Beattie v Ball [1999] VSCA 227

[1999] VSCA 227

Court of Appeal (Vic)|1999-12-09|Before: BROOKING, CHARLES and CHERNOV, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

1999-12-09

Before

BROOKING, CHARLES and CHERNOV, JJ.A.

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

[1999] VSCA 227

[2]

EVIDENCE - Credibility of defendant's evidence - Alleged discrepancy with case put to plaintiff in cross-examination - Jury to determine whether breach of rule in Browne v. Dunn.

[3]

On 1 June 1990 Jillian Beattie gave birth to a girl who suffered from spina bifida. She had been a patient of a general practitioner at Mooroopna, whom she had consulted in October 1989, when she was about seven weeks pregnant with the child. In 1994 she and her husband sued the doctor for damages, alleging that his negligence had caused them the loss of an opportunity to terminate the pregnancy. The existence of a duty of care to both plaintiffs was admitted. Mrs Beattie and her husband had a family history of spina bifida and it was the plaintiffs' case that she had told her doctor of this at the first consultation, on 23 October 1989. The doctor denied that she had given him that information. At the trial the parties conducted their cases on the basis that negligence should be found if, but only if, the plaintiffs proved that Mrs Beattie did tell the doctor of the family history of spina bifida before an ultrasound examination which was performed on 18 January 1990, and which was reported to disclose no foetal abnormality. It was common ground that, if the family history had been disclosed to the doctor before that ultrasound examination, he was negligent in not specifically requesting those concerned with the examination to be on the lookout for spina bifida and this negligence deprived the plaintiffs of the opportunity to terminate the pregnancy.

[14]

In the present case this was not the kind of sanction sought by the plaintiffs. Their counsel made no application to the judge in consequence of the suggested breach of the rule, but simply in the final address invited the jury - at best - to disbelieve the defendant on the basis that he had recently invented something that had not been put by his counsel to the plaintiff. (I say "at best" in view of the "we will never know" passage in the address.) thus the only sanction invoked by counsel for the suggested breach of the rule was the recognition of its effect on the credibility of the defendant. The jury were being invited to have regard to a suggested significant discrepancy - a convenient word - in evaluating the evidence, as the matter was put by Dunn, J., speaking in effect for the Court of Criminal Appeal in R. v. Robinson [1977] Qd.R.387 at 394, in a passage which may be said to have received the approval of the South Australian Court of Criminal Appeal in R. v. Lander (1989) 52 S.A.S.R. 424 having regard to what was said by Matheson, J. at 436. Where this is the suggested use of a breach of the rule in Browne v. Dunn, it must be for the jury, whether the case is civil or criminal, to consider the matter as part of their function as judges of the facts, and this consideration must extend to the question whether a breach of the rule has taken place, in other words, whether the suggested significant discrepancy exists. The jury are considering what Newton, J. Called the weight or cogency of evidence. In a case like the present, the jury are being told by the judge - and there is no need to refer to the rule in Browne v. Dunn in terms - that the law recognises that, as a matter of common sense and logic, if there is a significant discrepancy in the sense of a failure to put a party's own case in cross-examination, a possible - but not the only - inference is one that reflects adversely on the credit of the witness called in support of that case. But the role of the jury as the finders of fact is subject to the controls imposed by the law. So, if the trial judge considers that no reasonable jury could take the view that the supposed discrepancy between the case put in cross-examination and that disclosed by the evidence exists, then there is no discrepancy for their consideration and, if counsel has invited them to act on one, the judge should instruct them that there is nothing on which they may act. At the other extreme, it may be incontestable that a discrepancy exists, so that the only question for the jury is what inference, if any, they are prepared to draw from it. In such a case, the judge does not trespass upon the jury's function by referring to the undoubted discrepancy, and then giving appropriate directions about the possible drawing of an inference. For in telling the jury that the discrepancy exists the judge is simply drawing their attention to the undoubted state of the evidence and course of the trial as opposed to telling them what view they should take on a question that is for them.

[22]

In the present case the judge treated the existence of the suggested discrepancy as a jury question. The transcript added to the appeal book shows that there was some discussion about Browne v. Dunn before the judge began his charge. Before considering the course of evidence, I shall summarise the positions taken up by counsel, both in submissions in the absence of the jury and in final addresses, on the Browne v. Dunn point. The evidence out of which the point arose was given by the defendant in the course of a cross-examination which occupies only one and a half pages of transcript. There was no re-examination. The Court rose a little early on the day on which the defendant gave evidence, he being the last witness called that day. That was on 20 May. Some further evidence was called by the defendant and on Friday, 22 May, senior counsel for the defendant made his final address. He did not refer in terms to a possible Browne v. Dunn argument that might be put by his opponent. He referred to the defendant's evidence in cross-examination that he asked Mrs Beattie about family defects or abnormalities and that she said there were none and went on to submit that from other evidence it was clear that the defendant did ask her about family history and noted anything relative to defects. Later the same day senior counsel for the plaintiffs began his final address; he concluded it on the following Monday, 25 May. In his address on 22 May plaintiffs' counsel said that the defendant had sworn in cross-examination that he had asked Mrs Beattie whether there were any congenital abnormalities in the family and that she had replied that there were not; he went on to say that this had never been suggested to her by defendant's counsel. He asserted that this was a "horribly gross falsehood" invented by the defendant on the spur of the moment in the course of his cross-examination. But then he went on to say that the jury would never know whether the explanation of the defendant's counsel's conduct was, on the one hand, recent invention by the defendant or, on the other hand, that the defendant had told his counsel what he claimed had been said and counsel had decided that the suggested conversation was so ludicrous that he would not put it to the plaintiff. In concluding his address on Monday, 25 May, the plaintiffs' counsel dealt only with damages.

[25]

His Honour was here speaking of the evidence given by the defendant in cross-examination and dealing with the submission on his behalf that it was not a new version as opposed to the version put to Mrs Beattie. Counsel for the defendant then said that he accepted that the judge should proceed as he now proposed, and the discussion turned to what the jury should be told in relation to possible inferences if they took the view that the defendant had in cross-examination given "a new version". At the end of this discussion defendant's counsel made the complaint that his opponent had not put to the defendant that he was lying when he gave the evidence which was said to amount to a new version. He complained that his client had been called a liar without being accused of it in cross-examination. After all this discussion the judge asked counsel for the plaintiffs whether he wished to say anything, and counsel then said nothing by way of questioning the directions which the judge intended to give based on Browne v. Dunn. In particular, he did not suggest that the judge should not leave it to the jury to determine whether a new version had been given by the defendant in cross-examination as opposed to directing the jury that a new version had been given. The only matter raised by plaintiffs' counsel in response to the judge's invitation was to deal with defendant's counsel's complaint that he had not put it to the defendant in cross-examination that he had just made something up. As to this, plaintiffs' counsel said that he had by his conduct in sitting down immediately shown the jury that his attitude towards the defendant was one of "you can't believe a word he says". He added that it had been open to the defendant's counsel to re-examine his client. In the course of submitting that it had not been necessary for him to put expressly to the defendant an allegation of recent invention, counsel for the plaintiffs asserted that what the defendant said in cross-examination had not been put to the plaintiff in cross-examination: it was not "in that fudgy area of family history". But this was by way of challenging the defendant's counsel's contention that his client's case had been adequately put to the plaintiff. Counsel for the plaintiffs was, so to speak, joining issue on whether there was a "discrepancy" or "new version" and was acquiescing in the judge's proposal that he should tell the jury that it was for them to decide, in the light of the evidence and the arguments, whether there had been a discrepancy or new version. It has not been suggested before us that we should not take this view of counsel's conduct. Counsel had been distinctly told by the judge that he would be leaving that question to the jury and he never suggested that this should not be done. Moreover, no exception was taken to the charge when the judge gave the jury the directions he had foreshadowed.