Manly Fast Ferry Pty Ltd v Wehbe

Background

1. At the time of the accident Mr Wehbe was aged 32 years and worked as a tiler. Prior to that he worked for Sydney City Council in various positions including as a cleaner, where he sustained a needle stick injury in 2012. He had also worked as a forklift driver and in the warehousing and transport industry.
2. Mr Wehbe did not work following the accident. At the time of the trial he was living in a "granny flat" at his parents' home; and he was not seeking work for family reasons, as he was a carer for his elderly widowed mother. His case was that as a consequence of his injury he had a significantly reduced work capacity, including as a tiler.
3. The fact of injury was not disputed; however, the extent of injury and its consequences were disputed. The evidence tendered at trial included reports from Dr MacDessi, an orthopaedic surgeon who was Mr Wehbe's treating doctor, and expert reports from two medical specialists - Dr Andrew Porteous, an occupational physician called by Mr Wehbe, and Dr David Maxwell, an orthopaedic surgeon called by the appellant. The experts also gave a joint conclave report and oral evidence at trial.
4. Given the scope of the grounds of appeal, it is necessary to outline the medical evidence about Mr Wehbe's injury.
5. Dr MacDessi reported on 24 October 2017, referring to an MRI scan taken on 19 September 2017, that: George's knee shows normal tibiofemeral and patellofemoral cartilage surfaces. He has mild patellofemoral dysplasia. There is significant soft tissue bruising within the prepatello bursa but there was no associated patellar fracture.
6. Under the heading "Management", Dr MacDessi stated: … [Mr Wehbe] had a prepatellar bursal haemorrhage causing pain within his knee from a direct impaction injury. Pleasingly though he has not sustained any deep injury within the joint. George does quite a lot of weightlifting and currently this is aggravating his knee. I would like him to start physiotherapy under Mr Charlie Haddad focusing on graduated improvements in quadriceps and gluteal strength, soft tissue treatment of the prepatellar bursa and a graduated rehab program to get him back to work.
7. Dr MacDessi saw Mr Wehbe on 16 February 2018 and noted that his knee had "not improved significantly"; he still had anterior knee pain and a feeling of weakness and pain getting up and down stairs and was unable to work as a tiler. Mr Wehbe reported that there was new clicking (in his left knee). He was referred for another MRI scan. Dr MacDessi considered that Mr Wehbe had a quite severe case of patellar tendinopathy related to a direct impact injury with associated prepatellar bursal swelling.
8. After the second MRI scan on 23 February 2018, Dr MacDessi saw Mr Wehbe on 23 August 2018 and reported that Mr Wehbe had quite severe patellar pain, that the MRIs had not demonstrated any significant chondral pathology, Mr Wehbe had not been able to return to work, that he had some physiotherapy but it had been minimal because he could not afford it and he discussed weight reduction and regular exercise. He advised that from a surgical aspect no treatment was needed.
9. Dr Porteous first examined Mr Wehbe on 4 October 2018. After the third MRI scans on 7 December 2019 of both knees, he re-examined Mr Wehbe on 15 January 2020. The comparative measurements of Mr Wehbe's knee flexion and left and right thigh and calf on examination by Dr Porteous in October 2018 and January 2020 were:

• a 120° flexion in his right knee (135° in October 2018) and 108° in the left knee (110° in October 2018);
• left thigh circumference (10 cm above the patella) was 55.5 cm (57.5 cm in October 2018), while the right was 52.5 cm (58 cm in October 2018); and
• left calf circumference was 44.5 cm and the right calf circumference was 44 cm (both 46 cm in October 2018).

1. In his second report, Dr Porteous said that the loss of muscle over time since last seen was consistent with Mr Wehbe's history.
2. Dr Porteous' observations of Mr Wehbe's gait in October 2018 and January 2020 were similar. On each occasion he observed that "gait was normal once [Mr Wehbe] got up". In October 2018, he noted, "however, [Mr Wehbe] had a sharp pain as he moved from sitting to standing and grimaced". In January 2020, he noted that "once [Mr Wehbe] got up and started moving, but was hesitant again initially, with a reported increase in pain".
3. Dr Porteous' initial diagnosis was left knee patellofemoral syndrome. In his second report his diagnosis was left knee chronic soft tissue injury and clinical evidence of patellofemoral syndrome. Dr Porteous observed that the MRI scans showed evidence of "an effusion suggestive of inflammation and injury consistent with the reported history". His opinion was that Mr Wehbe "has developed a consequential right knee soft tissue injury from favouring the left knee and carrying most of his large weight through the right knee when limping on the left".
4. Dr Porteous expressed the view that Mr Wehbe was incapacitated from work as a tiler and that he had a reduced work capacity. He adhered to that view in his second report, explaining: In my opinion, he remains restricted from kneeling and crouching. He remains restricted from heavy lifting, pushing, pulling and carrying. He is still restricted from frequent or constant walking up and down steps or ladders or slopes.
5. Dr Porteous assessed Mr Wehbe as being able to undertake activity and work that avoided the above restrictions, whilst noting that it is probable that Mr Wehbe eventually will have to medically retire, some 5-10 years earlier than otherwise expected.
6. Dr Maxwell provided one report having examined Mr Wehbe on 12 September 2019. He noted that Mr Wehbe was "a huge man" - 140kg and 191cm tall. On examination his right and left thigh both measured 55.5 cm (10 cm above the patella) and his right and left calf both measured 43.5 cm. Dr Maxwell observed no muscle wasting of Mr Wehbe's left calf or thigh, and said that an absence of muscle wasting is the best objective sign that someone is using their left knee relatively normally.
7. Dr Maxwell said that individuals who experience patellofemoral pain almost always have wasting of the left quadriceps muscle and Mr Wehbe had no wasting of the quadriceps muscle. As to the possibility that Mr Wehbe had an unstable patella, Dr Maxwell found none of the tests for patella instability were positive and Mr Wehbe had no history of giving way of his knee, such as would occur with patella subluxation.
8. Dr Maxwell disagreed with the suggestion by Dr Porteous that Mr Wehbe, a regular weightlifter, should restrict heavy lifting, pushing, pulling and carrying. Dr Maxwell considered that Dr Porteous had not indicated why these normal activities would be harmful for Mr Wehbe.
9. Dr Maxwell also disagreed that Mr Wehbe was incapacitated such that he could not be a tiler and was "sure" he could go back to such work. Dr Maxwell continued: As is common with occupational physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery from soft tissue injuries. Resting a soft tissue injury usually makes it worse.

Oral evidence at trial

1. In his evidence in chief, Mr Wehbe described his left knee as having "deteriorated, it's very painful, it's starting to affect my left hip gradually, pins and needles in my left foot". He said his right knee "is very painful as well" and that it's "more painful once it's fully extended not when it's bent".
2. In cross-examination, Mr Wehbe rejected the suggestion that he had never limped on his left knee. He said "I can't walk normal …. If I walk normal, I have a micro trauma" and "[w]hen I have that, I lean to my right". He explained a micro-trauma was a "pop and a sensation of pain and grating in my knee, the pain shoots up to my hip and the only way to stop it, if I have nowhere to sit, I limp to (sic) on my right knee, on my right leg, or I just sit down if I have a seat nearby".
3. Mr Wehbe also gave evidence that when pain starts in his left knee, it goes up to his left hip and "I lean on my right; that's when the, the gradual onset, that's how it began". He said that he had been offered and refused painkillers, specifically OxyContin, which he had previously tried and had made him "very disorientated".
4. During the expert's conclave at trial, Dr Porteous gave evidence that in his experience painful knees can occur without muscle wasting, but he did find some muscle wasting on his second examination of Mr Wehbe's right leg, and by that time Mr Wehbe had reported his right knee being "significant and painful". He noted that the restricted leg range or motion in the left knee were both objective clinical findings.
5. In response to Dr Maxwell's view that "[t]here is absolutely no evidence that you can injure your right knee by not using your left" and the "idea that you can somehow injure a part of your body by over-using it, is completely fallacious", Dr Porteous said that "people do develop over-use conditions and particularly have aggravation of underlying pathology", giving as an example over-use of one shoulder when the other shoulder has suffered a rotator cuff injury.

The primary judge's reasons

1. The primary judge identified the principal areas of disagreement that persisted between the experts following their conclave report at J [35] as follows: (1) Dr Maxwell disagreed with the clinical conclusion of Dr MacDessi and the analytical conclusion of Dr Porteous that the plaintiff had patellar tendonitis; (2) Dr Porteous disagreed with Dr Maxwell's interpretation of MRI scan imaging and maintained that the radiology indicated deterioration in the pathological signs in the plaintiff's left knee that preceded the accident, which in effect, he considered to have been an underlying asymptomatic condition which was aggravated by the subject accident, whereas Dr Maxwell maintained that the three MRI scan reports identified different degrees of mild cartilage degeneration consistent with the plaintiff's age. Absent from Dr Maxwell's analysis on that point was the effect of trauma, which he insisted in describing as mild; (3) Dr Porteous considered the plaintiff's ongoing left knee pain was due to the accident whereas Dr Maxwell considered the "normal" time for recovery would have been 4 - 6 weeks; (4) Dr Maxwell introduced into the evidence for the first time, the notion that pain can be affected by anxiety and depression. Whilst that proposition accords with common sense, there is no reliable evidence to compel a diagnostic conclusion that such factors were at play and affecting the plaintiff in this case; (5) Dr Maxwell discounted Dr Porteous' treatment recommendations on the basis of his view that there was no objective evidence that the plaintiff was unable to function; (6) Accordingly, the experts maintained diametrically opposed views on the plaintiff's prognosis, Dr Porteous expressing the view the prognosis was guarded, as stated in his report, and Dr Maxwell expressing the view it was excellent; (7) Dr Maxwell placed great emphasis on the location and variation in the observations of muscle wasting in the plaintiff's lower limbs. Given that the observations varied, all that seemed to flow as a consequence was that at differing times, the plaintiff was using his legs in different ways which produced such results. That did not necessarily mean the plaintiff was not favouring his left knee and overusing his right knee; (8) Dr Maxwell's view of the absence of muscle loss was anchored to his report dated 12 September 2019, whereas Dr Porteous' conclusion that there was muscle loss in the plaintiff's left leg, was based on his unchallenged observations to that effect which he made on 15 January 2020. Dr Maxwell was not in a position to contradict that clinical finding; (9) Dr Maxwell found it difficult to understand how the plaintiff developed 3 cms of right thigh muscle wasting but, inconsistently, had no apparent difficulty emphatically saying that it was not related to the subject accident. Absent from his analysis was a due consideration of alteration to the plaintiff's gait due to pain, which by then was in both knees; (10) The experts maintained their disagreement on the plaintiff's capacity to return to his pre-injury employment or to work in other employment.

Ground 1: Procedural unfairness

1. Consistent with High Court authority that issues of bias (and by extension procedural unfairness) should be addressed first, the parties directed their attention in oral argument to ground 1: see Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117], [172].
2. The allegation of procedural unfairness was put on the basis of the frequency and nature of the involvement of the primary judge in the cross-examination of the medical experts and the cross-examination of Mr Wehbe. The complaint made was that the primary judge had crossed the line and departed from the role of a judge presiding over an adversarial trial. The following particulars of excessive judicial questioning and interventions were relied upon as demonstrating procedural unfairness: 1. his Honour's frequent intervention during the cross-examination of Dr Porteous; 2. his Honour's tendentious cross-examination of Dr Maxwell; and 3. his Honour's "entering the arena" in the course of the experts' conclave resulted in the assessment of the evidence of the expert witnesses miscarrying.
3. These particulars are not very informative, expressed as they are in general and conclusionary terms. In written and in oral submissions, senior counsel for the appellant took the Court to the various passages of the transcript relied upon in support of the complaint of procedural unfairness. According to the submissions, the interventions by the primary judge were substantial and continuous and caused the trial to miscarry because the judge took over the conduct of the trial. In addition, the cross-examination of Dr Maxwell was described as adverse, at times mistaken, and liable to result in self-persuasion by the primary judge.
4. There was no dispute as to the applicable principles, which are discussed in Galea v Galea (1990) 19 NSWLR 263 at 280-282 (Kirby A-CJ, Meagher JA agreeing) and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [14]-[20] (Basten JA), and [162]-[172] (Ward JA). The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: Galea v Galea at 281.
5. It is well-recognised that different considerations apply to a judge-only trial, in contrast to a trial with a jury, and again, different considerations will apply to judicial intervention in the course of opening or final submissions, as compared to intervention in the questioning of witnesses: Galea v Galea at 281B; Royal Guardian at [14] (Basten JA), [164] (Ward JA, Emmett AJA agreeing).

(a) Dr Porteous

1. The appellant identified six occasions where the judge intervened during cross-examination of Dr Porteous.
2. The first was on the topic of whether Mr Wehbe had developed a consequential injury to his right knee by favouring his left knee. The judge intervened to clarify a confusing question framed in the present tense directed to an opinion expressed by the witness in the past tense in a causative sense. Counsel for the appellant fairly accepted at trial that the question needed to be re-framed. The intervention was justifiable.
3. Second, on the topic of whether Mr Wehbe was favouring his left knee when Dr Porteous saw him in October 2018, the judge sought clarification of the significance of Dr Porteous' comment that he first saw Mr Wehbe a year after the incident. That clarification was unobjectionable.
4. Third, on the topic of commercial assistance for domestic care, the judge intervened when difficulties arose with the audio connection to clarify the cross-examiner's questions after Dr Porteous had indicated that he did not understand one question and had not heard another question. As already explained, this intervention was appropriate.
5. Fourth, on the topic of the need for regular monitoring of Mr Wehbe's pain and condition, and what would be the purpose of consulting his general practitioner two to four times a year, the judge raised the issue of Mr Wehbe's previous adverse reaction to OxyContin and his refusal of opiods when he suffered a needle stick injury in 2012. The appellant complained that there was no evidence of this and hence the intervention was inappropriate. I do not agree. Evidence was given by Mr Wehbe that he had previously tried OxyContin and felt its effects first-hand; it made him "very disoriented". The context and basis of the judge's question was no doubt understood by counsel for the appellant at trial who did not object to the judge's question. The question was not inappropriate.
6. Fifth, on the topic of the need for future treatment, the judge corrected counsel for the appellant when he framed a question to Dr Porteous about a "consultation", rather than a "review" by an occupational therapist of Mr Wehbe's functional capacity as the joint conclave report required. Whilst counsel for Mr Wehbe had not objected to the question as framed, and the correction was somewhat pedantic, the intervention to clarify the question did not cause the trial to miscarry.

(b) Dr Maxwell

1. The essential complaint made by the appellant is that after some initial questions by counsel for Mr Wehbe, and with only minimal involvement of counsel thereafter, the judge took over and conducted the cross-examination of Dr Maxwell. Assessing the merits of this complaint requires a close consideration of the transcript.
2. The transcript records that the judge first asked Dr Maxwell questions directed to the history of the injury obtained from Mr Wehbe, whether his examination included the left hip, his review of the MRI scans, and the reference in the first MRI scan to minimal fissuring and blistering of the patellar cartilage. No objection was taken to these questions by counsel for the appellant at the trial. The questions and answers reflect a dialogue between the expert and the judge in seeking to understand the import of the experts' report.
3. Next, following a lengthy answer by Dr Maxwell to a question by counsel for Mr Wehbe in relation to basing a diagnosis and prognosis on the patient's history, the judge asked a series of questions of Dr Maxwell as to whether Mr Wehbe's complaints of symptoms were either not genuine or out of proportion. Dr Maxwell responded that he based his conclusion on the objective sign of lack of muscle wasting of his left leg. The judge then asked a question about whether pain radiating up from the knee to the hip (as reported by Mr Wehbe to Dr Porteous) was extremely abnormal. Dr Maxwell responded that Mr Wehbe had not reported this complaint to him.
4. Counsel for Mr Wehbe then asked questions of Dr Maxwell concerning his examination of the X-ray and MRI scans. At the end of that passage of cross-examination, the judge sought clarification from Dr Maxwell of his use of the term "significant" in his answer that Mr Wehbe "didn't really have any significant abnormality anyway" and the opinion in his report that Mr Wehbe did not report any history of any other causal or contributing factors.
5. The judge then put some further questions to Dr Maxwell concerning the reference in the first MRI report to some early fissuring of the articular cartilage and stated his understanding of Mr Wehbe's case was that the injury had rendered symptomatic underlying conditions of fissuring and blistering. Counsel for the appellant objected to this question on the basis that this was not Mr Wehbe's case. The judge disagreed and rejected the objection. That evidentiary ruling was an error. However, the complaint goes nowhere. The judge did not make any finding of the condition or pathology mentioned in his question concerning underlying conditions of fissuring and blistering, to which objection was taken. The fair inference is that the judge ultimately accepted that the appellant's objection was well-made and disregarded the issue he had raised with Dr Maxwell.

(c) Mr Wehbe

1. The appellant complained that the judge interrupted the cross-examination of Mr Wehbe on two occasions. The first concerned the issue of limping. The second concerned Mr Wehbe's possible post-injury employment.
2. On the issue of limping, the appellant's case was that the expert witnesses had not observed Mr Wehbe limping. The appellant complained that the judge intervened in the cross-examination of Mr Wehbe seeking clarification that the questions were directed to the absence of limping or having an altered gait in the presence of the expert witnesses. That clarification was appropriate given the full description by Dr Porteous of his observations of Mr Wehbe's gait (see [15] above).
3. The appellant also complained that the judge sought clarification of Mr Wehbe's evidence of a micro-trauma occurring four times in the presence of Dr Maxwell, when he asked Mr Wehbe whether Dr Maxwell had asked him questions about that phenomenon to which Mr Wehbe said, "No, sir, he wasn't interested". Again, that clarification was appropriate, given the absence of any reference in Dr Maxwell's report to an observation that Mr Wehbe was limping.
4. On the second issue the appellant complained that the judge asked questions of Mr Wehbe concerning the meaning of "manual handling" in connection with forklift driving, to which counsel for the appellant took objection on the basis that his Honour's question was leading. The judge rejected the objection explaining that he had asked the question in order to clarify the evidence because he considered that the cross-examiner's question had left the issue vague and unexplained. The judge was best placed to assess the need for that clarification. The intervention was not inappropriate.
5. In my view, the complaint of procedural unfairness should be rejected.

Ground 3: Challenge to rejection of Dr Maxwell's evidence

1. Ground 3 contends that the primary judge erred in rejecting the evidence of Dr Maxwell and substituting and acting on his own medical opinion.
2. The particulars given of this ground are that: 1. the conclusion that "[Mr Wehbe] reported experiencing pain would naturally limit the advisability of persisting with such activities", was a medical opinion rejected by Dr Maxwell and not supported by Dr Porteous; 2. the conclusion that Dr Maxwell did not examine all relevant parts of Mr Wehbe's lower limb, relevantly, the left hip region, was a clinical judgement and no specialist doctor found it necessary to examine Mr Wehbe's left hip; 3. the conclusion that Dr Maxwell did not attach importance to Mr Wehbe's reported symptoms misstated Dr Maxwell's evidence; 4. his Honour erred in rejecting the unchallenged evidence of Dr Maxwell that he reviewed the three MRIs.

(1) Ongoing effects of the injury

1. The first matter is directed to challenging the primary judge's findings rejecting Dr Maxwell's criticism of Dr Porteous' opinion that Mr Wehbe should be restricted from heavy lifting, pushing, pulling and carrying. Relevantly, the judge said at J [52]: (7) He [Dr Maxwell] raised a query as to why Dr Porteous would suggest the plaintiff should be restricted from heavy lifting, pushing, pulling and carrying without indicating why these "normal activities would be harmful for him" as the plaintiff "is a regular weight lifter". In my assessment, the element of analysis that was lacking in Dr Maxwell's comment was the plaintiff's reported experience of pain, which would naturally limit the advisability of persisting with such activities, depending upon its severity. Furthermore, insofar as the plaintiff has in the past been a weightlifter, there is an apparent difference between the process of static lifting of weights and the more dynamic processes of pushing, pulling and carrying. I considered Dr Maxwell's comment to be superficial and unpersuasive from a logical perspective. In any event, the unchallenged evidence of the plaintiff is that he has followed Dr MacDessi's advice to cease weightlifting because of its aggravating effect. Dr Maxwell's comment which was expressed in the present tense, appears to lack a factual foundation; … (9) Dr Maxwell made the following sweeping generalised and ad hominem remark in connection with Dr Porteous' opinion: "As is common with occupation physicians, Dr Porteous suggested that anything that causes symptoms should be avoided. Normal physical activity is essential for recovery form soft tissue injuries. Resting a soft tissue injury usually makes it worse.": Exhibit "1", p 8. The generalised, unsupported sweeping and superficial nature of that remark fails to engage with the logical notion that symptoms of pain on activity in the face of the effects of injury may vary in specific individual circumstances. The absence of detailed engagement with the plaintiff's specific complaints indicates that particular remark by Dr Maxwell should be given no determinative weight. The untenable implication of Dr Maxwell's remark is that occupational physicians, including Dr Porteous, do not provide correct or appropriate advice when advising to limit pain producing activity. I give the cited remark no evidentiary credence.
2. In support of Dr Maxwell's view that Mr Wehbe should not be deterred from undertaking physical activity, the appellant drew attention to the comments of Dr Maxwell in the joint expert report that "there is no evidence in general that increasing one's physical activity levels can cause trauma or pathological change" and that there was no generally accepted studies that support such a causal relationship.

(2) Absence of examination of left hip

1. Dr Maxwell recorded in his report that Mr Wehbe gave a history of symptoms which included: … his left knee hurts in the front, the pain radiates all around the knee and it spreads up to the left hip.
2. The appellant complained about the judge's questions of Dr Maxwell concerning pain radiating up to Mr Wehbe's left hip. In answer to the judge's question whether Dr Maxwell put to Mr Wehbe a suggestion that perhaps his complaints as recorded, of pain in the knee and the front of the knee and radiating up to the left hip, were unlikely to be present or perhaps inconsistent with the muscle condition of his left leg, Dr Maxwell responded: No, no I didn't but I, I must state that pain radiating up from the knee to the hip is extremely abnormal, and it's not a normal clinical finding. Most of the - certainly pain can radiate down from the hip, but pain radiating up from the knee to the hip is most unusual and it's, it's certainly nothing I've ever experienced in my clinical history, ever in my clinical life as an orthopaedic surgeon. And I can't explain that on a, on an anatomical pathological basis.
3. In answer to his Honour's rhetorical question that he would have thought it "worth a look", Dr Maxwell replied: No, no he didn't actually, didn't actually complain to me of any, of sharp intermittent pains radiating up to his hip.
4. In response to the judge's further question, "surely it is worth a look", the following exchange occurred: MAXWELL: Well I don't think everybody, any of the other examiners felt that there was any abnormality and be, no, nobody else examined his hip; certainly Dr MacDessi didn't consider it was worth examining his hip, and nor did Dr Porteous. The pain he was describing in his hip was fairly minimal compared to the symptoms in his knee. HIS HONOUR: Is that your answer to my question? MAXWELL: Well I - the, the history that he gave me didn't indicate that he had had any pathology in his hips, so I would not normally examine it, and there was no history of any injury to his hip.
5. The judge found at J [68]: Another matter that caused me to doubt the thoroughness and the adequacy of Dr Maxwell's approach to the task of the examination of the plaintiff for the purpose of preparing his report was his acknowledged complete dismissal, without so much as a cursory examination, of the plaintiff's left hip region: T79.12 - T79.42. This was in circumstances where the plaintiff had identified that symptom to Dr Maxwell as an area that was a source of pain shooting up from the left knee. It is difficult to see how Dr Maxwell could have reasonably dismissed such a complaint without first having examined the plaintiff's left hip region in order to give that aspect of the plaintiff's complaint his proper and reasoned consideration before rejecting it. He simply did not examine it.

(3) Mr Wehbe's reported pain symptoms

1. The judge found at J [53] that Dr Maxwell had excluded from his consideration Mr Wehbe's complaints of pain, which suggests that the effects of the injury had resolved.
2. The judge further found at J [61]: In expressing that dismissive view, Dr Maxwell appears to have overlooked or has placed little if any weight on Dr MacDessi's contemporaneous clinical diagnosis of tendinopathy. Dr Maxwell has in effect taken the stance of dismissing the significance of the plaintiff's reported symptoms.
3. The judge continued at J [62] finding that a fundamental obstacle that precluded acceptance of Dr Maxwell's opinions was that, whilst he noted Mr Wehbe's complaints of pain and discomfort, he has not considered them to be a relevant and integral factor in determining his diagnosis.
4. In challenging these findings, the appellant submitted that Dr Maxwell did not fail to consider Mr Wehbe's subjective complaints of pain and discomfort, and these were assessed by Dr Maxwell, together with a review of the investigative material.
5. Dr Maxwell was of the view that objective indicators were determinative of whether Mr Wehbe had an ongoing injury, giving the following evidence: … the main objective finding was the lack of muscle wasting of his left leg which indicates that it's a very, very pertinent objective sign, because if you've got muscle wasting it means you've got a painful leg and you're limping on it. And so we find that's the best objective sign that somebody's not using their leg normally.
6. In answer to the judge's question as to the basis for excluding any ongoing effects of this injury, Dr Maxwell responded: Well we know that the later MRI scans show no evidence of objective pathology to, to cause his symptoms. We know that for a fact. We know that he's got no muscle wasting in his left leg which would explain, which would indicate that he's using his left leg normally. We know he's experiencing symptoms because he tells us he is. But symptoms are extremely variable and can be affected by many, many other factors. … But we see people with symptoms out of proportion to the underlying pathology all the time and that's just part of the art of being a doctor. …
7. In answer to the judge's further question that there was no challenge in Dr Maxwell's report to Mr Wehbe's "motivation", Dr Maxwell responded: No I'm not, I'm not and these are subtle and subconscious things quite often. I, basically I looked at him objectively to try and find some evidence of an objective pathological process and, and had great difficulty finding one in either knee. I note that he said he had problems with his right knee. There is absolutely no evidence that you can injure your right knee by not using your left and there's no objective evidence that he wasn't using his left knee anyway, even if that is the case, but this idea that you can somehow injure a part of your body by over-using it, is completely fallacious. It's got no basis in scientific fact.

(4) Whether Dr Maxwell reviewed the three MRI scans

1. The judge observed that confusion arose in Dr Maxwell's evidence as to what imaging evidence had been provided to him, and when this occurred: at J [72]. In this context, the appellant challenged the judge's remarks at J [74], that: … without Dr Maxwell having examined the plaintiff's actual MRI scans himself, it is difficult to see how he could have been in a reasonable position to contradict the aptness of the unchallenged radiological opinion that there was fissuring and blistering of the patellar cartilage of the plaintiff's left knee, seen on specialist examination of the films, whether such findings were minimal, early, or otherwise.
2. The appellant also challenged the judge's finding that "[t]here is no satisfactory evidence upon which to conclude Dr Maxwell's comment [in the joint conclave report, referring to "the latest MRI scan"] was based on an actual viewing of the actual MRI scan images as distinct from just commenting on a report of that scan": at J [77].
3. Although having doubts that Dr Maxwell had viewed the actual scans rather than only read a report, the judge ultimately proceeded upon the basis of assessing Dr Maxwell's evidence "at its highest", that is, accepting that he actually viewed the three separate MRI scans, stating at J [78]: In his oral evidence Dr Maxwell made reference to the three MRI scans and stated that "none of them showed any significant pathology". He said he viewed the MRI's (sic). It is not apparent as to when or how this occurred as there was no index of annexed documents or materials annexed to the joint expert report. Reading Dr Maxwell's comments at their highest, that is accepting that he actually viewed the three separate sets of MRI scans, I consider that his commentary should not be given any determinative weight because of the following matters arising from his evidence: …
4. Given the approach of the judge recorded at J [78], the appellant's complaint goes nowhere.
5. None of the complaints in ground 3 have been established.

Ground 2: whether compensatory injury to right knee

1. The question of whether Mr Wehbe had sustained a "compensatory" injury to his right knee as a consequence of favouring his left knee was a major issue at trial. Ground 2 contended that the primary judge erred in concluding that Mr Wehbe sustained injury and disability to his right knee and awarded damages accordingly.
2. This ground challenged the judge's findings at J [84]-[85] and [91], which it is convenient to reproduce in full: [84] The plaintiff continues to experience constant pain and discomfort in his left knee. It affects his gait and mobility. He experiences knee discomfort after walking about 10m. His ability to run is now limited: Exhibit "1", p 4. His gait becomes altered as a result in that he favours his left knee. The pain worsens on activities such as weight bearing, prolonged walking and when climbing and descending stairs. He wears knee braces on his knees for support and assistance in managing his knee problems. He experiences painful sensations, which he calls "micro-traumas" on activities such as getting up out of a chair. He finds he must wear a knee brace during the day. [85] In early 2019, the plaintiff found that as a result of favouring his left knee and his altered gait, he experienced the onset of right knee pain which has since continued most of the time. He also uses a knee brace on that knee as well. … [91] … His prognosis is guarded due to both his left and right knee conditions.
3. In support of this ground the appellant advanced essentially three submissions: 1. there was no dispute between the medical experts that there was no muscle wasting of Mr Wehbe's left leg; 2. the loss of muscle in the right knee on examination by Dr Porteous in January 2020 indicated Mr Wehbe was favouring his right leg, not his left leg; and 3. neither expert recorded observing Mr Wehbe limping.
4. The first submission concerning the evidence of muscle loss does not accurately reflect the medical evidence. It is of assistance to summarise the respective observations by the experts on examination of Mr Wehbe's left and right legs:

• Dr Porteous: left knee 57.5cm (Oct 2018), 55.5cm (Jan 2020) right knee 58cm (Oct 2018), 52.5cm (Jan 2020) left calf 46cm (Oct 2018), 44.5cm (Jan 2020) right calf 46cm (Oct 2018), 44cm (Jan 2020)
• Dr Maxwell: left knee 55.5cm (Sept 2019) right knee 55.5cm (Sept 2019) left calf 43.5cm (Sept 2019) right calf 43.5cm (Sept 2019)

Ground 4: damages for commercial domestic assistance

1. Ground 4 contends that the primary judge erred in allowing an amount of $22,657 for commercial domestic assistance.
2. This claim rested primarily upon the evidence of Dr Porteous who expressed the opinion that Mr Wehbe could not do some domestic work without aggravating his conditions, including some of the low cleaning, some of the vacuuming and mopping, some of the spring cleaning, such as washing the windows, carrying some of the heavy shopping, moving heavy furniture, and he is restricted, if he ever had to do it, from some outdoor home maintenance, including most of the gardening and from mowing the lawns. Dr Porteous estimated that Mr Wehbe would reasonably require 2 hours per week of professional domestic and homecare support.
3. In addition, Mr Wehbe gave evidence that the accident had significantly changed the maintenance he was doing around his parents' house and the granny flat in terms of tidying up, cleaning, and gardening. He said he had a problem with "[a]nything that's low, anything that involves squatting or crouching, carrying anything heavy or mowing the lawn". He said that he previously spent an hour and a half to two hours every fortnight on the lawn mowing, weeding and blowing and his brothers now did that maintenance. He gave unchallenged evidence that if he had the money he would pay for assistance to take pressure off his brothers.
4. No claim was made for gratuitous domestic assistance under s 141B of the Motor Accidents Compensation Act 1999 (NSW) (made applicable to this accident by the Transport Administration Act 1998 (NSW), s 121) because the level of assistance claimed at 2 hours per week would not have qualified Mr Wehbe for an award for gratuitous services under s 141B.
5. The primary judge's consideration of the claim for commercial domestic assistance was relatively brief. He accepted Dr Porteous' assessment that Mr Wehbe "would need domestic assistance for the heavier aspects of home maintenance on an intermittent basis" (J [93]-[94] and [120]), but discounted Dr Porteous' estimate of 2 hours per week (based on approximately 20 minutes per day), to 1 hour per week. He allowed an amount for future commercial assistance for only 20 years, not Mr Wehbe's statistical life span of 50 years, discounted by 15 per cent for the impact of possible adverse vicissitudes. The primary judge gave the following reasons at J [125]: … [this] component requires discounting to reflect the fact that [Mr Wehbe] is for now, in his present accommodation, self-sufficient in respect of many domestic tasks as he conceded in cross-examination. He will only need assistance for the heavier tasks on an intermittent basis. Those tasks include garden maintenance, moving furniture, carrying heavy items and occasional cleaning of awkward to reach spaces that would require him to weight bear awkwardly. In my view, an allowance the equivalent of 1 hour per week at the acknowledged rate of $40 per hour projected over 20 years (x 666.4) and discounted by 15 per cent for the impact of possible adverse vicissitudes represents fair compensation for this head of damage.

Conclusion and Orders

1. The appeal has failed and there is no reason why the costs of the appeal should not follow the event: UCPR, r 42.1.
2. I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal.
3. LEEMING JA: The background to this appeal is contained in the reasons of Gleeson JA, which I have had the advantage of reading in draft, and which I shall not repeat. They enable me to proceed directly to the dispositive issue.
4. The first ground of appeal is that the appellant was "denied procedural fairness and the trial miscarried". The notice of appeal provided three particulars: 1. "His Honour's frequent intervention during the cross-examination of Dr Porteous"; 2. "His Honour's tendentious cross-examination of Dr Maxwell", and 3. "His Honour's 'entering the arena' in the course of the adducing of evidence resulted in the assessment of the evidence of the expert witnesses miscarrying".
5. If this ground is made out, there will not have been a trial in accordance with law, and a retrial will be necessary. It follows that this ground should be addressed first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51].
6. The parties agreed that the relevant principles were sufficiently stated in Galea v Galea (1990) 19 NSWLR 263 and Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; 332 ALR 128. Even so, both parties' written submissions, and the appellant's oral submissions, reflecting the earlier authorities and indeed the terms of the notice of appeal, invoked the metaphor of the primary judge "entering the arena". I respectfully agree with Basten JA's observation in Nguyen at [16] that this wartime metaphor deriving from Yuill v Yuill [1945] P 15 at 20 of an "arena" in which the judge's vision is "clouded by the dust of the conflict" is unhelpful and should be abandoned.
7. Many judgments in this area have stated that one difficulty with judicial cross-examination is that it detracts from the capacity of the judge to assess the demeanour of the witness. While views may differ as to the ability of judges to resolve conflicting evidence by reference to the appearance of the witness while giving evidence, it was of diminished significance in this trial, where one expert gave evidence by telephone. But that does not detract from the institutional values involved when judicial intervention is excessive. This was the point made by Basten JA, with whom the other members of the Court agreed at [255] and [298]), in Nguyen at [16]-[18]: "16. Yet there will be circumstances when appellate intervention is not only justifiable, but necessary. Quite apart from doubts as to the capacity of the judge to assess demeanour in such circumstances, there are important institutional characteristics at stake, as helpfully identified by Lord Brown in Michel v The Queen. In such a case, as Lord Brown explained by reference to the position of the appellant: 'He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ... The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.['] 17. Lord Brown continued, referring to the judge's role: 'Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.' 18. These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court."

The limitations of the record

1. Ultimately, an appellate court, faced with the claim that a trial has miscarried because of the interventions of the judge, must make an evaluative judgment, based on an assessment of the record as a whole and the findings and reasoning of the judge: Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461; [2019] FCAFC 113 at [104]. In doing so, it is as well to be conscious of the deficiencies in the record, including the following. 1. Transcript is commonly imperfect evidence even of the words said. 2. Very often words are omitted, and occasionally words are also mistranscribed. 3. Transcript is very imperfect when two people are speaking at once, which is often the case in cross-examination, and especially with an AVL hearing. One speaker may, deliberately, or inadvertently, cut the other off. Whether or not that is so may or may not be clear on the face of the transcript. 4. Transcript hardly ever discloses the tone of what was said - whether it is aggressive, or supercilious, or condescending, or belittling, or perfectly polite. Indeed, whether or not spoken words are a question or a challenging proposition often depends on tone. 5. Transcript hardly ever discloses pauses, which can be highly significant in evaluating testimony.
2. All of those limitations are trite, and inform the presentation and resolution of any appeal or review where oral evidence is given. They are especially apt, however, when the ground of appeal is that what has been said in court by the judge has so far departed from his or her proper role that there must be a retrial. In such cases, the tone of the judicial cross-examination is very important. This can be difficult to assess. No application was made for this Court to listen to the audio recording (if one was available) of the judicial cross-examination; cf Adacot & Sowle [2020] FamCAFC 215 at [14].
3. In the present case, the difficulties were exacerbated by the fact that the two experts, Drs Porteous and Maxwell, gave evidence concurrently, but neither was in court. Dr Porteous was in New Zealand on a telephone line. Dr Maxwell appeared by AVL. Counsel for the plaintiff appeared, initially by telephone, later by AVL. Counsel for the defendant appeared by AVL. It was late April 2020, relatively shortly after the COVID-19 pandemic was declared, and it is apparent from the transcript, reinforced by my own experience, that the technology was imperfect and those using it were inexperienced in its operation. None of that is intended by way of criticism; to the contrary, the judge, counsel, litigants and witnesses give every impression of constructively seeking to have their case heard and determined in quite trying circumstances.

The expert evidence given at trial

1. Liability had been admitted, but the parties were worlds apart, as was confirmed by the parties' brief openings. Mr Wehbe's case was that the injury had caused him to become unable to continue to work as a tiler. He accepted that there could be no claim for non-economic loss. The defendant maintained that the injury to the left knee resolved within a period of four to six weeks, and that was the extent of the plaintiff's damage.
2. The narrowness of this ground of appeal leads me to turn directly to the expert reports. Two diametrically opposed reports had been exchanged. Dr Porteous said that Mr Wehbe was unable to work in his trade, and remained off work with a "very guarded" prognosis. Dr Maxwell considered there was no underlying pathology to explain Mr Wehbe's symptoms, and that it was "probable that he is malingering". There were a number of unusual features of the plaintiff's condition, notably the complaint that he suffered pain in his right knee, although the injury giving rise to the action was limited to his left knee.
3. The experts were not evenly matched in discipline or experience. Dr Maxwell was an orthopaedic surgeon. Dr Porteous was an occupational physician. The impression gained from reading their reports and evidence (neither expert's report attached a curriculum vitae or professional experience) is that Dr Maxwell drew upon his experience as a surgeon, which Dr Porteous seems to have lacked.
4. Drs Porteous and Maxwell were affirmed and sworn at transcript page 59 at 10.27am. Their evidence concluded at transcript page 91 at midday. In circumstances where the experts were diametrically opposed, there seems to have been no attempt to deal with a list of issues or areas of agreement and disagreement. Rather, the primary judge announced that the procedure that would be followed was that Dr Porteous (called by the plaintiff) was to be cross-examined and re-examined, then Dr Maxwell was to be cross-examined and re-examined, with a right on the part of both witnesses to ask questions of each other subject to leave at the conclusion.
5. The cross-examination of Dr Porteous occupied transcript pages 59-73. It was mostly conducted by the defendant's counsel. There were minor interventions by the trial judge, none of which whether considered in isolation or cumulatively could give rise to any concern. I agree with what Gleeson JA has said in more detail about this half of the expert conclave. The first particular of this ground of appeal is not made out.

The reasons of the primary judge dealing with Dr Maxwell

1. The judge reserved, and delivered a substantial judgment with commendable promptness, six days later: Wehbe v Manly Fast Ferry Pty Ltd [2020] NSWDC 155. It is not necessary to address all aspects of that judgment, and consistently with the conclusion I have reached that there should be a retrial, it is preferable that I refrain from doing so: Nguyen at [13]. The relevant particulars of ground 1 direct attention to Dr Maxwell's evidence.

The failure to examine the plaintiff's hip

1. The primary judge was critical of Dr Maxwell's comments concerning the inconsistency between the plaintiff's symptoms and the doctor's examination. His Honour said at [55]-[56]: "In my view, that approach by Dr Maxwell is unjustified in this case where Dr Maxwell went on to conclude that the plaintiff's complaints were "not entirely consistent with the physical examination": Exhibit "1", p 9. [Primary judge's emphasis.] In that regard, Dr Maxwell did not adequately explain his comment as to which of the plaintiff's complaints were inconsistent, and how that conclusion arises on analysis. Furthermore, given that Dr Maxwell did not examine all relevant parts of the plaintiff's left lower limb which were described by him as a source of pain, namely, the left hip region, it is difficult to understand how Dr Maxwell could rationally imply a lack of consistency of the plaintiff's symptoms with the products of his examination of the plaintiff where that examination was, by his choice, left in a limited and incomplete state insofar as some of the plaintiff's affected parts were concerned. I therefore consider Dr Maxwell's analysis in this case to be superficial and unreliable, particularly since its principal focus was only on the 'objective' evidence when the plaintiff's complaints of pain have not been challenged as being inherently unreasonable or improbable."
2. His Honour returned to this point at [68]: "Another matter that caused me to doubt the thoroughness and the adequacy of Dr Maxwell's approach to the task of the examination of the plaintiff for the purpose of preparing his report was his acknowledged complete dismissal, without so much as a cursory examination, of the plaintiff's left hip region: T79.12 - T79.42. This was in circumstances where the plaintiff had identified that symptom to Dr Maxwell as an area that was a source of pain shooting up from the left knee. It is difficult to see how Dr Maxwell could have reasonably dismissed such a complaint without first having examined the plaintiff's left hip region in order to give that aspect of the plaintiff's complaint his proper and reasoned consideration before rejecting it. He simply did not examine it."
3. Perhaps there was scope to be critical of the explanation which Dr Maxwell gave for not examining the hip. But it is to be borne in mind that this point was not raised by counsel for Mr Wehbe at all. It was a criticism introduced by the judge and the judge alone during the course of his cross-examination. Further, Dr Maxwell gave an explanation for the course he took during the medical examination. The following questions and answers occurred at transcript pages 79-80 as follows: "HIS HONOUR: When you've referred, in answer to my earlier question, to the question of consistency and as to whether or not there was any indication the plaintiff was not in pain, did you put to the plaintiff a suggestion that perhaps his complaints as recorded of pain in the knee and the front of the knee and radiating up to the left hip, were unlikely to be present or perhaps inconsistent with the muscle condition of his left leg? MAXWELL: No, no I didn't but I, I must state that pain radiating up from the knee to the hip is extremely abnormal, and it's not a normal clinical finding. Most of the - certainly pain can radiate down from the hip, but pain radiating up from the knee to the hip is most unusual and it's, it's certainly nothing I've ever experienced in my clinical history, ever in my clinical life as an orthopaedic surgeon. And I can't explain that on a, on an anatomical pathological basis. HIS HONOUR: Well before one dismisses it I would've thought it's worth a look don't you think? MAXWELL: No, no he didn't actually, didn't actually complain to me of any, of sharp intermittent pains radiating up to his hip. HIS HONOUR: No, we're talking about what you recorded; the pain that radiates all around the knee and it spreads up to the left hip. You said that you didn't examine the hip or that area, and you have just recently that it's most unusual, and the point I'm making is that if it's unusual and that pain is described, surely it is worth a look? MAXWELL: Well I don't think everybody, any of the other examiners felt that there was any abnormality and be, no, nobody else examined his hip; certainly Dr MacDessi didn't consider it was worth examining his hip, and nor did Dr Porteus. The pain he was describing in his hip was fairly minimal compared to the symptoms in his knee. HIS HONOUR: Is that your answer to my question? MAXWELL: Well I - the, the history that he gave me didn't indicate that he had had any pathology in his hips, so I would not normally examine it, and there was no history of any injury to his hip."

Criticism of Dr Maxwell's rejection of the plaintiff's symptoms

1. Ultimately, the primary judge dismissed the entirety of Dr Maxwell's opinions. One strand of the reasoning concerned the way in which Dr Maxwell discounted the plaintiff's complaints of pain. His Honour regarded this aspect of Dr Maxwell's opinions as determinative. His Honour said at [62]-[66]: "In my view there is a fundamental obstacle which I consider should preclude the acceptance of Dr Maxwell's cited opinions. This is because he appears to have based his opinions on what he considered to have been 'objective evidence', which I construe to mean that, whilst he noted the plaintiff's complaints of pain and discomfort, he has not considered them to be a relevant and integral factor in determining his diagnosis. Whilst Dr Maxwell has recorded the fact that on examination the plaintiff complained of left and right knee pain, Dr Maxwell seems to have rejected such complaints, or alternatively, he has not placed significant analytic weight upon them on account of an asserted absence of 'hard objective evidence of any continuing pathology on the physical examination' of the plaintiff. In my view that conclusion by Dr Maxwell is difficult to sustain because of the unexplained adjectival components that he has embedded as qualifiers within that opinion. Dr Maxwell did not state what [he] would have considered to have constituted 'hard objective evidence of any continuing pathology'. Furthermore, in his report he did not identify his reasons as to why he thought the plaintiff's symptoms were 'not entirely consistent with the physical examination'. His use of the phrase 'not entirely consistent' must mean that he thought at least some of the plaintiff's complaints of symptoms were consistent with the history he obtained and the physical examination that he had carried out. Unfortunately, Dr Maxwell did not clearly identify which of the plaintiff's symptoms were respectively thought by him to be consistent on the one hand, and inconsistent on the other. Consequently, I considered that Dr Maxwell's opinion lacked the requisite degree of reasoning that is required by UCPR 31.23(1)(c), Sch 7, cl 3(e). In my view, Dr Maxwell's approach of apparent insistence on the presence of pathology for the purpose of a diagnosis, and in not coming to grips with Dr MacDessi's unchallenged clinical diagnosis that was based on his examination of the plaintiff and his history, and the imaging results, in order to either distinguish that diagnosis or to demonstrate its argued incorrectness, indicates that Dr Maxwell's approach to the analysis in this case should be seen to lack balance and to lack adequate supporting reasoning."

Conclusion

1. The result in the present case is that the cross-examination of the critical medical witness for the defence was in substance conducted by the trial judge. The thrust of the judicial cross-examination was reflected in the reasoning rejecting the doctor's evidence. The two aspects of the judgment summarised above do not fairly attend to the explanations given by the witness.
2. Although I bear in mind that reading the transcript is a poor substitute for attending the trial, the extent of the judicial intervention (reflecting the large majority of the cross-examination of the key defence witness) coupled with the wholesale rejection of that witness' evidence, for reasons which fail to attend to the explanations given during that cross-examination, lead me to conclude that this ground is made out. The primary judge ceased to perform the role of impartial judge resolving the justiciable controversy. This is a case such as that described in the passage of Nguyen at [16]-[18] reproduced above, where the judge has ceased to maintain the appearance of neutrality to such an extent that appellate intervention is warranted.

Waiver

1. The respondent to this appeal made reference to waiver, while acknowledging the force of what was held in Nguyen. It was and is unclear to me whether waiver was relied on in answer to this ground. In brief oral submissions, the point was made that the absence of complaint at trial supported the inference that there was no real substance in the ground, but I did not understand it to have been put unequivocally that if the ground had been made out, there had been a waiver.
2. To the extent that waiver was relied on, I disagree. All three of the features seen mentioned in Nguyen at [31]-[33] are present here. First, because the question is of the cumulative effect of the interventions, rather than a single statement which would give rise to, say, apprehended bias, there is the difficulty in identifying the point of time when the objection should have been made. Secondly, counsel for the defendant did voice an objection during the cross-examination, despite the awkwardness of doing so (by reason of the AVL link and the fact that it was conducted by the judge). Thirdly, the full extent of the risks associated with his Honour's interventions did not materialise until judgment was delivered.

Orders

1. The consequence is that the appeal should be allowed, the judgment set aside, and the proceeding remitted to the District Court for a retrial. I think costs in this Court must follow the event, but the respondent should have a certificate under the Suitors Fund Act 1951 (NSW). Costs at first instance should be in the discretion of the judge before whom the retrial occurs. In light of what is to occur in the future, I have refrained from expressing views on the remaining grounds, or indeed on more aspects of the reasoning of the medical experts and of the primary judge than are necessary to resolve this appeal.
2. SIMPSON AJA: I am grateful to Gleeson JA and Leeming JA for the opportunity of reading, in draft, their respective judgments. As their Honours take different views with respect to the first ground of appeal I should explain my conclusion and the reasons therefor in some detail. Ultimately, for the reasons that follow, I share the view of Gleeson JA that the first ground of appeal should fail. I arrive at that conclusion by a somewhat different route. Although I will return to the evidence, what immediately follows assumes a familiarity with the facts as outlined by both Gleeson JA and Leeming JA.
3. It is, I think, important at the outset to state the precise terms in which Ground 1 is framed. It is as follows: "1. The Appellant was denied procedural fairness and the trial miscarried. Particulars a. His Honour's frequent intervention during the cross-examination of Dr Porteous. b. His Honour's tendentious cross-examination of Dr Maxwell. c. His Honour's 'entering the arena' in the course of the adducing of evidence resulted in the assessment of the evidence of the expert witnesses miscarrying."
4. As is clear from the terminology of Ground 1 the foundation for the complaint is what is asserted to have been excessive intervention in the trial process by the primary judge, particularly in the evidence of two expert witnesses, Drs Porteous and Maxwell. The interventions, it was claimed, rendered the trial procedurally unfair, resulting in a miscarriage of justice.
5. A ground of appeal based on asserted denial of procedural fairness due to excessive judicial intervention is frequently (but not in this case) coupled with a ground that asserts apprehended or (less commonly) actual bias, evidenced by the intervention. While the two grounds of appeal often go hand in hand, they are separate, distinct and call for different lines of inquiry. So much was explicitly stated by White JA in Nine Network Australia Pty Ltd v Tabbaa [2018] NSWCA 243 at [53] and Kourakis CJ in R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3 at [40]. It may be what Basten JA had in mind in Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88, when he said (at [14]) that appellate reasoning has, on occasion, appeared to conflate different principles. It was also recognised by Ward JA at [160] of Nguyen.

Background facts

1. The respondent, who was then aged 32 and worked as a tiler, was injured on 13 September 2017 when the ferry on which he was a passenger collided with a wharf at Manly. His left knee struck the seat in front of him. To this point there was no dispute. Nor was there any dispute that the collision was caused by the negligence of the appellant's employees, or that the respondent was entitled to damages to compensate him for the economic loss he suffered (he was not entitled to any damages for non-economic loss).
2. The dispute arose subsequently and concerned, essentially, the extent of the respondent's injuries. In a nutshell, the dispute that emerged concerned:

• whether pain the respondent asserted that radiated around his left knee and up into his left hip was caused by the injury suffered in the ferry accident;
• whether pain the respondent asserted that he suffered in his right knee (which was not directly involved in the collision) was caused by the injury suffered in the ferry accident.

1. Lurking in the background was a question of the respondent's credibility in relation to his complaints of pain.
2. The respondent was examined and treated by an orthopaedic surgeon, Dr Samuel MacDessi, on a number of occasions beginning in October 2017. Dr MacDessi's reports were relied on in the trial by the appellant. Dr MacDessi was not called to give evidence.
3. The respondent was assessed for medico-legal purposes by Dr Andrew Porteous on 4 October 2018 and again on 14 January 2020. Dr Porteous is an occupational physician. In his first report Dr Porteous noted some reduction in flexion of the left knee compared with the right. He diagnosed left knee "patellofemoral syndrome". He considered that the respondent was restricted in certain activities, notably kneeling and crouching, heavy lifting, pushing, pulling and carrying, and frequent or constant walking up and down steps or ladders and slopes. These restrictions had implications for the respondent's work capacity.
4. The respondent was then assessed for medico-legal purposes on behalf of the appellant by Dr David Maxwell in September 2019. Dr Maxwell is described on his stationery as an "orthopaedic and spinal surgeon" and "medico-legal consultant".
5. Dr Maxwell had available to him a variety of reports, including Dr Porteous' report of October 2018, and radiological investigations. He was forthright in expressing his opinion. He recorded complaints by the respondent of pain radiating around the left knee and spreading up to the left hip, and of recent (commencing in early 2019) pain in the right knee. Dr Maxwell commented extensively on Dr Porteous' report. He expressed his disagreement with virtually every specific conclusion and observation made by Dr Porteous. Specifically, where Dr Porteous recorded slight crepitus (crackling or grating) in the left knee, Dr Maxwell found none; where Dr Porteous diagnosed left knee patellofemoral syndrome, Dr Maxwell disagreed, saying that patellofemoral pain is almost always accompanied by wasting of the quadriceps muscle, a sign that was absent in the respondent; where Dr Porteous suggested as "plausible" that the respondent had an unstable patella, Dr Maxwell found no signs and no history of such instability; where Dr Porteous suggested restriction from heavy lifting, pushing, pulling and carrying, Dr Maxwell queried why these "normal activities" should be harmful for the respondent; where Dr Porteous considered that the respondent was incapacitated for his previous occupation of tiling, Dr Maxwell was "sure" that he could go back to his work as a tiler and considered that that incapacity would "seem remarkable" following the nature of the injury.

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Appendix (884452, pdf) 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. Decision last updated: 23 April 2021