EXPERT EVIDENCE - s.136 of Evidence Act 1995 - Operation - Standard of proof... [2004] NSWCA 98 | Case summary

1 BEAZLEY JA: This is an appeal from a decision of Judge Armitage, Compensation Court Judge, in which his Honour dismissed an appeal from that part of a decision of a delegate under s 10B(3)(A) of the Police Regulation Superannuation Act 1906 rejecting the respondent's claim that a dysthymic disorder and panic attack from which he suffered were caused by being hurt on duty. Armitage CCJ set aside that part of the delegate's decision determining that the respondent's infirmity was caused by his being hurt on duty. 2 An appeal to this Court from his Honour's decision is on a point of law or on a question as to the admission or rejection of evidence: see s 32(1) of the Compensation Court Act (NSW) 1984. 3 It is not necessary for the purposes of this judgment to set out the facts of the case. They are fully set out in his Honour's judgment as well as in the written submissions of both parties. It is sufficient to say that the respondent complained that as a result of a series of harrowing duty related incidents and an adverse mention in the Police Royal Commission he suffered a psychological disorder. His Honour held, as he was bound to, given the provisions of the Police Regulation Superannuation Act, that the condition from which the respondent suffered was a dysthymic disorder which it seems is analogous to reactive depression. 4 The appellant submitted that his Honour made ten critical findings of fact. They are set out at pp 12-13 of the Orange Book, in para 3 of the appellant's submissions and I do not repeat them. 5 The appellant then raised 8 grounds of appeal. In the form in which those grounds are framed, grounds 2 and 8 raise questions of fact only and should be rejected. 6 Ground 1 alleged that the trial judge applied the wrong test in determining that the expert medical evidence was capable of discharging the respondent's onus of proof. As amplified in the appellant's written submissions the appellant contended that: "The critical finding by the trial judge on this issue was that: - With great reluctance and despite the respondent [sic] disingenuous history given to Dr Moore he accepted her medical opinion to establish grounds necessary for the respondent to succeed on the question of causation". 7 It was submitted that in accepting this evidence his Honour failed to apply the test stated by Spigelman CJ in Seltsam v McGuinness (2000) 49 NSWLR 262 at para 136 that: "The predominant position in Australian Case Law is that a balance of probabilities test requires a Court to reach a level of actual persuasion".

The appellant encapsulated its submission in these terms: "On the balance of probabilities the defect in the medical evidence could not support a finding ultimately made by the trial judge". 8 That submission has the effect of converting ground 1 into a challenge that the evidence was insufficient to support the trial judge's conclusion. A complaint of insufficiency of evidence does not raise an error in point of law, see Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139. 9 There remained a suggestion in the appellant's argument that a finding made "with great reluctance" is not a finding made on the balance of probabilities because the trial judge could not have been actually persuaded by the evidence as required by Seltsam. 10 I reject that submission. It should be stated that Seltsam does not state any new principle or set any different standard from that required at law that a civil suit is determined on the balance of probabilities. The statement of Spigelman CJ was made in the context of what was required in a specific case involving scientific evidence, in that case in relation to epidemiological evidence, to satisfy the necessary standard of proof. His Honour's statement as to the relevant level of satisfaction in that context does not alter or otherwise impinge upon the standard of proof to be applied. Further, there was no defect in the medical evidence as alleged by the appellant. There was a challenge to the medical evidence because the respondent did not give a complete history to the doctors. I discuss this further below. But dealing with the particular challenge in ground 1, a trial judge may struggle to reach a finding because of competing evidence or may be compelled to reach a conclusion though it is contrary to some other matter found as part of or relevant to the decision making process. That does not mean that there has been a failure to reach a finding on the appropriate standard. 11 Accordingly, I would reject ground 1. 12 Ground 3 is framed in terms that: "The trial judge applied the wrong test in determining that s 136 of the Evidence Act 1995 as amended did not preclude the expert medical evidence being received into evidence nor require the trial judge to limit the use of such expert evidence". 13 This ground is misconceived in a number of respects. Section 136 does not operate so as to preclude the admission of evidence. The section is directed to limiting the use to be made of evidence if there is a danger the use might be unfairly prejudicial or misleading or confusing. Accordingly, that part of ground 3 is rejected. 14 As to the remaining challenge raised in ground 3 the appellant does not complain that there are matters of history or complaint in the medical reports that have become evidence of the fact under s 60. He complains that the respondent failed to give a complete history so that the opinions expressed in the medical reports are thereby undermined. He also complains, it seems, that there were credit issues which, if made out, as to some extent they were, also undermined the medical opinions given. This submission misunderstands s 136. The section has nothing to say about the weight which should ultimately be given to evidence including expert evidence. 15 It follows, therefore, that I would also dismiss this ground of appeal. 16 Ground 4 challenges the trial judge's exercise of discretion in applying s 136. The ground is formulated in these terms: "The Trial Judge misapplied his discretion when applying s 136 of the Evidence Act 1995 as amended in finding that 'with great reluctance I have concluded that there is a fair climate for the acceptance of the views of Drs Moore, Klug and Taylor and of Mr Blows'". 17 There are a number of difficulties with this ground of appeal. The exercise of judicial discretion may only be challenged as erroneous in point of law if some error has been made. Thus it must be established that: "If the judge has acted upon a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him or her or mistakes the facts or [did] not take into account some material consideration … or if upon the facts it is unreasonable or plainly unjust then the appellant Court may infer that in some way there has been a failure properly to exercise the discretion" House v The King (1936) 55 CLR 499 at p 505 18 In developing ground 4 in its written submissions the appellant contended that: "The critical finding by the trial judge on this issue was that: after concluding an analysis of Makita v Sprowles (2001) 52 NSWLR at 705 that he with great reluctance accepted the views of the Respondent's medical practitioners". 19 It was then said in the submission that the trial judge ought to have applied the test in Makita when exercising his discretion pursuant to s 136 to limit the use of the evidence. With respect, this submission has confused both the operation of s 136 and the principle stated in Makita. I have already referred to the operation of s 136. In this case it had no operation for the reasons I have already stated. 20 The principle in Makita on which I presume the appellant relies, (the reference to p 729 to 751 in the written submissions at trial being singularly unhelpful), is that part of the passage at para 85 of the judgment where Heydon J said: "So far as the opinion [of the expert] is based on assumed or accepted facts they must be identified and proved in some other way". 21 However, the appellant's complaint, as with ground 3, was that certain parts of relevant history were not made known to the medical experts. That raises a question of the weight to be given to the medical opinions concerned. That is not an error in point of law. Accordingly, ground 4 is rejected. 22 Grounds 5 and 6 can be dealt with together as they appear to raise the same issue. In each, the appellant contended that the trial judge erred in applying the wrong test (ground 5) or in determining (ground 6) that the appellant should have cross-examined the medical practitioners. 23 These grounds misunderstand his Honour's reasons. There was no doubt that there was an attack on the respondent's credit which was successful to some degree. The appellant, like any other party to adversarial litigation, would wish to exploit such a successful attack. The forensic means of doing so are by cross-examination. The appellant, however, did not take up this opportunity. His Honour, in the passage of which complaint is made, said that a reason which was "of relatively small weight" that enabled him to accept the respondent's medical evidence was the failure to cross-examine. In making that finding, his Honour was saying no more than that, as the appellant had not sought to undermine the medical opinions by appropriate forensic means, he was thus more readily able to accept the opinions given. This was not a finding that the onus had shifted or that the appellant bore an onus. It was a comment upon the state of the evidence at the conclusion of the case given the way the parties, and relevantly the appellant, had conducted their cases. I would reject grounds 5 and 6. 24 Ground 7 contends that his Honour applied the wrong onus. In the written submissions, the appellant contends that by making findings reluctantly the trial judge failed to apply the test in Seltsam. I have already dealt with that flaw in a similar argument by the appellant in relation to ground 1. No more needs to be said. Accordingly, I reject ground 7. 25 It follows, therefore, in my opinion that the appeal should be dismissed with costs. 26 SHELLER JA: I agree. 27 BRYSON JA: I agree with Justice Beazley. 28 SHELLER JA: The order of the Court will therefore be that the appeal is dismissed with costs.

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