New South Wales Court of Appeal CITATION : Writer v Ballina Shire Council [1999] NSWCA 215 FILE NUMBER(S) : CA 40520/97 HEARING DATE(S) : 5 March 1999 JUDGMENT DATE : 30 June 1999 PARTIES : Paul Stanley Writer v Ballina Shire Council JUDGMENT OF : Priestley JA at 1; Meagher JA at 1; Handley JA at 1 LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT FILE NUMBER(S) : DDT 48/96 LOWER COURT JUDICIAL OFFICER : Maguire J COUNSEL : Appellant: M. J. Joseph SC/I. Asuzu Respondent: C.R.R. Hoeben SC SOLICITORS : Appellant: McLaughlin & Riordon. Respondent: Hunt & Hunt CATCHWORDS : Negligence - damage - evidence - reliance on evidence of sole expert witness - failure trial judge to notify parties such reliance - is such reliance and failure to notify a denial of natural justice? - failure trial judge to give adequate reasons. DECISION : Appeal allowed. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40520/97 DDT 48/96 PRIESTLEY JA MEAGHER JA HANDLEY JA Wednesday, 30 June 1999 WRITER v BALLINA SHIRE COUNCIL DUST DISEASES TRIBUNAL - silicosis - mixed dust fibrosis - whether trial Judge failed to give adequate reasons - whether trial Judge should have informed parties that evidence of particular expert witness would be basis for deciding case The appellant brought proceedings in the Dust Diseases Tribunal claiming damages for injuries suffered through exposure to dust during his employment by the Council. The trial Judge gave judgment for the Council. He held that the case turned on the evidence of one expert witness and gave a brief explanation for excluding the opinions of the other experts. HELD , allowing the appeal: (1) The Judge erred in finding that two expert witnesses called by the plaintiff were not aware of the appellant's relevant medical history. (2) He had not given adequate reasons for finding that he need not consider the evidence of those experts. (3) Since the Judge decided the case in favour of the Council on a basis which had not been put to him in its final submissions, nor litigated during the trial, he was bound to give the parties an opportunity to consider and deal with this view of the case. ORDER (1) Judgment of the Dust Diseases Tribunal set aside. (2) A new trial to be held. (3) Council to pay the appellant's costs of the appeal. (4) Council to have a certificate under the Suitors Fund Act if qualified. (5) Costs of the first trial to be in the discretion of the judge who hears the new trial. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40520/97 DDT 48/96 PRIESTLEY JA MEAGHER JA HANDLEY JA Wednesday, 30 June 1999 WRITER v BALLINA SHIRE COUNCIL 1 THE COURT: Mr P. Writer brought proceedings in the Dust Diseases Tribunal in 1996 claiming damages for negligence against Ballina Shire Council which had been his employer from 1988 to 1995. In his statement of claim Mr Writer alleged that in the course of his employment as a tractor and slasher operator he had, because of the Council's unsafe system of work, been negligently exposed to the inhalation of large quantities of silica dust and other dusts caused by the slashing operation and by mineral dusts caused by welding and buffing in the Council's workshop. Among the particulars of injury listed in the statement of claim were (a) Silicosis and (b) Mixed Dust Fibrosis. 2 The appellant's case came on for hearing before Maguire J on 17, 18 and 19 June 1997. Once all the evidence was before the judge, there were no oral submissions; the parties were directed to lodge written submissions, those of the Council to be lodged first. Comprehensive written submissions were duly lodged by each party. Reasons for judgment were published on 25 July 1997. Maguire J ordered that there be judgment for the Council and ordered the appellant to pay the Council's costs. The appellant then appealed. 3 Towards the end of his reasons for judgment the trial judge said that it seemed to him that "the whole case goes off on the evidence given by Professor McKenzie". Professor McKenzie was an expert witness who gave evidence for the Council. The trial judge followed the statement of opinion just quoted by a brief explanation. He then said he was not persuaded that on the probabilities the appellant had suffered damage from his inhalation of silica dust when employed by the Council, and accordingly made the orders I have already mentioned. 4 The grounds of appeal focussed on the method used by the trial judge to dispose of the case. One ground was that it was wrong to say that the whole case went off on the evidence of Professor McKenzie. Another ground was that the trial judge failed to give reasons or expose any reasoning as to why the whole case went off on the evidence of Professor McKenzie. Another ground was that the trial judge failed to provide natural justice to the appellant in failing to identify Professor McKenzie's evidence as being critical to the appellant's whole case. Other grounds raised subsidiary questions within the grounds I have mentioned. 5 The sequence of the trial judge's reasoning was as follows. He began by mentioning the appellant's childhood with his farming family in the Moree District, and that the best soil on the family farm contained a very substantial proportion of silica. He mentioned that the plaintiff on leaving school did casual farm work in the area and that it would be reasonable to infer that at least some of the soil in that area also contained silica. He mentioned the appellant's next employment with a manufacturer of ploughs also in the Moree District, then his next employment in Brisbane in 1979 welding tanks, his next employment in 1982 for three and a half years with the Queensland Department of Main Roads in a road gang, then his employment in Ballina doing cleaning work and finally his employment by the Council from April 1989 until 1995 when he stopped work because of illness. His work with the Council was mainly driving a tractor with a slasher cutting grass. The tractors he used were all open. The trial judge recorded that he understood the appellant to have asked in August 1993 for a sealed cabin but that this request was ignored by the Council. 6 The trial judge's reasons now moved into a chronological summary of the appellant's history from when he became ill in late 1994. He set out the discharge report of Dr P. Thomson, the Surgical Registrar at the Prince Charles Hospital in Brisbane where the appellant had been admitted on 20 February 1995 and discharged on 23 February 1995. This report recorded that the appellant had been referred for further investigation of a right upper lobe lesion and had had a four month history of chest pain with weight loss and shortness of breath. The lesion had been shown by X-ray suspected to be malignant. The report then noted the results of the various tests done on the appellant and said he was discharged to be readmitted in a fortnight for a right upper lobectomy. Maguire J's narration continued by setting out that the lobectomy was performed on 7 March 1995 and what was then thought to be a carcinoma was removed which was later reported as a massive silicotic nodule, that the appellant returned to work with the Council for a short time, attempting unsuitable work, and that his employment soon came to an end. 7 The trial judge here mentioned that the appellant's case was that he contracted the disease of the lung by inhalation of silica dust while employed by the Council. He then referred to the various medical opinions in evidence with different views on diagnosis and causation. He first referred to the evidence of Dr Julian Lee whose conclusion was that on balance the appellant's condition appeared to be attributable to exposure to free silica during the appellant's years of employment with the Council. Next he referred to the evidence of Dr Burns whose evidence was that the most likely diagnosis was a condition called mixed dust fibrosis. His opinion was that the appellant's exposure to dust and working on an unprotected tractor in Ballina from 1989 to 1994 provided the necessary evidence for the silicotic component of his lung lesion. He then referred to the evidence of Professor Warren who did not himself examine the appellant but whose opinion was that he suffered, among other things, from silicosis and replacement of lung tissue by silicotic nodules; he had referred in his evidence to an abnormal dose of silica but had not expressed any opinion about when that might have happened. 8 The trial judge next referred to the evidence of Professor McKenzie, a respiratory specialist and the only medical practitioner called to give evidence for the Council. He noted that Professor McKenzie had examined the appellant on the same day as Dr Burns (12 August 1996) but not in consultation. The trial judge set out the history which Professor McKenzie's subsequent report (dated 26 August 1996) recorded him as having obtained from the appellant. This included the statement that in 1984 the appellant had been told his chest radiograph showed a shadow and that in 1985 he had a CT scan of the lungs and was told "the abnormalities probably represented residual changes following a 'chest infection'". 9 The trial judge then reproduced a paragraph from Professor McKenzie's written conclusions: "It is of great interest that an abnormality was noted in a chest radiograph in 1984 and was of sufficient concern for a CT scan to be performed in 1985. I would suspect that these studies would have revealed bronchiectasis and contraction with fibrosis of the right upper lobe, but presumably no obvious mass. There are a number of possible causes of bronchiectasis and contraction of an upper lobe. Any severe previous chest infection with pneumonia, even dating back to childhood could leave a fibrotic scarred lobe. With the situation in the upper lobe the possibility of prior pulmonary tuberculosis should be considered. The lack of any recollection of such a severe pneumonia is not unusual because it could have occurred in early childhood. A second possible explanation for abnormalities such as this is allergic broncopulmonary aspergillosis complicating asthma. The medical history is not suggestive of this diagnosis. A third possibility would be an unusual variant of pulmonary sarcoidosis. Sarcoidosis can be associated with bronchial narrowing and subsequent actelectasis and fibrosis of localised areas of the lung. None of the above conditions is caused or aggravated by exposure to silica. However, with an abnormal scarred layer affected by bronchiectasis, it is likely that any silica that was inhaled would not be cleared from that part of the lung in the normal manner and this would be likely to accumulate in that area." 10 The trial judge then mentioned that the appellant had given his evidence and been cross-examined before Professor McKenzie gave his evidence. In his cross-examination the plaintiff had been asked about his meeting with Professor McKenzie. Maguire J reproduced the cross-examination in which the appellant had been asked whether he had told Professor McKenzie he had had X-ray done of his chest in 1984 and had answered that that was a slip of the tongue, he had said 1984 but had meant 1994. He was then asked whether he had told Professor McKenzie he had had a CT scan of his lungs in 1985. He said no, then "What do you mean a CT scan". When told it was a special kind of X-ray of his lungs he said "The only time they X-rayed my lungs is when I got sick in 94". The trial judge then asked whether he had been working for the Main Roads Department in Queensland in 1984 and upon the answer yes, asked him whether he was saying he did not have any X-ray while working for the Main Road Department, to which the appellant again answered yes. 11 After setting out that part of the transcript in full the trial judge then set out the transcript of some questions he asked Professor McKenzie on the following day. These questions were directed to seeing how clear the professor was about the 1984 and 1985 dates. In one long answer Professor McKenzie referred to his handwritten notes. He explained that he had had difficulty in trying to decide what the appellant's lesion was; he had not thought it was a progressive massive fibrosis but something the usual cause of which was a previous pneumonia so he was looking carefully into the appellant's history to find evidence of a previous pneumonia. This answer continued: " Here, in my medical history, I've written the date of his presentation in August/September 1994, 'Nine months recurrent progressive shortness of breath, right-sided chest pain, cough so severe as to cause vomiting. First noted playing squash, thought it was a virus. Chest x-ray' and so on and so forth. On the same page I've written with a bracket above that saying, '1984 chest x-ray showed open shadow 1985 CT'. Then, I've written, 'thought "flu" attack' and I've put the flu in inverted commas as well. Question - Meaning that he thought he had the flu. Answer - No, that was what he was told. So basically my notes are a little bit obviously abbreviated, but he was aware that in 1984 a chest x-ray had shown a shadow. Although I haven't written all this, this is from recollection, was that he was followed for some time and the shadow didn't go away so eventually he was advised to have a CT scan of the lungs. Question - He is a man of somewhat limited communication skills or perhaps an even deeper seated problem, but it was clear to you that he was telling you about events separated by a decade. Answer - Yes, absolutely. " 12 Having set this out, the trial judge proceeded to what turned out to be his conclusion and the entirety of his reasons for it: "The plaintiff was not recalled to the witness-box to give any evidence in reply. I make no attempt to resolve the conundrum posed by the diverse diagnoses proffered by the several experts. It seems to me that the whole case goes off on the evidence given by Professor McKenzie. In the light of the passage from his evidence which I have quoted and in the light of the way that the plaintiff has and has not dealt with it in his own case, I am not persuaded that the plaintiff has given me the whole relevant history of his thoracic system. Were I of a mind to accept Dr Burns' opinions or Dr Lee's opinions, I am prevented from doing either by reason of the circumstance that I am not persuaded that either of those gentlemen was given the whole relevant history. There are real issues in this case about alleged exposures to silica at Ballina, about the alleged exposure to silica in earlier years at Moree and consequently about causation. In all the circumstances, I am not persuaded that the disease from which the plaintiff is suffering whatever it is was more probably than not caused by or contributed to by any exposure of him to the inhalation of silica dust in the course of his employment with the defendant. " 13 The conundrum referred to by the judge was the puzzle of what it was that had been found by the surgeon when the lobectomy was done on 8 March 1995 and what caused it. The surgeon was Mr K. S. Matar who wrote to the appellant's general practitioner on 4 April 1995 saying that the final diagnosis on the appellant was that of a massive silicotic nodule in the lung. The surgeon added that this was really quite a surprise as it looked even at surgery like a carcinoma and the appellant had no other features of silicosis such as an industrial history. He went on: "However this is the definitive diagnosis and I am now discussing with one of the industrial medical officers as to whether Paul's employment over the past five years driving a tractor, could in fact have anything to do with the development of this unusual condition." 14 Two days later Mr Matar wrote again to the general practitioner saying he had spoken to Bill Oliver (who it appears elsewhere was Dr Bill Oliver, more expert in this area than the surgeon) about the relationship between the appellant's occupation as a tractor driver and his development of silicosis. He said that Dr Oliver thought it quite possible if the appellant was exposed to sandy, dusty soil that the pathology could develop in the five years he had been driving the tractor. 15 A number of features of the judge's way of deciding the case and of the case itself combine to support the chief grounds of appeal earlier set out. 16 The reason given by the judge for his thinking that he was prevented from accepting the opinions of Dr Burns or Dr Lee was that he thought they had not been given the whole relevant medical history. In saying this he apparently did not take into account that both Dr Lee and Dr Burns had considered Professor McKenzie's report of 26 August 1996 in which he mentioned the 1984-5 history before they gave their oral evidence. Dr Lee explicitly referred to this report in his report of 5 June 1997. He was asked about it in cross-examination (AB1/101) and it seems to us that his answers showed that he nevertheless maintained his own opinion. Nor was the cross-examination pressed to the point which would have supported a submission by the Council of the proposition the trial judge asserted, that he was prevented from accepting Dr Lee's opinion because Dr Lee had not been given the whole relevant history. 17 So far as Dr Burns is concerned, judging from the way in which reports appear to have been exchanged between the parties prior to the trial, we would have inferred that he had read Professor McKenzie's report of 26 August 1996 before giving his oral evidence, although he did not refer to it explicitly in his final pre-trial report dated 6 June 1997. That report (AB2/312) begins by thanking the appellant's solicitors for their letter of 27 May 1997 and attachments. Dr Burns then proceeded to discuss what was apparently one of the attachments, a survey of dust emissions made by an expert, Mr Rogers, engaged by the Council. What the other attachment (or attachments) was (or were) was not stated. 18 However, the matter need not be left to inference, because references made by Dr Burns in cross-examination by counsel for the Council to Professor McKenzie's report and then references made to it by Dr Burns (AB1/183) understood in light of the enclosure (AB3/664) to Professor McKenzie's report of 26 August 1996 (AB3/658-663) and the enclosure (AB2/311) in Dr Burns's report of 13 August 1996 (AB2/307-310) demonstrate that Dr Burns also had access to Professor McKenzie's report, at the very latest, during the course of the hearing. He was not cross-examined to suggest that the extra history appearing in Professor McKenzie's report, if correct, might invalidate or diminish the strength of his own opinion. That is, his opinion remained in evidence unchallenged by reference to this point, although, of course, it was disputed by the Council on other grounds. 19 There was no submission in the Council's written submissions to the trial judge making the argument upon which the judge decided the case. There was an extended attack on the credibility of the appellant. It extended through six pages and sixteen paragraphs. The submission was an appropriately balanced one however, in that the Council was not asking that the appellant's evidence be entirely disregarded but that it should be "significantly discounted in relation to those areas where the [appellant] perceived his case might be advantaged or disadvantaged". The submission continued that the Council did "not submit that the [appellant] was not generally truthful but that he showed a willingness to stress areas which he believed would advantage his case and to ignore or down play areas which he believed would disadvantage his case in a way which would lead the court to look closely and critically at these portions of evidence." 20 Paragraphs 2 to 16 then dealt with specific examples the Council relied on to support its general submission in the first paragraph. The only reference to the matter taken up by the judge as something on which the whole case went off, was in par 16 which said that the appellant's "evidence of never having had chest x-rays in 1984" was "to be contrasted with the clear understanding of Professor McKenzie to the contrary". That was all. 21 On p 24 and 25 of the appellant's written submissions to the trial judge, which followed those made on behalf of the Council, the Council's attack on the appellant's credibility was answered, the answer not unreasonably confining itself to what had been said on behalf of the Council. Among the things said in the answer was "Histories obtained by doctors are often abbreviated, unintentionally distorted due often to the Plaintiff's state of mind at the time of the interview, the questions asked of him, the time constraints of the interview and the doctor's capacity to write or remember what he is told." 22 In the present case matters of that kind needed consideration. One thing that emerges generally from the evidence about the appellant and from the transcript of his own evidence is that he was illiterate and as the judge himself mentioned in one of his questions "of somewhat limited communication skills". From what Professor McKenzie said in evidence it seems that what he had written in his notes at his examination of the appellant was "1984 chest x-ray showed open shadow 1985 CT thought 'flu' attack". It was apparently a translation of these notes that appeared in his written report of 26 August 1996 as "in 1985, he had a CT scan of the lungs and was told that the abnormalities probably represented residual changes following a 'chest infection'". It would seem very likely that the appellant never himself used the words just quoted but that they represented Professor McKenzie's understanding of what he was told. When this is taken together with the coincidence that the appellant had a chest x-ray in 1994 which was followed up by a CT scan in 1995, there seems to have been a real possibility of misunderstanding between the appellant and the Professor which would have been further investigated had counsel for either party realised the importance the trial judge might eventually attach to this part of Professor McKenzie's evidence. 23 Although it is possible, with the hindsight of knowing how important the matter eventually came to seem to the trial judge, to pick through the transcript and see traces of the idea which formed in his mind, it seems quite clear to this court that neither counsel realised which way the trial judge was heading in this respect. The same senior counsel appeared in the appeal as conducted the trial. Both confirmed the clear impression the court had formed from the reading of the appeal materials. We do not think that either counsel was at fault in not understanding that it was possible the judge would decide the case on the basis that he did. 24 In the circumstances of the conduct of the trial as we have noted them, we are of the view that the judge's reasons were inadequate to explain why it was that he thought he was prevented from accepting either Dr Burns' opinions or Dr Lee's opinions had he otherwise been of a mind to do so. We also think that what happened in regard to "the whole relevant history" of the appellant's thoracic system did not justify the trial judge in stopping short of giving full consideration to the opinions of Dr Lee and Dr Burns and coming to and stating his own conclusions about them. We also think that in the circumstances of this particular trial it was incumbent upon the judge if he proposed to decide the case in the way he did, on a proposition never put to him on behalf of the Council, and which had clearly not been investigated or dealt with at the trial in the way that would have been done had its importance been realised, to give the parties an opportunity to deal with it. It seems quite possible that further information could have been put before the judge, by further oral or written evidence, by either side, which would have strengthened or weakened either side's position on the point. 25 Counsel for the Council sought vigorously to support the trial judge's decision on two bases. The first was that the reasons for judgment were sound as they stood; we think however that the matters we have mentioned make it too difficult to support such a submission.. The other basis, argued pursuant to a notice of contention, was that for other reasons the trial judge's conclusion was plainly right. Therefore there would be no point in ordering a new trial. 26 We do not think we should accept this submission in the circumstances of the present case. A proper examination of the submission would amount to this court trying the proceedings, as at first instance, on the papers. There are matters of credit involved, in the case of the appellant in the sense both of credibility and reliability, and in the case of Professor McKenzie in a limited and non critical sense of reliability of recollection, and possibly in the same limited sense also of Drs Lee and Burns if they were to be asked whether in taking their histories from the appellant they had gone over the period 1984-1985 in a way yielding results inconsistent with those recorded by Professor McKenzie. Also, in the light of the possible importance of that 1984-5 history, more evidence may be available at a new trial than we have in the appeal papers. 27 Our conclusion therefore is that we should set aside the judgment and order a new trial. The Council should pay the appellant's costs of the appeal, but have a certificate under the Suitors Fund Act, if qualified, and the costs of the first trial should be in the discretion of the judge who hears the new trial. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.