Commissioner for Government Transport v Adamcik

Commissioner for Government Transport v Adamcik - [1961] HCA 43 - HCA 1961 case summary — Zoe

[27]

To my mind this represents a prime illustration of a witness attempting to pull himself up by his own boot straps. Up to a point the case was commonplace enough. It was the everyday case of a person who had been injured in a street accident. But in spite of this it was the only case of traumatic injury in Dr. Haines' experience which required examination for the purpose of enquiring whether leukaemia had resulted. Yet, in order to arrive at the conclusion that there was a causal relationship between his injuries and the disease he assumed two things. First of all he assumed that the disease originated after the accident. The deceased, he said, "reacted" by developing acute lymphatic leukaemia. Then he assumed that a major emotional disturbance, which was not only capable of disrupting the deceased's hypothalamic activity but which, in fact, did so, followed upon the deceased's injuries. How far Dr. Haines would have been prepared to make the second assumption in the absence of the first it is impossible to say but even if the first assumption was validly made the conclusion that the deceased's hypothalamic activity had been seriously disrupted was quite unwarranted. Indeed, examination of the evidence just quoted shows this to be so. First of all Dr. Haines arrives at his conclusion by the antecedent assumption of the existence of a vital fact. Then when asked to justify this assumption he blandly asserts that the deceased must have experienced such an emotional disturbance because he "reacted by developing acute lymphatic leukaemia under these particular circumstances". All this, it should be observed, is said in spite of the fact that the whole of the evidence in the case is quite consistent with the deceased having developed leukaemia at some time before the accident in which his injuries were sustained. Indeed, that this was the course of events seems, at the least, highly probable for it is not suggested that the characteristic swellings which manifested themselves about a fortnight after the accident marked the initial onset of the disease; they were but symptoms which revealed its presence. But whether or not it is probable that, unknown to the deceased, he had been afflicted with the disease for some time is beside the point. The point is that the evidence was quite insufficient to warrant an initial inference that the deceased contracted the disease after the accident. Still less was it possible, upon the strength of that inference, to reach the final conclusion by the circuitous reasoning which Dr. Haines then proceeded to employ. It is, perhaps, not unfair to observe that it is not surprising that this line of reasoning led him to think that this case was unique - the one case in his whole experience where trauma had led to leukaemia. These considerations lead me to the conclusion that his evidence was of no value whatever in the case and that it fails to provide any ground for a finding that the deceased's leukaemia resulted from a disturbance of his hypothalamic activity rather than from some other cause. There was no other evidence in the case which suggested that any such disturbance took place and, accordingly, it is clear that the opinion initially expressed by Dr. Haines was based upon an assumed set of facts of which there was no proof at the trial. That being so it is, in my opinion, clear that there was no evidence upon which it was open to the jury to find as they did and, accordingly, in my view, the appeals should be allowed.

[33]

The late Juraj Adamcik died from acute lymphatic leukaemia in August 1956. He had been a tramcar conductor employed by the first-named appellant. The symptoms of the fatal disease first appeared in November 1955, about twelve days after he had been injured by being knocked from the footboard of his tramcar by a lorry driven by a servant of the second-named appellant. His widow, the respondent in these appeals, brought an action under the Compensation to Relatives Act, 1897-1953 N.S.W. claiming that her husband's death was the result of negligence in the management of both the tramcar and the lorry. Her case was that the leukaemia resulted from the accident. Whether or not this was so was a main issue at the trial, although the issue of negligence was also contested. Counsel for the defendants, the present appellants, had not asked for a non-suit or a verdict by direction at the end of the plaintiff's case, nor at the end of the case for the defendants did they ask the learned trial judge to direct a verdict. But, when he had finished his summing up and the jury had retired, he was asked to recall them and direct them to return a verdict for the defendants. He declined to alter his charge. The jury found a verdict for the plaintiff and awarded damages in the sum of £6,908 divided between the plaintiff personally (£4,806) and her child (£2,102). The defendants appealed to the Full Court. That they were responsible for the accident was not contested; but it was argued that there was no evidence of any causal connexion between the accident and the death. By their notices of appeals to the Full Court the appellants sought either a new trial or that a verdict be entered in their favour; but at the hearing of those appeals they sought only a verdict and final judgment and abandoned the alternative claims for a new trial. By the Supreme Court Procedure Act, 1907-1957, s. 7, the Court in banc is entitled to enter a verdict if it is of opinion that upon the evidence either the plaintiff or the defendant in an action was, as a matter of law, entitled to a verdict. The Court was not of that opinion and dismissed the appeals. From that decision these appeals were brought.

[35]

The evidence shows that leukaemia is an incurable disease. It is a malignant disease of the blood, marked by an abnormal - because unregulated or autonomous - proliferation of cells. According to the type of cell affected it is classified as myeloid or lymphatic. It may be said to be, in a general sense, a form of cancer, and it is sometimes described as cancer of the blood. The aetiology of the disease is not known. But one of the witnesses called for the plaintiff, Doctor B. G. Haines, on being told of the events that had happened, stated that in his opinion there was a causal relationship between the injuries that the deceased man had suffered and the onset of the malady. Doctor Haines is a graduate in medicine of the University of Sydney and a member of the Royal College of Physicians. He is an assistant honorary physician at a large public hospital, and he practises as a consulting physician. Asked to justify his opinion, he propounded a theory that he said was based upon his own consideration of the topic. Briefly stated, his view is that emotional disturbances, operating in conjunction with other things, can be a factor in producing leukaemia, and he said all forms of cancer. Under cross-examination he went still further and, without qualification or restraint, asserted as his opinion that mental states and emotional disturbances are the cause of all, or nearly all, diseases except those of infective origin. He agreed that this was not an accepted view, and indeed that it had, as yet, no positive adherents other than himself: but he said that medical science was coming steadily more and more to this idea and that he expected that it would in time receive general recognition. He did not say that emotional factors were sufficient in themselves to account for all forms of leukaemia: they operated only in conjunction with other things; but, other factors being present, emotional disturbance could be decisive in producing the disease. So far as he was allowed to expound the basis for his opinion and to explain the nervous and physiological mechanisims that he considered were involved in it, it seemed to depend upon the functioning of the hypothalamus and derangements of its functions. Answering a cross-examiner is not, however, a satisfactory method for the complete exposition of theories of cyto-pathology. And the purpose of the cross-examination here was not really to enable him to explain his doctrine, but rather to discredit it in the eyes of the jury by getting him, without allowing any opportunity for qualification or elaboration, to give categorical answers that it was hoped would appear so extravagant that his evidence might be scoffed at. He did make assertions that to many people must appear in a high degree improbable. And the physicians called for the defendants did not accept his theory. But, however far-fetched some of his statements may seem, however much his theory may be criticized as unproven, however much it is out of line with orthodox opinion, it would be a bold court that could say that he was not qualified to express an opinion on medical matters and that the jury should have been told that, as a matter of law, they must disregard his opinion. The learned trial judge did in effect advise them to treat it with scepticism. Doctor Haines said he had reached his general conclusion as a result of consideration that he had for years given to the influence of psychological factors in producing physical disorders. He had published a small book on psychosomatic medicine under the title "Autonomic Dyspraxia". He had not at that time expressly included leukaemia as coming within the scope of his theory or system. He said, however, that subsequent consideration had led him to think that it too should be included within its range.

[41]

This is not a case in which the appellant was asking that a jury's verdict be examined to see whether being against the overwhelming weight of the evidence it should be set aside and a new trial ordered. A new trial was not sought. Whether one might have been had we do not have to determine. What was said is that there was no evidence at all on which the jury could reach its finding, and that, as a matter of law, the verdict must be, not merely set aside, but reversed. We are not to weigh the evidence as a whole. That was the jury's task. We are asked to say that Doctor Haines' testimony was obviously worthless. The case of Hocking v. Bell [3] is in point. The cases to which the appellants referred did not really assist them. Blackstock v. Foster [1] was a decision of the Supreme Court of New South Wales (Owen J., Roper C.J. in Eq. and Herron J.). It concerned a growth that it was claimed had been converted from a benign to a malignant state by a blow. The most that any medical witness in that case would say was that it was possible that the development of malignancy and the blow were connected. The Court said: "We are of opinion that the evidence could not justify the inference that it was more probable than not that there was a causal connexion between the blow and the malignancy of the growth. It is obvious from the evidence that, in the present state of medical and scientific knowledge, little is known of the causes of malignant growths, and if medical science is unable to supply the necessary link between such a growth and a blow in the region of it, it is not for a layman to do so" [1] . That case was thus quite unlike this, where a medical witness said that the onset of leukaemia was not only possibly but more probably than not the result of the accident. Moreover, what the appellant in that case sought and got was a new trial. As for Adelaide Stevedoring Co. Ltd. v. Forst [2] it is hard to see what the appellants hope to gain from it. The majority judgments do not help them. And the case was one in which an appellate court had to consider the evidence as a whole. It was an appeal on fact and law - a proceeding very different from the motion made in this matter. It is not enough that we may think the jury's verdict was wrong. The appeals should I consider be dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Cited By (1)