Commonwealth of Australia v W L McLean [1996] NSWSC 657

Supreme Court of NSW|1996-12-31

The application called for the exercise of caution because a refusal would be final. The Judge did not appear to consider keeping the proposed amendment under review in case the course of the trial showed that it could be granted without injustice to the plaintiff. The defendant could have been allowed further time to supply proper particulars. In retrospect it is clear that the amendment could have been allowed, either on 19 June or subsequently, without the need for any adjournment, and without any injustice to the plaintiff. However to our minds the decisive consideration flows from SCR Pt 20 r 1 (2) which provides:

"All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, ... ".

"... as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right. ... The question seems to me to be this, can you by the imposition of any terms place the other side in as good a position for the purpose of having the question of right determined as they were in at the time when the mistake of judgment was committed?"

"There is not only a power, but even an imperative duty cast ... on the court, to let no formality stand in the way of solid justice. The court is directed to make every amendment, and at all times, so as to enable it to do what is right between the parties, and in the fairest and fullest manner possible to arrive at a determination of the substantial matter in dispute ... it may be that the plaintiff was lax or forgetful in not putting his pleading in the form in which it should have been originally ... The question, therefore, in this case is, would the defendant be so prejudiced by this amendment that he would not have justice done?"

In Clough v Frog (1974) 48 ALJR 481 the High Court reversed a decision to refuse an application by defendants made two days before the trial. The court in its joint judgment said at 482:

"As the defence, if established, would be a complete answer in either action, the amendment sought should have been allowed unless it appeared that injustice would thereby have been occasioned to the respondent ... With the exception of the suggestion of prejudice arising in respect of the loss of the possible claim against the Nominal Defendant, the matters relied upon by the respondent in opposition to the amendment sought go at the most to delay and irregularity only, matters which are relevant to costs but do not constitute injustice to the respondent in the sense in which that expression is used".

The duty under the rule to allow proper amendments was again emphasised in Leotta v Public Transport Commission (1976) 50 ALJR 666 where amendment was required to make the pleadings conform to the evidence which had emerged during the trial.

All or almost all the evidence required to enable the proposed defence to be considered by the jury was led on the related issues. If this application had been made later in the trial, the case would have been substantially within the principles applied in Leotta. The need in such applications to give close attention to the risk of lasting injustice was recently emphasised by this Court in Macquarie Bank Ltd v National Mutual Life Association Ltd (14 November 1996, not yet reported). Clarke JA reviewed the authorities and said at 15:

"... the recent cases do not alter the basic principle that in determining whether to grant an amendment a judge should seek to do justice between the parties".

His Honour endorsed the following statement by King CJ in United Motors Retail Ltd v AGC Ltd (1991) 58 SASR 156 at 161-2, which had previously been approved by Gleeson CJ in the State Pollution Control Commission v Australian Iron & Steel (1993) 29 NSWLR 487 at 494-5:

"There are ... cases in which the impact upon a party of a refusal of an amendment ... may be so severe, particularly when considered in relation to the nature of the neglect or other conduct which has brought the situation about, that the court will feel it necessary to subordinate ... policy considerations to the need to avoid such impact".

In the same case, Powell JA said at 77 that the refusal of the amendment had subjected the plaintiff "to a substantial injustice" while leave to amend would have subjected the other parties to no more than inconvenience, particularly if appropriate procedural orders had been made.

The defendant's delays and defaults could not properly be viewed as disentitling it to the amendment, particularly in light of its difficulties in preparing its case under the timetable previously referred to. The Judge appears to have failed to give any weight to the fact that the proposed defence would largely have been supported by evidence adduced on other issues. He treated the plaintiff's difficulties in coping with the additional defence as a matter of significant weight but having regard to the matters we have referred to these could not occasion injustice to the plaintiff. On the other hand the refusal of this amendment caused a substantial injustice to the defendant which was shut out from a defence which may have significantly reduced the plaintiff's verdict. In our judgment, and subject to the next matter, this ground of appeal has been established.

Mr Joseph argued that the proposed defence was misconceived because the conduct relied upon could not amount to contributory negligence, there being no suggestion that the drinking and smoking caused the plaintiff's stress disorder. He also submitted that the plaintiff's conduct after the accident could not constitute contributory negligence. The trial Judge did not refuse the amendment on these grounds, but Mr Joseph renewed his objections in this Court. However this defence is not limited in the manner suggested. Section 10 (1) of the Law Reform (Miscellaneous Provisions) Act 1965 provides, so far as relevant:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person ... a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage ...".

The proposed defence was that the further damage was suffered as a result, partly of the plaintiff's own fault, and partly of the fault of the defendant. Where a clear line can be drawn, the plaintiff's intervening negligence breaks the chain of causation between the original wrong and the later damage. See March v E & M H Stramare [1991] HCA 12; (1991) 171 CLR 506 (March) at 510, and McKew v Holland & Hannen & Cubitts Ltd [1969] UKHL 12; (1969) 3 All ER 1621 HL. In other cases the subsequent negligence of the plaintiff may aggravate the damage caused by the original injury without interrupting the chain of causation. Such a case falls within the literal meaning of s 10 (1), and no reason appears for giving the words a narrower meaning. The view that apportionment is available in cases such as the present is supported by The Calliope (1970) P 172, where Brandon J held that if consequential damage was caused partly by the original casualty, and partly by the claimant's intervening negligence, the Court can apportion on that basis. See also Youell v Bland Welsh (1990) 2 Lloyd's Rep 431 at 462, and Luntz, "Assessment of Damages", 3rd Ed, 1990, at 143-4. There was therefore no legal objection to the proposed defence, and the decision to refuse the amendment cannot be supported on that ground.

On 24 June, during the cross-examination of the plaintiff, objection was taken to questions directed to establishing that he had been advised by Dr Kerr to give up alcohol, and had been warned of the risks of drinking and smoking to excess. This line of cross-examination was initially supported on the ground that it went to mitigation of damage which had been included in the defendant's statement of issues. The Judge ruled that failure to mitigate had to be pleaded, but the line of cross-examination was allowed because of its relevance to causation.

On 1 July the defendant applied to amend to plead that the plaintiff had unreasonably failed to mitigate his damage. The application was made after Dr Kerr had returned to Tasmania, and the plaintiff's re-examination had concluded. The Judge refused the application because it would be unfair to require the plaintiff's legal advisers well into the trial to have to consider how the proposed plea changed the issues in the case, and how the plaintiff's case might need to be adjusted.

The defendant faces difficulties with this ground of appeal. The discretionary considerations against upholding it are formidable, but the decisive consideration is that the proposed defence was misconceived.

The defendant's case in substance was not that the plaintiff had failed to mitigate his damage, but that he had unreasonably aggravated it. Such a case attracts different principles as explained by Glass JA in Munce v Vinidex Tubemakers Pty Limited (1974) 2 NSWLR 235 at 240, where he said:

"... Difficulties may arise in deciding whether to relegate a particular disputed question to the issue of damages for proof by the plaintiff or the issue of mitigation for proof by the defendant. If ... the defendant introduces evidence that the plaintiff, by positive exacerbation of his condition, had made it worse, it would appear on principle that the defendant would be exonerated from liability for the added ingredient unless the jury is satisfied by the plaintiff that the allegation should be rejected or that his aggravating conduct was due to his pre-existing personality, or a by-product of his injuries, and that such intervention, however caused, was in a general way foreseeable. But where the conduct charged against the plaintiff is, not that he made his condition worse, but that he refused to allow it to be improved, the question appears to display a greater affinity with the mitigation rather than the damages heading, especially if the reasonableness of his attitude is open to serious debate".

The defendant wished to argue that the plaintiff had exacerbated his condition by excessive smoking and drinking, but that question was involved in the issue of causation, on which the plaintiff had the onus of proof. See also Luntz at pp 95-6. The issue of mitigation did not arise on the matters relied on by the defendant. This ground of appeal has not been established.

Evidence of Mrs McLean admitted under Evidence Act s 64

On 1 July the Judge ruled that the plaintiff's wife could give evidence of what the plaintiff had told her in February or March 1964 about events on the night of the collision. The plaintiff had given evidence without referring to these events. The wife's evidence was admitted under the exception in s 64 to the general exclusion of hearsay in s 59 (1). Section 64 provides, so far as relevant:

"(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(3) If the person who made the representation has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:

(b) A person who ... heard ... the representation being made,

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation".

See also s 59 (2) which defines "an asserted fact".

The Judge allowed the evidence as hearsay, noting that it would also have been admissible as direct evidence to prove the plaintiff's state of mind at the time, which may have been relevant on medical issues. The defendant objected that at the time of the conversation the events were no longer "fresh in the memory" of the plaintiff, and that s 64(3) was not satisfied. The Judge held that spontaneity was not required as it had been under the res gestae exception at common law and that such dramatic events remained fresh in the memory of the plaintiff at the time. We have not been persuaded that the Judge fell into error in this ruling.

He also rejected the defendant's applications to exclude the evidence under s 135, or to limit its relevance under s 136. These sections provide:

"135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

We see no reason to differ from the conclusions of the Judge that the evidence was not unfairly prejudicial to the defendant, and that its use should not be limited. It is important to note that it was not admitted under s 72 as a contemporaneous representation by the plaintiff about his feelings, sensations, knowledge, or state of mind.

The evidence by Mrs McLean allowed by this ruling was as follows:

"A. ... I asked him what happened when the Melbourne hit the Voyager and he said it was horrific. He said picking bodies out of the water, severed arms, legs, heads, putting them in green plastic bags, he kept saying it was horrific and I said to him `what about Leo'? and he hesitated and he said `Leo went down with it, he didn't have a chance,' you know, `it could have been me'. He said `I don't want to talk about it any more'.

Q. On subsequent occasions did you ask him again about the Voyager collision?

A. I asked him quite a few times but he just avoided the question, wouldn't answer". (854-5)

The defendant called Mr Halley, a retired naval officer, and Dr Treloar, a former naval doctor, who had both been on the Melbourne on the night of the collision, to rebut the hearsay evidence given by Mrs McLean. The plaintiff objected to such evidence being led from Mr Halley, invoking ss 135 and 136, but the Judge ruled on 22 July that it should be allowed reserving the question whether it could be used to challenge the plaintiff's reliability. Mr Halley gave evidence of his movements after the collision which included being in command of one of the Melbourne's motor boats which picked up survivors. He did not witness the events described by the plaintiff to his wife.

Dr Treloar was the senior medical officer on the Melbourne responsible for the care of survivors brought on board, and the treatment of the injured. He stationed himself on the deck where the survivors rescued by the Melbourne's boats came aboard. He did not witness the events described by the plaintiff to his wife. He was responsible for the examination of any dead bodies brought on board, but had neither conducted nor arranged for any such examination. He said that any dead bodies would have been brought to the sick bay and disposed of from there and this did not happen.

On 25 July the Judge gave a further ruling. He confirmed that this evidence could be used by the jury in deciding whether the plaintiff saw what he described to his wife. The credit of Mrs McLean, in the sense of her honesty, had not been challenged in cross-examination, but her reliability was. There had been no occasion for the defendant to cross-examine the plaintiff on these matters, but it did not seek to have him recalled for further cross-examination after Mrs McLean had given evidence. Accordingly there had been no challenge to the plaintiff on this point and, as the Judge said, no serious challenge to the reliability of Mrs McLean either.

The Judge held that it would be unfairly prejudicial to the plaintiff to allow the evidence of Mr Halley and Dr Treloar to be used to attack the reliability of the plaintiff and Mrs McLean. Accordingly he ruled, pursuant to s 136, that this evidence might be used to determine whether the plaintiff truly saw what he described to his wife "but may not be used ... to impugn the credibility of the plaintiff or Mrs McLean, by suggesting ... that the plaintiff gave an untruthful account of matters to his wife or that Mrs McLean gave an untruthful account to the court of her conversation with the plaintiff". It is clear in context that these references to "untruthful account" were intended to cover their reliability as well as their honesty.

His Honour did not refer to this evidence from Mrs McLean in his summing-up, and did not give any direction as to the use the jury could make of the evidence of Mr Halley and Dr Treloar. It would have been difficult to give directions on the latter topic.

Section 136 confers a discretion to limit the use to be made of evidence. The principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply where the exercise of a judicial discretion affects substantive rights. Where the exercise of such a discretion affects matters of practice and procedure, including evidence, the court applies the more stringent test of Jordan CJ in Thompson v Thompson (1942) 59 WN (NSW) 219 at 220 that the court will not, as a general rule, interfere unless it is satisfied that the judge has applied a wrong principle of law, or that injustice will result from his order, and only if it is clearly satisfied that he is wrong. See also The Will of Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 322-3.

The present difficulties have arisen because s 64 read with s 62 now allows first hand hearsay. The first ruling allowed hearsay from Mrs McLean about events witnessed by the plaintiff as proof those events had occurred. The weight to be given to such evidence depends on the honesty and reliability of the person who made the representation, and the person giving the evidence.

A party against whom such evidence is tendered must be free to challenge any link in the chain, or the chain as a whole. It would be unfairly prejudicial within s 135 (a) for evidence to be tendered against a party who could not contest it. The rule in Browne v Dunn prevented the defendant from submitting that Mrs McLean had been dishonest in her evidence, or that the plaintiff had lied in the original conversation. Despite the tentative nature of the cross-examination of Mrs McLean directed to her reliability, we can see no reason why the defendant should not have been free to argue that the evidence of Mr Halley and Dr Treloar established that the hearsay was unreliable, and therefore either Mr or Mrs McLean or both, although not dishonest, were unreliable on this issue.

The plaintiff's legal advisers could have tendered the evidence of Mrs McLean under s 72 as evidence of the plaintiff's health and state of mind at the time, but they elected to tender it as hearsay. It would have been unfairly prejudicial to the defendant to admit that evidence on any basis which restricted its capacity to answer it. The defendant was not entitled to protection from the rule in Browne v Dunn, but we fail to see why it should have been further restricted in the use it made of its evidence in answer.

The Judge acknowledged the unprecedented difficulties in dealing with first hand hearsay under the new Act and, with the wisdom of hindsight, the better course may have been to disallow the wife's evidence as hearsay. However, once her evidence was admitted, the plaintiff was not entitled to be protected from the consequences of that evidence being found to be an inaccurate account of what had occurred. It would be unfairly prejudicial for a party who showed that first hand hearsay was unreliable to be denied the wider benefits of that finding.

The combined result of the three rulings was a one-sided situation in which the plaintiff was protected from some of the normal risks of adducing evidence. We cannot think of any instance in which such a one sided situation could arise under the common law. Evidence should be "a two-edge sword", with both benefits and risks for the party tendering it.

The result in our opinion was unjust. The evidence allowed as not unfairly prejudicial to the defendant became unfair when its use against the plaintiff was restricted. A similar situation could occur if first hand hearsay was admitted under s 64 (2) without the maker having to be called, because, for example, he was dead, ill, or out of the country. The other party could never cross-examine the maker, but if it proved that the representation was incorrect could it justly be denied the benefit of that finding on the credibility of the maker and the witness? Such a situation bears a close analogy to the present, where the maker did not give evidence of the truth of the representation.

In our opinion the ruling of 25 July created an unfair situation which occasioned an injustice to the defendant and was clearly wrong. This ground of appeal has been established.

A significant part of the defendant's case at trial was that the plaintiff was not suffering from stress disorder and his condition was not causally related to the collision. As part of this case, the defendant sought to attack the plaintiff's reliability as an historian, and suggest that he was a malingerer. One way in which it proposed to do this was to call evidence from Dr Bryant, a psychologist, who, in May 1996, had administered to the plaintiff the Minnesota Multiphasic Personality Inventory - 2nd Edition (MMPI-2).

The issue was raised when Dr Weidmann was asked during cross-examination to comment upon particular answers he was to assume the plaintiff had given to questions in the MMPI-2. Dr Weidmann said that he did not place any reliance on such psychological testing. Counsel for the plaintiff then objected to this line of questioning.

The defendant argued that it was entitled to cross-examine Dr Weidmann to establish that the plaintiff was not a reliable historian and had a tendency to exaggerate. It was submitted that evidence of this "tendency [to exaggerate] constituted `state of mind' evidence which was of probative value in assessing the reliability of the history which the [plaintiff] had provided [in evidence]." The Judge ruled that this line of cross-examination was inadmissible, because, in his view, if offended s 102 of the Evidence Act. It was apparent from his Honour's ruling that he would not admit Dr Bryant's evidence of the results of the testing for the same reason. The defendant did not subsequently contest this.

On appeal, counsel for the defendant argued that Dr Bryant's evidence would have been admissible, including under s 72 of the Evidence Act, and was not excluded by s 102. Cross-examination of Dr Weidmann on the plaintiff's unreliability and tendency to exaggerate (carrying with it the implication that the plaintiff was a malingerer) was, it was argued, therefore permissible. It was further submitted that the cross-examination was permissible under s 103.

Section 72 (which re-enacts the common law) provides:

"The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind".

Section 72 and its equivalent common law rule are directed to a person's own statements. The plaintiff made no statements about his state of mind. He answered questions in a psychological test which were interpreted by Dr Bryant. If the answers were not admissible under s 72 as evidence of his state of mind, the cross examination of another witness on those answers could not be admissible as evidence of the plaintiff's state of mind either. Accordingly s 72 did not make this cross-examination of Dr Weidmann permissible.

Section 102 is an exclusionary rule to otherwise relevant evidence. It provides:

"Evidence that is relevant only to a witness's credibility is not admissible".

". . .the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence."

The definition is wide enough to cover unreliability and exaggeration, as well as fabrication.

In general at common law evidence could not be called as to credit. However in recent years there have been a number of cases in England on the admissibility of psychiatric evidence relating to credibility. In R v Turner [1975] 1 QB 834, the Court of Appeal at 841-2 confirmed the rule that expert opinion evidence is not admissible in respect of matters within ordinary human experience. The Court said:

"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.. . The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves;. . .The same reasoning applies to its suggested admissibility on the issue of credibility. The jury had to decide what reliance they could put upon the defendant's evidence. . .The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendant's evidence was truthful".

However, in R v Robinson [1994] 3 All ER 346, Lord Taylor CJ, whilst accepting that this statement represented the "locus classicus" on the admissibility of expert evidence dealing with a witness's reliability, said there may be circumstances where expert evidence was admissible to demonstrate that a witness was unreliable provided this was not within the ordinary experience of the tribunal of fact. Lord Taylor did not elaborate on when such evidence might be admissible. One such circumstance, we suggest, is where the capacity of a person, on grounds of mental disability, to give particular evidence, is in contention.

The issue was considered in Australia in Murphy v R [1989] HCA 28; (1989) 167 CLR 94, where the issue concerned the admissibility of a psychologist's report as to the accused's low level of intellectual functioning and linguistic ability. This was relevant to the issue whether he understood his record of interview and whether it was voluntary. Mason CJ and Toohey J said at 110:

"The ultimate issue was whether Leslie Murphy gave the answers ... in the record of interview. That was a question for the jury and Mr. Sharpe's evidence would not have usurped their function. His evidence, if accepted, would have assisted the jury in answering that question in so far as it bore upon the capacity of Murphy to comprehend what was read to him and further to give the particular answers attributed to him in the record".

". . .before Mr. Sharpe's evidence could be admitted there had to be some identification of the expertise he could bring to bear. In particular the trial judge had to be satisfied that the matters to which he would speak were outside the experience and knowledge of the judge and jury".

Deane J held the evidence was admissible because it was relevant to the reliability of the confession and may have been of great assistance to the jury.

These principles continue to apply under the Evidence Act, s 102 being directed to evidence which is relevant only to a witness's credibility. In this case the diagnosis of the stress disorder was dependant, in large measure, upon the plaintiff's history, and he relied heavily upon his own version of events to establish this. To the extent that the plaintiff was a poor or untruthful historian, the defendant could undermine both the diagnosis and its causal relationship with the collision. The proposed evidence of Dr Bryant based on his administration of the MMPI-2 was directed only to the plaintiff's credibility - whether he was a reliable historian and whether he had a tendency to exaggerate. There was no part of his proposed evidence which took it outside s 102. Accordingly, as Dr Bryant's evidence would not have been admissible, cross-examination of another witness on the plaintiff's answers to the MMPI-2 was not permissible.

The question remains whether the cross examination was permissible under s 103 (1), which provides:

"(1) The credibility rule does not apply to evidence adduced in cross examination of a witness if the evidence has substantial probative value".

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

In our view one expert's comments on a test conducted by another, the results of which are not admissible, when the expert being cross examined does not accept the reliability of the test, do not have "substantial probative value" so as to be admissible under s 103. We therefore uphold the Judge's decision that neither this line of questioning directed to Dr Weidmann, nor the evidence of Dr Bryant based on his test results, were admissible.

In his final address to the jury, senior counsel for the plaintiff made what were submitted to be inflammatory and improper remarks. The first was during a Jones v Dunkel submission based on the alleged failure of the defendant to call witnesses. Counsel referred to a Dr Swain, a naval doctor who saw the plaintiff in 1964 after the collision, and said:

"Have you seen him come through the door [of the court] to say, "Look, I saw the plaintiff in 1964, yes, that's right, and he didn't mention anything about the Voyager". Did he say that? Did they call him? This is a great - this is a great forensic point, with respect, that the Commonwealth have totally failed on. They have failed to produce any relevant witness. Why? Because it wouldn't help their case. They know that. They have circled around like flies over a dead carcase, (sic) with respect. Not once did they call someone who could identify the body, yet they come and put before you that this plaintiff cannot be accepted". (emphasis added)

Later, whilst addressing on the claim for future economic loss, he said:

"What we say in respect of the future and you might balk (sic) at this a little and say "Why should he get money for the future when he is going to die?" Well, members of the jury, why should the Commonwealth of Australia get a benefit by causing the cancer which is going to cause his death? What the law says is this. The Commonwealth should not get a benefit by causing the cancer in respect of the future. Had he not had the cancer, he would have lived and he would have lived to 65. So, there is no benefit to be gained by the Commonwealth,. . .by saying "We caused the cancer, we caused his death and, therefore, he shouldn't get any money after that". The law says the Commonwealth is not to be rewarded by causing such a dreadful injury. What has to be paid is what the plaintiff would have earnt (sic) had he not been injured, had he not suffered the cancer; thus, the plaintiff is entitled to those future years,. . .future loss of earnings to age 65 when he would have worked. Why shouldn't he be awarded those damages in the light of the cancer caused by the Commonwealth's negligent act". (emphasis added)

Objection was taken to the first comment on the ground that it was prejudicial and inflammatory and suggested that damages should be awarded other than on a compensatory basis. Objection was taken to the second on the ground that it too was prejudicial and inflammatory and suggested that the defendant had acted inappropriately towards the plaintiff and should be punished. It was thus a further invitation to award damages other than on a compensatory basis. It was submitted that this comment was particularly prejudicial because the plaintiff's cancer was the central tragedy in the case.

Counsel for the defendant applied for a discharge of the jury and alternatively asked the trial judge for appropriate directions to deal with the situation. No specific direction was sought.

The Judge held that the first comment "was on the wrong side of the line" but not such as to warrant a discharge. He said it would be sufficient to give a direction that the jury were "to decide this case calmly and without emotion". His Honour found that the second comment was not "outside the bounds of the ambit of proper discretion so far as concerns the terminology which was used".

The Judge dealt with the first comment somewhat differently in his summing up. He said:

"You bring with you to this case your own qualities of reason, your own ability to judge your fellow man and your fellow woman and, most importantly, your sound commonsense. It is your minds and not your emotions which must come to bear on this case. Any question of sympathy or prejudice should not enter into your deliberations at all and you should guard against that.

Counsel, quite legitimately, are entitled to put their submissions to you in final address forcefully and with a bit of colour. They have an obligation to endeavour to persuade and that is a legitimate technique. But you must remain calm in your deliberations and judicial obligation because, in a sense, you are fulfilling the role of judges, as judges of the facts.

You must not find for the plaintiff, for example, merely because you feel sorry for him. You must not base your conclusion in any way on sympathy or on prejudice. Whether you feel sympathy for one party or the other or for some individual involved in the case is utterly irrelevant and must be put to one side. So much for your role". (emphasis added)

Before us senior counsel for the defendant submitted that the Judge should have directed the jury to disregard the inflammatory comments and directed them that the defendant was entitled to put particular matters in its final address. In his submission a direction was required which focussed the jury on their proper task, and directed them to ignore the comments.

Both references were sufficiently inflammatory to warrant serious consideration being given to a discharge. The principles governing an appeal against a trial judge's decision on an application to discharge a jury were considered in Morgan v John Fairfax & Sons Ltd (1988) 12 NSWLR 208. Kirby P at 212 said:

". . . before taking the extreme step of discharging a jury, particularly after a lengthy trial, the judge should consider whether, by appropriately expressed directions he or she could sufficiently correct the effect of the misconduct or serious error ...".

An appellate court should be slow to reverse a trial Judge's decision on an application to discharge a jury. While the discretion is not unexaminable, it should only interfere where "there is a real possibility that an injustice has occurred": per Kirby P at 215, and where to allow the decision to stand would be "inimical to the interests of justice": per Clarke JA at 237. As this trial had run for 6 weeks and the plaintiff was very ill, the considerations to which Kirby P and Clarke JA referred in Morgan justified his Honour's decision not to order a discharge.

The question then arises whether the directions were adequate. The Judge had ruled that the first comment (the "dead carcase" reference) was on the wrong side of the line. However, he directed the jury that counsel was entitled to make this comment. The second comment was also improper. Both were highly charged references in an already emotionally charged case. The Judge should have given directions that both comments were unjustified and should be disregarded.

". . .[resubmitted] the submissions already made, having heard the entirety of your Honour's charge, that there should be further directions, as submitted yesterday and today, . . .".

Counsel for the plaintiff argued that this general objection did not entitle the defendant to raise this point on appeal. In our view this was a sufficient objection and this ground of appeal has been established.

The plaintiff called Mr David William Ryan (Ryan) to give evidence of the plaintiff's behaviour and personality before and after the collision. Ryan and the plaintiff met in about 1962 and became close friends. They served together on Anzac, a training ship, for about 6 months, before being transferred to Melbourne in August 1963. The plaintiff asked him to be groomsman at his wedding. Ryan was on the Melbourne on the night of the collision.

Ryan's evidence was that prior to the collision, the plaintiff was an extremely moderate drinker, and a sociable and happy person. He said the plaintiff "changed dramatically after the collision"; "[he] wasn't the same sort of guy"; "he distanced himself from me"; "his character changed; his mannerisms changed; he wouldn't sit. . .still"; "he was jittery, nervous looking". The plaintiff's drinking increased immensely, he spent his shore leave in hotels drinking and would return to the ship intoxicated and on occasions became aggressive. Ryan observed those changes two to four months after the collision, and he said that the plaintiff "progressively got worse". Their friendship deteriorated so that by the time of the plaintiff's wedding the relationship was almost "non existent".

Ryan was cross examined in an exploratory way. Counsel for the defendant did not suggest to Ryan that he was fabricating or exaggerating. Nor did he suggest that his evidence was unreliable due to the lapse of time.

In his final address, senior counsel for the defendant drew on Ryan's evidence to attack the plaintiff's credibility. He suggested that if the plaintiff was to be believed that "his nerves were on end for no reason" and he could not "get on with his normal course of living", he would have told someone. However, he said nothing to the doctors, nor to Ryan. Counsel for the plaintiff in his final address briefly referred to Ryan's evidence that after the collision, the plaintiff was "jittery, nervous, drinking, distanced himself, etc".

The Judge referred to the evidence of the plaintiff and his wife, and the attacks on their credit, and then moved to the evidence of Ryan. In the course of referring to his evidence, he said:

"But what about Mr Ryan? What motive can he have had to lie on his oath? ...

Now, Mr Ryan is a witness like any other witness. You make your observations of him in the witness box. You ask yourself "Well, what's his interest in all this?" ... you may think that he carries a very weighty influence on the issues of fact in this case".

Counsel for the defendant objected to this part of the summing-up because it implied that Ryan's evidence only supported the plaintiff's case. In particular counsel said that his Honour had failed to mention the time when Ryan had observed the change in the plaintiff, a matter which was important on the defendant's case as negativing the existence of the stress disorder.

The ground of appeal broadly reflects the objection taken at trial, but does not refer to the Judge's remarks quoted above. The plaintiff submitted therefore that an attack on those remarks was not open under this ground of appeal. The essence of the objection taken at trial was that the Judge should have put Ryan's evidence fairly to the jury by also mentioning those aspects which were favourable to the defendant's case. On appeal, counsel for the defendant submitted that the Judge's error was manifest in his comment. In our view the ground of appeal covers the objection taken at trial.

Counsel for the plaintiff submitted that, as there was no credit issue in respect of Ryan, it was necessary for the Judge to differentiate his evidence from that of the plaintiff and his wife and the rhetorical question "what motive can he have had to lie on his oath?" was an appropriate way of doing this. In our view, the Judge in making those remarks suggested that Ryan's evidence was only favourable to the plaintiff, and thus seriously misstated the effect of Ryan's evidence and its significance to the defendant's case.

Counsel for the plaintiff also contended that the defendant's objection at the trial did not satisfy the requirements stated in Singleton v Ffrench (1986) 5 NSWLR 425 at 440 but we think it was sufficient.

These errors related to matters of fact and for that reason may not have entitled the defendant to a new trial, but in the circumstances it is not necessary to express a final view on this question. See Manning v Bernard Manning & Co Pty Ltd [1960] HCA 20; (1960) 101 CLR 345 at 351, and General Motors-Holdens Pty Ltd v Moularas [1964] HCA 39; (1964) 111 CLR 234 at 255, 259.

Reference to "guilt" in final address by plaintiff's counsel

In his address to the jury, counsel for the plaintiff said:

"...there are two aspects of damages: First, the non-economic loss and the other is the economic loss. I want to deal briefly with the non-economic loss. The non-economic loss are (sic) those things obviously not related to wages and that sort of stuff; what the pain and suffering, the pain and suffering the plaintiff has been through and is likely to go through. We start with a man in 1964 who was healthy, who thought he had a career, who wanted to make a career, who looked forward to travel, who had a good relationship with his wife or his girlfriend at the time and who got on well with his mates. An ordinary, average guy you might think. Then, he is struck with the terror of the collision, horrific screams and . . . panic fear of death. Enormous anxiety as to his mate Leo. Guilt".

"Leo" was a close friend who died on the Voyager. He and the plaintiff had served together on the Anzac. When they had been given their respective drafts to Voyager and Melbourne, Leo had "pestered" the plaintiff to swap but he had refused. The plaintiff said in evidence that but for his decision Leo would not have died. The plaintiff described feelings of "guilt" over his death. This was one of the matters relied upon by the defendant in support of its application for a discharge, or in the alternative for appropriate directions to the jury. The Judge held that the reference was appropriate.

Feelings of guilt are an associated descriptive feature of the stress disorder. As such they were relevant to the plaintiff's case. Counsel's reference while dramatic did not invite the jury to award damages for guilt as such. This was referred to as an aspect of the suffering the plaintiff had undergone as part of his stress disorder, for which he was entitled to be compensated. The reference involved no error.

Plaintiff's counsel's Jones v Dunkel submission to the jury

The medical evidence included business records. The plaintiff tendered:

1. The "Medical Entry History Questionnaire" and "Medical Examination Record" (exhibit A) brought into existence when the plaintiff entered the navy. His physical and mental health were then normal;

2. The "Daily Medical Records" for 16 July 1964 (exhibit F); 29 July (exhibit G); 8 & 15 March and 15 October 1965; 8 and 15 March and 7 October 1967 (exhibit AB). On 16 July 1964 the plaintiff complained that "his nerves were on end for no reason"; on 29 July 1964, the medical officer wrote that the plaintiff was "a nut". He was involved in a motor vehicle accident on 8 March 1967 and complained on 13 March "that he is extremely nervous at the moment"; and on 7 October 1967 he was "a bundle of nerves since [the motor vehicle] accident"; "nervous - twitchy";

3. The front page of medical certificates so described bearing the heading "Commonwealth of Australia Defence Forces Retirement Benefits Act (DFRDB) Personal Statement by Pensioner" (exhibits J, K, L, O, P, Q and R) containing information provided by the plaintiff and signed by him. The medical certificates on the reverse side were not in evidence.

4. Clinical Notes of the Spencer Clinic for the period 4 November 1970 to 2 January 1971 (Ex X) which revealed that the plaintiff had been diagnosed by Dr Kerr as having an "anxiety neurosis".

5. An extract from the report of Dr Briggs following his examination of the plaintiff on 1 March 1994 sent to the plaintiff by DFRDB in its letter of 11 April 1994 (exhibit Z).

6. Naval out-patient records of 12 and 22 December 1967 by Dr Hoare who recorded a history of "change in his personality over 1 year" and problems with gambling (exhibit 5). Dr Hoare referred the plaintiff to Dr McGeorge, psychiatrist.

7. A report dated 2 February 1968 of Dr Carter, Naval psychologist, referring to the plaintiff's gambling problems since February 1967 (exhibit 6).

8. A series of brief reports from Dr McGeorge (since deceased).

9. A medical examination record dated 10 July 1968, on which the plaintiff was discharged from the Navy, completed by Dr Smith, in which he diagnosed an anxiety state and certified the plaintiff as unfit for service (exhibit 2).

10. The Spencer Clinic Notes in respect of the plaintiff's admission in May 1986 (exhibit 10).

In his address to the jury, counsel for the plaintiff twice referred to the defendant's failure to call medical and other witnesses. The first was as follows:

"And the plaintiff has not hidden witnesses from you. The plaintiff has called witness after witness who you would expect the plaintiff to call. Not necessarily friends of the plaintiff - Mr Ryan is no friend of the plaintiff. Mrs McLean has every reason to not be a friend of the plaintiff although she still loves him.

But the doctors, Dr Kerr, he wasn't chosen by the plaintiff as being good for this case. Dr Kerr was the treating Doctor.

We called all of these witnesses for you to assess. Compare our behaviour on this issue with that of the defendant, the Commonwealth of Australia. Who do they call? They call Dr Shand, and I will have a bit more to say about him shortly, but I won't say anything more than that, but simply put a totally unreliable professional witness in the witness box, and they call two other witnesses, Dr Treloar, who never treated the plaintiff, who comes all the way at short notice from Canberra at no cost. No matter to that. And Commander Halley, he didn't know the plaintiff either.

People who don't know the plaintiff they call to try and do what? To try and suggest the plaintiff's evidence and the case can't be accepted.

Now, Members of the Jury, you ask yourself, with respect, and this is using just your own common sense, here we have the Commonwealth of Australia. We know that there are umpteen witnesses out there they could have called. We know that there were 900 members on that Melbourne when the Voyager went down. We know he had commanding officers. We know he saw doctors on behalf of the navy for not only treatment but for assessment, time and time again.

Not only for the Navy but thereafter, every 12 months, he is seeing these Commonwealth doctors. Have you seen one of them enter this courtroom? Have you seen one colleague of the plaintiff's entering the courtroom to deny what the plaintiff has said as to that he was lying after the Voyager, what he was like before the Voyager?

Have you seen one Doctor who the Commonwealth, in its various guises, has had the plaintiff seen since 1964? One, yes, Dr Treloar, who has never seen the plaintiff. That's the best they could come up with.

How convenient that the only Doctor they can call who was in the Navy at the time the plaintiff was there was Dr Treloar who has never, not even suggested he saw the plaintiff.

But Dr Swain we know saw the plaintiff. Where is he? He is in Adelaide practising as an anaesthetist. Have you seen him come through the door to say "Look, I saw the plaintiff in 1964, yes, that's right, and he didn't mention anything about the Voyager". Did he say that? Did they call him? This is a great - this is a great forensic point, with respect, that the Commonwealth have totally failed on. They have failed to produce any relevant witness. Why? Because it wouldn't help their case. They know that. They have circled around like flies over a dead carcase, with respect. Not once did they call someone who could identify the body, yet they come and put before you that this plaintiff cannot be accepted". (emphasis supplied)

"Members of the jury, my simple submission is this. The evidence on post-traumatic stress disorder is overwhelming ... I mean, and it is confirmed by the abreaction and, to some extent I suppose, the fact - and to some extent by the failure of the Commonwealth to call relevant witnesses.

Let me go through them for the moment. You did hear evidence about the Melbourne association, the officer's association, all of these people. That evidence was led simply to show that if the Commonwealth wanted to find relevant witnesses, they easily could have. They had their present addresses, they could find Treloar, they could find Halley. They could find anyone they wanted and ship them in from Canberra and Berri. Had every chance. Even Halley was prepared to go and looking for witnesses - and, of course, they never found one relevant one. There are a lot of others - and I don't know if you appreciate this - but there are just any of all the doctors the plaintiff had seen in the Navy. Swain, and I have referred to him. What about the doctor who discharged him? He didn't retire as Mr Puckeridge suggested to you, he was discharged. Where is he? Smith, Exhibit 2, who certified that the plaintiff had an anxiety state, the very same condition Swain had certified the plaintiff as having four years earlier. Where is Smith? Wouldn't it be interesting - not that you could speculate about that - to have before you evidence from the man who saw him and discharged him as to what was the cause of the accident as to the anxiety state. Where are these people in Exhibits 1 to 10, Barnett, [Hoare], Carter? Where are all of these doctors? Scraps of paper have been put before you with names of doctors, various names of doctors on them. Where are they? Why haven't they come through this door and said "Oh look, when I saw the plaintiff, there was nothing wrong with him". Why did they discharge him? Where are all the doctors who saw the plaintiff from 1970 to 1996 on the 12 month review that he had to have for his pension? Where are all of these Commonwealth doctors? Where is Dr Briggs? Why haven't the Commonwealth - these are people that the Commonwealth have engaged for the purposes of examining the plaintiff over 30 years. Who have they drawn? Shand. Where's Dr [Crawford]? Where is Dr Martin? Where is Dr Bryant? Where are all of these people whose names have been mentioned in this case, members of the jury? The best they come up with is Shand who clearly never saw the plaintiff. How convenient.

Yet they would have you believe that the plaintiff hasn't proven its case even though the plaintiff has been treated by Kerr over 20-odd years and who has come before you. His wife has come before you. Ryan. Where are the nurses from the Spencer Clinic as to whether this was, in fact, something the plaintiff was said to her, or whether it was something she took from some other document.

I mean, this point about these medical notes is a very dangerous one, a very, very dangerous one for you to rely on any document where you haven't heard from the witness".

Counsel for the defendant objected to this and sought a discharge. The trial judge rejected the application, stating that he considered that these submissions were available to the plaintiff and he later gave the jury a general Jones v Dunkel direction without more.

The doctors referred to by plaintiff's counsel were:

. Dr Swain, a naval doctor who saw the plaintiff in 1964 and wrote exhibits F and G tendered by the plaintiff.

. Dr Smith, a naval doctor who examined the plaintiff in connection with his discharge and wrote exhibit 2.

. Dr Barnett, a naval doctor who saw the plaintiff in 1967 and wrote exhibit AB tendered by the plaintiff.

. Dr Hoare, a naval doctor who wrote exhibit 5 in 1967 which was tendered by the defendant.

. Dr Carter, a naval psychologist, whose report of 2 February 1968 was exhibit 6 tendered by the defendant.

. Dr Briggs, a psychiatrist who provided a report to the Defence Force Retirement and Death Benefits Authority in 1994 on a review of the plaintiff's invalidity classification. The plaintiff was sent to Dr Briggs because Dr Kerr was not available.

. Dr Crawford, a doctor in Launceston whom the plaintiff saw "at one stage" possibly in 1972. (604) Counsel for the defendant cross-examined the plaintiff about seeing this doctor, but the evidence does not otherwise reveal how the plaintiff came to see him.

. Dr Martin had been retained by the defendant to give a medico-legal opinion. He saw the plaintiff but was not called to give evidence.

. Dr Bryant was the psychologist retained by the defendant who administered the MMPI-2 test to the plaintiff.

The only nurse at the Spencer Clinic identified by the evidence was Nurse Hockley who wrote up the notes at the time of the plaintiff's admission on 29 May 1986. These were tendered by the defendant and became exhibit 10.

The evidence also identified Dr White, the plaintiff's general practitioner who provided medical certificates dated 21 January 1969 and 4 February 1970 (733) and possibly others for DFRDB purposes where the front sides were in evidence tendered by the plaintiff.

The plaintiff was granted a pension under the Defence Forces Retirement Benefits Act and was reviewed every 12 months by doctors who he said were selected by the "Commonwealth". In fact they were selected by the DFRDB, but at the trial neither counsel sought to draw any distinction. These "Commonwealth" doctors were required to give a certificate as part of a review to "determine whether there has been any change in pensioner's percentage of total incapacity in relation to civil employment".

Against this background, counsel for the defendant submitted that (1) a Jones v Dunkel inference is not available when a document has been admitted as a business record; (2) counsel for the plaintiff had not laid the basis for his general Jones v Dunkel submissions; (3) there was no evidence that all the doctors and the nurse referred to were in the defendant's "camp"; (4) the Jones v Dunkel submission was erroneous and inflammatory in implying that the defendant was hiding witnesses; and (5) the Judge erred in failing to direct the jury to disregard plaintiff's s counsel's submission in relation to most of the doctors and the nurse. He accepted that a Jones v Dunkel submission was available to the plaintiff in respect of Dr Martin.

The rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was considered in Payne v Parker [1976] 1 NSWLR 191. Hutley JA described the rule at 194 as:

". . .a direction to a jury as to weight which can be given to inferences to support evidence already available to them in the trial".

He dealt at 197 with the bases for such a direction saying:

"A Jones v. Dunkel direction should not be given, unless there is actual evidence before the jury that the witness whose absence is to be the subject of comment is not available to the party seeking the benefit of inferences from his absence. Otherwise the opportunities for grave injustice will be open. There is a great difference in directing the jury, where a party, or a person clearly under the control of a party, is not called, and where the only basis for inferring that a witness is not equally available is a jury's supposed judicial knowledge. This, in many cases involving professions, merely gives prejudice and suspicion full play.

Similarly, in my opinion, the evidence should point to the witnesses not only being available, but having relevant knowledge to put before the Court".

Glass JA at 200-202 concluded that the rule involved the following propositions:

"(1) The rule is a principle of the law of evidence whereby a particular form of reasoning is authorized.

(2) The reasoning which is permissible involves the treatment of a failure to adduce evidence as a reason for increasing the weight of the proofs of the opposite party or reducing the weight of the proofs of the party in default ... The principle may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only . . . If the failure is of the former kind, a consonant formulation would be that the direct evidence of the party carrying the onus may be more readily rejected, and the inferences for which he contends may be treated with greater reserve ...

(3) The failure to call a particular witness is merely one instance of evidentiary deficiency which brings the principle into operation. Other instances are the failure to adduce any evidence at all ... the failure to produce a particular document, and the failure to prove a particular fact ... (See also Commercial Union Assurance Co Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-9.)

(4) ... it is for the judge to determine whether the principle could be applied, and for the jury to decide whether it should be applied. ...

(5) Whether the principle can be applied is a question of law ...

(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.

(7) The first condition is also described as existing where it would be natural for one party to produce the witness ... or the witness would be expected to be available to one party rather than the other ... Or where the circumstances excuse one party from calling the witness, but require the other party to call him ... or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him ... Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman ... his safety officer ... accountant ... (and) treating doctor...

(8) ... Unless, upon the evidence, the tribunal of fact is entitled to a conclusion that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.

(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory ...".

It is important in our view that the plaintiff did not challenge the histories recorded by the naval doctors. Indeed the plaintiff tendered some of their documents. This was not a case where the doctors recorded histories which the plaintiff denied or sought to qualify or explain.

A Jones v Dunkel submission is available for the purpose of "increasing the weight of the proofs of the party in default". The rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. The defendant did not rely on inferences from the naval medical records as to any other matters that occurred during such medical examinations.

The plaintiff relied on exhibit F (16 July 1964 "nerves on end for no reason") as an early complaint of nerves. The defendant relied on exhibit F to demonstrate the absence of a conscious connection with the collision. Neither party relied on exhibit F as the basis for an inference that something else of relevance occurred during that examination. In those circumstances there was no occasion for either party to call the maker of exhibit F, Dr Swain, and there was no basis in his case for a Jones v Dunkel submission against the defendant.

Under the 6th and 7th propositions of Glass JA in Payne v Parker, the naval doctors would more likely be called by the defendant. However in the absence of any suggestion by evidence or inference that they took a history relevant to the disputed diagnosis in addition to or contrary to that disclosed in the business records, no basis was laid for the Jones v Dunkel submission against the defendant.

The "Commonwealth" doctors, apart from Dr Briggs, who saw the plaintiff annually between 1969 and 1994, were not naval doctors, but in our view no Jones v Dunkel submission against the defendant arose in their case either. The "Commonwealth" doctor for 1969 and 1970 was Dr White, the plaintiff's general practitioner. The evidence does not reveal the identity of the "Commonwealth" doctors for the other years, but Dr White may have given other certificates. This demonstrates that the plaintiff had not laid the necessary foundation for a Jones v Dunkel submission in relation to these doctors. They may have been the plaintiff's own doctors retained by the Commonwealth for this purpose, and therefore in the plaintiff's camp rather than the reverse.

A further difficulty with the Jones v Dunkel submission is that there was no dispute that the plaintiff was suffering from some form of mental illness. The dispute was about the nature and causes of that illness. The first naval record after the collision records a diagnosis of "anxiety" and a similar diagnosis is shown in the later records. It was therefore inappropriate for senior counsel for the plaintiff to imply, as he did in the second passage quoted, that it was part of the defendant's case that there was nothing wrong with the plaintiff.

Dr Briggs must be considered separately. He provided a report to the DFRDB which resulted in the plaintiff's pension being upgraded from Class A to Class B. The Board's letter to the plaintiff advising this included an extract from Dr Briggs' report, in which he said that the plaintiff was suffering a "post-traumatic disorder associated with the `Voyager' incident...". The Board's letter was tendered by the plaintiff and admitted for a limited purpose as "evidence of a communication, going to proof of the [plaintiff's] state of mind and tending to re-establish credibility". It was expressly not admitted as evidence of the plaintiff's mental condition or its relationship with the collision.

The letter had been tendered earlier during the plaintiff's evidence in chief and rejected. In his reasons for rejecting that tender, the Judge held that:

(i) Dr Briggs' view as to the plaintiff's condition and its causal connection with the collision was expressed tentatively;

(ii) if the Authority's letter was admitted, Dr Briggs' opinion would be untested so that its probative value was very low_;_

(iii) it would be unfairly prejudicial to admit the letter as the defendant should have the opportunity to test evidence on a "contentious matter of medical science" by cross-examination.

Points (ii) and (iii) reflect bases upon which evidence may be rejected under ss 135 and 136 of the Evidence Act.

". . .there is the further consideration ... that there is no evidence ... that Dr. Briggs is unavailable to the plaintiff to be called in the ordinary way".

Nothing occurred later which could have caused the Judge to come to a different view. Accordingly, an essential condition for a Jones v Dunkel submission in relation to Dr Briggs had not been made out. A direction was required that the jury should disregard the comment by plaintiff's counsel based on the defendant's failure to call Dr Briggs and the reasons why such a comment was not available to the plaintiff.

We have held that Dr Bryant's evidence dealing with his administration of the MMPI-2 test was not admissible. This was the basis of his opinion that the plaintiff was not suffering from the stress disorder. It was misleading and unfair for plaintiff's counsel to include Dr Bryant in his Jones v Dunkel submission to the jury, given the Judge's ruling that he could not give admissible evidence. A direction was required from the Judge to enable the jury to understand that, although there was evidence that Dr Bryant had seen the plaintiff on behalf of the defendant, no inference could be drawn from the defendant's failure to call him because the Judge had ruled that his evidence was not admissible.

Nurse Hockley was the admissions nurse at the Spencer Clinic where the plaintiff was admitted by his family in 1986. She wrote up (exhibit 10) the admission records for the plaintiff and was identified by Dr Kerr. Exhibit 10 included the statement "His nerves has (sic) not been good since he had the motor vehicle accident ...". A fair reading of the document indicates that this information came from the plaintiff. If the plaintiff wanted the jury to find that this information came from Mrs McLean or someone else, contrary to what appears from a fair reading of the document, the plaintiff should have called Nurse Hockley. It may also be noted that the plaintiff was not recalled in reply to deny giving that history to Nurse Hockley. There was no reason for the defendant to call her and she was not in the defendant's camp.

It follows that counsel for the plaintiff in his closing address to the jury was only entitled to make a Jones v Dunkel submission in respect of Dr Martin. He was not entitled to make the submission in respect of the naval doctors because there was no challenge to the accuracy or completeness of the recorded histories, and the defendant was not relying on their records as the basis for inferences that something else of relevance had occurred during those examinations.

Counsel were not entitled to make the submission in relation to the other "Commonwealth" doctors, apart from Dr Briggs, because there was no evidence that they were in the Commonwealth camp. The submission to that effect was not only unsupported, but in the two cases where the identity of the doctor was known, it was incorrect. In those two cases the certificates had been given by Dr White, the plaintiff's general practitioner.

The submission in relation to Drs Briggs and Bryant was, for the reasons we have given, not only wrong, it was unfair and misleading. As to Nurse Hockley, there was not only no basis for thinking that she was in the defendant's camp, but if anyone should have called her, it was the plaintiff.

This is not all. Counsel for the plaintiff suggested to the jury in clear terms that the defendant had "hidden" witnesses. This suggested something more than a decision not to call them or a failure to do so. There was no basis for that suggestion. Counsel also referred to the medical records as "scraps of paper" implying that they had all been tendered by the defendant without calling the doctors, whereas many had been tendered by the plaintiff, without calling the doctors.

All these matters called for firm and clear directions from the Judge. As such directions were not given we can only conclude that plaintiff's counsel's submissions to the jury in reliance on Jones v Dunkel caused a substantial wrong or miscarriage which, on its own, would have required us to order a new trial.

The Judge's direction on the defendant's case on post-traumatic stress disorder

This ground alleged error by the Judge in directing the jury that the defendant had put its case squarely on the terms of DSM-IV when it also had an independent case on this issue. DSM-IV stands for "Diagnostic and Statistical Manual of Mental Disorders". being the 4th Ed of that manual, an American publication used by psychiatrists as a diagnostic reference. Dr Shand, the psychiatrist called by the defendant, relying on DSM-IV said that the plaintiff was not suffering from this stress disorder because he did not -

(1) suffer persistent, distressing, intrusive re-experiencing;

(3) connect in his mind the complaint to the traumatic event;

(4) recall aspects of the event, not merely the generality of it,

"Now the defendant, through Dr Shand, you may think, put its case squarely on the basis of DSM-IV. The approach taken by Dr Shand - and it was adopted by the defendant for the purposes of this case - was that this cannot be a case of post-traumatic stress disorder, because the criteria set out in DSM-IV are not satisfied ... counsel for the defendant stressed that in Dr Shand's view the plaintiff's descriptions of his recollections of the episode were not intrusive ... what I wish to point out is that to insist on recollections being intrusive is not using DSM-IV as a test for post-traumatic stress disorder ... the only point that I wish to convey to you for your consideration is that one cannot say that intrusive recollections are a necessary feature of a mental illness in order to qualify it for the description of post-traumatic stress disorder under these criteria. Nor does this document say that intrusive thoughts must be a debilitating feature of the illness because you can have post-traumatic stress disorder under this document without having intrusive thoughts at all".

There can be no doubt that Dr Shand based both his diagnosis of the plaintiff, and his evidence, on the description of this disorder in DSM-IV and to that extent the Judge's directions were entirely appropriate. What was in dispute on the appeal was whether the defendant also had a case on this issue which was independent of the text of DSM-IV.

The plaintiff called two psychiatrists, Dr Kerr and Dr Weidmann. Neither fully accepted DSM-IV although they acknowledged that it could be a useful guide. Both were cross-examined to suggest that the plaintiff was suffering from a different mental illness which had not been caused by the collision and its immediate aftermath.

On the appeal counsel for the defendant contended that Dr Shand's evidence and his clinical opinion were capable of supporting a case for the defendant on this stress disorder which was independent of DSM-IV. We heard lengthy submissions on this question but we were not convinced. The evidence and the passages in defendant counsel's address to the jury we were referred to provided some literal support for this submission, but we are not satisfied that such a case was ever clearly presented through Dr Shand. On a question such as this so much depends on the general atmosphere of the trial, and the context in which the evidence was given and the submissions made. We are not prepared to differ from the trial Judge on this question.

There remains the question whether the defendant had a case on this issue which was independent both of Dr Shand's evidence and the terms of DSM-IV. The plaintiff complained to doctors in 1964 and later that he did not know why his nerves were "on end" and this was one of the grounds upon which he obtained an extension of the limitation period. Dr Kerr said in his cross-examination:

"Q. But just forgetting the classification at the present stage, doctor, if a particular incident causes stress in considering the relationship to the incident, you would normally expect a complaint of flashbacks to that particular incident?

Dr Weidmann gave extensive evidence on these questions which was independent of the text of DSM-IV:

"Q. Well, it is extraordinary, is it not in the sense that if he has nightmares and you have a post-traumatic stress syndrome, you would normally know or be aware of that particular memory or event?

Q. Because one of the significant matters of any such disorder is intrusive memories?

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (382 paragraphs)

Parties

Cases Cited (48)

Commonwealth of Australia v W L McLean [1996] NSWSC 657 (31 December 1996)