New South Wales Supreme Court CITATION : Sharp v Stephen Guinery t/as Port Kembla Hotel & Port Kembla RSL Club [2001] NSWSC 338 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 20956/96 HEARING DATE(S) : 28 March 2001 JUDGMENT DATE : 28 March 2001 PARTIES : Marlene Sharp (Plt) Port Kembla RSL Club (2nd Def) JUDGMENT OF : McClellan J COUNSEL : P Semmler QC/M Heath (Plt) P Deakin QC/J Turnbull (2nd Def) SOLICITORS : Milicevic Solicitors (Plt) PricewaterhouseCoopers Legal (2nd Def) CATCHWORDS : Opinion evidence - Evidence Act 1995 ss 70, 80(a), 135 - evidence of fact in issue or an ultimate issue - admissibility of a question asked of an expert LEGISLATION CITED : Evidence Act ss 135, 80(a) Seltsam Pty Limited v McGuiness & Anor; James Hardie & Co Pty Limited v McGuiness & Anor (2000) 49 NSWLR 262 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors (2000) 48 NSWLR 548 R W Miller & Co Pty Limited v Krupp (Australia) Pty Limited (1991) 34 NSWLR 129 Yates v Boland (1998) 157 ALR 30 CASES CITED : O'Brien v Gillespie (1996) 41 NSWLR 549 Murphy v The Queen (1989) 167 CLR 94 HG v The Queen (1999) 197 CLR 414 Clarke v Ryan (1960) 103 CLR 486 Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 Blackstock v Foster [1958] SR (NSW) 341 DECISION : See para 30 THE SUPREME COURT Ex tempore OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN J WEDNESDAY, 28 MARCH 2001 20956/96 - SHARP v STEPHEN GUINERY t/as PORT KEMBLA HOTEL & PORT KEMBLA RSL CLUB JUDGMENT: (Question of the admissibility of the evidence of the expert) 1 HIS HONOUR: In this matter Mr Semmler QC who appears for the plaintiff, has called to give evidence Professor O'Brien who is a specialist surgeon of the head and neck. He first qualified in 1983 and following post graduate training overseas, commenced to practice in Australia as a head and neck specialist in 1987. He has been a consultant at Royal Prince Alfred hospital since the end of that year. 2 Professor O'Brien also holds the position as the head of the Department of Head and Neck Surgery at Royal Prince Alfred hospital and is the clinical associate professor in the Department of Surgery at the University of Sydney. He has held the latter position since 1994. He is also a consultant surgeon at the Sydney Melanoma Unit at the Royal Prince Alfred hospital. He consults at various Sydney hospitals as a surgeon. Since 1994 he has held the position of Academic Head of the Head and Neck Service of the Central Sydney Area Health Service. 3 Professor O'Brien has given evidence that he devotes a great deal of his professional time to patients who have cancer of the head and neck. He holds other positions and has received awards from his profession in recognition of the work he has undertaken. His awards include an award from the 5th World Congress of Head and Neck Surgery in the United States last year where he was given a special Presidential Citation for his international work and contribution to head and neck surgery in the field of oncology. He has delivered a number of papers at overseas institutions and meetings. 4 In the course of his examination in chief Professor O'Brien was asked to make assumptions as to the work history of the plaintiff, in particular her work at the premises of the first and second defendant in these proceedings. Making those assumptions he was asked: "Do you have an opinion as to the relationship, if any, between her exposure to smoke at the Port Kembla RSL between January 1994 and August 1995 on the one hand and the cancer which you identified and removed on the other." 5 The Professor answered that question by indicating that he had an opinion. He was then asked to state his opinion and objection was taken. I allowed the question and this judgment contains my reasons for that decision. 6 The general issue of the admissibility of a question seeking the opinion had been previously discussed when Dr Vaughan was called to give evidence. However, it was not resolved at that stage although I have subsequently ruled in relation to a question in his later evidence to the same effect as this present ruling and for the same reasons. The issue has been the subject of detailed submissions by both parties. 7 When the issue was first raised Mr Deakin QC, who appears for the second defendant, stated that his objection contained four limbs. He firstly submitted that the ultimate resolution of the question of whether or not causation is established in accordance with the correct legal principles in this case is a matter for the jury as the ultimate triers of the facts and is not a matter which is appropriate to be determined by an expert witness. I understand his submission to mean that an expert could not express an opinion about the matter. 8 He further submitted that the ultimate question of whether or not the evidence allows an inference to be drawn that causation has been established does not depend upon or derive from any specialised skill or experience that an expert might have. This, he said, was because the issue depends upon inference and not upon any direct medical or scientific observation. 9 His third submission was to the effect that this is not a case in which there is any medical or scientific evidence available linking the cancer to environmental tobacco smoke anywhere but in particular to the plaintiff's employment at the RSL Club. He submitted this is different to a case where direct connection can be demonstrated between an event and an adverse medical outcome for the plaintiff as would be more usual in the case of a work related injury. 10 Finally Mr Deakin relied upon s 135 of the Evidence Act submitting that the question, if answered, had a capacity to mislead the jury when considering the ultimate issues to be tried. 11 Mr Deakin placed reliance upon the decision of Court of Appeal in Seltsam Pty Limited v McGuiness & Anor; James Hardie & Co Pty Limited v McGuiness & Anor (2000) 49 NSWLR 262. He submitted that case determined that the disputed question could not be asked because the answer would be derived from epidemiological studies. He placed particular emphasis on the statement of the Chief Justice where he said: "I have no difficulty with the medical practitioner drawing on and assessing epidemiological studies. I have greater difficulty with an epidemiologist expressing an opinion about causation in the individual case." (p 287 para 150) 12 Drawing, apparently by analogy, on this statement by the Chief Justice it was submitted that an expert could not give an opinion as to whether or not the plaintiff's cancer was caused by exposure to environmental tobacco smoke at the second defendant's premises because this would be an exercise by which a generalised state of knowledge was being applied to determine the outcome for an individual. 13 Mr Deakin further submitted that, although s 80(a) of the Evidence Act allows evidence to be given of a fact in issue or an ultimate issue, this does not allow an expert to give evidence "to address ultimate facts in issue which are to be decided by the application of legal standards." He submitted that this was part of the common law which has not been interfered with or abolished by the Evidence Act. 14 He relied upon the decision of the Court of Appeal in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Ors (2000) 48 NSWLR 548. However, as in Seltsam the issue in that case was the admissibility of epidemiological evidence in determining the cause of an individual plaintiff's illness rather than an understanding derived from clinical and research activity of the etiology of a particular disease. 15 I do not understand the Chief Justice to have concluded that epidemiological material was not relevant or admissible as part of the material to be considered on the question of causation but only that an epidemiologist was not qualified to give an opinion about the cause of an individual's illness. 16 Reliance was also placed upon the decisions in R W Miller & Co Pty Limited v Krupp (Australia) Pty Limited (1991) 34 NSWLR 129. Yates v Boland (1999) 157 ALR 30, O'Brien v Gillespie (1996) 41 NSWLR 549 and Murphy v The Queen (1988-89) 167 CLR 94 especially at p 130. 17 In my opinion none of the previous decisions are of assistance to the second defendant in the present matter. As Dawson J makes plain in Murphy a jury is entitled to be assisted by the evidence of an expert in areas where a judgment is required which is outside ordinary experience and knowledge. It must be accepted in the present case that the jury may be assisted by evidence from a suitably qualified expert as to the link if any between the plaintiff's cancer and the conditions which existed at the second defendant's premises. Although ultimately the jury must form its conclusion applying the appropriate legal test, it will do this having regard to all of the evidence including the opinions given by Professor O'Brien. I understand there are experts available to be called by the second defendant who will dispute Professor O'Brien's opinion and the jury will ultimately have regard to all of the opinions when forming its conclusion. 18 Reference was also made to the judgment of Gaudron J in HG v the Queen (1999) 197 CLR 414, in particular the discussion in para 43 on page 428 where Gaudron J referred to the judgment of Dixon CJ in Clarke v Ryan (1960) 103 CLR 486 at 492. Gaudron J went on to say: "In trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions' (sometimes merely their own inference of fact) outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority and legitimate processes of fact finding may be subverted." 19 The appropriate analysis of the opinion sought of the Professor in the present case would not in my opinion lead to the conclusion that it should not be admitted for any reason identified by Gaudron J. The opinion sought from Professor O'Brien clearly arises within his area of expertise and is a matter in respect of which he is qualified to give assistance to the court. 20 It is also plain in relation to Professor O'Brien that the opinion he offers is not fundamentally based upon epidemiological studies. No doubt he has considered the epidemiological studies relevant to the relationship between tobacco smoke and cancer and presumably his opinion has been informed by a knowledge of those studies. However, his expertise is fundamentally sourced from his work in clinical medicine and he is able to offer opinions based upon all of his clinical, research and other academic work. 21 Mr Semmler submitted that the opinion sought from Professor O'Brien was no different in character to opinions offered by experts in the course of the more usual claims by employees who have suffered a work related injury. He drew particular attention to the decision of the High Court in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 where a widow claimed damages in respect of the death of her husband who was a conductor in the employ of the defendant. He was knocked from the footboard of one of his tram cars by a motor vehicle and suffered multiple fractures. Shortly after leaving hospital he developed symptoms of leukemia and the widow claimed that his death resulted from lymphatic leukemia caused by the injury sustained in the accident. 22 A medical practitioner called on her behalf gave evidence that in his opinion the physical injuries sustained by the deceased together with the mental stress accompanying them had caused the leukemia. The witness was an assistant honorary physician at a large hospital and practiced as a consulting physician. 23 It is plain that the opinion he offered was disputed by other experts who gave evidence. The jury found a verdict for the plaintiff and the question arose as to whether or not the plaintiff's medical witness could give the evidence which he did and whether the jury was entitled to act upon it. Apparently the evidence called by the defendant did not deny that it was possible that there was a connection between leukemia and the injury. 24 The court found that the evidence was admissible and it was open to the jury to rely upon it. 25 Windeyer J indicated that the case was not one where the witness was merely posing as an expert. (see HG v The Queen) To the contrary he found that the expert was entitled, having regard to his learning and experience, to express the opinion which he did. Although that opinion may not have been accepted by many others in his profession it was open to the jury to act upon it. Accordingly the evidence of the doctor could only be dismissed entirely if it was found to be incompetent and untrustworthy. 26 Windeyer J did not suggest that the opinion offered by the medical practitioner was not admissible as evidence which the jury could have regard to when considering its decision. His discussion of the decision in Blackstock v Foster (1958) SR NSW 341 makes plain that he was of the view that evidence as to whether or not the accident was more probably than not the cause of the leukemia was admissible before the jury. 27 I appreciate that the opinion the Professor gives will reflect the approach to issues of causation familiar to the medical practitioner which may not be the same approach which the law requires. That issue was discussed in Seltsam in the context of conclusions expressed by epidemiologists as to the cause of an individual patient's illness. However that decision does not mean that the opinion of a doctor based upon his clinical or research work with respect to the etiology of an illness is not admissible. (See Adamcik) Accordingly, in my opinion, the Professor's opinion is relevant to the issue of the cause of the plaintiff's cancer in the present case. 28 The decision in Adamcik was given long before the Evidence Act. In my opinion whatever the rule may have been in relation to evidence of the ultimate issue, about which there had been debate before the Evidence Act, s 80 of that Act makes plain that evidence of the type proposed in this case from a suitably qualified expert is admissible. 29 The final question is the application of s 135. It is apparent that the evidence of Professor O'Brien will have probative value. Having regard to the opportunities available to the second defendant to cross examine Professor O'Brien and, if it wishes, call evidence from its own experts to refute what the Professor says, I cannot see how the second defendant could be prejudiced or, the jury, relevantly, misled or confused. Indeed, having regard to the nature of the issue which the jury must consider I am of the opinion that to allow the question to be answered is likely to assist the jury rather than mislead or confuse. 30 For these reasons I allowed the question asked by Mr Semmler QC. ******** Last Modified: 05/28/2001 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.