Kidman v Corstorphan [1999] VSCA 28

Court of Appeal (Vic)|1999-03-26|Before: TADGELL, BATT and CHERNOV, JJ.A.

NEGLIGENCE - Medical negligence - Alleged breach of duty by surgeon to patient during and after surgical procedure necessitating further surgery by another surgeon. EVIDENCE - Failure by plaintiff without explanation to call the other surgeon as a witness - Failure by trial judge to advert to and properly apply principle in Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298. New trial ordered.

On 16 March 1993 the respondent, Mr Richard Corstorphan, a married man then 27 years old and living at Jan Juc, consulted a general practitioner, Dr D.E. Jones, at Belmont, a suburb of Geelong, complaining of a discharge from his umbilicus. The condition had already persisted intermittently for about 18 months during which the respondent had consulted two other general practitioners about it. They had prescribed conservative treatment, including Betadine applied with cotton wool, and antibiotics, which he had tried without success. The respondent in his evidence said -

"... I was getting a small discharge probably once or twice a week and it would last for a couple of days and it would disappear and then it would come back again. ... It would be enough to stain my shirt. It would be noticeable. You'd get maybe a capful or something of discharge. ... It was a clear, yellowish sort of colour with an odour to it. ... It was a pretty bad smell."

Dr Jones noted on examination a clear, creamy discharge from the respondent's umbilicus but found no anatomical abnormality. He looked for foreign bodies and debris, which are said to be common causes of a discharging umbilicus, but found nothing of the kind and could identify no cause of the problem. A swab pathologically examined recorded no growth. The only possible cause that occurred to Dr Jones was that of a patent urachus. He sought a consultation for the respondent with a urologist in order to investigate that possibility but there was a long waiting time of some six weeks which did not suit the respondent and, in the event, Dr Jones arranged for him to see the appellant, which he did on 19 March. The respondent then told the appellant that he had had an intermittently discharging umbilicus for some months, that he had used Betadine on it, that his general health was good and that he had not been in any other way inconvenienced. On examination of the respondent's umbilicus the appellant found, as he swore, no obvious sinus or abnormality and no redness or discharge. He could see neither any discharge nor a cause for a discharge but felt a small palpable defect - a hole - in the linea alba below the umbilicus. Otherwise the examination was normal. It is notable that the respondent in his evidence was unable to say whether, when the appellant first saw him, the umbilicus was discharging. The appellant considered a number of possible causes for the discharge that the respondent described to him, including the possibility of a pilonidal sinus, a sebaceous cyst and a patent urachus, apparently discounting the last - a very rare condition. He was unable by examination to ascribe a relevance to the palpable defect but, having made no other pathological finding, he felt (as he put it) "that maybe the defect represented one of those rarer causes of discharge which we couldn't see." Having regard to the history that the respondent had related, to the findings at examination and to the respondent's expressed wish to achieve a speedy resolution of the then long-standing complaint, the appellant recommended that the umbilicus be surgically explored. He swore in cross-examination - and no contradiction was offered - that the respondent was "very happy with my advice to explore because he was sick of the problem". According to the respondent's evidence the appellant told him that he thought the problem was a small hernia; and he understood that an operation was to be conducted to repair the hernia and explore the umbilicus - "I think a bit of both". Arrangements were made for the appellant to carry out a procedure at St. John of God Hospital, Geelong, on 26 March. As it was, the operation to which the respondent on 22 March gave his written consent was described only as "exploration of umbilicus". On 26 March, at the appellant's invitation, Dr Jones assisted at the operation. The umbilicus was (as the appellant swore) thoroughly examined under anaesthetic and found to be clean and healthy, with no abnormality. An exploratory operation was performed and a small hole in the linea alba was repaired with monofilament nylon sutures. There was no herniation and no sinuses or cysts were found. The skin, which was clean, was closed only lightly with two or three sutures, in accordance with the appellant's normal practice, to allow for drainage. No drain was inserted and no intravenous antibiotic cover was provided, the appellant seeing no need for either. The appellant, inspecting the wound some hours after the operation, was content with what he saw, and the respondent remained in hospital overnight.

Some three or four days after the procedure there was a dark red discharge from the respondent's operation wound and, shortly afterwards, a browny-yellow discharge. The appellant next saw the respondent on 6 April 1993, when there was evidence of a wound infection, with a discharge of pus. The sutures were removed from the surface wound. During the preceding 10 days the respondent was, as he swore, in a lot of pain. He said that his "belly button had now pushed out", that it was swollen, very tender and purple and that the stomach around it was also very tender and a "reddy colour". He was taking pain-killers. There was a lot of dark red discharge, and then a browny yellow discharge with a terrible smell. Dr Jones prescribed antibiotics for the respondent. When the appellant next saw the respondent on 12 May 1993 there was a continuing serous discharge but the repair appeared to be sound.

After the respondent telephoned him on 18 June 1993 complaining of a persistence of the condition, the appellant decided to operate again at the Geelong Hospital on 22 June. The discharge from the umbilicus was continuing and the appellant thought that it was probably due to infected nylon suture material, so that the wound needed to be re-explored. That was done and, at operation, the appellant found an infected sinus with a nylon suture or sutures at the base. These were removed together with the umbilicus itself. Subsequent pathology cultures revealed no significant micro-organisms in the sinus. Broad spectrum antibiotics were prescribed. The wound was sutured very lightly but topical antibiotics were not provided. The respondent described a great improvement in his condition immediately after the second operation but a few days later there was further discharge, with blood and pain. The respondent informed the appellant that he was going on holiday and would be doing some salt water swimming. This, the appellant said, would be helpful to cure the discharge.

The appellant next examined the respondent on 23 August 1993. According to the appellant the condition was then improving but there was still a slight serous discharge from the wound. The appellant asked the respondent to see him in three months if the problem persisted. During August and September 1993 the wound, as the respondent swore, was slowly getting better but there was still a hole and a discharge every day.

By 5 October 1993 the hole in the wound had sealed itself but, while the respondent was travelling by motor car from Sydney to Canberra, he experienced sudden severe pain. He was admitted to hospital in Canberra where the wound burst spontaneously, discharging a great deal of pus. The respondent was released from hospital in Canberra to be dealt with in Melbourne. He was operated on by Mr R.J. Millar, a general surgeon, at Royal Melbourne Hospital on 7 October. It would seem (although there was no direct oral evidence about it) that redness around the abdominal area was indicative of cellulitis, and that Mr Millar excised the infected material, inserting absorbable sutures. The respondent remained in hospital for seven days. According to him the wound took about three weeks to heal. Apparently the discharge from the umbilical area has ceased but the respondent now has a hernia which, as he said in his evidence, "sticks out".

Clearly, the respondent had a miserably distressing experience from the time of his first operation by the appellant in March 1993 until after he recovered from Mr Millar's surgery in October of that year. The respondent sought to charge his distress on the appellant; and the learned County Court judge, acceding to the claim, awarded compensatory damages of $42,000.

In his statement of claim the respondent had made wide-ranging allegations of negligence on the part of the appellant but the judge decided the case on a more limited basis, which the respondent seeks now to sustain. His Honour found first that the appellant was at fault in having operated in March 1993 in that, the respondent's umbilicus having been then infected, an operation should not reasonably have been undertaken without first taking steps to clear up the infection. His Honour found that the appellant proceeded -

"... without any attempt beyond the preparatory washing immediately before the operation to clear the area of infection and underlying cause of infection and the bacteria, wherever it happened to be resident. No attempt was made to kill it, to eradicate it - just wash it - and I believe that indicates a departure from the standard of care which the plaintiff had a right to expect would be exercised on his behalf by a person of the skill and experience of Mr Kidman."

His Honour appears also to have found (although it is not altogether clear) that the appellant should not have performed the March 1993 operation at all; and that the appellant's post-operative supervision was inadequate. The respondent, according to the learned judge, suffered from a -

"... prolongation and exacerbation of symptoms from discharges from the umbilicus due to the failure to take adequate care prior to operating and operating in circumstances where he should not have operated at all and followed that with an inadequate regime of supervision with, as far as I can see, until the second operation, no attempt to deal with the problem other than just simply letting it take care of itself."

That all referred to the first operation in March 1993 and its aftermath.

"The second operation did not do any better than the first and one is left with the inescapable feeling that the knife was too quickly used in the first place and subsequently nature was left to take its course, when it was not left to take its course in the first place. The intervention, as I say, which came second, did not do any good to Mr Corstorphan and it is my view that from start to finish the evidence indicates that the problems which Mr Corstorphan presented to his surgeon for treatment were inadequately treated. Subsequent to the operation, he was inadequately supervised and I find as a fact that those things are so, at least to the point of being more likely than not, and at least to the point that even in the face of the gravity of these findings concerning the exercise of his professional skill by a highly qualified and skilled surgeon, even so I am of the opinion that is more likely than not to have been the case and more likely than not to have been the cause."

It was common ground on the appeal that a linch-pin of the judge's reasons was his finding or assumption that the respondent's umbilicus was infected at the time of the first operation. The appellant contends that there was no evidence on which that finding or assumption could properly be made; and he contends further that the judge erred in finding (or apparently finding) that his -

(a) performance of an operation "at all" in March 1993; (b) pre-operative preparation in March 1993; (c) failure to apply intravenous antibiotic cover during the March 1993 operation having regard to what the judge called "obvious chronic infection"; (d) regime of supervision of the respondent after the March 1993 operation and after the June 1993 operation -

constituted a failure to take reasonable care and thus gave rise to a liability in negligence.

The evidence that was called on the question whether the appellant had failed as a surgeon to exercise reasonable care towards the respondent consisted essentially of that adduced -

(a) for the respondent: orally from Mr Arnold Mann (a surgeon called as an expert witness), from the respondent himself and from his wife; and a report in writing prepared by a surgeon, Professor V.H. Cumberland, who died before the trial; and (b) for the appellant: orally from Dr Jones, from the appellant himself and from Mr H.R. Roberton, a surgeon who was called as an expert witness.

Notably, Mr R.J. Millar, the surgeon who operated on the respondent on 7 October 1993, was not called as a witness and none of the written material that he had prepared was tendered. He was, however, brought to court on the second day of the four-day trial at the behest of the solicitors for the respondent, but was not called. No explanation was given for the failure to call him on behalf of the respondent. When it became apparent that he would not be called for the respondent, a subpoena directed to Mr Millar was issued by the solicitors for the appellant and attempts were made to serve him before the trial concluded, but without success. In the event, therefore, no evidence at all was received from Mr Millar, and there are discrete grounds of appeal complaining of a failure by the judge to take proper account of the respondent's failure without explanation to call him.

The judge expressed himself to accept "in general" the evidence of Mr Arnold Mann, which was highly critical of the appellant's conduct. Plainly, the respondent's case was very much dependent on the evidence of Mr Mann who, at the time of trial, was 68 years old, having retired from clinical surgery in 1991. He identified the following sources from which he obtained the factual information on which he formed the opinions that he expressed at the trial: written medical reports from Dr Ross Gilham (apparently a partner of Dr Jones) dated 17 June 1993, from the appellant dated 14 March 1995, from Dr Jones dated 20 March 1995, from Mr Millar dated 18 February and 16 May 1994 and 23 August 1996, and from Professor Cumberland dated 15 December 1994. Mr Mann also interviewed the respondent on 14 July 1997 and prepared a report for the respondent's solicitors dated 23 July 1997.

Neither Mr Mann's report nor any of the reports made available to him was exhibited in evidence at the trial, save that of Professor Cumberland. Nor were there exhibited two letters that were set out in the judge's reasons for judgment. One of these was written by the appellant to Dr Jones on 19 March 1993, part of which was read to the appellant by cross-examining counsel and so to that extent found its way into the transcript of evidence. The other, written on 12 May 1993 by the appellant to Dr Michael Buckley, a general practitioner at Jan Juc whom the respondent consulted on 11 May 1993, was (although not in evidence) the subject of questioning of the appellant by the judge and was mentioned in part by counsel for the respondent in the course of his closing address. I shall refer to this again below.

It was Mr Mann's central thesis that the surgery the respondent underwent in March 1993 was unnecessary; that there was no umbilical hernia; and that, necessary or not, there was insufficient preparation for the surgery, and insufficient provision for drainage of the wound; and that there should have been intravenous antibiotic cover in the course of the surgery.

Mr Mann's expressed opinion was that the appellant had not correctly diagnosed the respondent's condition before operating in March 1993. Mr Mann himself purported to make a diagnosis more than three years later which he described in the witness box in this way -

"Well, he had what's called omphalitis, in other words, inflammation of the belly button. This is almost invariably due to the accumulation of dead cells in the bottom of the pit which is the umbilicus. ... and they form smelly little residues and these things can of their own accord or because someone tries to scratch them out, cause inflammation in the area. That I think is the condition from which he was suffering and the appropriate treatment for that is to get little pledgets of cotton wool, dip them in water or salt water and clean out the umbilicus. If one wants to be a little bit flasher than that, then get a bit of Betadine from the chemist which is an antiseptic and put the pledget of cotton wool in the antiseptic - a fresh one - and apply a little bit of antiseptic to it. That's what he needed."

When first asked in chief about the operation that was performed in March 1993 Mr Mann said -

"I can't see a single reason for having done any surgery at all. I questioned this man very very closely to see whether he had any symptoms which one could say were a hernia."

Then, having deposed that his questioning of the respondent indicated to his satisfaction that there had been no evidence of a hernia, Mr Mann swore -

"So my conclusion is that there was no operation required. There was no evidence that any operation was required. ... So it's quite easy to detect whether a hernia is present or absent. There's nothing in Mr Kidman's notes, nothing in his letter at the time that says this patient had a hernia. So I don't understand what he was doing."

Mr Mann put forward the further thesis, as summarised by the judge in his reasons and accepted, that "... there was a problem concerning this man's umbilicus which was indicative of infection, and before surgical intervention the prudent thing to do would be to treat the infection with a view to clearing it up and if it was then felt necessary to do so and prudent to do so, investigate further". Although, again, the judge's reasons are not entirely clear, it would appear that his Honour did find or assume that there was infection present at the time of the first operation. When dealing in his reasons with a submission by counsel for the appellant that heed should be taken of the respondent's failure to call Mr Millar, the learned judge said this -

"I do ['not' has presumably been omitted here] believe that the crucial matters, such as whether or not this man had and presented with a discharging umbilicus at the time he first saw Dr Jones and Mr Kidman, and that that condition was inadequately dealt with prior to operation, are things about which I would be saying I was able albeit with reluctance to draw an inference in favour of the defendant or against the plaintiff because I find that the evidence is quite plainly against the defendant."

It is not easy to be certain of what that sentence intends to convey. It seems, however, to carry with it an implication that the appellant was not to be believed when he swore that the respondent's umbilicus was not discharging when he first saw it in March 1993; and that his Honour disbelieved the evidence of the appellant and that of Dr Jones (to much the same effect) that there was no indication of infection of the umbilicus when the March operation was carried out.

There was in truth no evidence derived from clinical observation of the cause of the respondent's discharging umbilicus in March 1993. There was no evidence that it was discharging when the appellant first examined the respondent, and there was positive evidence given by the appellant that it was not. Dr. Jones, of course, was not then present. It is true that, under questioning from the judge, Dr Jones said "I believe it was still discharging when Mr Kidman saw him". That can scarcely be regarded as evidence that the umbilicus was then discharging, sufficient to displace the positive evidence of the appellant that it was not then discharging, or of the respondent, who was unable to say whether it was then discharging or not.

It was, no doubt, open to the judge to disbelieve the evidence of the appellant that, when he first saw the respondent's umbilicus, it was not discharging. One might expect however, especially in a case like this in which professional negligence is alleged, that in doing so his Honour would state clearly that he was rejecting the evidence, and why, and refer to evidence which he regarded as preferable to it. His Honour did none of these. It was submitted for the respondent before this Court that the findings of the judge were based on his views of credibility of witnesses, and that the findings must stand unless it can be shown that the judge palpably misused his advantage of seeing the witnesses or acted on evidence inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. His Honour, however, said nothing in his reasons about credit or credibility; and nothing of any evidence that might be regarded as overreaching the evidence of the appellant that the umbilicus was not discharging when he first saw it: there was no such evidence. Professor Cumberland did offer the opinion that the most likely cause of the discharge from the respondent's umbilicus was "infection and possibly the presence of a concretion"; and Mr Mann agreed in this respect with Professor Cumberland's opinion. Neither of these experts, however, saw the condition of the umbilicus; and Professor Cumberland was of course not available for cross-examination. He, like Mr Mann, could not give - at all events neither of them offered - any evidence of the underlying cause of such infection as there might have been; and none of the material from which Professor Cumberland derived his information, and very little of that from which Mr Mann derived his, was in evidence. Somewhat cryptically, towards the end of his report, Professor Cumberland said "I find myself in agreement with Mr Robert Millar's opinions as stated in his letters of 18/2/1984 [obviously a slip for 1994] and 16/5/1994 ..." but, so far as appears, these opinions remained undisclosed at the trial. It may therefore be fairly said that both the foundation for Professor Cumberland's opinion, and the nature and extent of his opinion, were only partially revealed.

The letter from the appellant to Dr Buckley to which I have referred in paragraph 14 might have been tendered on behalf of the respondent as an admission by the appellant against interest. It was not tendered as an exhibit although a copy was evidently in a court book prepared by the solicitors for the respondent, and the judge apparently read it. It does not appear that the copy letter was shown to the appellant, and counsel for the respondent did not put it to the appellant or refer to it during cross-examination. Part of the contents was, however, the subject of questioning by the judge after the appellant's re-examination, consisting of but one question, namely "Mr Kidman, was it a contaminated case when you first operated on the plaintiff?", to which the answer was "No, it was not". The following exchange then occurred -

"HIS HONOUR: Help me about this then, Mr Kidman. If that's correct then what did you mean in saying to Dr Buckley in your letter to him of 12 May that his original problem was a 'chronically infected discharging umbilicus with an underlying hernia'?---He had had a chronically intermittent discharging - - - It doesn't say anything about it being intermittent there?---No, it doesn't but we know that it was and when we saw it, it was clean. But you didn't say that to Dr Buckley, did you?---No, I didn't. Indeed, I would read that as being the direct opposite - you saw him with what was an infected discharging umbilicus---No, I didn't, Your Honour. But that's what you told him, isn't it?---No, it's not. I mean, the history has been going on intermittently for 18 months but when I saw him there was no - - - I have deliberately searched that letter for that word 'intermittent' and I can't find it?---No, it's not there but we've heard that it was and I mean, I've left out a word but it was intermittent."

A question for this Court seems to be whether the learned judge was right, without expressing an opinion of the credit of the appellant on the matter, to treat the evidence of Professor Cumberland (with which Mr Mann agreed) as overriding the evidence of the appellant (and, it seems, that of Dr Jones) that the respondent's umbilicus was not infected at the time of the first operation. His Honour's finding on this question was fundamental to his conclusion overall. It was a finding to which a devotion of especial care was essential if the evidence of the appellant was to be rejected, and this for several reasons. First, the evidence of the appellant and of Dr Jones on the question was that of eyewitnesses of the respondent's condition, whereas that of Mr Mann and Professor Cumberland relied only on what they had been told long after the event. The sources of the information that was conveyed to Professor Cumberland were not all stated by him in his report and, in any case, the terms in which the information was given to him were not available to the judge. Secondly, there was no evidence at all of what it was that caused any discharge; but there was evidence that an umbilical discharge is not necessarily caused by infection. Thirdly, Mr Millar, who had examined the respondent's abdomen when entering it surgically in October 1993, and who could have given evidence of its condition at that time, could have been called for the respondent but he was without explanation withheld as a witness for the respondent.

The failure of the respondent, without explanation, to call Mr Millar as a witness has, to my mind, more than ordinary significance in this case: cf. Tozer, Kemsley & Millbourn (A'asia) Pty. Ltd. v. Collier's Interstate Transport Service Ltd. [1956] HCA 6; (1956) 94 C.L.R. 384, at 403, per Fullagar, J. The attention given by the judge to the failure does not, however, appear to have been undivided.

Counsel for the appellant had submitted in his final address to the judge that Mr Millar could have given important evidence of the respondent's condition before he operated in October 1993, of the results of biological testing that was carried out before he operated, of what he found at the time he operated, of the results of his surgical procedure and (as counsel put it) "... why it now is that the wound has healed and there is no infection". That is to say (as I understand) he might have been expected perhaps to throw light on the respondent's condition in the first place; and any inability on his part to do so might have thrown light on the appellant's inability to assign a cause of it. Counsel submitted below that the judge could use the respondent's failure to call Mr Millar in order to accept more readily the evidence of the appellant and Mr Roberton to the effect that (again to use the words of counsel's submission) "... there is unfortunately no known cause for what that original problem was, but the subsequent infection was one of the risks of the operative procedure, that there was an infection which developed, and it was eventually eradicated by Mr Millar's operation". That submission, which was not contradicted by counsel for the respondent below, was well authorized by authority, including notably, for example, Jones v. Dunkel [1959] HCA 8; (1959) 101 C.L.R. 298 and a much-cited passage in the joint judgment of Newton and Norris, JJ. in O'Donnell v. Reichard [1975] VicRp 89; [1975] V.R. 916, at 929, namely -

"... where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken".

As that passage makes plain, there are two aspects to the logical process that may be adopted following a failure by a party without explanation to call available evidence which, if favourable, that party might fairly be expected to call. The first relies on an inference, readily enough drawn, that the uncalled evidence would not have helped the party who did not call it. The judge clearly enough adverted in this case to that first aspect. He said -

"... I find that Mr Millar was present at court at some stage in the course of the hearing of this action and was spoken to by the plaintiff's representation outside the court and was not called. I agree that in those circumstances the law operates so as to permit the inference that in those circumstances the evidence would not have helped the party who did not call him, which in this case was the plaintiff who brought him to court, and the defendant made belated attempts to call him, which brings down no credit on their shoulders; but that is a sideshow [sic]."

The second aspect refers to distinct purposes to which a failure to call evidence may be put in evaluating evidence that has actually been given ( whether for one side or the other) including the drawing of other inferences. The learned judge appears not to have adverted to this second possible aspect - the evaluative aspect - and to have denied himself an opportunity thereby to resolve such doubts, ambiguities and conflicts as were raised by the evidence that was before him. Immediately following the passage from the judge's reasons that I have last quoted, his Honour continued -

"The inference having been drawn that his [scil. Mr Millar's] evidence would not have helped, does not permit me to speculate about what he would have said had he been called, but it does enable me to draw an inference more readily where I might have been hesitating to draw one before considering that failure. That doctrine has never, in my view, operated to provide evidence where none exists. Nor does it operate to compel acceptance of an inference which one is not disposed to accept anyway, whether his evidence would have helped or not."

Then followed the passage from the judge's reasons that I have set out in paragraph 17 above. The judge said no more about the failure of the respondent to call Mr Millar. The evidentiary issues referred to in the last-mentioned passage - apparently regarded by the judge as "crucial matters" - were unquestionably the subject of conflicting or ambiguous or doubtful testimony. His Honour was obliged to resolve the conflict, ambiguity or doubt, so far as he could, by reference to legitimately available processes of reasoning. His Honour's reasons indicate to me that, in apparently rejecting the appellant's evidence on the question whether the respondent did or did not present to him with a discharging an umbilicus, he did so without properly considering the effect of the respondent's failure to call Mr Millar. I am far from saying that the judge was obliged to reach a particular conclusion on that question by reference to the failure to call Mr Millar; but in the circumstances of this case I think his Honour was in error not to have considered that he could be assisted in deciding the question, among other "crucial matters", by reference to the respondent's unexplained failure to call the available witness.

There is a statement or suggestion in Cross on Evidence, 5th Australian edition, paragraph 1215, (note 50) that "it is uncertain whether there is any rule of law compelling the giving of a Jones v. Dunkel direction to a jury". The decisions of the New South Wales Court of Appeal in Nuhic v. Road and Rail Excavations [1972] 1 N.S.W.L.R. 204 and Payne v. Parker [1976] 1 N.S.W.L.R. 191 are cited apparently in support of that view. In the latter decision Hutley, J.A. (at 195-6) and Glass, J.A. (at 204) apparently took differing views of a statement by Walsh, J.A. in Cafe v. Australian Portland Cement Pty. Ltd. (1965) 83 W.N. (Pt. 1) (N.S.W.) 280, at 287, that "... there is support in the authorities for saying that a decision of a trial judge to refuse to give appropriate guidance on this question [scil. in accordance with Jones v. Dunkel] may amount to a misdirection attracting the remedy of a new trial". Whatever may be the position in New South Wales, it is clear that in this State a failure to give a jury direction, when it is sought by a party who is entitled to rely on the principle recognised in Jones v. Dunkel, may justify an order for a new trial: e.g. Black v. Tung [1953] VicLawRp 84; [1953] V.L.R. 629; Earle v. Castlemaine District Community Hospital [1974] VicRp 86; [1974] V.R. 722; O'Donnell v. Reichard, supra. In Transport Industries Insurance Co. Ltd. v. Longmuir [1977] 1 V.R. 125, at 143, this Court approved a comparable approach in a case tried by judge alone.

In Earle v. Castlemaine District Community Hospital, supra, at 733, Lush, J. emphasised that the principle discussed by the majority of judges in Jones v. Dunkel goes beyond acceptance of evidence or of suggested inferences of evidence and extends to the resolution of doubts and ambiguities, citing the passage from the judgment of Fullagar, J. in the Tozer, Kemsley and Millbourn Case to which I have referred in paragraph 22 above. It is this aspect of the principle that the County Court judge in this case appears to have overlooked. It is a striking feature of the respondent's case that it offered no clinical evidence of his medical condition in October 1993; and it is striking not merely that evidence of that kind was not offered but that, being obviously available, it was designedly withheld.

There is, as Kirby, P. put it in Clayton Robard Management Ltd. v. Siu (unreported, N.S.W. C.A., 21 October 1987) "... an overriding obligation, oft-repeated, to consider and weigh the evidence at the end of the trial according to the respective powers of the parties to produce evidence". The obligation (not a mere option) was described by his Honour as a "... principle which supplements the processes of reasoning authorized in Jones v. Dunkel". The principle is usually traced to the dictum of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp. 64, 65; 98 E.R. 969-70 that -

"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the power of the other to have contradicted."

The principle to which Kirby, P. referred, in association with Jones v. Dunkel, authorises reasoning which, as Glass, J.A. described it in Payne v. Parker, supra, at 200-1 -

"... involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default: O'Donnell v. Reichard. The principle may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only ... . If the failure is of the latter kind, the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn ... . If the failure is of the former kind, a consonant formulation would be that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve. The default 'brings a great slur on his cause': Ward v. Apprice (1704) 6 Mod. Rep. 264; 87 E.R. 1011." [per Holt, C.J.]

See also O'Donnell v. Reichard, at 919 and 920-1, per Gillard, J.

In apparently rejecting the appellant's evidence that the respondent's umbilicus was not discharging when he first saw it, the judge acted not only in the absence of contrary evidence but without assigning a reason. There must have been at least a legitimate doubt which required the judge's consideration before he reached the conclusion that he expressed about that, among other "crucial matters". In apparently rejecting the appellant's clinical evidence that the respondent's umbilicus was not infected at the time when the March 1993 operation was undertaken, his Honour chose to reject the evidence given for and on behalf of the appellant and to accept the conflicting opinion evidence of Professor Cumberland and Mr Mann, again without assigning a reason for doing so. Moreover, in respect of this issue his Honour did not, so far as appears, seek to evaluate the whole of the evidence which had been given about it in the light of the failure of the respondent to call Mr Millar. In so proceeding, the judge misdirected himself for there was, in the words of Holt, C.J., a "great slur" on the respondent's cause of which his Honour chose to take no proper heed. In the circumstances of the case it is not possible to say that the misdirection had or could have had no effect on the result. The appeal must on that basis alone be allowed.

Although there were several other grounds of appeal, I find it unnecessary in the circumstances to deal with them. I wish to say in conclusion, however, that the use in the trial judge's questioning of the appellant, and the reference during the final address of counsel for the respondent and in the judge's reasons for judgment, to documents which were not tendered in evidence, and apparent reliance on them, were irregular. It is imperative and axiomatic, if it ever comes to the point, that there should be no possible doubt in the minds of the parties, their counsel, the trial judge or a Court of Appeal - or indeed of the public - of the chapter and verse of the material on which a decision in a court of law depends. I cannot say that there is no such doubt in this case; and that conduces to the appearance of an unsatisfactory trial.

I propose that a new trial be ordered, to be conducted by another judge.

I also agree with the judgment of Tadgell, J.A.

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties