Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 (26 October 1961)

HIGH COURT OF AUSTRALIA

RAMSAY v. WATSON [1961] HCA 65; (1961) 108 CLR 642

Evidence

High Court of Australia
Dixon C.J.(1), McTiernan(1), Kitto(1), Taylor(1) and Windeyer(1) JJ.

CATCHWORDS

Evidence - Statements made by person concerning bodily symptoms and sensations - Admissibility - Statements made by patient to medical practitioner as basis for expert opinion - Necessity for proof of facts upon &which opinion based.

HEARING

Sydney, 1961, August 10, 11, 14, 15;
Melbourne, 1961, October 26. 26:10:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

October 26.
THE COURT delivered the following written judgment: -
In 1955 the respondent was retired from the service of the Government of New for thirty-five years employed in the monotype section of the Government Printing Office. He brought an action against the appellant (who had been appointed, pursuant to the Claims against the Government and Crown Suits Act, 1912 (N.S.W.), the nominal defendant to represent the Government), because, as he alleged, his illness and disability were caused by lead poisoning contracted while he was working in the Printing Office; and this, he claimed, had occurred because his employer had negligently failed to protect him against injury by inhaling lead particles and lead oxide fumes. The jury, after a trial that lasted many days, found for the plaintiff and awarded 16,500 pounds as damages. The Full Court of the Supreme Court refused to disturb the verdict. An appeal from that decision is now brought to this Court. The appellant makes no complaint against the summing-up of the learned trial judge, which was most careful and comprehensive; but he contends that his Honour should not have left the case to the jury, but should have directed a verdict for the defendant. Alternatively, he says that the jury's verdict should be set aside on the ground that an overwhelming weight of evidence was against it. Thirdly, he says that certain evidence was wrongly excluded. And fourthly, he complains that the damages were excessive. (at p644)

2. The contention that there was no evidence, or no sufficient evidence, to support a verdict for the plaintiff was argued at length, but it can be disposed of briefly. The only possible conclusion from the mass of evidence is that there was material on which the jury might find as they did; and that their verdict was not obviously unreasonable or perverse. The salient facts are that in 1946 the respondent had been found by his own physician to have high blood pressure. In 1957, that is after he had been retired, he consulted a specialist experienced in industrial diseases. He diagnosed his illness as Bright's disease and suspected that the cause was lead intoxication. He therefore arranged for certain tests to be taken. The tests, confirmed later by treatment with calcium disodium versenate, revealed that the respondent had absorbed a considerable quantity of lead, enough it was said to be toxic. The doctor who had diagnosed the condition as Bright's disease stated quite firmly that he considered it more probable than not that the respondent's illness was due to lead poisoning. The medical witnesses called for the defence took a different view. In the result there was at the trial a conflict of medical opinion; first, as to whether the plaintiff really had any kidney disorder; secondly, whether, if so, it was caused by his absorption of lead or, as the contrary opinion had it, was a consequence of essential hypertension. It was certainly open to the jury to find that the result of some of the tests for albumen indicated that the plaintiff's kidneys were affected. It was argued, however, that they could not properly accept the opinion that lead intoxication rather than essential hypertension was more probably the cause. This, it was said, was to infer a causal relationship from nothing more than a temporal sequence or a coincidence. The argument ran as follows: Apart from Bright's disease and its accompanying effects there was an absence of the symptoms usually associated with lead poisoning: Bright's disease can be caused by other things than lead poisoning: it is possible that it was the result of essential hypertension unconnected with the absorption of lead. But the question was properly submitted to the jury. The case was not one in which of two possible factors one could be positively excluded; nor was it a case in which of several possible causes no one could be regarded as more probable than another. Moreover, hypertension and Bright's disease could, it seems, be together the complex and interacting consequences of lead intoxication. The jury were entitled in considering this aspect to give weight to the opinion of an experienced physician skilled in the relevant branch of medicine who had examined the patient. He gave his opinion as his inference of probability rather than as a logically established certainty. But to argue in the circumstances that it offended against the rules of logic is to mistake the nature of rational inference and of intellectual persuasion as to probability in the attribution of events to causes. That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves "Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?". In this case his Honour in his summing-up instructed the jury that this was their task; and no ground is shown for impugning their conclusion. (at p645)

3. The next question is whether, on the assumption that the respondent's condition was due to absorption of lead, it was brought about by those responsible for the management of the Printing Office neglecting a duty of care to the respondent by not taking proper precautions to remove or reduce the risk of his being injured by the inhalation of lead. It was admitted that, if the circumstances were such as to require such measures to be taken, it would have been practicable to have done so, apparently by improvements in ventilation or in other ways. It was said, however, that there was no real risk, or no foreseeable risk, that persons working in the parts of the Printing Office where the respondent had worked would be injured by lead. Both sides conducted tests at the Government Printing Office to ascertain the extent of lead in the atmosphere. The results, and the interpretation of the results by the experts, were conflicting. There was much dust lying in some places. This was laden with lead particles. This dust might sometimes be stirred up and thus breathed by workers on the premises. And the melting of lead in the making of monotype castings produced fumes bearing lead particles, so that persons habitually in that part of the printery could not avoid inhaling more lead than do persons whose activities do not bring them into regular contact with lead. The respondent was thus brought into contact with lead at his place of work. There is no evidence of any other source from which he could have got such an accumulation of lead as was in his body. A suggestion was made that perhaps he got it when, thirty-five years before he had entered the service of the Government Printer, he had at the age of nineteen or twenty worked for a year or so for some other printer. This may have seemed to the jury far-fetched - just as were some other suggestions made to us that he could have got it from the solder in tins of food or from bathing in a bath made of lead - there being no evidence that he had ever bathed in a lead bath or eaten solder. (at p646)

4. It was proved that twenty-one other employees, who had worked in the Government Printing Office, under more or less the same conditions as the respondent, had been examined by a medical officer, and none of them had any obvious symptoms of lead poisoning. It was argued that this tended to show first, that the respondent's condition was not attributable to lead poisoning, and secondly, that there was no danger at the Printing Office against which those in charge there ought to have provided. The significance of the evidence was emphasized to the jury by the learned trial judge. It was for them to consider how far the circumstances of the other men were comparable with those of the plaintiff, and what conclusion they should draw from this evidence. There is no precise amount of lead absorption that has an intoxicating effect on every person. An amount that may have deleterious consequences for one man may not obviously affect another. Much, it seems, depends upon the degree of susceptibility of the individual and the nature and degree and duration of his exposure. (at p646)

5. At this point the appellant introduced a complaint that evidence had been improperly rejected. The evidence that the other employees had no positive symptoms of lead poisoning was given by a government medical officer who had examined them after the action was commenced. He gave evidence of what he had observed on his examination of each man, including the results of tests of his urine, blood, and blood pressure. And, based on all this, he gave his opinion. Counsel for the defendant wanted him to go further. He sought to get from the witness not only what he had observed, but also what each of the men examined had told him about his state of health in the past. He apparently hoped to strengthen or complete the evidence of the witness that in his opinion those other men had not been affected by lead, or not affected to a serious degree, by proving that each when questioned had said that his health in the past had been good, and perhaps to elicit also other statements they had made. Counsel for the plaintiff objected on the ground that, if these matters were admissible, they could not be proved by hearsay and that the men themselves should be called. The learned judge upheld the objection. Counsel's actual questions, that were objected to, were as follows: "You also asked him for a history of any symptoms? His medical history?". "Did you take a medical history from him with a view to determining whether there was any significant history in regard to lead intoxication?" These questions were rejected. It may be that the mere fact that the examining doctor had questioned the man he was examining about his health, as one would naturally assume he would do, was admissible. But the questions were rejected because, as was made clear to his Honour, they were merely leading up to the next question which was: "Will you tell us what history he gave you in that respect?". It was argued before us that his Honour was wrong in upholding an objection to this question. It was said that the answer would have been admissible as being a statement made by a person out of court concerning his bodily sensations. The most satisfactory brief statement of the doctrine relied upon is a passage in Wills on Evidence 3rd ed. (1938), p. 209 as follows: "Whenever there is an issue as to some person's state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience". (at p647)

6. The origin of this rule and its present scope and logical basis have been much discussed. It is easier to suppose it originated in practical necessity than to give it a logical place in a symmetrical scheme of conceptions concerning evidence. It is not confined to complaints of sensations of ill-health; for statements by a deceased man, said to have been poisoned, as to his state of health made before the poison was supposed to have been administered, have been received for the prosecution: R. v. Johnson [1847] EngR 361; (1847) 2 Car & K 354 (175 ER 146) . In some textbooks this rule has been put on the ground that the statements admitted were themselves relevant facts, because they were spontaneous and natural expressions of suffering forming part of a res gesta: Phillips, 10th ed. (1852) pp. 149, 150; Starkie, 4th ed. (1853) pp. 88, 468; Phipson, 8th ed. (1942) pp. 71, 72. And this view had some support from Professor Thayer in his article on Bedingfield's Case reprinted in his Legal Essays (1927). But it seems better to regard such statements as evidence of the facts they recount, and thus as exceptions to the general rule excluding hearsay: see the remarks of Dixon J. in Adelaide Chemical and Fertiliser Co. Ltd. v. Carlyle (1940) 64 CLR 514 at p 530 ; and see too an article by Professor Stone in (1939) 55 Law Quarterly Review 66, at 84, 85 The rationale of the rule allowing such evidence has been said to be that it was the best or only evidence available. If a man's bodily feelings at a particular time were relevant, but he could not be called as a witness, or was not a competent witness, what he had said at that time might be the only means of proving the fact. In most, if not all, of the cases in which this question has arisen the declarant was dead before the trial: see Aveson v. Kinnaird (1805) 6 East 188 (102 ER 1258) ; R. v. Johnson [1847] EngR 361; (1847) 2 Car & K 354 (175 ER 146) ; R. v. Gloster (1888) 16 Cox CC 471 ; R. v. Black (1922) 16 CAR 118 ; Gilbey v. Great Western Railway Co. (1910) 102 LT 202 ; Amys v. Barton (1912) 1 KB 40 ; Sharp v. Loddington Ironstone Co. (1924) 132 LT 229 ; Evans v. Hartigan (1941) 41 SR (NSW) 179 ; and Nalder v. Dutch-Australia Contracting Co. Pty. Ltd. (1960) VR 458 . The remark of Holt C.J. in Thompson v. Trevanion [1728] EngR 9; (1693) Skinner 402 (90 ER 179) an action by a husband and wife for assault, battery and wounding of the wife is sometimes regarded as the beginning of this rule, but only because Lord Ellenborough referred to it in Aveson v. Kinnaird (1805) 6 East 188, at p 196 (102 ER 1258, at p 1262) . The wife, being a party, was not a competent witness. Mr. Cross has said in his work on Evidence (1958) p. 387 of this topic: "Whatever may be its true nature, the evidence is received because it is frequently all that can possibly be available". The rule, whatever its basis, could not be relied upon to justify the questions asked in this case. (at p648)

7. A sounder argument for admitting evidence of what the men had told the examining doctor might have been that it was part of the material on which he formed the opinion that he gave in evidence. When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the "history" he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s. 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician's opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts. In this case counsel for the defendant sought to get the examining doctor to recount things he had been told by those he examined. Yet he did not undertake to call them as witnesses. Indeed he made it clear that he did not intend to do so. His Honour in his summing-up told the jury that the medical evidence was that none of the twenty-one men had, when examined, exhibited any symptoms of lead poisoning. The appellant nevertheless complains, because it seems that the respondent's counsel had suggested to the jury that they might discount this evidence, as they did not know the past medical history of the men. This comment, the appellant suggests, could not have been made had the doctor been allowed to tell the jury what they had told him. His Honour, however, could properly refuse to admit evidence of this, it having been made apparent that the men would not be called. His refusal is not a reason for a new trial. (at p649)

8. The other grounds of appeal relate to the amount of the damages. Having regard to the plaintiff's age and other matters, the damages may seem high. But the Full Court thought the verdict was within the competence of the jury, and there is no sound ground for saying it was not. The payments that the respondent is entitled to receive under the New South Wales Superannuation Act must be disregarded. It seems that, by his length of service, the respondent had become entitled to receive his superannuation benefits before he had to retire. But, whether or not that were so, recent decisions of this Court have made it clear that payments that, under the Act, he was entitled to have on retirement are not to be taken into account in assessing damages for negligence. The appeal should therefore be dismissed. (at p650)

ORDER

Appeal dismissed with costs.