Vakauta v Kelly

Vakauta v Kelly - [1989] HCA 44 - HCA 1989 case summary — Zoe

[4]

It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical experts who are frequent witnesses in his or her court. In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. That does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses, who are regularly called to give evidence on behalf of particular classes of plaintiffs (e.g. members of a particular trade union), are likely to be less sceptical of a plaintiff's claims and less optimistic in their prognosis of the extent of future recovery than are other medical witnesses who are regularly called to give evidence on behalf of particular classes of defendants (e.g. those whose liability is covered by a particular insurer). If it were so infringed, the administration of justice in personal injuries cases would be all but impossible. In that regard, both necessity and common sense require that a distinction be drawn between the case where a judge has some preconceived views about the expertise or reliability of the professional opinions of an expert medical witness and the case where a judge has preconceived views about the credit or trustworthiness of a non-expert witness "whose evidence is of significance on a question of fact" which "constitutes a live and significant issue" in the case (see Livesey v. New South Wales Bar Association [1] ).

[9]

If the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant, having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour's judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias. The statements which the learned trial judge had made about his preconceived views of Dr. Lawson were, however, effectively revived by what his Honour said in his reserved judgment. The appellant's failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr. Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer. While, as we have indicated, the line between comments which would be likely to have that effect and comments which would not is necessarily an imprecise one, we have come to the conclusion that, when they are read in the context of what was said in the course of the trial, his Honour's comments in his judgment fall on the wrong side of that line. In particular, it seems to us that such a lay observer would be likely to see the derogatory and wide-sweeping references to Dr. Lawson in the judgment - "Even Dr. Lawson"; "his evidence, which was as negative as it always seems to be - and based as usual upon his non-acceptance of the genuineness of any plaintiff's complaints of pain" (emphasis added) - as indicating that his Honour was concerned to vindicate his preconceived and very strong adverse views about the reliability of Dr. Lawson as a witness and had allowed those views to prejudice his whole approach to the case to the detriment of the defendant. An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice. To borrow and adapt words used by Mahoney J.A. in his dissenting judgment in the Court of Appeal, the comments in the judgment were such as to cause "reasonable apprehension" on the part of a lay observer that the judgment itself was, "in the end", affected by bias.

[58]

I accept the observation of McHugh J.A. in the instant case that "in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly". In effect, that is what this Court said in Livesey [25] . And it is true, as Clarke J.A. pointed out, that it is a "reasonable apprehension" with which the court is concerned. And, if it adds anything, it is such an apprehension in "a fair-minded observer": Livesey [26] . But, in this regard, the public perception of the judiciary is not advanced by attributing to the reasonable or fair-minded observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case. Such an observer, on being told the nature of the litigation in the present case and then being told of his Honour's remarks, is unlikely to conclude that his Honour was showing no bias against the appellant's potential witnesses and in turn against the appellant's case as to the extent of the respondent's disabilities. On the contrary, the observer is likely to conclude that his Honour would approach the assessment of damages with a strongly held opinion that the evidence of the appellant's medical witnesses (which he had not heard) would almost certainly be loaded against the respondent and therefore be worthy of little credence. To take but one example, his Honour's reference to asking counsel for the appellant "whether the G.I.O., instead of referring the plaintiff to its usual panel of doctors who think you can do a full weeks work without any arms or legs, had done something useful in this case by sending the plaintiff to a specialist in rehabilitation" could have left no member of the public in doubt as to the reliance likely to be placed by his Honour on the medical evidence to be adduced by the appellant. As to the level of sophistication that should be attributed to the reasonable or fair-minded observer, see Kirby P. in S. & M. Motor Repairs v. Caltex Oil [27] .

At a glance

Court

Decision date

Before

Source

Judgment (74 paragraphs)

Parties