Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Amaca Pty Limited v Doughan [2011] NSWCA 169
• Hearing dates: 26 May 2011
• Decision date: 30 June 2011
• Before: Giles JA at 1, McColl JA at 2, Sackville AJA at 3.

Decision

1. Appeal dismissed.

2. The Appellant pay the Respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DUST DISEASES TRIBUNAL - Appellant claims that Tribunal made factual findings adverse to its case without prior notice - whether Tribunal sufficiently flagged the issues - whether complaint of procedural unfairness made out.
• Legislation Cited: District Court Act 1973 (NSW); Dust Diseases Tribunal Act 1989 (NSW); Motor Accidents Compensation Act 1999 (NSW)
• Cases Cited: Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481; Escobar v Spindaleri (1986) 7 NSWLR 51; Goodwin v Commissioner of Police [2010] NSWCA 239; Jones v National Coal Board [1957] 2 QB 55; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390; Lindsay v Health Care Complaints Commission [2010] NSWCA 194; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19
• Category: Principal judgment
• Parties: Amaca Pty Limited (Formerly James Hardie & Co Pty Ltd) (Appellant); Noel John Doughan (Respondent)
• Representation: Counsel: Mr D J Hooke SC with Mr J C Sheller (Appellant); Mr D J Russell SC with Mr S Tzouganatos; (Respondent); Solicitors: Ellison Tillyard Callanan (Appellant); Turner Freeman (Respondent)
• File Number(s): CA 2010/309773

Decision under appeal

• Jurisdiction: 9115
• Citation: Doughan v Amaca Pty Limited [2010] NSWDDT 13
• Date of Decision: 2010-09-03 00:00:00
• Before: Curtis J
• File Number(s): DDT 8155 of 2008

Judgment

1 GILES JA : I agree with Sackville AJA.

2 McCOLL JA : I agree with Sackville AJA's reasons and the orders his Honour proposes.

3 SACKVILLE AJA : This is an appeal from a decision of the Dust Diseases Tribunal (Judge Curtis) given on 3 September 2010. His Honour gave judgment for the plaintiff, the present respondent, in the sum of $369,079. The respondent, a retired builder aged 80 at the date of the trial, had contracted asbestosis as the result of intensive exposure to asbestos products manufactured by the defendant, the present appellant. Liability was admitted and the only issue at the trial was the quantum of damages.

4 The appeal to this Court is brought pursuant to s 32 of the Dust Diseases Tribunal Act 1989 (NSW) (" DDT Act "), which relevantly provides as follows:

"(1) A party who is dissatisfied with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence may appeal to the Supreme Court.

(2) The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit.

(3) A decision of the Supreme Court on an appeal under this section is binding on the Tribunal and on all parties to the proceedings in respect of which the appeal was made."

"Decision" is defined by s 3 to include " judgment, order and ruling ".

5 The appellant's written submissions identified three " essential complaints " about the judgment of the primary Judge. These complaints concerned the following:

"(a) Findings that the respondent had:

(i) exaggerated the extent of damage (including disabilities) in his claim for damages arising from a previous motor vehicle accident;

(ii) falsely conceded in cross-examination before the primary judge that his degree of disability consequent upon that accident was as he had asserted to doctors and the insurer in that claim; but

(iii) had told the truth in his evidence in chief before the primary judge where he played down the effects of the motor vehicle accident.'

(b) Failing to consider, address and reconcile the appellant's case based on the matters in (a) above and the contemporaneous documents (including medical opinions and histories, radiological findings, particulars of claim and a statement of the respondent).

(c) Awarding damages for losses already compensated for in the motor vehicle claim (whether truly suffered there or whether compensated for in their absence by reason of the appellant's deceit)."

6 The appellant's written submissions contended that each of the matters complained of involved an error law on the part of the Tribunal, as follows:

• In making the findings identified in complaint (a), the Tribunal denied procedural fairness to the appellant, since neither party had submitted to the Tribunal that such findings should be made. Moreover, the primary Judge gave no notice to the appellant of his inclination to embark upon what was described as " an extraordinary process of reasoning ".
• The failure to address the matters identified in complaint (b) constituted a failure by the primary Judge to exercise the jurisdiction conferred upon him.
• The award of damages referred to in complaint (c) was erroneous in law because the respondent was " compensated " when he had suffered no loss or, alternatively, received double compensation for the same loss.

The third contention was not, however, pressed by the appellant in its oral submissions and need not be further considered.

7 Mr Hooke SC, who appeared with Mr Sheller for the appellant, submitted that if the appeal is allowed, the proceedings should be remitted to the Tribunal, differently constituted, for rehearing in accordance with law. Mr Hooke argued that, where the proceedings before the Tribunal have miscarried in consequence of a denial of procedural fairness, the interests of justice may require that the new trial take place before a differently constituted tribunal: Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1, at [11]-[17], per Mason P; at [141]-[142], per Ipp JA. This was such a case.

RELATIONSHIP BETWEEN THE MOTOR ACCIDENT INJURIES AND ASBESTOSIS

8 Before summarising the primary Judge's reasons for judgment, it is convenient to provide background to an important issue that arose at the trial. The appellant's case was that, although the respondent suffered symptoms attributable to asbestosis, his " functional capacity " continued to be impaired in consequence of injuries he had sustained in November 2004 in a motor vehicle accident. Accordingly, so the appellant had argued, the assessment of damages in respect of the respondent's asbestosis had to take account of the fact that, the respondent's functional capacity would have been impaired even if he had never contracted asbestosis. The appellant's senior counsel put the submission this way at the trial ( Black 83 ):

"this man in terms of the stage of his disease at this point, has not lost any functional capacity. He does endure some shortness of breath during some activities, but there is nothing that he was able to do before his asbestosis became symptomatic, which he cannot any longer do."

9 A comparison between the particulars provided by the respondent in respect of his motor vehicle claim and the particulars of disabilities produced in support of his claim against the appellant shows that, potentially at least, there was some degree of overlap between the two.

10 The particulars of injuries relating to the motor vehicle claim included the following:

"(a) Ongoing aching and stiffness in his spine;

(b) Aching and stiffness in his left shoulder, particularly between the shoulder blades with stiffness at the base of his neck;

...

(d) Aching in right foot;

(e) Unable to walk for great periods/distance;

(f) Reduced movement in thoracic spine;

...

(k) Unable to sit/stand for prolonged period of time."

11 The respondent's particulars of disabilities resulting from asbestosis included the following:

"1. ... the [respondent] suffers from progressively worsening shortness of breath on exertion. This is now interfering substantially in the [respondent's] ability to engage in activity.

2. The [respondent] suffers from severely reduced activity levels as a result of asbestos disease.

3. The [respondent] is limited to walking about 3 to 4 blocks at a slow pace and is restricted on walking up hills and stairs.

4. The [respondent] is restricted in performing any heavier tasks around the home."

12 The main attack by the appellant on the primary Judge's assessment of damages was directed to the award of $150,000 by way of general damages. At the trial the appellant's senior counsel submitted that general damages ought to be in the range of $70,000 to $80,000, but seemed to accept that an award under this head could be as high as $100,000. Given this submission, it is not clear that even if the appellant's complaints are made out a retrial would necessarily lead to a substantially lower award of damages.

PRIMARY JUDGMENT

13 The primary Judge noted the respondent's evidence as to the injuries he had sustained in the motor vehicle accident. His Honour quoted (at [4]) from the respondent's evidence in chief where he said, among other things, that the " crush injury " to his right foot sustained in the accident no longer gave him any trouble whatsoever. His Honour also noted (at [5]) that in cross-examination the respondent admitted that he had suffered injuries to his neck and shoulders in the accident and that thereafter he had an exercise tolerance of only 10 or 15 minutes before experiencing pain in his back and shoulder. He also conceded that he had never got back to the point of doing extended walks.

14 The primary Judge recorded (at [6]) that in the proceedings against the insurer of the motor vehicle (" third party claim "), the respondent had claimed that he suffered ongoing aching and stiffness in his spine, reduced movements in his left shoulder, an inability to lift heavy items to sit or stand for prolonged periods of time and disturbed sleep due to shoulder pain.

15 The respondent gave evidence that he thought he had settled his third party claim for about $70,000 to $90,000. In fact, as his Honour found, the respondent had settled the claim in July 2007 for $150,750 clear. The primary Judge said (at [7]) that it was difficult to believe that the respondent's recollection as to the amount of the settlement was genuine. While this indicated that the respondent's evidence was to be scrutinised carefully, the primary Judge nonetheless accepted (at [49]) the respondent's evidence as to the extent of his disabilities. His Honour took into account that the respondent had described his disabilities in moderate language and that his description was consistent with the medical evidence as to the likely effect of the objective lung damage.

16 The primary Judge then described (at [10]-[11]) the respondent's breathlessness when walking and the impact that condition had on his domestic tasks, which included looking after his wife who had a serious illness. His Honour noted (at [13]) that the appellant's senior counsel had not suggested that the respondent was exaggerating his symptoms.

17 The primary Judge referred in some detail to medical reports prepared and evidence given by:

• Dr McEvoy, a highly experienced respiratory physician, who had examined the respondent in October 2009; and
• Dr Heiner, a consultant thoracic physician, who examined the respondent in July 2008 and June 2010.

18 His Honour made (at [28]-[30]) the following findings:

"28. [The respondent] is presently unable to perform more than the slightest physical tasks without the onset of disabling breathlessness. He is presently able to drive his car, shop for provisions and cook for himself and his wife. He is unable to perform heavier household tasks and requires the services of a cleaner for two hours each week. He will deteriorate although the rate and extent of this deterioration is uncertain.

29. In the light of the evidence of Dr McEvoy that it was unlikely that [the respondent] will become highly dependent before his death, and Dr Heiner's concession that he does not know if this will be the case I cannot find that it is probable that [the respondent] will require a high degree of care before the terminal event which causes his death.

30. He will probably live for another six years, and become moderately dependent in one year's time, although still able to cope with independent living. This moderate dependency will probably continue until his death."

19 The primary Judge next dealt with the respondent's entitlement to general damages. His Honour rejected (at [31]) the appellant's submission that the respondent was substantially disabled by serious back, neck and shoulder injuries suffered in the car accident. That submission, as his Honour recorded (at [32]) rested on histories taken and complaints made to Dr Langley and Dr Jackson, doctors who examined the respondent for the third party insurers and on the respondent's " apparent concessions " in cross-examination.

20 His Honour made (at [33]) the following finding:

"It seems obvious to me that [the respondent] exaggerated his complaints to those doctors, and I think that concessions made by [the respondent] in cross-examination as to his restrictions before he developed breathlessness were made by him in order to avoid the obvious conclusion by the Tribunal that he exaggerated his disabilities in the third-party proceedings for the purpose of obtaining money, and may do it again." (Emphasis added.)

21 His Honour then referred to reports prepared by Dr Brown (who had examined the respondent at the request of the appellant's solicitors), Dr Scott (the respondent's treating physician) and Dr Ringrose (who prepared a report at the request of the respondent's solicitors). He concluded (at [38]-[40]) as follows:

38. Breathlessness is a terrible affliction, compounded in the case of [the respondent], by the sure knowledge that it will worsen and almost certainly cause his premature death.

39. I bear in mind that, unlike many other sufferers of lung disease, [the respondent] does not and will not suffer physical pain, as well as the fact that he is of advanced years and was, before the onset of breathlessness, limited somewhat by the effects of age and the motor vehicle injury. To my mind the most relevant consideration in the assessment of damages is the fact that the defendant's tort will almost certainly cost [the respondent] his life, and he knows it.

40. I allow general damages in the sum of $150,000."

22 In addressing the damages that should be awarded in respect of future care and services, the primary Judge found (at [44]), for reasons he gave in some detail, that the reports provided by two occupational therapists were of " limited assistance ". Doing the best he could in respect of a " five year period of moderate dependence ", his Honour thought it reasonable to allow two hours per day for domestic assistance ($392.00 per week), 3.5 hours per week for personal care ($153.90) and to make an allowance for taxi fares ($50.00). these allowances totalled $30,986.80 per annum which, after applying the deferral tables, produced an amount of $141,919.54 for the period of five years (at [55]).

23 His Honour considered that this amount should be reduced by 20 per cent (to $113,535.64) to allow for the possibility of more limited care being required (at [56]). A further sum had to be allowed for the chance, which his Honour assessed at 40 per cent, that the respondent would require intensive care during the last six months of his life. His Honour, after applying the appropriate multiplier, allowed $18,939.47 for this element of future care, making a total award under this head of $132,475.10.

24 The make-up of the primary Judge's award of damages is shown in the following table, taken from the judgment (at [68]):

	$
General Damages	150,000
Interest on General Damages	3,000
Loss of expectation of Life	3,500
Past Services	4,160
Future Care and Assistance	132,475
Invalid Equipment and Adaptions	7,044
Cost of Past Medical Expenses	1,400
Cost of Future Medical Expenses	67,500
TOTAL	369,079

REFINEMENT OF THE APPELLANT'S CASE

Nature of an Appeal Under s 32(1) of the Dust Diseases Tribunal Act

25 As was explained by Allsop P (with whom Giles and Basten JJA agreed) in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; 74 NSWLR 481, at [47]ff, enactments authorising a person to appeal to the Supreme Court from decisions of tribunals or inferior courts differ widely in their language and effect. There appears to be " no discernible pattern or purpose behind the differences in language in different statutes ": Goodwin v Commissioner of Police [2010] NSWCA 239, at [10], per Basten JA (with whom McColl JA and Sackville AJA agreed). Nonetheless, in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, the joint judgment emphasised that consideration of the effect of particular statutory provisions conferring rights of appeal on or in relation to questions of law must commence with the language of the statute: at [89], per Hayne, Heydon, Crennan and Kiefel JJ.

26 In Seltsam Pty Ltd v Ghaleb , Basten JA noted (at [149]) that the language of s 32(1) of the DDT Act , despite being far from unique in New South Wales, is " awkward ". His Honour preferred a reading of s 32 that requires that the relevant party be someone who is " dissatisfied ... in point of law " and that the subject matter of the dissatisfaction be a " decision of the Tribunal ". A " decision ", in accordance with the definition in s 3 of the DDT Act includes a judgment, order or ruling. Allsop P in B & L Linings (at [68]) referred to Basten JA's discussion in Seltsam as " helpful ".

27 It is not entirely clear whether the expression " question " or " point " of law is wider than " error of law ": see Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653, at [124], per Spigelman CJ; Seltsam , at [150], per Basten JA. However, if a party appeals pursuant to s 32(1) of the DDT Act , it has generally been thought necessary to identify:

"a decision, whether explicit or implicit, in relation to a question of law which has been raised or determined by the Court or tribunal from which the appeal is brought. The subject matter of the appeal is that specific decision rather than the final order, which will usually involve issues of law, fact and evaluation."

Goodwin v Commissioner of Police , at [10]: cf Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19, at [14], per Basten JA.

The Appellant's Case

28 It was pointed out in oral argument in this Court that the appellant's amended notice of appeal does not identify the decision or decisions of the Tribunal which are the subject of the appeal. As Mr Hooke accepted, the amended notice of appeal merely alleges that the primary Judge erred " in point of law " in a number of respects. Mr Hooke did not suggest that the appellant's written submissions carried this aspect of the appeal very much further.

29 In response to observations made in oral argument, Mr Hooke submitted that the errors of law on which the appellant relied " contaminate[d] the ultimate judgment ". However, he also identified three specific decisions made by the primary Judge challenged by the appellant. In supplementary written submissions made by leave after the hearing, Mr Hooke described the three decisions as follows:

"(a) a decision by the primary judge that it he would pay no regard to the evidence of Drs Langley, Gillett and Jackson [all of whom had examined the respondent in connection with his third party claim] notwithstanding the absence of any objection or challenge to their evidence which supported the respondent's motor vehicle claim for damages and where such disregard was not forecast to the parties ;

(b) a decision by the primary judge that he would proceed on the basis that the respondent had exaggerated his complaints to those doctors (at [33]) where there was no evidence or submission to that effect and such a decision was not forecast to the parties ; and

(c) a decision by the primary judge to proceed contrary to the concessions made by the respondent in cross-examination [concerning the extent of his disabilities] where there was no submission that he should do so and such a decision was not forecast to the parties ." (Emphasis in original.)

30 In brief written submissions, also filed by leave after the hearing, Mr Russell SC, who appeared with Mr Tzouganatos for the respondent, submitted that none of these three so-called decisions was a " decision in point of law " within the meaning of s 32 of the DDT Act . This submission was not supported by detailed reasoning.

31 Mr Hooke contended that decision (a) ([30] above) was a " decision ... in point of law " for the purposes of s 32(1) of the DDT Act . He relied for this contention on Goodwin v Commissioner of Police . In that case, this Court held that the District Court, having identified questions of causation as central to the plaintiff's claim and having decided the case without answering those questions, had implicitly decided that it was not necessary to do so. The Court of Appeal characterised this as a decision reached by the District Court on a point of law for the purposes of s 142N of the District Court Act 1973 (NSW) (which is in substantially the same terms as s 32(1) of the DDT Act ): at [22], [43].

32 It is not necessary to decide whether the decision (a) is within the principle applied in Goodwin v Commissioner of Police . As I shall explain (at [55]-[59] below), the appellant has not established that the primary Judge made a decision not to pay any regard to the evidence of the third party doctors. His Honour dealt with their evidence in a different way. The factual basis for the attack on the decision (a) is therefore wanting.

33 The decisions (b) and (c) are in a different position. The appellant's attack on each of those " decisions " is essentially based on an alleged failure by the primary Judge to accord procedural fairness to the appellant. It has been accepted by this Court that an appeal may be brought under s 32(1) of the DDT Act by a party dissatisfied with the ultimate decision of the Tribunal by reason of what is said to be a denial of procedural fairness by the Tribunal: Seltsam v Ghaleb , esp at [159], per Basten JA; Escobar v Spindaleri (1986) 7 NSWLR 51, at 53, 57, per Kirby P; at 60, per Samuels JA. Mr Russell made no submission that Seltsam v Ghaleb , insofar as it decides that a denial of procedural fairness by the Tribunal permits the party adversely affected to appeal against the Tribunal's decision pursuant to s 32(1) of the DDT Act, should not be followed. In the absence of any such submission, it is open to this Court to consider the appellant's complaints founded on alleged breaches of the requirements of procedural fairness.

CONDUCT OF THE TRIAL

34 To understand and evaluate the appellant's complaints, it is necessary to say something as to the conduct of the proceedings before the primary Judge.

Third Party Reports

35 The appellant tendered at the trial three reports that had been prepared by medical experts in connection with the respondent's third party claim. The reports were by:

• Dr Gillett, an orthopaedic surgeon, dated 23 February 2008;
• Dr Langley, also an orthopaedic surgeon, dated 13 June 2006; and
• Dr Jackson, a musculoskeletal specialist, who prepared a certificate under the Motor Accidents Compensation Act 1999 (NSW) as to the respondent's impairment, dated 5 February 2007.

I refer to these doctors collectively as the " third party doctors ".

36 Each of the third party doctors examined the respondent. The reports included summaries of the respondent's symptoms as reported by him. Each report indicated that the respondent suffered some degree of continuing pain, discomfort and impairment in consequence of the motor vehicle accident.

37 Dr Langley, for example, recorded the respondent's " present complaints " as follows:

"His present complaints are of ongoing aching and stiffness in his spine, aching and stiffness in his left shoulder, particularly between the shoulder blades with stiffness at the base of his neck, aching in his left thumb particularly over the first metacarpal and aching in his right foot.

He is a builder by trade and before the accident he was building some duplexes, but he has not returned to this work.

His main recreation was walking forty five minutes a day but he is unable to do this now."

38 Dr Langley expressed the following opinion:

"This man has ongoing symptoms and impairments to his body affecting his thoracic spine, his left shoulder and his left thumb as a result of injuries he suffered in a motor vehicle accident on 10 November 2004.

His conditions have been treated conservatively, with physiotherapy. He did not have any therapy for his thumb as the fracture was diagnosed too late for treatment.

His activities of daily living have been interfered with as a result of the accident and these are stated on the attached ADL form."

39 Dr Jackson recorded the following:

"The [respondent] told me that his neck pain is now worse and he experiences nightly insomnia and painful stiffness on walking. His back pain experience has deteriorated. He continues to suffer painful stiffness in the left thumb and foot. He has painful stiffness and weakness of the left shoulder. Right shoulder regions symptoms have settled.

He has not returned to work as a carpenter and cannot participate in his normal exercise regime. He told me he was last well 2 years ago when he was very fit."

40 Dr Jackson's determination and summary included the following passages:

"I have determined that the injuries are stable and stationery [sic] because a substantial period of time has elapsed since the accident and the [respondent] has received standard orthodox medical care and is at maximum medical improvement. It is unlikely that the [respondent's] medical condition will change by more than 3% in the next year with or without medical treatment.

The following injuries caused by the motor accident gives rise to whole person impairment, which, in total, IS GREATER THAN 10% :

Thoracic spine-compression fracture

Left thumb-fracture

Neck-musculoligamentous injury/STI

Left shoulder-rotator cuff damage/STI

Right foot-joint damage/STI." (Emphasis in original.)

Re spondent's Reports

41 The respondent tendered a number of medical reports in support of his claim. These addressed the extent of his disabilities attributable to asbestosis and the likely progression of the disease. Most of the reports made no reference to the injuries suffered by the respondent in November 2004. However, several recorded the respondent's medical history and his own account of the extent to which he suffered continuing disabilities as a result of the motor vehicle accident.

42 Dr Ringrose, a consultant physician, prepared a report on 29 July 2009 at the request of the respondent's solicitors. Dr Ringrose expressed the opinion, based in part on the respondent's account of his symptoms, that " there is no residual whole person impairment as a result of the motor vehicle accident ". Dr Ringrose assessed the respondent's " Whole Person Impairment " as a consequence of asbestosis as 26 per cent, but assessed the Whole Person Impairment following the motor accident as nil. Dr Ringrose referred in his report to Dr Jackson's medical assessment of 2 February 2007, but did not address any possible inconsistency between his own assessment and that of Dr Jackson. Dr Ringrose was not cross-examined.

43 Dr Brown, a thoracic and sleep physician prepared a report dated 17 March 2009. He commented on co-morbidities that might have an impact on the respondent's ability to provide for himself. He observed that the respondent had mild back pain which " is not causing any disability at present ".

44 Dr Scott, another thoracic and sleep physician, reported on 21 April 2008, as follows:

"[The respondent] gives a background history of chronic exertional dyspnoea, more marked since early 2007, and noticeable when he is sitting quietly, including when lying in bed. His functional ability however is reasonable, with his walking distance at a median pace, at least 2 km. He is able to walk up two flights of stairs, and is independent with his household ADLs. This breathlessness is associated with a chronic non-productive cough for at least two years, often due to a tickling sensation in the back of his airway. He describes occasional wheezing, present on most days, but without any history of asthma. He gives no other background history of any known pulmonary disorder."

Respondent's Evidence

45 The respondent was asked in his examination in chief about the progress of the injuries he had sustained in the 2004 accident. His evidence was that he had arthritis in his thumb and his back gave him " a little bit [of trouble] every now and then. Not a lot ". The respondent also said that he had gone back to walking before he began to experience problems with breathlessness. He was walking " the same distances " (apparently meaning the same distances as before the accident) without any limp or other problems. When asked whether he had any residual problems from the accident, besides his thumb and back, the respondent answered " no, not really ".

46 Early in his cross-examination, the respondent agreed that his evidence indicated that, apart from his thumb and a little back pain, by early 2007 he was not experiencing any problems from the motor vehicle accident. The cross-examiner then took the respondent through the histories he had given to the third party doctors. The cross-examiner obtained from the respondent a number of concessions (as they were described in this Court).

47 The following extracts from the respondent's cross-examination give an indication of the concessions that were obtained:

"Q. You had painful stiffness and weakness in the left shoulder, didn't you.

A. Yes.

Q. That was continuing by early 2007.

A. Yes.

...

Q. Lifting things was a problem for you ever since the 2004 car accident.

A. Well for some time, yes.

Q. Well it remained a problem all the way through to at least 2007 did it not.

A. Yes.

Q. Any activity involving lifting or carrying things have been a problem for you, has been a problem for you ever since the car accident has it not.

A. Well only muscle wise, yes, back wise.

...

Q. And climbing stairs or ladders was a problem for you up to February 2007 was it not.

A. Up till then probably.

Q. Yes, and continued has it not.

A. No, not, hasn't continued.

Q. Well are you saying that all these problems that continued to February 2010 suddenly got better do you.

A. Yes, I'm a lot, I'm better, yes.

Q. Did they get better when you settled your claim against the motor vehicle insurer.

A. Well I don't know.

...

Q. Do you think that it would be accurate to say that by February 2007 you still had very, very limited movement of your neck because of pain and the after effects of the motor car accident.

A. Do I. Yes, yes.

Q. So you still had very significant restriction of movement in your neck two and a half years after the car accident.

A. [Yes].

...

Q. You had significant restriction of movement and weakness in your shoulder by February 2007.

A. Left shoulder, yes. Yes.

Q. Did that start to get better at some stage.

A. I still have difficulty with it.

Q. So problems with reaching overhead.

A. Yes, yes.

Q. Problems with lifting.

A. No, not lifting, only lifting the arm right up over my head and I can't sleep on that side.

...

Q. Does it accord with your memory, ... that by the middle of 2006 you were then only able to walk about six blocks.

A. That's probably right.

Q. Because after this car accident, walking for even that distance caused you pain in the back which caused you to have to stop, is that right.

A. Yes. Yes.

Q. And the most you could do was about 10 or 15 minutes.

A. Yes, well I'm still having that difficulty.

Q. Yes. You still have that difficulty with back pain.

A. Back pain, yes, when I'm walking.

...

Q. See you now tell his Honour that you do have ongoing problems with not only your neck but your left shoulder as a result of the car accident.

A. Yes.

Q. Isn't that right.

A. Yes. Yes.

...

Q. See, over the page, on page 3 of your statement if you go back to that, Mr Doughan, you see that you convey to the insurance company ...

the great extent to which you have suffered both physically and financially because of the effects of the motorcar accident. Is that not right.

A. Yes.

Q. You told them that your whole lifestyle had changed. Is that right.

A. Yes.

Q. And that you were able to walk and sit for short periods only.

A. That's right.

Q. That your enjoyment - you agree with that.

A. Yes.

Q. That your enjoyment of walking was limited. See that.

A. Yes.

Q. And that you were unable to even drive around your work sites without pain and your back becoming extremely sore; do you see that.

A. Yes.

Q. Was all of that true.

A. Yes.

Q. And in paragraph 14, you could not estimate the total cost of the accident to you because your costs and loss of income were still ongoing; do you see that.

A. Yes.

Q. When was it that Mrs Doughan told you that she felt it would be a good idea to retire.

A. For years. Many times.

Q. Well had you decided by 2005 that you were going to retire.

A. Yes.

Q. Well how would your loss of income be ongoing from the car accident if you had already decided to retire.

A. Well up till then I - I don't know, it - no, I definitely decided to retire as soon as I was knocked around.

Q So this statement that your loss of income was ongoing in 2006 was simply untrue was it.

A. When you put it that way, yes."

Parties' Submissions at the Trial

48 The parties' representatives made oral submissions to the primary Judge. Mr Hooke, senior counsel for the appellant, commenced his address by submitting that his Honour should treat the respondent's evidence " with great caution ". Mr Hooke contended that the respondent had put a case to the third party insurer that, because of the motor vehicle accident, he had been unable to return to work. In fact, as the respondent had conceded in his evidence, he had gone back to work in 2005 and had then decided to retire.

49 Mr Hooke submitted to his Honour that the respondent's evidence as to his capacity to work had to be read in the context of the histories he had given to the doctors dealing with his third party claim. This prompted the following comment from the primary Judge:

"I think I can read into it that he did exaggerate short of fraud but people do exaggerate when making claims, it's regrettable, if they're eying off for it but this why in this case I'm more impressed by the objective material than by his subjective material. So I take that."

50 Mr Hooke then referred to the respondent's statement to Ms Brown (the occupational therapist) that he had recovered fully from the accident and observed that that was the way Mr Russell had opened the respondent's case. But, so he argued, the respondent's claim of complete recovery was markedly different from the picture presented in cross-examination, when the respondent admitted to continuing problems, including restrictions on his capacity to walk for more than 10 or 15 minutes. At that point, Mr Hooke made the submission, referred to earlier (at [8] above) that the respondent had lost no functional capacity by reason of the asbestosis other than some shortness of breath.

51 Mr Russell commenced his submissions on behalf of the respondent by acknowledging that Mr Hooke had cross-examined " to some effect " in suggesting that the respondent had exaggerated his disabilities when making the third party claim. Mr Russell submitted that any exaggeration by the respondent in relation to the third party claim did not provide a basis for the primary Judge to conclude that the respondent had " exaggerated the level of his disability at the moment ". Mr Russell pointed out that it had not been suggested to the respondent that he was exaggerating his current symptoms and that the objective medical evidence supported a finding that the respondent's lung volume had diminished. Mr Russell submitted that the evidence supported a conclusion that the disabilities associated with asbestosis would gradually get worse.

52 Mr Russell later returned to the issue of whether a finding should be made that the respondent had significant disabilities " nowadays " (that is, at the date of the hearing) resulting from the motor vehicle accident. Mr Russell made the following submission:

"True it is that he [the respondent] had some residual problems. He told you in chief about the thumb and the back and he accepted to Mr Hooke in cross-examination that the shoulders were still a problem but these weren't disabling problems at all. For that very reason the [respondent's] lawyers had the [respondent] seen by Dr Ringrose who is a consultant physician ...

While Dr Ringrose gratuitously gave an opinion about respiratory problems, his prime task was to examine this man against the background of the injuries suffered in the car accident to say what his problems were nowadays in respect of the residual difficulties ... [H]e had an accurate history of the injuries suffered, but he then undertook a clinical examination knowing that he had those fractures and crush injuries in the past. His assessment of present impairment from the motor vehicle accident is [that the] right foot, cervical spine and thoracic spine are all normal and there is no residual disability. That is exactly what the [respondent] said.

With regard to the left wrist and the first metacarpal bone, there is some residual discomfort but no function impairment. That is what he said as well. It is annoying but it does not stop him doing things. The left shoulder only pains at night when he lies on it and there is no function impairment. He does have some lumbar pain which is presumably secondary to osteoarthritis. In summary in my opinion there is no residual whole person impairment as the result of the motor vehicle accident. That last test of course is not terribly relevant from your Honours point of view, because as we see in these motor accident cases, people are moderately disabled but cannot get over the number.

I might say that he was cross-examined to suggest that he somehow had not given a full account of his problems from the motor vehicle accident, because he had not mentioned the shoulder incident for one. But when your Honour looks at the transcript, the questions that I had asked in-chief were, 'Do you have a problem with your left thumb? Do you have a problem with your back? How is your right foot nowadays?' My memory is that I did not ask him about the shoulders and therefore he did not say anything about them. So there was not any active concealment on his part, the truth about minor shoulder problems, and he seems to have told Dr Ringrose about that precisely. So his credit is not affected at all by that, and more importantly, he does not seem to have any significant ongoing physical restriction on his mobility or his capacity to do tasks, caused by the motor vehicle accident. So he is not a person who comes to the Court as a disabled person, further disabled by asbestosis. He [is] an active, and could have been a very active 79 year old but for this disease."

53 Later in his submissions, Mr Russell suggested that an appropriate figure for an award of general damages was $220,000. This suggestion clearly assumed that the primary Judge would find that the injuries sustained in the motor vehicle accident did not create any significant ongoing physical restriction on the respondent's mobility or his capacity to perform tasks.

54 In his reply, Mr Hooke returned briefly to the subject of the motor vehicle injuries. He noted that the respondent had relied on the history given to Dr Ringrose as supporting his evidence in chief. Mr Hooke submitted that when his Honour examined the transcript of the respondent's cross-examination, he would come to a different view.

REASONING

Failure to Pay Regard to Evidence

55 The appellant's first contention is that the primary Judge made a decision to ignore the evidence of the third party doctors and that this decision was erroneous in law, given that there was no objection or challenge to their evidence.

56 A fair reading of the primary judgment shows that his Honour neither made any such decision, nor ignored the evidence of the third party doctors. His Honour specifically noted (at [32]) that the appellant relied on the histories and complaints recorded by Dr Langley and Dr Jackson. There is no basis for concluding that his Honour was not well aware of the matters that they had recorded in their respective reports.

57 Nor did the primary Judge ignore the opinions of the third party doctors as to the disabilities suffered by the respondent at the dates they prepared their respective reports (several years before the trial). He discounted, at least to some extent, their evidence as to the respondent's disabilities on the ground (at [33]) that the respondent had exaggerated his complaints to those doctors.

58 I do not understand the primary Judge to have found that the third party doctors were altogether wrong in their assessments of the respondent's condition, nor that the respondent was not suffering any disabilities at all as a result of the accident. Rather the primary Judge considered that the respondent's disabilities in 2006 and early 2007 were not so severe as to undercut his own evidence as to his disabilities at the date of the trial or the opinion of the doctors who had examined him in 2009 and whose reports his Honour quoted. Their opinion, in substance, was that the only relevant co-morbidities (as Dr Brown and Dr Ringrose reported) were mild back pain, discomfort in the left wrist and some continuing pain in the respondent's left shoulder. In their view, the identified co-morbidities resulted in some residual discomfort but no significant residual disability. In essence, the primary Judge adopted their opinions as to the extent of the co-morbidities.

59 The appellant has not made out the first error of law attributed to the primary Judge.

Procedural Fairness

60 There is more substance to the appellant's second and third contentions. They raise similar issues that are also closely connected as a matter of fact. Accordingly, they can be considered together.

Principles

61 Neither party devoted particular attention to the principles governing the circumstances in which a trial judge is obliged to draw a possible factual finding to the attention of the legal representatives of a party and to invite submissions in relation to that finding. This may be because the principles were regarded as uncontroversial.

62 The general principle is that a party is entitled to a fair trial at which he or she has the opportunity to put the case to the court: Jones v National Coal Board [1957] 2 QB 55, at 67, approved in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141, at 145. There will be a denial of a fair trial if a party is deprived of an opportunity to deal with a material issue that is resolved adversely to that party. This is a factual inquiry, which requires the party complaining to demonstrate that unfairness has occurred in the particular circumstances of the case: Seltsam v Ghaleb , at [160], per Basten JA.

63 A party may be denied procedural fairness, for example, where the court takes into account its own observations of a party's behaviour in the courtroom, but fails to draw that party's behaviour to the attention of counsel or to provide an opportunity for submissions to be made on the point. This is not an absolute rule, but depends on the circumstances, including whether counsel has had the opportunity to observe the behaviour and the significance of the behaviour to the result: see Lindsay v Health Care Complaints Commission [2010] NSWCA 194, at [233]-[241], per Sackville AJA and cases cited there.

A Denial of Procedural Fairness?

64 As to the trial, the parties were clearly at issue as to whether the respondent, at the time symptoms associated with asbestosis became apparent, continued to suffer from disabilities as a result of the 2004 motor vehicle accident and, if so, to what extent. They were also at issue as to whether the disabilities resulting from the motor vehicle accident continued to affect the respondent at the time of the trial and, if so, to what extent.

65 The reports of the third party doctors suggested that the respondent was suffering from significant disabilities in 2006 and early 2007. Their reports, if accepted, would have supported a finding that in late 2006 or early 2007 the respondent was able to walk only for short periods and was unable to perform moderately strenuous household tasks. The respondent's own evidence in cross-examination tended to support the opinion expressed by the doctors.

66 The third party doctors, being unaware of the respondent's asbestosis, did not address the extent to which asbestosis had increased or was likely to increase the respondent's disabilities. Indeed it is fair to say that the evidence as a whole, including the respondent's cross-examination, does not seem to have been directed towards establishing the precise extent to which the onset of symptoms associated with asbestosis increased the respondent's disabilities, over and above disabilities from which he was already suffering or was likely to suffer, independently of the asbestosis.

67 The primary Judge also had to consider the evidence of the medical specialists who examined the respondent in connection with his asbestosis damages claim. The evidence of Dr Ringrose, in particular, was that the respondent, although suffering some discomfort as the result of his motor vehicle injuries, was left with no functional impairment. Dr Ringrose, who was not cross-examined, was aware of Dr Jackson's report prepared two years earlier.

68 The respondent's evidence in chief was consistent with Dr Ringrose's assessment. His cross-examination was primarily directed to establishing the accuracy of the respondent's accounts of his symptoms to the third party doctors. It is by no means obvious that the respondent's evidence in cross-examination was irreconcilable with Dr Ringrose's opinion. The respondent claimed that he was a lot better, so far as the motor vehicle injuries were concerned, in 2010 than he had been several years earlier. The respondent accepted that he continued to experience some problems. However, Dr Ringrose did not suggest that the respondent was free of all disabilities resulting from the motor vehicle accident. His opinion was that they no longer caused any functional impairment.

69 The respondent's credit was impugned in cross-examination. Mr Hooke invited the primary Judge to treat the respondent's evidence " with great caution ". Mr Hooke's submissions drew attention to disparities between the respondent's evidence in chief and his evidence in cross-examination. However, the submissions did not identify the particular portions of the respondent's evidence that his Honour should reject.

70 Mr Russell, in his submissions, seemed to accept that the cross-examination had effectively shown that the respondent had exaggerated his symptoms for the purposes of his third party claim. Mr Russell structured his submissions to deal with the possibility that Mr Hooke would seize on the respondent's apparent exaggerations in connection with his third party claim to argue that the respondent had similarly exaggerated his current asbestosis related disabilities.

71 In my view, it should have been obvious to the parties' representatives that the primary Judge might find that the respondent had exaggerated his disabilities for the purposes of the third party claim. Not only did Mr Russell refer to the cross-examination concerning the respondent's account of his motor vehicle injuries, but the primary Judge himself flagged the issue of exaggeration. During the cross-examination of Dr Heiner (a consultant thoracic physician called by the respondent), his Honour specifically observed that Mr Hooke would probably submit that the respondent's account of his current symptoms should not be accepted because he had exaggerated his symptoms in the past.

72 In my opinion, procedural fairness did not require the primary Judge to do any more than alert the appellant's counsel to the possibility that a finding might be made that the respondent had exaggerated the disabilities he suffered in the motor vehicle accident. The possibility that such a finding might be made was clearly raised in the course of evidence and in submissions.

73 The appellant's next complaint is that the primary Judge, contrary to the dictates of procedural fairness, rejected the concessions made by the respondent in cross-examination without notice to the appellant that he was contemplating doing so. It is important to appreciate, however, precisely what the primary Judge said in [33]. After finding that it was obvious that the respondent had exaggerated his symptoms to the third party doctors, his Honour, in the same sentence, found that:

"concessions made by [the respondent] in cross-examination as to his restrictions before he developed breathlessness were made by him in order to avoid the obvious conclusion by the Tribunal that he exaggerated his disabilities in the third-party proceedings."

The primary Judge found (at [1]) that the respondent first experienced breathlessness in May 2007.

74 In dealing with the respondent's concessions in this way, his Honour was not rejecting or discounting the respondent's evidence on cross-examination as to his current disabilities. Nor was he rejecting or discounting the respondent's evidence as to the current impact on him of those disabilities or injuries that were caused by the motor vehicle accident. His Honour was saying that the respondent, insofar as he accepted in cross-examination that what he had told the third party doctors was correct, had made concessions that were not accurate. This finding was consistent with and indeed followed from the finding that the respondent had exaggerated his complaints to the third party doctors. If the respondent had exaggerated his complaints in 2006 and early 2007, at least some of the concessions made in cross-examination concerning his disabilities during that period must themselves have been wrong.

75 The primary Judge went on to find (at [35]) that the history given by the respondent to Dr Scott, who commenced treating the respondent in November 2007, was probably truthful. The history, as recorded by Dr Scott (at [44] above), showed that the respondent could walk at least two kilometres, could walk up two flights of stairs and was independent with his household tasks.

76 In my opinion, the appellant was not unfairly deprived of an opportunity to address the issues dealt with by the primary Judge at [33] of the judgment. The possibility that the primary Judge might find that the respondent exaggerated his symptoms to the third party doctors was identified. Once that possibility was identified, it necessarily carried with it the possibility that the primary Judge might discount some of the concessions made in cross-examination by the respondent, insofar as they related to the period before his symptoms of breathlessness became manifest. The appellant, if it wished to submit that his Honour should have found that everything the respondent told the third party doctors was the truth at the time, had the opportunity to do so.

77 The appellant's complaints that it was denied procedural fairness have not been made good.

78 This conclusion does not mean that the findings of fact made by the primary Judge were necessarily correct. This Court, however, has no power to review the merits of those findings.

ORDERS

79 The appeal should be dismissed. The appellant should pay the respondent's costs of the appeal.

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Decision last updated: 01 July 2011