STATE FORESTS OF NSW v Scott Leslie DINNERVILLE

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 4O885/03

MASON P GILES JA IPP JA

STATE FORESTS OF NEW SOUTH WALES v SCOTT LESLIE DINNERVILLE JUDGMENT 1 MASON P: This is an application for a new trial with respect to a trial in the District Court before judge and jury. Part 51 Rule 23 of the Supreme Court Rules stipulates that the Court shall not order a new trial in such a matter unless it appears to the Court that some substantial wrong or miscarriage has been occasioned. 2 The respondent, to whom I shall refer as the plaintiff, sued the appellant, to whom I shall refer as the defendant, for damages in the District Court. The plaintiff had been employed as a field worker between about February 1994 and February 1997. His claim was that the employer was negligent in requiring him to prune trees with a new type of shears, introduced by the employer, that were said to have caused injuries to his right wrist and hand, and damage to the carpal tunnel in the right wrist. 3 The trial took place at Orange before Williams DCJ and a jury of four. The main issues were negligence and whether the plaintiff's injuries were work-related and continuing. A set of agreed questions were used as the basis of addresses by counsel and were put to the jury to assist them. Nevertheless, the jury brought in a general verdict in the plaintiff's favour in the sum of $283,062.68 and the learned trial judge entered a verdict and judgment accordingly (subject to agreed statutory adjustments: see Red 9). The jury's finding of negligence is not in dispute in the appeal. 4 The appellant seeks the new trial because of the directions given or not given to the jury as to how they should resolve the medical issues; in particular, issues as to any conflicts between the testimony of doctors who gave oral evidence and were cross-examined on it and the testimony of doctors who were not called to give oral evidence and whose reports were simply read to the jury. 5 Part 28, Rules 8 and 9 of the District Court Rules prescribe procedures for the exchange and use of expert reports. Except by leave or consent, oral expert evidence in chief is not admissible unless that evidence is covered by the expert's report served in accordance with Rule 8. This rule does not, however, preclude the party who has served the report from calling the expert to give oral evidence in chief. That choice is left to the parties and their legal advisers. 6 Rule 9 effectively throws upon the party wishing to challenge the evidence of a witness whose report has been served the burden of procuring the attendance of that witness by the service of a subpoena or otherwise. Unlike the Supreme Court counterpart, Rule 9 extends to jury trials. 7 It appears that each party served copies of medical reports within the time limits prescribed. There may have been a minor dispute about the lateness of one of several reports by one of the doctors who gave oral evidence, but that is not a matter of present concern. 8 The plaintiff was the first and principal witness at trial. He gave evidence of his work history, including his employment by the defendant. In late 1996 he was provided with a new type of pruning shear. Thereafter, pruning became more difficult and he gradually developed pins and needles in his fingers and pain in his elbow, especially on the right hand side. The pain used to wake him up at night. He bought a Thermo-skin elbow guard which helped at first. Eventually he consulted Dr Rickard-Bell, a general practitioner at Bathurst. Later he was referred to a neurologist, Dr Hughes. 9 Dr Rickard-Bell treated the wrist with a steroid injection and subsequently surgically released the carpal tunnel. Unfortunately, the pain continued, despite the plaintiff going onto light duties. The symptoms would recur whenever he returned to pruning. 10 The plaintiff's employment came to an end in February 1998 when he was taken into custody following conviction for a criminal offence. At the prison farm he tried doing pruning but found that his symptoms returned. The plaintiff was still being treated for the hand and wrist problems up to the time of trial in May 2003. He said that the adverse symptoms were continuing. 11 In final address, counsel for the defendant told the jury: The medical evidence is clear, he's got a carpal tunnel problem. The dispute in the medical evidence is whether it's ongoing related to his employment or not. The defendant's doctors say it isn't, the plaintiff's doctors say it is. 12 This was a fair summation of the medical issues, although somewhat exaggerated as to the effect of the defendant's doctor's evidence. 13 The plaintiff was cross-examined on many topics but it was never suggested to him that his complaint of pain in the wrist and arm were feigned. To the limited extent that he was challenged on the matter, the plaintiff adhered to his position as to significant continuing pain and disabilities. He was corroborated as to injury by the evidence of his father, his former wife and two workmates. 14 Medical evidence was adduced by the plaintiff from his treating doctors and one medical practitioner apparently retained for medico-legal purposes. The defendant adduced evidence from doctors who appear to have been retained for medico-legal purposes. Two doctors gave oral evidence for the plaintiff. They were Dr Rickard-Bell, the treating general practitioner, and Dr Bertouch, a consultant rheumatologist. The evidence of other doctors relied upon by the plaintiff and defendant respectively were given by means of their reports being read to the jury. In all but one instance, this was done by consent and on the basis that it was common ground that the doctor was unavailable to be called. The jury were informed about this. 15 For a while there was a contretemps in the absence of the jury about the defendant's failure to call one of its doctors, Dr Potter. Initially, counsel for the defendant told the Court that it was intended that this doctor would be called as a witness. This decision was revised during the trial. The plaintiff's counsel raised objections to portions of his reports on various evidentiary bases. It was complained that the doctor should be called to be cross-examined when it had previously been indicated that this would occur. This issue was ultimately resolved in a manner that is no longer in issue. Agreed portions of the doctor's report were read to the jury in the manner of the earlier reports that had been treated this way. 16 Dr Rickard-Bell treated the plaintiff over several years in relation to the injury. He gave evidence of symptoms reported and treatment provided by himself and specialists. Nerve conduction studies were performed by a specialist neurologist, Dr Hughes. They confirmed Dr Rickard-Bell's diagnosis of carpal tunnel syndrome (Black 162-3). Dr Rickard-Bell administered a steroidal injection on 11 February 1997. The carpal tunnel was decompressed by surgical procedure on 4 March 1997. There was physiotherapy. The early post-operative results were favourable but the recurrence of symptoms was reported following a return to pruning work in April 1997. 17 Dr Rickard-Bell's evidence spanned thirty two pages of transcript. He gave a detailed account of symptoms reported, matters of anatomy and treatment provided. He expressed clear opinions as to his diagnosis of the condition, its cause and its likely long term duration. He explained in detail why he attributed the plaintiff's symptoms to the use of the pruning shears provided by the defendant. He expressed views as to the work the plaintiff could and could not handle and the treatment required for his continuing problems. In chief, Dr Rickard-Bell was taken in evidence to the views of other treating doctors. On occasions he explained them or commented on them. As to some issues he deferred to the evidence of specialists. 18 Dr Rickard-Bell was cross-examined at trial by counsel for the defendant, but it is difficult to see the lines that were being pursued. He was not confronted with the opposing medical views expressed in the reports of the defendant's doctors. On my reading of the cross-examination, there was really no serious challenge to the main thrust of his testimony in chief. 19 Dr Bertouch, a rheumatologist engaged for forensic purposes, also gave evidence for the plaintiff. Based upon a history from the plaintiff that he obviously accepted, he gave evidence corroborating Dr Rickard-Bell's diagnosis, prognosis and treatment. He very much doubted that there would be any improvement in the future. He observed no evidence supporting the view that the plaintiff was constitutionally predisposed to carpal tunnel syndrome. Dr Bertouch accepted that a second surgical procedure was a possibility but he was very guarded as to its likely success. He too was not confronted in cross-examination with the opposing body of medical opinion. 20 The plaintiff had served reports from two other doctors, Dr Harrison, an orthopaedic surgeon, and Dr Morgan, a rehabilitation specialist. As indicated, it was agreed that neither was available to give evidence at trial. Without objection their reports were read to the jury. Before Dr Morgan's report was read, the jury were told (Black 204): Of course, I will say this to you, whether it's a witness for the plaintiff or the defendant, if that turns out to be the case, that having the report read to you, you are entitled to accept that report as part of the evidence in the proceedings. Of course, unlike, for example the last two doctors who were called, the maker of the report isn't available to be asked questions by Mr Campbell [counsel for the plaintiff at trial] and more importantly by Mr Arden [counsel for the defendant], so you'll have to bear in mind, when considering the value you place upon that report - and it's entirely a matter for you what value you place on the report - the fact that the witness hasn't, you know, been tested, as it were by examination and cross-examination, so just bear that - it may in the long run not be much of an issue, but it's something to bear in mind. 21 Dr Harrison's reports were read and immediately after that occurred the judge said to the jury (Black 220): Yes, well again ladies and gentlemen just remind you that the reading of these medical reports falls into the same category as the reading of the report that we had yesterday from Dr Morgan. 22 These reports were lengthy, they recorded histories from the plaintiff and expressed firm opinions favourable to the plaintiff's case as to the injury being work related and the likelihood that it would continue. 23 At the close of the plaintiff's case, counsel for the defendant proceeded without objection to read the reports of his medical witnesses. They were Dr Edwards, a surgeon, Dr Harvey, an orthopaedic surgeon, and Dr Hughes, a consultant orthopaedic surgeon. These reports did not dispute the diagnosis of carpal tunnel syndrome but they either disputed or gave only qualified support for the work-relatedness of that symptom and they expressed robust opinions as to the plaintiff's present fitness for work. 24 Counsel for the defendant then sought to tender a report from Dr Potter, a rheumatologist. He was the doctor that the defendant had originally indicated would be called. Counsel relied on Part 28 Rules 8 and 9. Counsel for the plaintiff protested and threatened to comment on the unavailability of Dr Potter for cross-examination (Black 253). In the course of discussion, in the absence of the jury, it was recorded (Black 253) that there was an agreement by plaintiff's counsel that he would not comment on the absence of the doctors whose reports had earlier been read, but it was made plain that that arrangement would not extend to Dr Potter. 25 Counsel for the defendant relied on the rules and asserted his right to tender the report. The debate continued with references to s 135 of the Evidence Act. Ultimately, portions of the report were excised by agreement or direction of the trial judge. The upshot was that counsel for the defendant read the balance of Dr Potter's report and then closed the defendant's case. 26 Before counsel addressed the jury, the judge told the jury (Black 267) that

[W]hat they say to you is not evidence in the case, the evidence in the case is the witnesses that you've heard and the medical reports that you've heard read out and the various documents and things but their argument will hopefully be helpful to you in understanding what they say your decision should be at the end of the day. 27 There was considerable discussion in the absence of the jury about the directions that should be provided to the jury. No question was raised about directions concerning the manner in which the jury should go about resolving the medical issues in the light of the two different ways in which the medical evidence had been presented at trial. 28 Counsel for the defendant addressed first, basically following the schema of the previously agreed set of questions that the judge was going to present to the jury. Portion of his address of relevance to the issues in the appeal was as follows (Black 279, my emphasis added):

The medical evidence is clear, he's got a carpal tunnel problem. The dispute in the medical evidence is whether it's ongoing related to his employment or not. The defendant's doctors say it isn't, the plaintiff's doctors say it is. I've read to you the reports of Dr Harvey who saw him in 2001 and 2003, Dr Edwards who saw him in 2001 and 2003, Dr Hughes who saw him in 2002 and Dr Potter, a rheumatologist. True it is that they're not here to be cross-examined. The mechanics of doing that need not worry you but they've committed their assessments to writing and although you may not give them as much weight as the others , nevertheless you can't dismiss them unless you think they're out of court altogether so you'd give them in my submission the same weight as you give the plaintiff's evidence - medical evidence. I hadn't intended reading out in detail those reports again because you've listened patiently and I wouldn't insult your intelligence by doing it all over again but I'll just say this if I may. 29 He then proceeded to state the high points of the defendant's medical evidence. 30 Counsel for the plaintiff commented generally on the comparison between the plaintiff's case that had been mainly presented through witnesses who gave oral evidence and were cross-examined and the defendant's case where this had not happened. The comment I think was broad enough to extend to the medical controversy, but it was primarily in the context of liability issues. What Mr Campbell said at Black 280-281 was robust advocacy but it is not suggested in this Court that it was improper or the basis of any miscarriage. 31 The summing up was fairly brief, because it followed immediately after counsel's submissions. There was the conventional admonition to the jury to use their common sense as members of the community. The jury were reminded that it was their job, not the judge's, to decide factual issues. They were given again fairly conventional directions about assessing the weight of the evidence of witnesses. It is fairly plain that these directions were addressing their assessment of the witnesses who came to court. The jury were told that they could accept what the witnesses said or they could reject them and they could accept part or reject part. They were told here and subsequently in the summing up that their assessment of any witnesses' testimony could take place in the light of its consistency with the testimony or evidence from any other witness. 32 Immediately after these general and (as I have said) fairly conventional directions, the judge said this (Black 293): Of course quite a bit of the medical evidence in this case has been provided to you by persons who did not come into the witness box. That is, you heard the various medical reports of various doctors for the plaintiff and the defendant read to you. That does not mean to say that that is not evidence that you can take account of - it is evidence that you can take account of. What value you place on that evidence is a matter for you. It is obviously different to the evidence of the persons who were called to give evidence and you heard them being asked questions by both Mr Campbell and Mr Arden because these witnesses whose reports were read to you did not go through that process. Their evidence has not been able to be challenged in that regard so what value you place on that evidence is a matter for you but it is nonetheless evidence in the case. 33 I will mention shortly other passages. But since this passage lies at the heart of the appellant's complaint, I think it is convenient that I look at it at this stage. 34 The judge told the jury that it was open to the jury to place what weight they thought appropriate upon the evidence of the witnesses whose reports were read out, witnesses who in Kirby P's words in Ziade v NSW Ministerial Insurance Corporation NSWCA unrep 26 March 1993 spoke "only quietly from their cold pages". 35 Senior counsel for the appellant accepted that there was nothing wrong in this portion of the directions. His complaint I think can be summarised in two propositions. The first is that there was a positive misdirection in the statement that "their evidence has not been able to be challenged". The second (and it is not unrelated) is a submission that the summing up lacked proper balance because the jury were not told that they should not draw an inference adverse to the defendant's case from the fact that the defendant's witnesses had not given oral evidence. The submission referable to the second point was that the summing up in the passage I have mentioned and in its totality unfavourably compared the cases of the plaintiff and the defendant, particularly where the jury were told that it was open to them to put into the scales, no doubt favourably to the plaintiff, the fact that the plaintiff's doctors had given evidence and presented themselves for cross-examination. 36 As to the first point, the way that Mr Nock SC, developed the issue was that the statement that the doctors' evidence "has not been able to be challenged" effectively misrepresented the effect of Rule 9, because it was open to the plaintiff to challenge the evidence by cross-examination subject to compliance on the plaintiff's part with Rule 9. 37 If the direction had been plainly to that effect and if objection had been taken, then there would have been cause for concern. But I think that the statement was capable of another meaning and in the absence of any challenge I would not infer a miscarriage. Rather, I would infer that the other meaning was the meaning which all present at the time thought that it carried. The other meaning was in the context of the known fact that the doctors were unavailable to be cross-examined and accordingly had not been presented as oral witnesses. I think the jury would have construed the remark as merely referring to this historical fact without intending to suggest any adverse weight to the defendant's case or any adverse weight in favour of the plaintiff's case. 38 The second more general point arises in one sense from what was not said in the passage I have set out. The same can be said for the later passages in the summing up, in which the judge reiterated that it was entirely a matter for the jury to decide what weight to give to the evidence of the doctors that was presented solely through the reading of their reports. At one stage, (p13 of the summing up), the judge specifically directed the jury about how they should go about resolving such conflicts as existed between the evidence of the consulting rheumatologists, Dr Bertouch, who was called, and Dr Potter, whose report was read. The judge said:

The fact that a witness, for example, the two rheumatologists whose evidence is before you - Dr Bertouch who was called, and Dr Potter whose report was read - at the end of the day and this is entirely a matter for you, you might come to the conclusion that we prefer Dr Bertouch because we've had the opportunity of hearing his evidence - we've only just had Dr Potter's read to us, we do not know what he would have been like if he had come along and given evidence. You can do that, whether you do it or not is a matter for you. But you are entitled again, when looking at the doctors' evidence, to look at all the other evidence in assessing that evidence. You are entitled to look at the plaintiff's evidence. You are entitled to look at the plaintiff's father's evidence et cetera. 39 In my view, these passages did not convey an adverse negative implication. They did not suggest to the jury that they should prefer the plaintiff's case because the jury had seen the whites of the eyes of the plaintiff's witnesses. The furthest the judge went was to tell the jury that it was open to them to do so, as it clearly was. I say that both as a matter of general principle and in the context of this particular trial, having regard to the substance of the evidence of the plaintiff's witnesses and the comparative lack of substance in the challenge that was taken to that evidence at trial. 40 I am not suggesting that it would have been inappropriate for the trial judge to have said to the jury that in light of the District Court Rules they should be careful not to draw an adverse inference simply because the doctor was not called to give oral evidence. In the context of this trial and the summing up and the failure to take any objection throughout the trial or at the close of the summing up when specifically invited to do so, then it is clear in my mind that there was no miscarriage within Part 51 r23 of the Supreme Court Rules (see generally Calin v Greater Union Organisation Pty Limited (1991) 173 CLR 33 at 39). 41 Sometimes there are cases that are conducted at trial where unfairness to one party is brought about through failure to confront that party with matters that are in issue and ultimately relied upon adversely to that party. They are usually discussed in the context of the rule in Browne v Dunn (1893) 6 R 67 (HL). Sometimes it occurs that a trial does take place where one party gives oral evidence and the other party relies upon written testimony of reports of witnesses who are not called to give evidence and whose evidence in the written form is not tested by cross-examination. Subject to the Browne v Dunn type concerns about particular unfairness, the law leaves it to the parties and their legal advisers to conduct their cases as they think best. The rules of evidence enable evidence to be given that is in written form. Indeed, it could be said that Rules 8 and 9 of Part 28 of the District Court Rules tend to encourage that practice. I have no doubt that case management techniques and economic factors add their own weight to that situation. 42 More than once this Court has commented on the difficulties for trial judges and on appeal for this Court that are presented by trials that are run in a context where clearly competing medical evidence is presented through the tender of reports but without cross-examination or oral evidence directed at the matters of inconsistency. Sometimes, as I have indicated, this can lead to particular miscarriage, having regard to Browne v Dunn principles. Sometimes it can lead to surprising results, not necessarily in favour of the party who gave the oral evidence. In the main, it is a matter for the parties to take those risks and there is nothing unfair if the risks come home. 43 The issues may require greater attention in another case but I am quite unpersuaded that there was any miscarriage in the present case stemming from the directions that were given or not given by the trial judge. 44 I would dismiss the appeal with costs. 45 GILES JA: I agree. 46 IPP JA: I agree. I would simply add the following comment. Frequently, and particularly in the District Court, evidence of certain witnesses is adduced only in writing while the evidence of other witnesses is given orally. Whether evidence in chief is to be given orally or in writing, and whether cross-examination is to be undertaken, is a matter for the parties alone and forensic decisions have to be taken in this respect. 47 In jury trials where evidence is given partly orally and partly in writing, the judge must ensure that a balanced direction is given to the jury as to how the credibility of the different witnesses is to be assessed. This may require the judge to explain why written and not oral evidence is adduced in respect of a particular witness. It may also be appropriate, depending on the circumstances, for the judge to direct the jury that no adverse inference should be drawn from a failure to call witnesses to give evidence orally. 48 In the circumstances of this case, however, for the reasons given by the President, I am not persuaded that there was any unfairness in the judge's direction. 49 MASON P: The order of the Court is that the appeal is dismissed with costs. 50 CAMPBELL: Your Honour, just with respect to the issue of costs, we invited our learned opponents to resolve the appeal proceedings on the basis of the plaintiff recovering judgment, the effect of which would be to forego any interest on the unpaid moneys from the date of trial till the date of the offer of 23 February 2004. 51 MASON P: So you offered to take less than you've ended up with. 52 CAMPBELL: In effect we said we would forego, because we would accept the judgment sum at that date which of course would be less any payment that had been made, which was approximately half and accordingly we say that we have achieved a result better than the offer we made and would ask that we have an indemnity costs order. 53 GILES JA: What in terms of money are we talking about? About six months' worth of $100,000? 54 CAMPBELL: No, it would be the date of the judgment last year I think, would be May of last year, so it's something slightly less than 12 months, 10 months and approximately half the judgment sum was paid. 55 GILES JA: And the judgment sum was, I forget. 56 CAMPBELL: In fact, $290,000 was the judgment that his Honour entered after some adjustments were made for interest and payments that had taken place. We offered to compromise the appeal for an amount of $283,000-odd in February of this year. 57 NOCK: That's not what the document says. It may be the effect of the document but not what it says. 58 CAMPBELL: I think the written submissions of ours set out at para 2 on orange p 14 which relates back to red p 9 where the minute of judgment was entered in the sum of $290,000. 59 MASON P: We'd better have a look at this offer document. 60 CAMPBELL: I thought that was handed up, I'm sorry, my apologies. 61 MASON P: In February 2004 under the judgment below the plaintiff was entitled to $290,000. 62 CAMPBELL: That's correct. 63 MASON P: Plus some interest. 64 CAMPBELL: No, I think para 3 judgment was entered in the sum of $290,000. 65 MASON P: That was in October 2003. 66 CAMPBELL: That was when the Registrar entered it, that was the formal minute of judgment as a result of the order made by his Honour in May of 2003. I think the paperwork hadn't been done to enter the judgment. 67 GILES JA: But did that include interest up until that date? 68 CAMPBELL: No your Honour, that's simply giving effect to the orders his Honour made on the Monday following the jury verdict. 69 GILES JA: So the plaintiff was entitled, if I understand it correctly, assuming no payment had been made, to interest on $290,000 from May 2003 until February and onwards? 70 CAMPBELL: Yes, your Honour. However, as I've said, approximately half was paid. 71 NOCK: Your Honour, the judgment figure according to the transcript that I've got was-- 72 MASON P: I'll correct the judgment that I gave because I see from orange 9 that the jury verdict was topped up by about $7000. 73 CAMPBELL: There were some adjustments that had to be made, yes, your Honour. 74 NOCK: Your Honour, there was an adjustment, there was less $8349 which I suspect was worker's compensation payments and then an addition of $7000. The net figure according to Mr Campbell in the court on the transcript is $281,713.68. The only thing I say about it is that that offer simply says it will take a sum of money and mentions nothing about interest. 75 MASON P: The offer does just say will accept a judgment in the sum of $283,000. Why wouldn't that be read Mr Campbell as saying such judgment to operate from the date of trial? 76 CAMPBELL: I understand your Honour's point. However, we would say that on its face it would be an indication that we were foregoing interest. I can't see that the letter accompanying it enlightens it. There was certainly nothing coming back on it. I can't any more than I have. 77 MASON P: We are not persuaded that it is reasonable to vary the ordinary order for costs in the present case. The order of the Court remains appeal dismissed with costs.

Last Modified: 05/03/2004 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.