Commissioner for Government Transport v Adamcik [1961] HCA 43; (1961) 106 CLR 292 (1 August 1961)

HIGH COURT OF AUSTRALIA

COMMISSIONER FOR GOVERNMENT TRANSPORT v. ADAMCIK [1961] HCA 43; (1961) 106 CLR 292

Evidence

High Court of Australia
Fullagar, Kitto(1), Taylor(2), Menzies(3) and Windeyer(4) JJ.
(THE HONOURABLE MR. JUSTICE FULLAGAR died at Melbourne prior to the delivery of judgment in this appeal.)

CATCHWORDS

Evidence - Expert Witness - Probable cause of disease - Actual cause not known to medical science - Conflicting evidence - Sufficiency of evidence - Function jury - Compensation to Relatives Act, 1897-1943 (N.S.W.) - Supreme Court Procedure Act, 1900-1957 (N.S.W.), s.7.

HEARING

Sydney, 1961, April 13, 14, 17; August 1. 1:8:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

August 1.
The following written judgments were delivered:-
KITTO J. I have had the advantage of reading the judgment prepared by my

TAYLOR J. The only question in these appeals is whether there was evidence upon which the jury was entitled to find that a causal relationship existed between negligence for which in some part each of the appellants was responsible and the death, in August 1956, of the respondent's husband. It is not disputed that the deceased sustained personal injuries as the result of the negligence alleged but it is disputed that his death resulted from those injuries. (at p295)

2. In fact the deceased died from acute lymphatic leukaemia some nine or ten months after sustaining his injuries when he was dislodged from the footboard of a tramcar by a passing motor vehicle. He sustained a fracture without displacement of the right acetabulum and abrasions and lacerations to the scalp. He was in hospital for twelve or fourteen days and was then discharged. His general condition was said to be good at the time. According to the respondent, when he came home "he was happy and he was much better". But within a few days swellings were observed in the region of his throat and shortly afterwards in the armpits and then in the groin. He was re-admitted to hospital for examination and found to be suffering from acute lymphatic leukaemia. Thereafter he was again taken home where he remained until March 1956 when he was removed to hospital where he died from this disease in the following August. (at p295)

3. According to the evidence leukaemia may be characterized in popular parlance as cancer of the blood. In fact it is a condition which results from a proliferation of the non-granular white cells so that they overwhelm the red cells, cause an enlargement of the liver and spleen and disrupt the circulatory system. The cause or causes of such proliferation are said to be unknown to medical science and the disease is invariably fatal. But as will appear one medical practitioner - Dr. Haines - who was called on behalf of the respondent at the trial expressed the opinion in the first instance that there was a causal relationship between the injuries which the plaintiff sustained and the leukaemia from which he died. As will appear, however, he did not entertain the notion that leukaemia could result merely from a fracture of the hip or from abrasions and contusions; his opinion rested upon the assumed existence of another factor to which I shall presently refer. In the meantime it is of importance to set out the passages in his evidence-in-chief which disclose the opinion which he initially professed to hold:
"Q. I want you to assume that on 26th October 1955, Mr. Adamcik, who prior to that had been in very good health and had never made any complaints about sickness, was brushed from the sideboard of a tram to the roadway and was admitted to Prince Alfred Hospital, where he was found to be suffering from abrasions to the face and arm and a fracture of the acetabulum. His condition improved over the next 12 or 14 days in hospital, he was discharged home and in about three days it was noticed that lumps developed in his neck and later on under the armpit and in the groin, in the course of the next three or four days. About eight days after being discharged from hospital he was re-admitted, he spent about eight days in hospital, came home again and the lumps continued to develop and increased in size, his general condition deteriorated, he went to Sydney Hospital in March 1956 and died in Sydney Hospital in August 1956, his death being certified as due to acute lymphatic leukaemia? A. Yes.
Q. First of all, can you tell us what leukaemia is? A. It is an abnormal condition of the blood forming system of the body which, in many respects is akin to neoplasia, to what is known loosely as cancer. It has been described as cancer of the blood. It is a disease of unknown origin and it usually ends fatally.
Q. On the history I gave you and on your description of the disease, what is your opinion on the connexion, if any, between the onset of the leukaemia and the injuries he received?" There was then an objection and subsequently the following question was asked and answered as appears:
"Q. The question I asked you before was: In your opinion, what is the connexion between the injuries Mr. Adamcik sustained in October 1955 and the subsequent onset and symptoms of leukaemia fifteen days later, which led to his death in August the following year? A. I think that they are causally related". But immediately Doctor Haines disclaimed any suggestion that leukaemia could result merely from traumatic injury. He had not "had a case following trauma the same as this" but he added "trauma is only one form of the external world interfering with what goes on in a person's body". It subsequently appeared that in the course of his professional practice Doctor Haines had treated only one case of lymphatic leukaemia so that it was not much to the point to say that he had not had "a case following trauma such as this". But it is of some significance that in an era when running down cases may be counted almost in astronomical figures he had never seen or heard of such a case. Thereafter he proceeded to elaborate upon his observations by saying "To put it into lay terminology which, of course, makes it clearer but at the same time is more apt to be misunderstood, usually the events I refer to are of an emotional nature and an emotional strain on the individual." Then he proceeded to mention as illustrations two cases where "blood disorders" resulted from emotional stress:
"In this case I had in mind, he had very extensive betting losses, in the nature of 7,000 pounds, a matter of a few weeks before the onset of the blood condition. A case which I am treating at the moment, he first noticed the lump, I think it was in November 1958, and his livelihood depended on the wool situation and he was buying wool on a falling market for the previous five months and he told me that he was very upset and in a constant state of emotional suspense during this period, the whole time he would be buying wool and the market would fall further and further, and, as he said, a lot of money was lost. Well, I considered in his case that this emotional stress, under which he was, played a large part in the disordered function of his body, which finished up as a blood disorder. Now, in this case, there is the additional question of physical injury as well as, shall we say, psychological injury; but because there is physical injury which, I think, would compound the situation, we must not overlook the fact that that physical injury would be accompanied by a considerable amount of emotional stress and suspense as well and I think those factors enter into the disordered blood formation occurring". (at p297)

4. The evidence so far referred to represented an extension of the views expressed by Doctor Haines in a small work which was published in England in 1958. It was called "Autonomic Dyspraxia" and it propounded the theory that emotional stress could cause any one of a great number of diseases. Briefly the theory rested on the proposition that the autonomous or automatic nervous system is controlled and co-ordinated by a small central portion of the brain called the hypothalamus and it was asserted that a major emotional disturbance may halt or disorganize hypothalamic activity. In Doctor Haines' words "when any one of these stressful situations, a major emotional stress, occurs, the hypothalamus gets into this condition where it cannot properly control the automatic functions of the body. Now, the point is that one of them somewhere is going to break down". According to him it may be "in the circulation" or "in the digestion" or "in the lungs" or "in the joints" or "in the blood-forming organs". But at the time of the publication of his work he did not include any form of cancer or leukaemia in the list of diseases which might originate in this fashion. Apparently the first publication of this extension of his theory occurred in the witness-box and according to his evidence he was at the time of the trial the only living person who had ever propounded this theory as disclosing a cause of leukaemia. (at p298)

5. Under our existing system it is, of course, within the exclusive province of the jury in cases such as the present to determine which of two conflicting bodies of expert evidence they will accept. Accordingly, and in spite of the arguments to the contrary raised by the appellants, it was open to them to give such value to Doctor Haines' theory as they thought fit. It was for them to regard it as impressive or to remain highly sceptical or simply to treat it as meretricious humbug so far as an attempt was made to link the development of the deceased's leukaemia to the negligence for the consequences of which the appellants are responsible. But apparently they accepted his general theory as probable despite the fact that it was opposed to weighty medical evidence and in the face of Dr. Haines' own statement that he had never known of a case where leukaemia had supervened upon traumatic injury. (at p298)

6. It should be emphasized that the trial of the issues between the parties did not involve a scientific investigation into the cause or causes of leukaemia. The issue to be determined was whether it was more probable than not that the deceased's death was caused by negligence for which the respondents were responsible. And, of course, in seeking to determine this issue the jury was limited to a consideration of the evidence adduced by the parties. Neither the court nor the jury was at liberty to seek other information or initiate enquiries of their own. In the result, therefore, the decision in no way resembles the assertion of a scientific truth; it represents merely acceptance of part of the evidence in the case as against other conflicting evidence. And, it may be said, the acceptance was by a body singularly unfitted to pronounce on matters involving consideration of medical or scientific theories. But as long as some members of the medical profession can be found to advance mistaken or erroneous medical theories in cases such as the present there will always be the danger that jurors will accept their testimony. (at p298)

7. In the circumstances, it is necessary that we should approach this case on the basis that it was open to the jury to accept Dr. Haines' general theory. But acceptance of this theory cannot, in my view, alone dispose of the case for first of all there must be found in the evidence a sufficient factual basis for its application. True enough, Dr. Haines initially expressed the view that there was a casual relationship between the deceased's injuries and his leukaemia but he was immediately at pains to deny that a broken bone or abrasions and lacerations could result in leukaemia. The link, if there was one, was to be found in emotional stress. Precisely what he meant by emotional stress he did not at once say but from his evidence a little later it is clear that he was referring to an emotional disturbance of sufficient magnitude or severity to interfere with the functioning of the hypothalamus. This he characterized quite emphatically as a major emotional disturbance. Now what evidence is there that the circumstances in which the deceased's injuries were sustained, or the injuries themselves, brought about a major emotional disturbance of this character? No doubt his injuries were accompanied by some consequences of an emotional character but whether they were such as could or would, according to Dr. Haines' theory, have interfered with the deceased's hypothalamic functions can, at the most, be a matter only for speculation. As Dr. Haines agreed the emotional reactions of individuals to any given set of circumstances are not constant and he was quite unable either from personal knowledge or from a proved history to attempt an assessment of the emotional reactions of the deceased. And this, as he conceded, was "The crux of the question". It is, therefore, quite understandable that he found himself in considerable difficulty when questioned on this aspect of the matter. I quote:
"Q. How do you know what emotional stress this man suffered when you have now sworn to the jury that the emotional stress this man suffered was in your opinion causally related to the leukaemia? A. I would like that question again. The basis of that question is - this is a very complicated question.
Q. How do you know what emotional stress this man suffered when you have now sworn to the jury that the emotional stress this man suffered was in your opinion causally related to the leukaemia? A. That is really the crux of this question, 'How do you know what emotional stress this man suffered' - and the rest of it -
Q. Could we have the answer instead of repeating the question all the time? A. Yes. And how I know is through years of experience, first of all as an individual, and secondly as a doctor, and thirdly through being particularly interested in the reactions of individuals to accidents and various forms of psychological stress, that is how I know.
Q. Individuals vary in their emotional reactions, don't they; some people go to the pack, some don't? A. That is how I know. Q. How did you know whether this man was an individual who would go to the pack or not? A. Well, I know that this individual

Q. How do you know? A. I know from my experience over 30 years.
Q. Of this man? A. Of this type of case.
Q. What was this type of man emotionally? A. He was the type of man

emotionally who reacted by developing acute lymphatic leukaemia under these particular circumstances.
Q. You know as well as I do, don't you, that that is not the answer to my question? A. That is the answer.

Q. Do you say that is the answer to my question? A. Yes.
Q. Do you say that is the only answer you can give to my question? A. Yes.
Q. So that you cannot describe the man emotionally, apart from what you have

just said? A. Quite". To my mind this represents a prime illustration of a witness attempting to pull himself up by his own boot straps. Up to a point the case was commonplace enough. It was the everyday case of a person who had been injured in a street accident. But in spite of this it was the only case of traumatic injury in Dr. Haines' experience which required examination for the purpose of enquiring whether leukaemia had resulted. Yet, in order to arrive at the conclusion that there was a causal relationship between his injuries and the disease he assumed two things. First of all he assumed that the disease originated after the accident. The deceased, he said, "reacted" by developing acute lymphatic leukaemia. Then he assumed that a major emotional disturbance, which was not only capable of disrupting the deceased's hypothalamic activity but which, in fact, did so, followed upon the deceased's injuries. How far Dr. Haines would have been prepared to make the second assumption in the absence of the first it is impossible to say but even if the first assumption was validly made the conclusion that the deceased's hypothalamic activity had been seriously disrupted was quite unwarranted. Indeed, examination of the evidence just quoted shows this to be so. First of all Dr. Haines arrives at his conclusion by the antecedent assumption of the existence of a vital fact. Then when asked to justify this assumption he blandly asserts that the deceased must have experienced such an emotional disturbance because he "reacted by developing acute lymphatic leukaemia under these particular circumstances". All this, it should be observed, is said in spite of the fact that the whole of the evidence in the case is quite consistent with the deceased having developed leukaemia at some time before the accident in which his injuries were sustained. Indeed, that this was the course of events seems, at the least, highly probable for it is not suggested that the characteristic swellings which manifested themselves about a fortnight after the accident marked the initial onset of the disease; they were but symptoms which revealed its presence. But whether or not it is probable that, unknown to the deceased, he had been afflicted with the disease for some time is beside the point. The point is that the evidence was quite insufficient to warrant an initial inference that the deceased contracted the disease after the accident. Still less was it possible, upon the strength of that inference, to reach the final conclusion by the circuitous reasoning which Dr. Haines then proceeded to employ. It is, perhaps, not unfair to observe that it is not surprising that this line of reasoning led him to think that this case was unique - the one case in his whole experience where trauma had led to leukaemia. These considerations lead me to the conclusion that his evidence was of no value whatever in the case and that it fails to provide any ground for a finding that the deceased's leukaemia resulted from a disturbance of his hypothalamic activity rather than from some other cause. There was no other evidence in the case which suggested that any such disturbance took place and, accordingly, it is clear that the opinion initially expressed by Dr. Haines was based upon an assumed set of facts of which there was no proof at the trial. That being so it is, in my opinion, clear that there was no evidence upon which it was open to the jury to find as they did and, accordingly, in my view, the appeals should be allowed. (at p301)

MENZIES J. The question to be determined upon these appeals is not whether the finding which the jury must have reached (viz. that the acute lymphatic leukaemia from which the husband of the plaintiff died was caused by the injuries that he received in the accident which occurred) should be set aside as against the weight of evidence but whether there was any evidence to support the finding. In terms there was such evidence because Dr. B.G. Haines gave evidence that the injuries and the subsequent onset of leukaemia were probably causally related. The doctor's explanation of that relationship was that the physical injuries (including the fracture of the acetabulum) and the emotional stress that would in his opinion accompany those injuries were factors in bringing about the disordered blood formation that occurred. In answer to a question seeking an explanation of how emotional stress could cause cancer of the blood, the doctor said: "The point that in the case of injury of this type the bone is fractured and the bone is damaged and the bone happens to contain marrow, which is an important part of the blood-forming mechanism, and so that is one reason why in a case like this it is the blood-forming organ which fails in its proper function, and also there are the lymph glands of the area concerned. He had wounds on the scalp, and the lymph glands draining that area, combating infection from any germs that might get in through that wound, they are working at the same time and they are the machinery that goes wrong, and instead of proceeding normally they proceed abnormally and leukaemia results." Earlier the witness had said " . . . the point is that after a gross upset occurs, an emotional upset, the function of the hypothalamus falters." (at p302)

2. It was argued, however, that Dr. Haines' evidence should as a matter of law be disregarded either because he was not qualified to express these opinions or because an examination of his evidence as a whole shows that it was self-contradictory and worthless. (at p302)

3. Dr. Haines was a Bachelor of Medicine, a Bachelor of Surgery, a Member of the Royal College of Physicians and was an honorary assistant at a large teaching hospital in Sydney. He carried on specialist practice as a physician. Proof of these qualifications did qualify him as an expert and warranted the admission of his opinion about the relationship, if any, of physical injury and emotional stress with leukaemia. From his cross-examination it appeared that although Dr. Haines had treated about twenty cases of leukaemia, he had only treated one case of acute lymphatic leukaemia; but this is a matter that went to the weight of his evidence rather than to its admissibility. It would be going too far to say that any legally qualified medical practitioner is to be regarded as sufficiently qualified as an expert to express an opinion upon any matter of medical science, but in this case it is not necessary to go anything like that far. This is a case of a practising specialist physician with high qualifications and a hospital appointment expressing his opinion about the cause of a well-known disease, a subject upon which, despite investigation, there is as yet no positive knowledge. Had this witness said that in his opinion there was no relation between the deceased's injuries and the leukaemia which brought about his death - as did other doctors who qualified as experts by giving evidence of the same kind of qualifications as those Dr. Haines possessed - there could hardly have been a challenge to the admissibility of his evidence. It is only because his opinion was one that medical science seeminly does not accept as reliable that it is contended he lacked the qualifications necessary for expressing it; but the giving of correct expert evidence cannot be treated as a qualification necessary for giving expert evidence. (at p303)

4. This brings me to the second argument which is that Dr. Haines' evidence was shown by cross-examination to be quite worthless. In Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430 Dixon J. said: "There is no question in a trial that is regarded as so clearly within the exclusive province of the jury to decide as the reliance to be placed upon the evidence of a witness whom they have seen and heard. The fact must therefore be faced, that however little faith we as judges may have in all this, yet before the defendant can be entitled as a matter of law to a verdict he must so utterly destroy the plaintiff's narrative as to place it outside the competence of a jury to give any credence to the material parts of it, a thing which in my experience I have never seen done with reference to direct oral testimony given upon a civil issue" (1945) 71 CLR, at p 490 . Nor is this such a case. There may be cases where a witness admits the falsity of his evidence so that what he has said must be altogether disregarded, but in this case Dr. Haines maintained his opinion and the cross-examination did no more than emphasize that Dr. Haines' experience of leukaemia was limited, that his opinion as to its cause was not accepted by other members of the profession and that the way in which he supported it involved some reasoning in a circle. This was, of course, all put to the jury, but seemingly, and surprisingly, they nevertheless accepted the evidence. Where, as here, there was strong opposing evidence, the verdict based upon such unconvincing evidence might perhaps be set aside by a court of appeal upon the well-established ground that it was against the weight of evidence (see Metropolitan Railway Co. v. Wright (1886) 11 App Cas 152 ), but a verdict could not have been directed and cannot now be entered as though that evidence had not been given (Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430 , per Latham C.J. (1945) 71 CLR, at pp 442-444 , and per Dixon J. (1945) 71 CLR, at p 488 ). (at p303)

5. In my opinion these appeals must fail. (at p303)

WINDEYER J. The late Juraj Adamcik died from acute lymphatic leukaemia in August 1956. He had been a tramcar conductor employed by the first-named appellant. The symptoms of the fatal disease first appeared in November 1955, about twelve days after he had been injured by being knocked from the footboard of his tramcar by a lorry driven by a servant of the second-named appellant. His widow, the respondent in these appeals, brought an action under the Compensation to Relatives Act, 1897-1953 (N.S.W.) claiming that her husband's death was the result of negligence in the management of both the tramcar and the lorry. Her case was that the leukaemia resulted from the accident. Whether or not this was so was a main issue at the trial, although the issue of negligence was also contested. Counsel for the defendants, the present appellants, had not asked for a non-suit or a verdict by direction at the end of the plaintiff's case, nor at the end of the case for the defendants did they ask the learned trial judge to direct a verdict. But, when he had finished his summing up and the jury had retired, he was asked to recall them and direct them to return a verdict for the defendants. He declined to alter his charge. The jury found a verdict for the plaintiff and awarded damages in the sum of 6,908 pounds divided between the plaintiff personally (4,806 pounds) and her child (2,102 pounds). The defendants appealed to the Full Court. That they were responsible for the accident was not contested; but it was argued that there was no evidence of any causal connexion between the accident and the death. By their notices of appeals to the Full Court the appellants sought either a new trial or that a verdict be entered in their favour; but at the hearing of those appeals they sought only a verdict and final judgment and abandoned the alternative claims for a new trial. By the Supreme Court Procedure Act, 1907-1957, s. 7, the Court in banc is entitled to enter a verdict if it is of opinion that upon the evidence either the plaintiff or the defendant in an action was, as a matter of law, entitled to a verdict. The Court was not of that opinion and dismissed the appeals. From that decision these appeals were brought. (at p304)

2. The essential facts are in a small compass. The deceased man was swept from the footboard of the tramcar. He was taken to hospital. His injuries were a fracture of the right acetabulum without displacement, lacerations of the scalp, bruises and abrasions of the face, hands and knees. While in hospital he was, according to his wife, at first somewhat inert and disinclined to talk. He got better and after about ten days was allowed to go home. Before the accident he had been, to outward appearance, in good health, and there had been no manifestation of any disease. But after he had been at home in bed for two or three days symptoms of leukaemia appeared as swellings in his throat. Later swellings appeared in his armpits and groin. These got worse, and about three weeks later he went again into hospital. There his ailment was diagnosed as acute lymphatic leukaemia. He died some six or seven months later. (at p304)

3. The evidence shows that leukaemia is an incurable disease. It is a malignant disease of the blood, marked by an abnormal - because unregulated or autonomous - proliferation of cells. According to the type of cell affected it is classified as myeloid or lymphatic. It may be said to be, in a general sense, a form of cancer, and it is sometimes described as cancer of the blood. The aetiology of the disease is not known. But one of the witnesses called for the plaintiff, Doctor B.G. Haines, on being told of the events that had happened, stated that in his opinion there was a causal relationship between the injuries that the deceased man had suffered and the onset of the malady. Doctor Haines is a graduate in medicine of the University of Sydney and a member of the Royal College of Physicians. He is an assistant honorary physician at a large public hospital, and he practises as a consulting physician. Asked to justify his opinion, he propounded a theory that he said was based upon his own consideration of the topic. Briefly stated, his view is that emotional disturbances, operating in conjunction with other things, can be a factor in producing leukaemia, and he said all forms of cancer. Under cross-examination he went still further and, without qualification or restraint, asserted as his opinion that mental states and emotional disturbances are the cause of all, or nearly all, diseases except those of infective origin. He agreed that this was not an accepted view, and indeed that it had, as yet, no positive adherents other than himself: but he said that medical science was coming steadily more and more to this idea and that he expected that it would in time receive general recognition. He did not say that emotional factors were sufficient in themselves to account for all forms of leukaemia: they operated only in conjunction with other things; but, other factors being present, emotional disturbance could be decisive in producing the disease. So far as he was allowed to expound the basis for his opinion and to explain the nervous and physiological mechanisims that he considered were involved in it, it seemed to depend upon the functioning of the hypothalamus and derangements of its functions. Answering a cross-examiner is not, however, a satisfactory method for the complete exposition of theories of cyto-pathology. And the purpose of the cross-examination here was not really to enable him to explain his doctrine, but rather to discredit it in the eyes of the jury by getting him, without allowing any opportunity for qualification or elaboration, to give categorical answers that it was hoped would appear so extravagant that his evidence might be scoffed at. He did make assertions that to many people must appear in a high degree improbable. And the physicians called for the defendants did not accept his theory. But, however far-fetched some of his statements may seem, however much his theory may be criticized as unproven, however much it is out of line with orthodox opinion, it would be a bold court that could say that he was not qualified to express an opinion on medical matters and that the jury should have been told that, as a matter of law, they must disregard his opinion. The learned trial judge did in effect advise them to treat it with scepticism. Doctor Haines said he had reached his general conclusion as a result of consideration that he had for years given to the influence of psychological factors in producing physical disorders. He had published a small book on psychosomatic medicine under the title "Autonomic Dyspraxia". He had not at that time expressly included leukaemia as coming within the scope of his theory or system. He said, however, that subsequent consideration had led him to think that it too should be included within its range. (at p306)

4. The case is not one in which a witness, posing as an expert, made assertions that are contrary to proved scientific facts or to the known phenomena of nature, thus exposing his ignorance of the learning he professed. To liken the doctor's statements, as counsel did, to the assertion of an eccentric person that the earth is flat is, even for argumentative purposes, mistaken. If there were any value at all in such a comparison - and there really is not - Doctor Haines would, no doubt, answer that he should be likened rather to those who first denied that the earth was flat. In the same way, it is a mistake to liken his evidence to mere superstitions by which curative properties are attributed to things that have been scientifically proved to have no such properties. The most that could be urged against Doctor Haines' evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false. He said of the present case that he, as a qualified physician, considered that it was not merely possible, but probable, that the leukaemia was the result of the accident. Considerable pain and suffering and distress, he said, must necessarily have accompanied the traumatic injuries: and it was these emotional states that led to leukaemia developing. He put the emphasis on psychological elements as the cause, but he did not disregard the physical injury, the trauma and the fracture of the acetabulum as matters out of which the mental and emotional states arose. (at p306)

5. Two distinguished physicians, Sir William Morrow and Doctor K.B. Noad, gave evidence. They did not accept any of this. Their evidence might well have been regarded as convincing; but it did not convince the jury. They thought there was no connexion between the accident and the leukaemia - that the disorder had probably existed, latent and undetected, for some time before its symptoms became manifest: and that its appearance after the accident was purely coincidental. Sir William Morrow did in cross-examination agree that there were to be found in medical literature suggestions that some cases of leukaemia had been the result of trauma; but this view, he said, had been generally discarded in literature published since 1939. Furthermore, in what appeared to have been the most significant article produced to him, it was said that all the cases of leukaemia that have followed trauma have been of the myeloid variety; and that there is no evidence of lymphatic leukaemia beginning in the same way. Doctor Noad, who had attended the deceased man in hospital, said that there was no evidence that emotional stress could cause leukaemia. And, as to trauma, while he did not deny the possibility of the deceased man's leukaemia being related in some way to his physical injury, he thought that this was extremely unlikely. There was other medical evidence, including that of Doctor W.R. Dalton who, in a guarded and hesitant way, said no more than that it was possible that the injury to the acetabulum might have acted in some way as a stimulus to proliferation in the cells. (at p307)

6. It is not necessary to recount in any more detail what the medical witnesses said. It is apparent that without the evidence of Doctor Haines there would have been little, if any material on which the jury could find for the plaintiff and that such a finding could not have been allowed to stand. But the jury did have Doctor Haines' opinion. In the light of it they could consider the sequence of events - a man seemingly in good health was injured in an accident and shortly afterwards and while still incapacitated became afflicted by leukaemia. And, along with this, the jury had the fact that at one time some medical writers had thought that there could be an association between trauma and leukaemia, at all events of myeloid leukaemia. Statements in text-books and in articles in medical journals are not, in themselves, evidence, unless they be accepted or approved by competent witnesses in the box. The content of some medical literature was brought out in the cross-examination of Sir William Morrow, without, however, his assenting to it as correct. Ordinarily a jury could properly consider this only to test the evidence of the witness, not as itself evidence of fact. But, in this case, they could, for another purpose, legitimately have regard to what was read from books. It had been suggested to Doctor Haines in cross-examination and, no doubt, later urged upon the jury, as it was to us, that no support at all for his view was to be found anywhere in any medical writings. In answer to this suggestion, the jury could notice what was put forward as supporting his view and consider whether it did so. (at p308)

7. Dixon J., as he then was, in his dissenting judgment in Adelaide Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538 , said: " . . . I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis" (1940) 64 CLR, at p 569 . This proposition, on which the appellants relied, does not avail them, unless it be said that Doctor Haines' evidence must be dismissed entirely as incompetent and untrustworthy. His general competence as a physician was not contested. The jury could consider whether his opinion was honestly held. It was for them to consider whether, as counsel suggests, he was a charlatan. They might think so or they might regard him as an earnest but misguided proponent of an incorrect theory or as a discoverer and prophet or in some other way. (at p308)

8. This is not a case in which the appellant was asking that a jury's verdict be examined to see whether being against the overwhelming weight of the evidence it should be set aside and a new trial ordered. A new trial was not sought. Whether one might have been had we do not have to determine. What was said is that there was no evidence at all on which the jury could reach its finding, and that, as a matter of law, the verdict must be, not merely set aside, but reversed. We are not to weigh the evidence as a whole. That was the jury's task. We are asked to say that Doctor Haines' testimony was obviously worthless. The case of Hocking v. Bell [1945] HCA 16; (1945) 71 CLR 430; (1947) 75 CLR 125 is in point. The cases to which the appellants referred did not really assist them. Blackstock v. Foster (1958) SR (NSW) 341; 75 WN 393 was a decision of the Supreme Court of New South Wales (Owen J., Roper C.J. in Eq. and Herron J.). It concerned a growth that it was claimed had been converted from a benign to a malignant state by a blow. The most that any medical witness in that case would say was that it was possible that the development of malignancy and the blow were connected. The Court said: "We are of opinion that the evidence . . . could not justify the inference that it was more probable than not that there was a causal connexion between the blow and the malignancy of the growth. It is obvious from the evidence that, in the present state of medical and scientific knowledge, little is known of the causes of malignant growths, and if medical science is unable to supply the necessary link between such a growth and a blow in the region of it, it is not for a layman to do so" (1958) SR (NSW), at p 342; 75 WN, at p 394 . That case was thus quite unlike this, where a medical witness said that the onset of leukaemia was not only possibly but more probably than not the result of the accident. Moreover, what the appellant in that case sought and got was a new trial. As for Adelaide Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538 it is hard to see what the appellants hope to gain from it. The majority judgments do not help them. And the case was one in which an appellate court had to consider the evidence as a whole. It was an appeal on fact and law - a proceeding very different from the motion made in this matter. It is not enough that we may think the jury's verdict was wrong. The appeals should I consider be dismissed. (at p309)

ORDER

Appeals dismissed with costs.