular the parts we have set out, and the judgment has left us with the firm conviction that his Honour's assessment of the appellant's credibility was wrongly affected by the appellant's failure to announce to the court that he was a practising homosexual and the judge's perception that in answering questions which should have led to the revelation the appellant was evasive. In this perception his Honour was, in our view, quite wrong and his taking account of these matters on the critical question of the appellant's credibility led to a flawed conclusion. In all these circumstances we have concluded that the trial miscarried. It follows that: (1) The appeal should be allowed; (2) The judgment of Mahoney DCJ set aside and a new trial ordered; (3) The respondent should pay the costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified; and (4) The costs of the first trial reserved for order of the judge conducting the new trial. UWROKLESS v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (Clark Handley and Sheller JJA) (1) The appeal allowed; (2) The judgment of Mahoney DCJ set aside and a new trial ordered; (3) The respondent to pay the costs of the appeal and is to have a certificate under the Suitors Fund Act 1951 if qualified; and 5 (4) The costs of the first trial are reserved for order of the judge conducting the new trial. COUNSEL: 10 Appellant: M R ALDRIDGE Respondent: H J MATER SOLICITORS: 15 Appellant: JOHN D HANCOCK Respondent: G M MEADOWS - Solicitor for the GIO