ARCHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and BEAZLEY JJA 28 August 1997, 22 October 1997 [1997] NSWCA 26 Workers' Compensation — Claim for weekly compensation — Causal connection — Onus of proof — Presumptio hominis. Evidence — Rule in Browne vy Dunn — Requirements of procedural fairness — Principle in Jones vy Dunkel — Preconditions to attract operation of the principle. The appellant was injured whilst on a periodic journey from his place of employment when he was struck by a motor vehicle whilst crossing a road, sustaining a head injury. The appellant claimed that as a consequence of the accident he continues to suffer the effects of brain damage and anosmia. The respondent disputed there was any causal connection between his current complaints and the accident. His claim for weekly and other compensation was dismissed by the Compensation Court of New South Wales. An appeal was available only in respect of an error of law. Four alleged errors of law were identified: (i) the application of a wrong onus to the appellant's claim that he suffered anosmia caused by his work related accident by requiring satisfaction to the point of certainty; (ii) placing an onus on the appellant to disprove alternative causes of anosmia, an onus which the respondent properly bore; (iii) a failure to apply the principles in Browne v Dunn (1894) 6 R67; (iv) a wrong application of the principle in Jones v Dunkel (1959) 101 CLR 298. Held, dismissing the appeal: (i) The language in the judgment in respect of onus was unexceptional and was an obvious reference to the civil onus. (ii) In circumstances where the appellant failed to satisfy the trial judge that the anosmia was caused by the accident, the respondent bore no evidentiary onus to establish that the anosmia was caused by some other condition. Watts v Rake (1960) 108 CLR 158 distinguished. (iii) There was no breach of the rule in Browne v Dunn. The relevant matter in issue was a medical issue, and there could not have been any relevant cross-examination of the appellant on that issue. Browne v Dunn (1894) 6 R67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR | applied; Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551; Crosthwaite v City of Elizabeth (1989) 51 SASR 105 considered. (iv) Although there was a misapplication of the principle in Jones v Dunkel in respect of the evidence of two doctors, the errors were not essential errors in the sense that they affected the outcome of the matter. Jones v Dunkel (1959) 101 CLR 298 considered; Payne v Parker [1976] 1 NSWLR 191 followed. Mason P and Beazley JA This is an appeal on a point of law from a decision of the Compensation Court of New South Wales dismissing the appellant's claim for weekly and other compensation. Four alleged errors of law were identified in argument: (i) a wrong application of the Jones v Dunkel principle; 2 UNREPORTED JUDGMENTS (ii) the application of a wrong onus to the appellant's claim that he suffered anosmia caused by his work related accident by requiring satisfaction to the point of certainty; (iii) placing an onus on the appellant to disprove alternate causes of anosmia, an onus which the respondent properly bore; (iv) a failure to apply the principles in Browne v Dunn (1894) 6 R67. Background The appellant was injured on | December 1989 whilst on a periodic journey from his place of employment when he was struck by a motor vehicle whilst crossing a road. He was 22 years old at the time. The appellant sustained a head injury and was unconscious for | - 2 minutes after the accident. He had lacerations to his left parietal region and left ear requiring suturing. He was admitted to Royal North Shore Hospital, where he was observed to be drowsy but rousable. Over the next few days he was confused at times and a CT scan suggested there was a slight mass effect on the left lateral ventricle. He was discharged on 4 December 1989. It appears he was threatening to discharge himself at the time. The appellant claimed that as a result of the accident he continues to suffer the effects of brain damage and anosmia. There was no issue that the appellant was anosmic. However, the respondent disputed there was any causal connection with the accident. Both the existence and cause of any brain damage was in issue. The brain damage effects were alleged to include personality disturbance, a memory deficit, severe headaches, and a sensation he described as a "head rush" which were diagnosed by some of the medical witnesses as being due to temporal lobe epilepsy. All EEG's have been normal. The appellant's history also included an abusive childhood and post accident substance abuse. The First Onus Issue The appellant gave evidence that he had been anosmic since the accident. The first medical reference to anosmia was by Dr Wolfenden, neurologist, when, in October 1992, he tested the appellant and found him to be anosmic. There was no history in Dr Wolfenden's report of when the appellant had first noticed he was anosmic. Dr Wolfenden presumed the anosmia was due to head injury. Dr Corbett, also a neurologist, was of the same opinion, as was Dr Kelly, an ear, nose and throat surgeon. Leaving aside the appellant's evidence that he had been anosmic since the accident, there was no evidence to indicate when the anosmia had first occurred. The appellant's early complaints to doctors were of a "sensation of funny smells and tastes" on varying occasions. Dr Reid, a neurologist whom the appellant consulted in March 1990 and to whom he reported the strange smells and tastes considered that they suggested a temporal lobe phenomenon, although she was not convinced that the appellant had any genuine epileptiform disturbance, having regard to the normal EEG. Dr Carroll, an ear, nose and throat surgeon retained by the appellant was of the opinion that the report of the disturbed taste and smell sensations was not a complaint of anosmia, which involves a constant absence of smell, but was suggestive of temporal lobe epilepsy, although not conclusively so (AB 49). Dr Carroll said that, although it was usual for there to be some delay in the reporting of anosmia - it "usually becomes evident within weeks or months at the outside" - a delay of a year was an "exceptionally long UWARDHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD (Mason P and Beazley JAB time". He also gave as other possible causes of anosmia, the intranasal use of cocaine "usually temporarily takes out the sense of smell" and on occasions it could be permanent; or that the anosmia could have been the result of a blow to the head or jaw such as might occur in a fight. The appellant had given evidence that, post-accident, he had used cocaine and had been involved in a number of pub brawls. Against the background of this evidence, the trial judge stated she was "uncertain whether the [appellant's] anosmia was caused by the accident". It was submitted that in coming to this conclusion her Honour erred in law in that she applied the wrong onus. There was no requirement that she be "certain" of the cause of the anosmia. She was required to determine the matter on the balance of probabilities. Senior counsel for the appellant resisted the suggestion that her Honour's statement merely reflected looseness of language, submitting that she had been led into error because she had permitted two speculative causes of the anosmia to infiltrate her reasoning, namely, that it could have been caused by a blow to the nose sustained during a fight or by inhaling cocaine, leaving her in a state of being "uncertain". It was submitted that she thereby did not determine whether she was satisfied on the balance of probabilities as to whether there was any causal connection between the anosmia and the accident. We do not consider that her Honour's judgment contains the error alleged. First, elsewhere in the judgment, (except for one other occasion at p6 where she stated "I am uncertain whether there has been any relevant change in the [appellant 's] intellect, cognitive capacity, personality or behaviour...) her Honour used language in respect of onus which is unexceptional and is an obvious reference to the civil onus. Secondly, the court's jurisdiction is entirely civil. It would not be expected that her Honour would switch from one standard to the other. Finally, when this part of her judgment is read in context, no such error is discernible. When dealing with the cause of the anosmia, her Honour referred first to the "improbability of traumatic anosmia occurring years after the trauma". She next referred to other possible explanations in the case and stated that she was uncertain of any causal connection. In our opinion, her Honour was saying no more than that that she was not satisfied, given the lapse of time between the accident and the apparent onset of anosmia, that it had been caused by the accident. In context, her Honour was clearly expressing a satisfaction having regard to the civil onus. That is enough to dispose of this ground of appeal. We should say, however, that there is nothing in the submission that the trial judge allowed speculative causes to affect her reasoning so as to leave her uncertain. Rather, it is apparent that her Honour accepted Dr Carroll's evidence regarding the mechanism of anosmia and the improbability of traumatic anosmia occurring years after the trauma. She noted that there were other possible explanations for the appellant's condition. However, she made no finding in relation to those possible alternatives, nor did she need to. The result therefore, was that her Honour did not accept the medical evidence which attributed the anosmia to the accident because she did not accept that the appellant had the anosmia shortly after the accident. She was left in the position therefore, of being "uncertain" whether the appellant's anosmia was caused by the accident. In other words, she found that the appellant had not discharged the onus on him in relation to this issue. 4 UNREPORTED JUDGMENTS Second Onus Issue This leads directly to the second challenge namely that her Honour had wrongly placed an onus upon the appellant to disprove possible alternative causes of anosmia which had been raised in the evidence. It was submitted that if the respondent wished to prove that the anosmia had some other cause, it bore the onus of so proving. As we have already said, in circumstances where her Honour was not satisfied that the anosmia was caused by the accident, it was not necessary for her Honour to determine whether the alternative causes of anosmia referred to by Dr Carroll had been responsible for the appellant's condition. Her Honour's reference to the alternative possibilities did not involve placing an onus on the appellant which properly belonged to the respondent. This was not a case which fell within the "presumptio hominis" referred to in Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 160. As Menzies J explained the rule at 163: "Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, eg, that the plaintiff has aggravated his condition by some unreasonable act or omission". See also Dixon CJ at 159-160. Here the appellant had not established to the satisfaction of the trial judge the prima facie position necessary to base the presumption. That being s4 the respondent bore no evidentiary onus to establish that the anosmia was caused by some other condition. Browne v Dunn Next it was submitted that the trial judge erred in permitting evidence to be given of possible alternative causes of anosmia as the appellant had not been cross-examined to the effect that his anosmia was the result of either a broken nose sustained in a fight or had been caused by the ingestion of cocaine: see Browne v Dunn (1894) 6 R67. The rule in Browne v Dunn was examined in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1. Hunt J at 16 explained the rule in these terms: "[UJnless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R67". The requirements of procedural fairness which are called for by the rule do not necessarily dictate that evidence may not be called in contradiction. Rather, if it appears during the course of a trial that the rule has been offended and that unfairness may result, the trial judge has a discretion as how to best remedy the unfairness so that the trial does not miscarry. The steps available to the trial judge include permitting witnesses to be recalled so that they may have the opportunity UWARDHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD (Mason P and Beazley JAB to explain their evidence which is the subject of contradiction. Payless Superbarn (NSW) Pty Ltd v O'Gara (1990) 19 NSWLR 551 at 556 per Clarke JA:, Crosthwaite v City of Elizabeth (1989) 51 SASR 105 at 111. In our opinion the appellant also fails on this ground of appeal as there was no breach of the rule in Browne v Dunn. The relevant "matter" in issue was a medical issue, namely the cause of the appellant's anosmia. There could not therefore have been any relevant cross-examination of the appellant on that issue. The time of the onset of the anosmia was a relevant consideration in determining its cause. That was a matter upon which the appellant could have been cross-examined. However, not only did counsel for the respondent put the time of onset in issue, he cross-examined the appellant about it. The appellant's submission appears to have overlooked this. It should be noted in passing that the date put to the appellant as to the onset of the anosmia was wrong. Counsel for the respondent at trial later corrected the date in a statement to the court and also during the course of cross-examining Dr Carroll. The appellant's evidence was complete at that stage. However, the appellant's counsel did not request that the appellant be recalled and the correct date put to him, presumably because the appellant's case was that he had been anosmic since the accident. In any event, the appellant's own medical evidence did not support a case of anosmia from the time of the accident. Further, the appellant had given evidence of regular cocaine use and of involvement in a pub brawl in which he was hit in the nose. Those matters suggested causes of the anosmia other than the accident. When Dr Carroll gave evidence, counsel for the respondent examined him to support the respondent's case that the anosmia was not accident related. The primary thrust of that examination was the delay in complaint of anosmia. Having regard to the appellant's evidence as to his cocaine use and pub fights, it was legitimate, and undoubtedly prudent, for the respondent to seek, through Dr Carroll's evidence, to examine whether those activities could provide an explanation of the cause of the appellant's undoubted anosmia, to reinforce its case that the accident was not the cause. As we have already said, the rule in Browne v Dunn is a rule of procedural fairness at trial. Presumably and correctly, the trial judge did not see any unfairness arising from the evidence of Dr Carroll. If the appellant's counsel considered that there had been a breach of the rule, he should have objected to Dr Carroll's examination on this issue. He did not. Indeed, he cross-examined Dr Carroll on the matter. It was also open to him to call his own medical evidence in reply. He did not do so. He could also have made an application to have the appellant recalled to be cross-examined as to whether the cocaine use or the broken nose could have been the cause of his anosmia (assuming for the purpose of the argument that such cross-examination was permissible). He did not do that either. In these circumstances, we do not consider that the appellant should now be allowed to raise the point. It was also submitted that her Honour erred in finding that the appellant "has not lost any part of his sense of taste", which she stated was the opinion of Dr Carroll. Whilst her Honour misunderstood the evidence in this regard, counsel for the appellant accepted that if he was unsuccessful on the anosmia issue, this error was irrelevant. As he has failed on the anosmia issue, nothing further needs to be said on this issue. 6 UNREPORTED JUDGMENTS Jones v Dunkel The trial judge commented on the failure of the appellant to call a general practitioner, Dr Dowell, who referred the appellant to Dr Orford, psychiatrist, shortly after the accident and upon his failure to call evidence in respect of his pre-accident personality "to corroborate his own, unreliable self-assessment". In each case she stated that the failure did "not advance" the appellant's case. Counsel for both parties presumed that this was a reference to the principle in Jones v Dunkel (1959) 101 CLR 298. It was submitted that her Honour erred in two respects in applying the principle. First, there had been no application by the respondent for her to do so and secondly, the groundwork for the application of the principle had not been laid. The principle in Jones v Dunkel applies where there has been a failure to call evidence to enable a fact finder - whether judge or jury - to draw an inference from or in respect of evidence already admitted. The effect of the rule is that, provided the pre-conditions for its application are satisfied: "the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve". Payne v Parker [1976] 1 NSWLR 191 per Glass JA at 201. It is not every failure to call evidence which attracts the operation of the Jones v Dunkel principle. Three preconditions must be satisfied before it comes into play: (a) the missing witness would be expected to be called by one party rather than the other, (b) that witness' evidence would elucidate a particular matter, and (c) the witness' absence is unexplained: see Payne v Parker per Glass JA at 201. Her Honour appears to have drawn three Jones v Dunkel inferences. The first related to the appellant's case that his post-accident personality and other problems were attributable to the accident. The appellant did not call any evidence of his pre-accident personality. Her Honour commented upon his failure to do so and stated that the failure to do so "does not advance the [appellant's] case". The trial judge made the same comment in respect of a failure to call evidence from Dr Dowell, a general practitioner and Dr Tiller. The respondent did not make any Jones v Dunkel application. In the case of witnesses who might have given evidence of the appellant's pre-accident personality, there seems no doubt that the first two preconditions for the application of the rule in Jones v Dunkel would be satisfied. Nor was there any evidence to explain the absence of witnesses who might have given evidence on this issue as is required by the third precondition. Strictly, therefore, it was open to her Honour to draw the inference which she did. The appellant was not warned, either by an application by the respondent or any comment by her Honour that there was an issue about failing to call such witnesses, which may explain why there was no attention given to the matter. However, the fact that the appellant was not alerted to the matter is not sufficient to establish that there was any error of law in drawing the inference she did. The preconditions for its application were satisfied. Even where a Jones v Dunkel application is made by an opposing party, the party failing to call evidence may not be alerted to the fact that the application will be made, as the application is frequently made in final submissions. However, even where there is no such application, there is no error in a trial judge drawing an appropriate inference, provided that the preconditions for the application of the principle have been satisfied. URJ ARCHER v RICHARD CROOKES CONSTRUCTIONS PTY LTD (Meagher JA) 7 The position with Dr Dowell is different. Dr Dowell was a general practitioner whom the appellant consulted for treatment purposes, so that it might be more likely that the appellant would call him rather than the respondent. It is reasonable therefore to assume that the first precondition for the application of Jones v Dunkel was satisfied. In relation to the second precondition, the question must be asked as what his evidence would elucidate. The answer is not obvious. The reports of the two treating specialists to whom Dr Dowell had referred the appellant were in evidence. There was nothing in the evidence nor in her Honour's judgment to indicate that the second precondition had been satisfied. If the second precondition is not satisfied, the third does not arise for consideration. Indeed, a party, conducting litigation in which several medical practitioners could give relevant evidence, might be excused for calling only the appropriate specialist medical evidence and not the referring general practitioner - unless of course a basis for the application of Jones v Dunkel had been properly laid. As this was not done in this case, there was no occasion for the application of the principle and her Honour thereby erred in law in respect of its application to the failure to call Dr Dowell. Her Honour's comments in relation to Dr Tiller fall into a different category altogether. The appellant tendered two medical certificates of Dr Tiller, who appears to be a general practitioner, dated 5 October 1995. One stated briefly that the appellant had sustained severe head injuries in 1990 and it was unlikely he would work regularly again. The second was addressed to "The Insurance Company" advising that the appellant was not capable of travelling from Brisbane to Sydney in one day: Her Honour stated that the failure to call Dr Tiller to adduce evidence of his consultations did "not advance" the appellant's case. Assuming that this was intended by her Honour to be a reference to the Jones v Dunkel principle, we do not see that the there was any question about the application of the principle. The Jones v Dunkel principle only applies where there has been a failure to call evidence. In Dr Tiller's case there was no such failure. Rather, such evidence as there was of his was adduced by way of documentary evidence, as is permitted in a variety of circumstances. The issue which arises in such a case is the weight which is given to the evidence adduced, as opposed to the inferences which may be drawn from the failure to call evidence. In the case of Dr Tiller, her Honour would have been well justified in giving little weight to his evidence. Perhaps that is all she was doing. However, if that is so, her Honour's language in respect of Dr Tiller's language was inappropriate and given that she used the same language in respect of the other two matters, it may reflect a misunderstanding of the principle in Jones v Dunkel. That being said, and notwithstanding that we consider her Honour misapplied Jones v Dunkel in respect of Dr Dowell, and may have misapplied it in respect of Dr Tiller, we are not satisfied that either error was an essential error in the sense that it affected the outcome of the matter. Rather, her Honour appears to have used the principle to reinforce conclusions at which she had already arrived. That, of course, is not the work intended to be done by the principle. However, as the errors were inessential to the decision, we do not consider they should affect the outcome of the appeal. In our opinion, the appeal should be dismissed with costs. Meagher JA I agree with Mason P and Beazley JA. Appeal dismissed with costs. UNREPORTED JUDGMENTS Counsel for the Appellant: J S Coombs QC/ A Jamieson Solicitors for the Appellant: Taylor & Scott Counsel for the Respondent: C R R Hoeben SC/ J Tancred Solicitors for the Respondent: Hickson Lakeman & Holcombe