Appellant : Mr N W McKerracher QC & Mr C P Shanahan

Antoun v New South Wales Insurance Ministerial Corporation, unreported; Ct of Appeal SCt of NSW; No CA 40496/96; 4 March 1999

Ascic v Westel Co-operative Ltd, unreported; FCt SCt of WA; Library No 920132; 11 March 1992

Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226

Bush v R [1993] FCA 361; (1993) 43 FCR 549

Devries v Australian National Railways Commission (1993) 177 CLR 472

Foamlite Australia Pty Ltd v Campbell, unreported; FCt SCt of WA; Library No 7686; 31 May 1989

Heppingstone v Commissioner of Railways (1901) 3 WALR 63

Re Lilley [1953] VicLawRp 18; [1953] VLR 98

Miller v Cameron [1936] HCA 13; (1936) 54 CLR 572

O'Donnell v McKenzie & Co 1967 SC 63

Palmer v Clarke (1989) 19 NSWLR 158

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844

Pettitt v Dunkley [1971] 1 NSWLR 376

Pollock v Wellington (1996) 15 WAR 1

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642

Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768

Seymour v Australian Broadcasting Commission (1990) 19 NSWLR 219

Simpson v Midalco Ltd, unreported; FCt SCt of WA; Library No 7421; 7 December 1988

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Stojkovski v Fitzgerald [1989] WAR 328

Sun Alliance Insurance v Massoud [1989] VicRp 2; [1989] VR 8

Trade Practices Commission v Arnotts Ltd (No 5) (1990) 21 FCR 324

Tubemakers of Australia v Fernandez (1976) 10 ALR 303

Western Australia v Watson [1990] WAR 248

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Parker J, with which I am in agreement. I would therefore dismiss this appeal. I would seek only to comment upon the issue of whether the appellant's vertigo or dizziness has been caused by the accident.

2 In this case, the learned trial Judge had the advantage of seeing and hearing Dr A L Barr, who gave evidence for the appellant, and Mr N C Anastas and Associate Professor P S Hollingworth, both of whom gave evidence for the respondent. These were the only medical practitioners to give oral evidence at the trial. A number of medical reports were tendered by consent. They included the reports of Mr D Billett and Mr Bryant Stokes.

3 From Mr Billett's report, he appears to have seen the appellant on one occasion only, on 26 March 1998. He detected no muscle spasm in the appellant's neck or back. He recommended that good quality x-rays should be taken of the appellant's neck and lumbar spine, and that an MRI study of his neck should be undertaken. He also recommended a short course of physiotherapy for the appellant and a home exercise programme. Although x-rays were taken, no MRI study was made. For his treatment, the appellant appears essentially to have relied upon his former partner, Dr D D Heglund, a chiropractor, who treated the appellant from some time prior to 21 January 1997. Dr Heglund first made a note of the appellant having experienced any dizziness on 3 September 1997.

4 In the report of Mr Stokes, dated 4 March 1999, written almost a year after Mr Billett's report, he noted that the appellant had been off work for a considerable period of time and that he had experienced difficulty in going back to work because of symptoms of persistent neck pain, low back pain and episodes of dizziness, the last mentioned of which, he said, were "certainly associated with significant neck muscle spasm". He added that, when he examined the appellant, the only positive features which he noted were restriction of neck movements in both right and left lateral rotation, in lateral flexion - right and left, and in flexion. All the upper limb reflexes were intact and there was no evidence of any muscle wasting or any abnormality of that type. In the lower limbs, the reflexes were all intact and power appeared to be normal. However, he found the lumbar spinal movements to be restricted. Mr Stokes suggested that the appellant should have an MRI scan of his cervical and lumbar spine, so that he could assess the "state of affairs" more accurately. In relation to the appellant's dizziness, he wrote that he felt it important that the appellant should have an opinion from a neurologist and he recommended that the appellant be seen by one as soon as possible. He suggested a swimming programme to strengthen the appellant's neck musculature. We were told from the Bar table that the appellant did in fact consult a neurologist, but no evidence of his findings was given at the trial.

5 Dr Barr recorded new symptoms on 15 April 1997 as having become evident, being tinnitus, intermittent and bilateral, mild positional vertigo, abdominal discomfort and chronic pain. In his evidence, he agreed that, prior to September 1997, there had been only this one complaint by the appellant of vertigo. In September 1997, he said he had seen manifest signs relating to vertigo which he had not previously seen and which he had not before felt the need to examine, although he had been seeing the appellant regularly. He indicated that the condition can be degenerative. However, in re-examination, Dr Barr expressed the view that the cause of the appellant's vertigo was not cerebral or vascular, but due to cervical injuries to the neck caused in the accident.

6 In Professor Hollingworth's report, dated 11 December 1998, he wrote:

"He also has dizziness, which appears not to have been investigated, and I am not sure what the diagnosis is here. It may well be that he does have some partial narrowing of vessels feeding the brain. Certainly the amount and the frequency of the dizzy attacks is quite out of keeping with the occasional giddiness which occurs in people who have had whiplash injuries. What is even more unusual, is that this is not settling, as is the case with whiplash injuries, but appears to be getting more frequent and resulting, now, in falls. I think this man has another cause for his dizziness, unrelated to the [motor vehicle accident], and which has yet to be elucidated."

7 Mr Anastas did not commit himself on the issue of dizziness. He confirmed that the appellant would have had degenerative changes in his back prior to the accident.

8 In my opinion, on the evidence, it was clearly open to the trial Judge to reject the claim by the appellant that his dizziness (or vertigo) was associated with the soft tissue injuries which he sustained in the motor vehicle accident. It was some significant time after the accident before the condition became apparent, thereby greatly weakening any inference that the condition was accident caused.

9 PARKER J: The appellant (plaintiff) sought damages in the District Court in respect of personal injuries he suffered when he was a passenger in a motor vehicle which was involved in an accident on 28 December 1996. At the time of the accident the appellant was aged 55 years and was a self employed chiropractor.

10 It was the appellant's case that in the motor vehicle accident he sustained:

11 Liability was admitted and the trial proceeded before Healy DCJ as an assessment of damages. It was the appellant's case that he had been unable to resume his practice as a chiropractor as a consequence of his injuries and that it had proved necessary, therefore, to sell his practice at a loss. At trial, and on this appeal, the appellant's case was presented on the basis that an award for pecuniary loss well exceeding $1 million was appropriate.

12 The trial Judge was not persuaded that the appellant had been rendered unable to continue to work as a chiropractor although he did accept that the appellant had been unable to work for a period immediately following the accident and that after that he would have needed to "ease" himself back into full-time practice. His Honour awarded damages to the appellant as follows -

13 On this appeal the appellant seeks re-assessment of those damages by this Court, alternatively, remittal to the District Court for re-assessment of damages, in each case on the basis of an ongoing total incapacity for work as a chiropractor as a consequence of the accident. The grounds of appeal are:

"1. The Learned Trial Judge erred when he found that, "having seen and heard Mr Williams and watched the videos, I simply do not accept that he is as disabled as he claims to be" because:

1(1) the nine video tapes tendered in evidence by the Respondent (Defendant) as Exhibit 26 ["video tape evidence"] were consistent with the Appellant's (Plaintiff's) evidence in chief;

1(2) the use made of the video tape evidence by His Honour the Learned Trial Judge was not open because:

(a) the video tape evidence was not shown to any of the expert medical witnesses;

(b) the video tape evidence was not shown to the Appellant (Plaintiff);

(c) the finding ignored the rule in Browne v Dunn (1867) 6 Rep 67, in that neither the Appellant (Plaintiff) nor the Appellant's (Plaintiff's) expert medical witnesses were given an opportunity to assess or comment on the video tape evidence relied upon by His Honour; and

(d) His Honour the Learned Trial Judge did not have the benefit of any expert medical evidence from either of the parties as to the significance of the video tape evidence upon which his finding replied. The Learned Trial Judge required such expert evidence before he could make the finding that video tape evidence supported the Respondent's (Defendant's) case that the Appellant (Plaintiff) was not "as disabled as he claims to be".

2. The Learned Trial Judge erred when he found that, " I am not satisfied on the balance of probability that the dizziness was associated with the soft tissue injuries to the neck caused in the accident" because this finding:

2(1) relied on His Honour's use of the video tape evidence, and the Appellant (Plaintiff) repeats ground 1;

2(2) all the expert medical witnesses accepted, as His Honour clearly found, that the Appellant (Plaintiff) suffered from dizziness after the motor vehicle accident which dizziness had resulted in two subsequent accidents; there was no evidence that the Appellant (Plaintiff) suffered from dizziness prior to the accident; and no evidence was led as to an alternative cause of such dizziness;

2(3) failed to given any or any sufficient weight to the evidence of Dr Barr, general practitioner qualified in occupational medicine, Mr Billett, orthopaedic surgeon, and Mr Stokes, neurosurgeon; and

2(4) the only witness who suggested that the Appellant's (Plaintiff's) dizziness was not related to the motor vehicle accident was Professor Hollingworth, an expert only in occupational medicine, but even he accepted that the Appellant's (Plaintiff's) dizziness 'is debilitating and could put his patients at risk'.

3. The Learned Trial Judge erred when he found that he was not satisfied that the Appellant (Plaintiff) had been unable to work as a chiropractor, and that 'on the contrary, I am satisfied on the evidence of Mr Anastas and Professor Hollingworth that he is able to work as a chiropractor" because:

3(1) these findings relied on His Honour's use of the video tape evidence and the Appellant (Plaintiff) repeats ground 1;

3(3) neither Dr Anastas nor Professor Hollingworth had any detailed knowledge or experience of chiropractic practice and were only able to assess the Appellant's (Plaintiff's) capacity to work in general terms;

3(4) Professor Hollingworth misunderstood the Appellant's (Plaintiff's) intention when he presented photographs to explain what his practice as a chiropractor involved and this coloured his evidence; and

3(5) His Honour's findings failed to give any or any sufficient weight to the evidence of Dr Heglund, chiropractor, Dr Barr, general practitioner qualified in occupational medicine who had made a study of chiropractic practice, Mr Billet, orthopaedic surgeon, and Mr Stokes, neurosurgeon who were all of the opinion that the Appellant (Plaintiff) could not work as a chiropractor.

4. The Learned Trial Judge should have found that the motor vehicle accident caused the Appellant (Plaintiff) to suffer the injuries pleaded in the statement of claim and that the Appellant's (Plaintiff's) injuries were the cause of him not working as a chiropractor after 15 April 1997, when the Appellant (Plaintiff) last attempted to return to work as a chiropractor. As a consequence, the Learned Trial Judge should have:

4(1) awarded general damages in a greater sum so as to properly reflect the detriment to the Appellant (Plaintiff) arising out of those injuries, and his loss of career;

4(2) awarded past loss of earnings on the basis of total incapacity from 15 April 1997 to trial;

4(3) calculated future loss of earning capacity on the basis of a total loss of earning capacity."

14 It is convenient at this stage to note briefly something of the medical evidence which was before his Honour much of it being in the form of reports tendered by consent.

15 A general practitioner Dr Hamdorf first saw the appellant on 31 December 1996 some three days after the motor vehicle accident. He made the initial prognosis that "It is not likely there will be any permanent injury" (accepting his Honour's correction of an apparent typographical error). The appellant next saw Dr Barr, a general practitioner, in March 1997. He made the prognosis that the lumbar spine would improve and that the cervical and thoracic spine should significantly improve over six months. Progressively over the months and years that have followed Dr Barr has modified these views as the appellant's symptoms as reported to him did not make the expected improvement. His Honour also noted that while Dr Barr has specialised qualifications in occupational heath he had never been asked to assess what work the appellant could perform within the limits of his symptoms as reported to Dr Barr.

16 His Honour had a report from an orthopaedic surgeon, Mr Billet, who first saw the appellant in 1998 and who expressed the opinion that the accident resulted in soft tissue injury to the lumbar spine and to his neck and that the appellant was not physically fit to return to work as a chiropractor. A neurosurgeon, Mr Stokes, who first saw the appellant in 1999, also reported that he did not think the appellant could "safely return to his practice as a chiropractor" as that work was too physically intensive for him.

17 There was also evidence from another orthopaedic surgeon Mr Anastas who formed the view in May 1997 that the appellant would be able to return to work, expecting his symptoms would gradually ease and eventually completely resolve. It was then Mr Anastas' view that the appellant might resume work in May 1997 for four hours a day, five days a week and that he would be able to extend these hours gradually so that after a month he would be working eight hours each day. Mr Anastas again saw the appellant in December 1998 and did not change his assessment of the appellant's capacity to work but expressed the opinion that the increase in symptoms and further limitation of spinal movement of which the appellant was then complaining might be due to a natural progression of pre-existing degenerative changes or related to falls with respect to dizziness of which the appellant was then complaining. Mr Anastas further did not advise a continuation of the chiropractic therapy which was the sole treatment the appellant had undertaken since the accident and proposed a quite different remedial programme which it seems was not followed by the appellant. At trial Mr Anastas was shown photographs of chiropractic manipulative techniques which the appellant would need to use during practice but Mr Anastas did not consider the performance of these by the appellant would produce symptoms at least if the movements required were merely a half bend to the floor which was the apparent effect of the photographs, there being no evidence to suggest that a full bend to the floor is required.

18 Professor Hollingworth was also called. His area of speciality is occupational health. He was cross-examined extensively. He expressed the view that there must be a considerable doubt about the appellant's claims to be unable to work. He was of the view that nothing had been found in the appellant's physical condition which could explain the degree of debilitation of which the appellant complained, a situation which the Professor found to be quite unusual especially as that had been the position for some two years after the accident. He, too, was cross-examined by reference to the photographs depicting chiropractic manipulation but his opinion was unaffected. He described as bizarre an explanation of the appellant for the efficacy of the chiropractic manipulation, which was the only treatment he was receiving, and which the appellant said afforded him some, at least temporary, relief from the symptoms of which he complained. In the Professor's opinion there was nothing to link the episodes of dizziness with the motor vehicle accident. There was a very direct challenge to the credibility of Professor Hollingworth but his Honour was persuaded, in the end, that he was an impressive and convincing witness and noted that "My opinion of his credibility was not altered" by the very direct and extensive cross-examination.

19 In so far as this review of the medical evidence has canvassed briefly the essence of what was before his Honour as to the appellant's capacity after the accident to continue to practice as chiropractor, I should also note that it was the effect of the appellant's evidence that he had not received medical treatment for the effects of the accident from any of the medical practitioners called except for the initial consultation with Dr Hamdorf. His regular visits to Dr Barr were not for treatment but to enable monthly medical certificates to be provided to the appellant's insurers so that he would be paid the substantial benefits each month which were payable for four years after accidental injury pursuant to an insurance policy which the appellant held. While he had been referred to the specialist practitioners mentioned above, this was merely for review for reasons of this litigation and insurance. Apart from a visit to each of two chiropractor friends, one in far north Queensland and one in San Diego, USA, and initial chiropractic treatment in Busselton immediately after the accident, the appellant's chiropractic manipulation had been undertaken by the appellant's partner Mr Heglund.

20 It was also the appellant's evidence that following the accident and until the beginning of March 1997 he had not practised as a chiropractor and had engaged a locum to undertake his part of the practice he shared with Mr Heglund. On returning to work, it was his evidence that, he experienced headache, ringing in the ears and a stiff back so that it was difficult to manipulate patients and on occasions he felt dizzy. Because of this the appellant said that he arranged for the locum to continue for a further six months, and as the symptoms had not then been alleviated the services of the locum were continued and the appellant continued off work thereafter. It was the appellant's evidence that by the end of 1997 he realised he would not be able to return to work and he sold his share of the goodwill and equipment of his practice to his partner, after unsuccessful attempts to find another purchaser, but he retained the real estate interest he held in the property from which the practice is conducted and he was receiving an ongoing rental income from this. He has not resumed practice since nor undertaken any other employment. It was his case that he cannot do so. As indicated, the appellant received no medical treatment and consulted no medical practitioners in this time with a view to securing some improvement in the symptoms of which he complained to enable him to return to work or even to review the prospects whether in time he might do so.

21 Of the four grounds of appeal, the primary issue posed is the use made by his Honour of surveillance video tapes of the appellant which were taken during the period before trial. These tapes had been discovered by the respondent before trial and were made available to the plaintiff. It seems they had been viewed at least by the plaintiff's counsel. They were admitted by consent at the trial but were not shown by either party to the appellant or to any of the medical witnesses called at the trial. They had not been viewed by any of the medical experts who provided reports which were admitted by consent.

22 There are only two references to the videos in the reasons of the trial Judge. At par 14 his Honour notes the effect of them, as he appreciated them in the following terms:

"I was shown a representative sample of surveillance videos taken in January and November last year and in April this year. These show Mr Williams walking his dog at a brisk pace for more than a few minutes, from the time clock on the video on occasions at least 20 minutes, turning his head apparently without discomfort to check for traffic before crossing the road, bending down to pick up items from the footpath, and his paper from the lawn, bending his knees to do this, getting into and out of his car and driving it."

And then after an extensive and detailed review of the varying, and at times conflicting, lay, chiropractic and medical evidence relevant to the appellant's condition and symptoms, his Honour made the following findings about the injuries suffered by the appellant:

"Having seen and heard Mr Williams and watched the videos, I simply do not accept that he is as disabled as he claims to be. It is not for me to guess or speculate why he claims to be so disabled that he cannot work in his profession. This finding colours my view the opinions of the medical and chiropractic practitioners who have accepted his complaints that he cannot work at face value. There are no objective signs that the accident has caused any injury which prevents him working and their opinions are based on his complaints of symptoms. I am not satisfied that he is in the 20 percent of patients referred to by Dr Barr who do not get better or get worse.

I find on the evidence that Mr Williams sustained the injuries particularised in paragraph 3(a) - (e) of the Statement of Claim. The fracture of the ribs was a clinical diagnosis without the aid of any contemporaneous x-rays, but in the end I do not believe there was an issue that Mr Williams sustained that injury. The symptoms from that injury settled within about two months without any lasting effect. He sustained the fractured teeth which have not yet been attended to.

He sustained soft tissue damage to the cervical, thoracic and lumbar spine, but the degeneration seen on the x-rays was not caused by that soft tissue damage. As a result of that soft tissue damage he probably has some ongoing neck stiffness and headaches, but not to the degree he complains of. I am not satisfied on the balance of probability that the dizziness was associated with the soft tissue injuries to the neck caused in the accident." (emphasis added).

23 The summary of the effect of the videos at par 14 is not suggested to be erroneous in fact or other than a fair and balanced appreciation of the videos. Neither is this summary in contrast to the evidence of the appellant at the trial. The most pertinent extract from the appellant's own evidence was in fact reproduced in his Honour's reasons in par 12:

"Mr Williams described his current symptoms at T26-28:

'I wake up most days with a headache for a start. I haven't slept a full night since the accident and I wake up two or three times during the night. The headache: I try to push it behind and I try to get on and do things. I walk the dog first thing in the morning as briskly as I can. My back is stiff when I get out of bed in the morning. Again, I walk. Walking does sometimes ease the symptoms; sometimes it does not. I also walk on the beach. I have tried jogging a little bit, very, very lightly and I can do a little bit for a period of time and I'm not restricted in general movements around the place but if I try and do more or do an excessive amount, well, then I feel the stiffness in the neck; the headache will develop. I have had less of the severe dizziness but I'm still getting some light headedness. When I'm sitting for any length of time, getting up I'm often light headed. When I lie down in bed first thing at night I get this pulse in the back of my neck. I can turn my head - contort my neck in a position that it stops but normally it's there. If I'm uptight, run upstairs or move upstairs quickly, something like that, I get the same pulse.'"

There was also evidence, lay and medical, about dizziness to the effect that on occasions the appellant complained of dizziness and he attributed two significant falls to dizziness.

24 It will be seen that in this evidence, the appellant accepted that he walks his dog in the morning as briskly as he can and sometimes that eases his symptoms, that he can jog a little (although this activity was not revealed in the videos), that he had run upstairs on occasions, and that he was not restricted in general movements, but excessive activity might lead to stiffness in the neck from which headache will develop.

25 Thus the videos do not appear to contradict the evidence of the appellant in any material respect or reveal physical activities significantly different from those identified in the appellant's own evidence. Indeed as counsel then appearing put to the trial Judge in his opening, anticipating that the videos would be tendered -

"... I have seen a selection of them. I don't think there's any dispute or issue on those. From what I saw, it clearly showed the plaintiff walking his dog and so on and he does that regularly. But he is certainly not as active as he used to be and he was a very fit and active man before."

"... There's nothing in the videos which casts doubt on his evidence-in-chief or on his cross-examination. There is nothing that he said before you that was put into doubt in the video evidence."

In fact the appellant's counsel went on to rely on the videos as supporting the appellant's case that he had difficulty bending from the waist to pick up things as the videos showed him bending at the knees to pick up a newspaper. Thus the issue at trial was not whether he could do the things revealed by the video, but whether there were times when he could not, or times when there were adverse effects from doing so, and if so, whether these or other effects of the injuries received in the accident prevented him from resuming his practice as a chiropractor.

26 It was by way of exploration of these and other issues that his Honour undertook a detailed review of the extensive evidence other than the videos. No complaint is made of the accuracy or thoroughness of his Honour's review of this evidence. When considering the medical evidence, there being in the case of the injuries which were relevant to the appellant's capacity to practice no physical evidence discernible an examination to confirm the symptoms, his Honour accurately observed that the medical practitioners "were totally dependent on the history and complaints of pain related by" the appellant for their various diagnoses. As his Honour observed with reference to cases of injuries and symptoms such as these "... their opinions are only as valid as their patients are credible and accurately related their symptoms".

27 The essence of the appellant's case with respect to ground 1 is that it was in whole or part by virtue of his Honour's appreciation of what is revealed by the videos that his Honour was persuaded to conclude that the appellant was not as disabled as he had claimed to be. The primary difficulty I have with this submission is to be satisfied that his Honour drew from the videos anything more than, or different from, the summary he gave of the effect of the videos, a summary which is not disputed and which, as has been indicated, is generally consistent with the appellant's own evidence. All that his Honour says at the commencement of par 63 is that he had watched videos. Had he not done so, no doubt his reasons would have been criticised as revealing a failure to consider relevant evidence. But nothing in the reasoning which follows in par 63, par 64 and par 65 provides any foundation for the view that his Honour has gained anything from the videos beyond that which is summarised in par 14. In my respectful view, the balance of what is set out in par 63, par 64 and par 65 are observations and reasons relating to and based on the other oral and written evidence which his Honour had before him and which he had just so carefully reviewed before making these findings including his Honour's appreciation of the effect and credibility of the appellant which, as I have indicated, was not affected adversely by the videos.

28 It is submitted that in reaching this finding his Honour has ignored the rule in Browne v Dunn (1867) 6 Rep 67 in that neither the appellant, nor the appellant's expert medical witnesses, were given an opportunity to assess or comment on the video taped evidence which was "relied upon" by his Honour.

29 A number of observations are appropriate in this respect. First, for the reasons just given the notion of "relied upon" has not been shown to extend to being a basis for any factual finding adverse to the appellant. Secondly, as mentioned earlier, the tapes were made available pre-trial to the appellant's legal advisers. Whether or not the appellant actually viewed them does not appear but he was clearly afforded the opportunity to do so by the respondent. Further, as the video tapes do not appear to contradict the appellant's evidence in any material respect it is not apparent what point would have been served by showing the videos to the appellant during the hearing. Thirdly, it does seem that the decision may have been taken by the appellant or his legal advisers not to arrange for the appellant's expert witnesses to view them. For what reasons this was done does not appear but, as the content of the tapes appears to accord generally with the evidence of the appellant, and with what he told the experts, it does not appear that there was any need for the witnesses to view the tapes. The opinions of the medical witnesses and the issue for the trial Judge depended significantly on whether at times (not depicted on the videos) the appellant's symptoms and their effects were very different from what could be seen on the videos. It is not submitted, and it is not shown, that by viewing the videos the medical witnesses could have expressed themselves more reliably or differently about this.

30 Fourthly, the submission appears to involve a misapprehension of the operation and effect of the rule in Browne v Dunn (supra). It must be borne in mind that this was not a case where the credibility of the appellant was challenged on the basis that he had been caught out under surveillance doing things which in his evidence he denied being able to do. His credibility was undoubtedly challenged but the videos did not provide the basis for doing so.

31 In Browne v Dunn Lord Herschell LC said at 70, 71:

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice or in the conduct of a case, but is essential to fair play and fair dealing with witnesses."

"All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had an opportunity of giving an explanation by reason of their having been no suggestion whatever in the course of the case that his story is not accepted."

This last observation is to be understood in the light of clear passages at 71 of the reasons that there is no obligation to raise by way of cross-examination such matters where the witness has had notice beforehand that there is an intention to impeach his credibility. In the same decision Lord Halsbury said at 76 - 77:

"To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."

32 The effect of the rule of practice which has become known as the rule in Browne v Dunn has been conveniently formulated in more recent times in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 by Hunt J at 16 in the following terms:

"It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiners intention to rely upon such matters, it is necessary to put to an opponent's witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witnesses the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be the rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn ...."

"I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witnesses in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings."

It is to be observed that both of these extracts are expressly qualified by the phrase - "unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters".

33 In this case the existence of the video tapes was made known before trial and they were available to be viewed and were in fact viewed at least by counsel then appearing for the appellant. The video tapes were then tendered by consent without the need for formal proof. In these circumstances, if it were the case that the videos revealed some different or contradictory view of the appellant's physical capacities from that given in his own evidence, I do not see that it could be said that the appellant did not have notice that the videos would be relied on against him. To the extent that any use can be seen to have been made of them at trial by the respondent it was no more than to fill out in some matters of detail the evidence the appellant himself had given, rather than to contradict him. Even if more than this might have been open, not only was the appellant on adequate actual notice as I have indicated, but it is necessary also to bear in mind what was said by Bray CJ in Thomas v van den Yssel (1976) 14 SASR 205 at 107 where the Chief Justice expressed the view that the rule in Browne v Dunn cannot:

"... be applied without qualification to a challenge to the witnesses credit generally, particularly the credit of a plaintiff in an action for damages for personal injuries in relation to his evidence about his symptoms and incapacities. Damages are always in issue. Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them. And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth."

Further, it was not the respondent's case at trial or on appeal that the video recordings, as opposed to other evidence, revealed that the appellant had misled any of the medical witnesses in his accounts to them of his symptoms. And this is not a case where the appellant's evidence at trial has been shown to be false or misleading in a material way by video surveillance films. Hence, it was not the type of case considered by this Court in Matthews v Sputore, unreported; FCt SCt of WA (Malcolm CJ, Pidgeon and Rowland JJ); Library No 920067; 5 February 1992 which is relied on by the appellant. As is apparent from the reasons of Pidgeon J in that case the plaintiff had denied he could do things which he had been recorded doing. It was in that context, which is typical of many cases concerning surveillance videos, that Malcolm CJ said at 5:

"It is clear from the initial cross-examination of the appellant that the respondent's case was that his evidence in relation to his symptoms was such that his symptoms were being exaggerated. In my opinion, however, in such a case, where video taped evidence is to be given by the defence against a plaintiff the interest of fairness, as encapsulated in the judgment in Brown v Dunn (1894) 6 Rep 67, suggest that, as a general rule, such evidence should be put to the plaintiff in cross-examination in order that he or she may challenge it or offer an explanation for it .... Much, of course, depends upon the conduct of a particular trial, but in the vast majority of accident cases it would be unfair not to give the plaintiff an opportunity to explain or comment upon what is depicted in video taped evidence of his or her movements and activities."

In that case, it appears that the plaintiff had no notice before trial of the existence or content of the video tapes.

34 I also note that the view I have reached in this respect accords with the decision in Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 114 ALR 231 at 236 where non-compliance with the rule in Browne v Dunn was raised because a video recording was relied on to demonstrate a lack of incapacity in the claimant even though there had been a failure to put the video recording to the appellant and medical witnesses. It was the case, however, that the video recording had been supplied to the other side before the hearing. Because of this Spender J rejected the submission that by virtue of the use of the video recording in this way there had been a failure to observe the rule in Browne v Dunn. In particular his Honour observed at 236 -

"Further in my opinion, not putting the video to the medical witnesses in the course of their cross-examination, produced no unfairness to the applicant. This was not a case where Mrs Dolan was ambushed by the respondent's reliance, in submissions, on a piece of evidence, the existence of which the applicant was unaware until the completion of the evidence of her witnesses."

35 There is a second aspect of the operation of the rule in Browne v Dunn, that is the weight or cogency which should be accorded evidence where there has been a failure to observe the primary aspect of the rule. I understand this is also relied on by the appellant in this case in particular in so far as it is contended that the trial Judge "did not have the benefit of any expert medical evidence ... as to the significance of the video tape evidence upon which his finding relied" and that such expert evidence was necessary before his Honour "could make the finding that the video tape evidence supported the respondent's (defendant's) case that the appellant (plaintiff) was not 'as disabled as he claims to be'", see ground 1(d).

36 What has been said already is enough to indicate the reasons for my view that such a contention seeks to read too much into his Honour's reasons. It is not shown that his Honour did make findings adverse to the appellant by virtue of the videos. It has not been shown that this is a case where his Honour reached out to make factual findings involving medical issues based on his own appreciation of the videos and without the benefit of medical expertise or assistance on the issue from the medical witnesses. Because of this the second aspect of the rule in Browne v Dunn really has not been shown to have any relevant application. The only issue pointed to by the appellant in this respect is the failure to put the videos to the appellant's medical witnesses and that cannot be material for the reason indicated.

37 Nevertheless, there are other difficulties with the submission in so far as it is apparently contended that the finding made by his Honour was not open to him because the videos were not put to the appellant's medical witnesses. Reference was made to Dunn v Maritime Services Board, unreported; CA SCt of NSW (Priestley, Powell and Stein JJA); Library No CA40435/97, BC 9802256; 9 June 1998. At 5 Stein JA, Priestley and Powell JJA concurring, said:

"The second issue in the appeal concerns the application of the rule in Brown v Dunn because none of the medical practitioners were cross-examined as to the content of the film. It is submitted that her Honour ought to have relied on the failure to cross-examine the doctors and, accordingly, have accepted their opinions. ..."

"... there is no requirement that the Court must accept evidence not subject to cross-examination, especially if that evidence is contradicted by other evidence, see for example, Bullstrode v Trimble [1970] VicRp 104; [1970] VR 840."

38 In Bullstrode v Trimble [1970] VicRp 104; [1970] VR 840 at 848-50 Newton J observed:

"In its second aspect the rule in Browne v Dunn is, in my opinion, as I earlier said, a rule relating to weight or cogency of evidence ... in this aspect the rule says no more than that if a witness is not cross-examined upon a particular matter, upon which he has given evidence, then that circumstance will often be very good reason for accepting the witness' evidence upon that matter. If I may say so, this is little more than commonsense. I have use the word 'often' advisedly, because if a witness' evidence upon a particular matter appeared in his evidence-in-chief to be incredible or unconvincing, or if it was contradicted by other evidence which appeared worthy of credence, the fact that the witness had not been cross-examined would, or might, be of little importance in deciding whether to accept his evidence."

There will be cases, and Newton J referred to a number, where in the circumstances in which the case was conducted and in light of the other evidence the appropriate decision of fact, where there has been a failure to observe the primary aspect of the rule in Browne v Dunn, will be to accept the evidence which was not the subject of cross-examination. Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 per Gibbs J provides a good example of such a case. There, the very limited other evidence tended to support the unchallenged evidence of the respondent that she intended to work until she was 55. As Gibbs J said at 371:

"The respondent's evidence that she intended to work until she reached the age of fifty-five was not inherently incredible. She had in fact been engaged in employment for most of the time during which she had been in Australia before the accident, and had only given up employment when it was necessary to care for her child. In these circumstances, in my opinion, the jury, acting reasonably, were bound to accept her evidence, uncontradicted and unchallenged in cross-examination, that she had the present intention of working until she reached the age of fifty-five." (emphasis added)

39 The present case was one, however, where the views were very well open on the other evidence that the appellant did have the capacity to practice as a chiropractor and that he was exaggerating his symptoms in evidence and had done so to the medical witnesses. In such a case, as has been held in Dunn v Maritime Services Board (supra) and in Bullstrode v Trimble (supra), it would have been open to the trial Judge to reach such findings even had there been a failure to observe the primary aspect of the rule in Browne v Dunn. For the reasons already given, however, that was not the case.

40 For these reasons the appellant has not made out ground 1.

41 The second ground of appeal seeks to challenge the finding of fact of the trial Judge that he was "not satisfied on the balance of probability that the dizziness was associated with the soft tissue injuries to the neck caused in the accident".

42 The primary argument for the appellant in this respect is that the finding was made in reliance on the video tape evidence. For reasons already canvassed that has not been shown to be the case. Further, there is nothing in or arising from the video tapes which bears in any way on the issue whether the dizziness, of which the appellant complained, was a consequence of the soft tissue injuries to the neck which the appellant suffered in the accident. There is nothing in the reasons of his Honour to indicate that he saw or relied on any such connection. In this respect it should be noted that his Honour's finding is not that there is no dizziness. His finding is directed to the issue of causation.

43 It is necessary, therefore, to turn to the secondary arguments advanced for the appellant in support of the second ground, namely, that there was no evidence of dizziness before the accident and no alternative cause was identified in the evidence, and that his Honour in preferring the evidence of Professor Hollingworth had failed to have adequate regard to other medical evidence.

44 It was the appellant's case that the dizziness of which he complained at trial was a consequence of the injuries he suffered to the soft tissues of the neck in the accident. While the possibility that injury to the soft tissues of the neck could lead to dizziness seems to have been accepted by all medical witnesses, or at least was not dismissed out of hand, no medical witness was able to confirm such a connection from physical examination of the appellant and the opinions expressed as to the probable cause of the appellant's dizziness differed markedly.

45 As a starting point, insofar as the appellant contends there was no dizziness before the accident but there was afterwards, the evidence does not indicate that dizziness was an immediate consequence of the accident and there is reason for hesitance about acceptance of the appellant's account of the onset of dizziness as a symptom. Even on the appellant's evidence dizziness was not apparent as a symptom until after he returned to work. It was the evidence of the appellant at trial that after he returned to work he experienced dizziness "on occasions". His evidence then emphasised two significant incidents of dizziness. The first did not occur until September 1997, some nine months after the accident, when he was in his garden. He said in evidence that he lost balance through dizziness and fell against a wall dislocating his shoulder. He had this dislocation reduced at a hospital outpatients' clinic that day. The second incident did not occur until late in 1998, toward two years after the accident. The appellant said he bent down to pick up something while cleaning his swimming pool and experienced what he described as a dizzy spell which caused him to fall and fracture, he said, the second sacral segment. He did not consult any medical practitioner over this incident. By the time of the trial it was the appellant's evidence that he was experiencing less of the severe dizziness but was still experiencing some light headedness. The appellant's wife, in her evidence, described incidents when he appeared to experience dizziness such as occasions when he bent down quickly to pick up a serviette.

46 There is no mention of dizziness as a symptom in the reports of Dr Hamdorf who saw the appellant shortly after the accident. Significantly, neither is there any reference to dizziness in the extensive initial report of Dr Barr who first saw the appellant on 13 March 1997. This was some weeks after the appellant returned to work. While Dr Barr's report dated 21 March 1997 deals expressly with the appellant's concerns about his capacity to perform the physical manipulations involved in chiropractic practice and details the activities which are involved and the effects of the appellant's symptoms on his capacity to perform them, there is no mention at all of dizziness. The first relevant mention by Dr Barr is in his report dated 25 August 1997, some eight months after the accident, where he notes "Dr Williams complained also of a development of an intermittent bilateral tinnitus or ringing in the ears associated with mild positional vertigo". This was then taken up by Dr Barr on 8 October 1997, after the incident involving the dislocation of the appellant's left shoulder. Dr Barr then made the observation for the first time that this "vertigo is considered to be an extension of the previously reported symptom which was related to his motor vehicle accident". The appellant's chiropractic partner, Mr Heglund, made an extensive report in May 1997 which contains no mention of dizziness even though there is a very detailed summary of symptoms of which the appellant then complained, including tinnitus.

47 Mr Anastas, the neurosurgeon, first saw the appellant on 12 May 1997 at the request of insurers. His report of that date deals with the symptoms of which the appellant then complained. There is no mention of dizziness. It was after a visit a year and a half later in December 1998 that Mr Anastas first reported a complaint of the appellant of "episodes of dizziness causing him to fall and on one occasion suffered a fracture of his sacral and on another occasion dislocated his left shoulder" ie the two particular episodes of post-accident injury mentioned earlier. In his report of that date Mr Anastas expressed the opinion that the appellant's complaints of increased symptoms since May 1997 "may be due to the natural progression of degenerative changes" (which were evident pre-accident) "or related to his falls with respect to his dizziness". Mr Anastas did not in that report relate the dizziness to the motor vehicle accident. Even at that time, Mr Anastas remained of the view that the appellant was fit to engage in a graduated return to work as a chiropractor.

48 Mr Billet, the orthopaedic surgeon, first assessed the appellant on 24 March 1998, ie 15 months after the accident. He reported that the appellant complained of "dizzy spells" and reported the dislocated shoulder episode in December 1997 and that he has "tinnitus and dizziness" which caused Mr Billet to suggest that there "may be a vascular problem" and that the appellant should be referred to a head and neck surgeon. The effect of the evidence is that this was not followed up by the appellant at the time.

49 Mr Stokes, a neurological surgeon, did not see the appellant until 25 February 1999 when the appellant complained he had difficulty going back to work because of symptoms "of persistent neck pain and low back pain and of episodes of dizziness which are certainly associated with significant neck muscle spasm". He went on to observe "Indeed the dizziness has been associated apparently with true vertigo and on one occasion he fell and dislocated his left shoulder ...". Mr Stokes noted later in the report "As regards his dizziness, I do feel it is important that he has an opinion from a neurologist ... The episode of true vertigo is of course of considerable concern but I believe it is related to acute cervical muscle spasm". Mr Stokes did not offer any further opinion on the cause of either the dizziness or the vertigo and while he did not consider the appellant could "safely return to his practice" this was because this work is "is too intensive physically" and he did not expressly relate this opinion to either the dizziness or vertigo. I note that vertigo is often erroneously used as a synonym for dizziness, see Gould Medical Dictionary, but vertigo is a distinct condition. As has been indicated earlier, no neurological evidence was presented at trial and there is no further report or evidence from Mr Stokes in light of any neurological findings.

50 Professor Hollingworth first saw the appellant on 11 December 1998. His report and his evidence expresses the view that the appellant has an illness quite apart from what occurred as a result of the motor vehicle accident on 28 December 1996. He suggested a thorough neurological examination. He reported that the appellant had indicated his main problem after the accident to be pains in the ribs "but as they settled down he said he had cervical and lumbar symptoms, particularly rotation to the Right, which caused dizziness, tinnitus and frontal headaches". The appellant is reported by the Professor as saying, "he is getting a lot of giddiness" and a number of episodes are described. During the examination the appellant described to the Professor that he became giddy when he extends his neck and looks up. Examination failed to reveal any physical signs or confirmation of this dizziness. The Professor observed later in the report "He also has dizziness, which appears not to have been investigated, and I am not sure what the diagnosis is here. It may well be that he does have some partial narrowing of vessels feeding the brain." After noting that the symptoms described by the appellant were quite out of keeping with whiplash injuries and that it was unusual that the condition appears to be getting more frequent and is now resulting in falls, the Professor concluded "I think this man has another cause for his dizziness, unrelated to the motor vehicle accident and which has yet to be elucidated." He added later "I do not believe that (his dizziness) is related to the motor vehicle accident, and there is no evidence, at this stage, to show any connection".

51 What is apparent from this evidence is its paucity and inconsistency on the issue of dizziness and its cause. It is clear that dizziness was not a symptom of which the appellant complained to medical practitioners until the hesitant report to Dr Barr for the first time some eight months after the accident of "mild positional vertigo". Further, after that dizziness had developed very significantly as a symptom in nature, intensity, frequency and effect. It is also apparent that there was no evidence of the results of any vascular or neurological follow up as recommended by Mr Billett in March 1998, Professor Hollingworth in December 1998 and Mr Stokes in February 1999. While Mr Stokes considered that the dizziness was associated with significant neck muscle spasm, none of the reports, other than that of Professor Hollingworth, reveals any investigation of the cause of the dizziness and none apart from Professor Hollingworth offered any opinion about or explanation for the delayed onset or the increased intensity of this symptom over the years from the onset. Neither Mr Billett nor Mr Stokes gave evidence and the trial Judge had only their reports.

52 The trial Judge reviewed the relevant evidence in his reasons. For reasons identified by his Honour, and not directly related to the issue of dizziness, his Honour found himself impressed by the evidence of Professor Hollingworth and with reservations about the independence of Dr Barr. His Honour noted with care the relevant views of Mr Stokes including his concern to have an opinion from a neurologist and his view that the dizziness was related to cervical muscle spasm, but nevertheless was not able to be satisfied that the dizziness was associated with the soft tissue injuries to the neck caused in the accident.

53 While there was no evidence of the appellant suffering from dizziness pre-accident, there was clear reason not to be satisfied that dizziness was a symptom immediately following the accident and no medical witness other than Professor Hollingworth gave express consideration to the delayed onset or the developing intensity of this symptom. In these circumstances, in my view, it was open to his Honour not to attach significant weight to the absence of dizziness pre-accident and to prefer the opinion of Professor Hollingworth over the other medical opinions he had on the issue of dizziness.

54 Given the various views expressed in evidence and the matters identified in these reasons, and in particular the opinion expressly in point of Professor Hollingworth, it has not been shown that his Honour's finding was not properly open to him on the evidence. There is no basis for concluding that his Honour has, in some way, misused the advantage he had of being able to assess the weight and credibility of the evidence of those medical witnesses who actually gave evidence, including Dr Barr, Mr Anastas and Professor Hollingworth, or that there was evidence to the contrary of his finding that he should have accepted in preference to the evidence which he did accept.

56 This ground contends error in the finding of the trial Judge that he was not satisfied that the appellant had been unable to work as a chiropractor and in his acceptance of the opinion of Mr Anastas and Professor Hollingworth that he was able to do so.

57 Once again the primary basis for this ground is his Honour's reliance on the video tape evidence. I will not repeat what has already been said in this respect. Next the appellant repeats the matters relied on in support of ground 2 and I will not repeat what has been said in relation to those.

58 It is also contended that neither Mr Anastas nor Professor Hollingworth had detailed knowledge of chiropractic practice and that his Honour failed to give sufficient weight to the other opinions in evidence before him, particularly those of Mr Heglund and Dr Barr.

59 Accepting that, of the medical witnesses, only Dr Barr had expressed any detailed knowledge of chiropractic practice, it must be said that as the appellant's general practitioner his opinion concerning the cause and physical foundation of the symptoms of which the appellant complained is not in the same order as that of the specialist medical practitioners. There were also reasons for the reservations which his Honour expressed about the independence of Dr Barr. For similar but even more significant reasons, the opinions of the appellant's chiropractic partner Mr Heglund are not necessarily of great persuasiveness in this case.

60 The nature of the views of Mr Billett, Mr Stokes, Mr Anastas and Professor Hollingworth have already been sufficiently canvassed. It must be noted that Mr Anastas, alone of the expert witnesses, first saw the appellant within six months of the accident and that both Mr Anastas and Professor Hollingworth were cross-examined about this issue of capacity to practice. During evidence their views about the appellant's capacity to adequately perform a variety of functions said to be required in the course of chiropractic treatment were explored in some detail. In the course of their evidence there were put to Mr Anastas and the Professor various photographs of a variety of chiropractic manipulations on patients. Their opinions were tested in this way and his Honour had full opportunity to assess the validity and weight of their views. In these respects their evidence may be seen to be far better grounded and tested that the written reports of Mr Billett and Mr Stokes. To the extent that it is submitted that Professor Hollingworth had misunderstood the appellant's intentions on an issue and so had been "coloured" or prejudiced in his evidence about this very issue, this cross-examination allowed his Honour full opportunity to evaluate the merit of that contention.

61 It is also to be noted that his Honour's findings included findings which are not disputed that the appellant's complaints of ongoing neck stiffness and headaches were exaggerated. These symptoms, of course, along with the dizziness appear to have been relevant to, if not the foundation for, the opinions on which the appellant would now rely in support of this ground. It is also not without relevance to this issue whether the appellant's own evidence should have been accepted relating to the nature and genuineness of the appellant's one attempt to return to work and his reasons expressed in evidence for abandoning that attempt, and as to his failure to follow the recommendations of those specialist medical practitioners who did see him at different times as to further medical issues to explore and courses of treatment to follow. There is no complaint as to his Honour's treatment of these issues in the reasons. They do little to add veracity or conviction to the appellant's evidence that he had to abandon his practice and was unable to resume it because of his symptoms.

62 In my view, it has not been shown that his Honour's finding was not open to him on the evidence, or that he misused the advantage he had in evaluating the weight to be attached to the witnesses who gave evidence before him, or that in assessing the varying evidence on this issue he overlooked material evidence, or that he ought to have preferred some or all of the evidence which was contrary of that of Mr Anastas and Professor Hollingworth.

64 The fourth ground does not call for detailed consideration. It merely explores the findings as to actual damages which the appellant contends should have been made had the appellant succeeded on the earlier grounds of the appeal.

65 For these reasons the appeal should be dismissed.

66 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Parker J. I agree with those reasons and I too would dismiss the appeal.