"... 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?

Q. Intrusive memories of an event which keep coming back?

Q. If you had an event which brought about stress, you would normally expect a person, if he had nightmares, to be aware of those nightmares concerning the stressful event?

A. I think the operative word there is normally, yes, not exclusively.

Q. I accept that but in this particular case that is not present?

Q. Now in any diagnosis as to post-traumatic stress disorder the person's belief of the event and the feelings he gets in relation to that event are a very important diagnostic matter in relation to any such disorder?

Q. Now if you just look at it as a post-traumatic stress disorder you would normally expect intense psychological distress as (sic) exposure to internal or external cues to symbolise or resemble an aspect of the traumatic event?

Q. And as you understood the position, he was about to go to bed in his bunk when the crash occurred?

A. That's my understanding. He told me he was standing by his bunk. I assumed he was about to bunk down, yes.

Q. And as you understood it any panic which he had occurred as at that particular time?

Q. Well would you not expect that if he was in the same bunk, same sleeping quarters, went back to the same sleeping quarters after the collision, he might reexperience the same form of panic?

A. That's likely but not 100% likely; in other words it is what I was saying yesterday, someone with a delayed response might not feel all that much. They might be psychologically numb for a period of time.

Q. But in reexperiencing the feelings in his mind, as you understood it, the feeling that was being reexperienced was panic?

Q. Well there was nothing in the history given to you by Mr McLean, that he reexperienced such panic again after the collision when he was on the Melbourne?

Q. And in relation to any stress disorder which might have occurred to him, as to whether or not it affects his behaviour, that is something of importance is it not doctor?

Q. It is of importance, is it not, in relation to determining whether or not the event actually affected his behaviour?

Q. If he was to have behavioural problems as a result of the Voyager collision, such problems would you expect them to be debilitating?

A. When he had post-traumatic stress syndrome yes but --

Q. As we understand it doctor, post-traumatic stress disorder is a significant debilitating condition?

Q. And it is debilitating in the sense that the event which causes it is constantly being re-experienced by the person?

Q. And that re-experiencing of the situation brings about symptoms which have a significant effect on them?

Q, Once those symptoms occur it is normally the situation that the person who has such a condition wants to avoid what triggered it off?

Q. Well if Mr McLean did not seek to avoid going back on the Melbourne and being in the same quarters as he was when the collision occurred, does that not point against any diagnosis of post-traumatic stress disorder.

During his address to the jury, Mr Puckeridge QC senior counsel for the defendant, referred extensively to Dr Kerr's evidence (2317-25) including his evidence that with this stress disorder one would normally expect flashbacks to the particular incident, and his agreement that one of the most significant matters with this disorder is intrusive memories. This evidence was independent of DSM-IV because Dr Kerr did not accept that manual as definitive in the way that Dr Shand did. At 2318-9 the jury were reminded of Dr Kerr's evidence that he would expect the plaintiff to know the reason for his problems and his nightmares, that the plaintiff had not made an accurate connection with the Voyager disaster (2320) and he had not been aware that the plaintiff remained in the same quarters on the Melbourne for some 18 months or 2 years after the collision. He acknowledged that this was a significant matter. (2321-2)

Mr Puckeridge referred to the evidence of Dr Weidmann on these issues (2324-2336). He reminded the jury that Dr Weidmann found it hard to explain why the plaintiff had no intrusive thoughts of the collision (2332), that the plaintiff's willingness to go back to the same quarters on the Melbourne pointed against a diagnosis of the stress disorder (2334), and that the doctor had based his diagnosis on his clinical judgment after one interview. (2335) He then said that Dr Weidmann's clinical judgment:

"... didn't take into account the view of Dr Kerr. Doesn't take into account the view of Dr Kerr that at one stage - we will come to that - he was dealing with an unstable personality. Doesn't take into account as what we know what he said of his worries at that time of a child coming on the scene that he didn't want. As he told Mrs McLean. Doesn't take into account his concerns as to worries and not getting anything for the house because of gambling. Doesn't takes into account any of those matters. And he says well, I just think that is a possibility.

Members of the jury, we would suggest that it is far more than a possibility. It is in fact an indication of what has occurred in this particular case: That we have a person who to a very large extent is not facing up to his responsibilities or was not facing up to his responsibilities and it has been suggested to you, members of the jury, that at some stage in our life choices that we make, choices that we make, are not deliberate. That to some extent our choices which we make are something which we can't help making. It takes away the idea of a deliberate choice.

It is unfortunate but we would suggest and we do suggest, as Dr Shand has suggested, that what we have in this particular situation is a person of an unstable personality as considered by Dr Kerr and a personality who unfortunately just could not face up to his responsibilities in life and now action as at this stage (sic) the overall scheme of things one can understand it, has a justifiable shame in relation to his actions; seeks to relate that back to this account."

In our judgment therefore the defendant had and maintained a case in answer to the plaintiff's claim that he suffered from this stress disorder which was independent of DSM-IV and the evidence of Dr Shand and was entitled to have this case considered by the jury. The Judge effectively withdrew this alternative case from the jury. In our judgment he erred in doing so and this ground of appeal has been established.

This ground alleges that the Judge erred in stating in his summing-up "that in part the DSM-IV criteria could be satisfied by evidence of nightmares and the plaintiff keeping problems to himself". (2435) The Judge told the jury that under para B of the DSM-IV criteria, there are "alternatives to recurrent and intrusive, distressing recollections, one of which is recurrent, distressing dreams of the event". The defendant contends that this direction was wrong because the interpretation of the DSM-IV criteria were matters for expert evidence and not for the Judge or the jury. However what the Judge did was to take the defendant's case based on DSM-IV and point out that its text allowed para B to be satisfied by "recurrent, distressing dreams of the event". We see no error in the Judge's approach. He was not expressing a view that the criteria were satisfied and was not attempting to say what the criteria should be. He was simply referring the jury to the terms of the document which had been tendered by the defendant. It remained for the jury, aided by the expert evidence, to determine whether the plaintiff's symptoms matched the alternative criteria. (2434) The Judge did not attempt to influence the jury on that question. In our view this ground of appeal has not been established.

This ground is that the Judge erred in directing the jury that "the apparent inconsistency of the plaintiff remaining in the same bunk after the collision whilst allegedly suffering from post-traumatic stress disorder could be explained by a concern not to seek transfer in circumstances of being a sailor in the Navy, when there was no evidence to support that proposition".

"... You are apparently asked to find that the plaintiff, as an enlisted Navy Serviceman, could have seen his way clear to telling his commanding officers that he would like to change sleeping messes because he was frightened to be there at night. Considerations of that sort are a matter for you".

The Judge referred to "commanding officers" in the plural which avoids any suggestion that the plaintiff would have had to apply to the Captain of the Melbourne for permission to change his sleeping mess. The jury's likely understanding of this direction was that any such application could be made to the appropriate officer, who would of course be one of the officers having command over the plaintiff. A trial Judge is entitled to comment on the evidence even where his comment appears to favour one party rather than another, provided that he does not attempt to overawe the jury and makes it clear that the decision on the question of fact is for them. See Bugg v Day [1949] HCA 59; (1949) 79 CLR 442 at 461-2. While there was no evidence to support the Judge's comment, this direction did no more than invite the jury to consider the question in the light of their commonsense and knowledge of affairs. In our view this ground of appeal has not been established.

The plaintiff claimed that the sudden experience or perception of the collision, and its aftermath, was so distressing that it had an immediate effect on his mind causing, or materially contributing to his contracting the stress disorder. The plaintiff also claimed that his stress disorder caused the further damage.

The plaintiff's initial burden on these claims was to prove causation. The Judge left the issues of causation to the jury as questions of fact, and subject to one matter considered later, no objection was taken to these directions. He also left the issue of remoteness to the jury (2417, 2421-4) in relation to the onset of the stress disorder, concluding (2422-3):

"All that is necessary is that the defendant ought reasonably to have foreseen the risk of psychiatric illness of some kind as arising in some way from the immediate effect of the episode on the mind of a person who happened to be on the Melbourne at the time".

He told them that it was not necessary for the defendant to have foreseen that the condition might not lead to disabling symptoms until after some other event such as the 1967 motor vehicle accident. No objection was taken to these directions.

The defendant argued that the plaintiff's claims for further damage were too remote. The Judge gave the jury the following directions on this issue (2468-9):

"I ... instruct you as a matter of law that no question of remoteness of damage arises in relation to the alleged consequences of the post-traumatic stress disorder as distinct from the occurrence of post-traumatic stress disorder itself ... if you find that those further items of damage have occurred and that they were caused or materially contributed to by the illness of post-traumatic stress disorder, no question of remoteness of damage arises to prevent damages being awarded for those consequential items of damage. That is because those consequences will have arisen, in this case, on those findings due to the plaintiff's psychological and physical makeup. The defendant takes the plaintiff as it finds him with all his strengths, his weaknesses, and idiosyncrasies, whether of body and mind. So there is no question that matters consequent upon post-traumatic stress disorder in this case are too remote ".

No objection was taken to this part of the summing-up, but the question had been the subject of an earlier ruling after argument. (2218) The defendant submitted that issues of remoteness arose in relation to the further damage which were questions of fact for the jury, and that the Judge had erred in giving the directions quoted.

A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner. See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120-1. The test of liability for nervous shock is foreseeability of injury by shock. See Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 402, 412; Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 552-3, 561, 563.

The courts have recognised that for some purposes psychiatric injury is a form of bodily injury. See Page v Smith [1995] UKHL 7; (1996) 1 AC 155 at 182-3, 187-8; Aboushadi v CIC Insurance Ltd (1996) Aust Torts Reports 63, 336 at 63, 339, and American Airlines Inc v Georgeopoulos, Court of Appeal, 26 September 1996, unreported at pp 12-15. See also R v Chan-Fook [1993] EWCA Crim 1; (1994) 1 WLR 689 at 695-6, where psychiatric injury was held to constitute actual bodily harm. The courts have nevertheless treated damage by nervous shock as different "in kind" from tangible physical injury.

Thus in Mt Isa Mines Ltd v Pusey at 402, Windeyer J said:

"Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind ... this ... has however the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large. The logical problem thus engendered has been noticed by commentators ... In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one `fixed and definite line'. Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a `recognisable psychiatric illness'. Whether the particular consequences of the deranged mentality sound in damages is a different question".

"Thus injury by shock is treated as a distinct `kind' or class of damage for the purposes of the general principle enunciated in The Wagon Mound (No 1) that liability depends upon the foreseeability of the kind of damage for which the defendant is sued ... for the purposes of the present case the statement in The Wagon Mound (No 1) that the test of liability for shock is foreseeability of injury by shock may be accepted. It treats `injury by shock' as a distinct kind of injury. Its acceptance means that all forms of mental or psychological disorder which are capable of resulting from shock are to be regarded as being, for the purposes of the foreseeability test of liability, damage of the same kind".

See also Jaensch v Coffey at 561-2 per Brennan J.

The Judge held that liability for the further damage was covered by the principle that the defendant takes the plaintiff with all his weaknesses and vulnerabilities. This, so called "egg shell skull" principle, certainly applies to all damage of the same kind as that which was reasonably foreseeable. It made the defendant liable for the plaintiff's stress disorder, although the majority of the crew of the Melbourne may have suffered no long term ill effects_._ It also applied to the plaintiff's phobia for heights, which was an associated feature of that stress disorder. The defendant submitted that this principle does not apply to the further damage which was not of the same kind as his stress disorder.

The principles which govern a tortfeasor's liability for further injuries were considered in Mahony v J Kruschich (Demolitions) Pty Ltd (Mahony) [1985] HCA 37; (1985) 156 CLR 522 where at 528-9 the court said:

"A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, ... A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens ... But it must be possible to draw such a line clearly before a liability for damages that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor's negligence alone ... Where it is not possible to draw a clear line the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury ... minds may differ as to whether a subsequent injury was foreseeable or whether it is too remote to be regarded as a consequence for which an earlier tortfeasor may be held liable".

In that case the employer's liability for the aggravation of the plaintiff's injuries caused by later medical treatment required proof both of causation and foreseeability. However legal and policy questions also arise. Thus in March at 518 Mason CJ said:

"... the fact that the intervening action was foreseeable does not mean that the negligent defendant is liable for damage which results from the intervening action ... But it is otherwise if the intervening action was in the ordinary course of things the very kind of thing likely to happen as a result of the defendant's negligence".

McHugh J held that foreseeability was not the exclusive test of remoteness, but policy based rules were also relevant. One such rule which he favoured was "the scope of the risk" test, supported by Denning LJ in Roe v Minister of Health [1954] EWCA Civ 7; (1954) 2 QB 66 at 85, where his Lordship said:

"Is the consequence fairly to be regarded as within the risk created by the negligence?"

"Damage will be a consequence of the risk if it is the kind of damage which should have been reasonably foreseen ... But for the breach of the duty which the defendants owed to the plaintiff in the present case, the damage which he suffered would not have occurred. Consequently, the defendant's breach of duty was a cause of the accident. But should the defendants be exempted from responsibility on the ground that the plaintiff's damage was not within the scope of the risk created by the defendants' breach of duty?"

His analysis did not directly deal with the present problem. There appears to be no case quite like this. The Court however was referred to cases where analogous questions have been considered. In Rowe v McCartney (1976) 2 NSWLR 72 the majority held that the defendant was not responsible for a depressive mental illness brought on by the plaintiff's irrational and obsessive feelings of guilt for having allowed the defendant to drive her car. He drove it negligently and became a quadriplegic without rights to compensation. The plaintiff was a passenger and was herself injured. Samuels JA said at 90:

"The plaintiff's agreement to let the defendant drive was a relevant cause of the harm in fact suffered, but was, or would have been, causally irrelevant to the mental damage which the defendant ought to have foreseen. The harm suffered was, in my opinion, of an entirely different kind from that to which the defendant ought reasonably to have had regard as a likely consequence of his negligence".

The majority therefore held that the plaintiff's mental illness was of a different kind to that which was reasonably foreseeable and not being itself reasonably foreseeable was not compensable.

In Havenaar v Havenaar (1982) 1 NSWLR 626, the trial Judge had found that the use of alcohol by a plaintiff as an analgesic, and the pancreatitis which it produced, were foreseeable, and this Court considered whether the plaintiff could recover damages for the pancreatitis. It was not necessary to decide this question, but Reynolds and Hutley JJA held that there was no general rule that an injured person could recover damages for an additional injury caused by the voluntary consumption of alcohol merely because this was foreseeable. On the facts, Hutley JA held that "the combination of pain and pre-disposition ... rendered (the plaintiff) addictive and his drinking involuntary because he was offered no other way". (628) Glass JA concluded that the relevant damage was an aggravation of the plaintiff's condition as a result of attempts to relieve his symptoms. He also considered that the additional damage was attributable to the sort of person the plaintiff happened to be, and recoverable within the egg shell skull principle. (630-1) In that case the plaintiff's pancreatitis was arguably tangible physical damage of the same kind as the primary damage.

The other case was Nader v UTA (1985) 2 NSWLR 501 where the majority held the defendant liable for the hysterical reaction which supervened on moderate injuries suffered by the 10 year old plaintiff, precipitated by his parents' concern over his injuries. McHugh JA held that the reaction was damage of a kind which a reasonable man would foresee, and a defendant is liable even for indirect damage which is the product of consequences which can be reasonably foreseen. (536)

The trial Judge's instruction to the jury that no question of remoteness arose in relation to the claim for the further damage could be supported on one of three bases, firstly if that damage, as a matter of law, was of the same kind as the foreseeable primary damage; secondly if it was otherwise within the "egg shell skull" principle, or thirdly if as a matter of law it was reasonably foreseeable.

It may be taken as a rule of law that damage by nervous shock is different in kind from damage caused by tangible physical injuries. On that view the further damage as a matter of law was different in kind from the stress disorder, but it is not necessary to go that far to decide this appeal. On the most favourable view for the plaintiff this was a question of fact for the jury. See Richards v State of Victoria (1969) VR 136 at 146.

The "egg shell skull" principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability. See Smith v Leech Brain & Co Ltd (1962) 2 QB 405 at 414 ("not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind"). This is supported by the statement in The Wagon Mound (No. 1) (1961) AC 388 at 415 "... the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen"; the statement in Hughes v Lord Advocate [1963] UKHL 1; (1963) AC 837 at 845 "But a defender ... can only escape liability if the damage can be regarded as differing in kind from what was foreseen", and the statement in The Wagon Mound (No. 2) [1966] UKPC 1; (1967) 1 AC 617 at 636, " ... damage can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it".

Those cases did not involve foreseeable damage of one kind which caused further damage of a different kind which arguably was not. In The Wagon Mound (No. 1) the foreseeable pollution damage did not cause the damage by fire. Mr Joseph argued that once the plaintiff was entitled to recover for the initial damage, the only issue in relation to the further damage was causation and he relied on statements in Stephenson v Waite Tileman Ltd (1973) 1 NZLR 152 CA which support this submission. That decision is cited in Fleming on Torts, 8th Ed, but not as authority for Mr Joseph's proposition. It has not hitherto been considered by this Court or the High Court, but is contrary to the approach adopted in Rowe v McCartney, Havenaar v Havenaar and Nader v UTA. It also appears contrary to the statement by the Board in The Wagon Mound (No 1) at 425 that:

"It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage".

In personal injury cases where psychiatric injuries supervene on physical injuries, it is taken for granted that the plaintiff can recover, but this may be because defendants accept that supervening psychiatric injuries are reasonably foreseeable. The decisive factor in our view is that the Judge's direction appears to be contrary to Mahony where the tortfeasor's liability for aggravation of the original injuries caused by later medical treatment was held to depend on foreseeability. The direction also appears to be contrary to March especially at 510 and 517-8 where a tortfeasor's liability for harmful consequences supervening as a result of voluntary and deliberate conduct by the plaintiff or a third party was held to depend on foreseeability. In March the later damage being considered (although not arising on the facts of that case) included damage of the same kind as the earlier, but in Mahony there may have been an argument that they were different. We conclude that the "egg shell skull" principle only applies to damage of the same kind as that which was reasonably foreseeable.

Foreseeability is a question of fact for the jury, subject to the sufficiency of evidence to raise the question. See Richards v State of Victoria at 145, Rowe v McCartney at 78. The foreseeability of the plaintiff's further damage was not left to the jury. He had the onus of proof on this and the related question whether the further damage was the same in kind, and the Judge was not entitled to direct the jury to find these issues for the plaintiff. See Dublin etc Railway Co v Slattery (1878) 3 App Cas 1155 at 1167, 1181, 1185, 1202; and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6 per Glass JA.

The plaintiff was only entitled to recover for the further damage if the jury found either that it was damage of the same kind as the foreseeable stress disorder, or if they found that it was reasonably foreseeable. A finding in the plaintiff's favour on one or other of these issues was essential to recovery for the further damage, but neither was left to the jury. This ground of appeal is established.

The Bonnington Castings v Wardlaw direction on causation

The Judge directed the jury that the existence of a causal link between the collision and the plaintiff's throat cancer was "a matter of impression and judgment":

"If the plaintiff would probably not have become a heavy drinker and smoker but for the Voyager collision, that goes some distance on causation. It is then a matter for your judgment whether his choice ... to drink and smoke heavily and not to heed advice to give up alcohol, makes it unreasonable to treat the Voyager collision as a cause of that behaviour. That is a matter for your judgment".

In his final address, counsel for the defendant told the jury that there was a risk that the plaintiff would have contracted throat cancer even if he had continued to smoke only four or five cigarettes a day, as he was before the collision, and there was a greater risk if he had increased his consumption to ten a day. The Judge referred to this submission and continued:

"However it does not necessarily follow that the plaintiff fails on this aspect of the case because of that. The law has developed a principle to deal with cases where the defendant's breach of duty adds to a harmful substance to which the plaintiff is, in any event, exposed and which may well have been injurious, even without the defendant's contribution. That principle is applicable in this case and it is as follows. ... where the defendant's breach of duty contributes to a potentially harmful situation, thereby increasing the risk of injury, you are entitled to find that the injury resulted from the defendant's breach of duty if the defendant's contribution was, in your judgment, significant".

Counsel for the defendant objected to this part of the summing-up (2486, 2486a), and during argument the Judge said he had "drawn on" the decision in Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; (1956) AC 613 and a decision involving the Snowy Mountains Authority. Counsel for the defendant submitted that the issue of causation of the throat cancer should have been left to the jury as a question of fact, without any special direction.

The validity of such a direction is well established where the defendant is in breach of a duty to take precautions against a foreseeable risk of injury which occurs. However the Judge applied this principle to the issue of causation in relation to the plaintiff's throat cancer, although the defendant was under no duty to take precautions to prevent persons such as the plaintiff contracting that form of cancer.

In Bonnington Castings Ltd v Wardlaw the employer breached a statutory duty to remove dust generated by an industrial process. Dust was also generated by other processes without any breach of duty. The worker contracted pneumoconiosis. The House of Lords held that the breach of duty contributed a quota of silica dust, which was not negligible, towards the total that produced the disease, and causation was therefore established. The decision was followed in Nicholson v Atlas Steel Ltd (1957) 1 WLR 613 (HL) on similar facts where Viscount Simonds said at 620:

"... owing to the default of the respondent the deceased was exposed to a greater degree of risk than he should have been".

"... the respondent's failure to provide adequate ventilation must increase the risk to which the workmen are exposed (which) establishes that on a balance of probabilities the breach of duty caused or materially contributed to the injury".

See also Quinn v Cameron and Robertson Ltd (1958) AC 9 at 23. The principle was taken further in McGhee v National Coal Board [1972] UKHL 7; (1973) 1 WLR 1 (HL). The employer, in breach of duty, failed to provide showering facilities for workers to wash off brick dust before cycling home. The plaintiff contracted dermatitis due to brick dust, and the question was whether his exposure to dust at work had been sufficient to cause the dermatitis anyway. Lord Reid held at 4 that causation was established by evidence that the need for the worker to cycle home without a shower "added materially to the risk that this disease might develop". See also per Lord Simon at 8, Lord Kilbrandon at 10, and Lord Salmon at 12.

These cases decide that where medical science does not permit a clear answer, the Court can find that a disease was caused by a breach of duty which materially increased the risk of contracting it. See also Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417 per Gibbs J.

A similar question arose in Wilsher v Essex Area Health Authority [1987] UKHL 11; (1988) AC 1074 in a claim for medical negligence. The defendant's staff had been negligent in allowing the plaintiff to be exposed to excess oxygen which could have caused his blindness. During the same period he suffered from four other conditions which could also have caused his blindness. The Court of Appeal followed McGhee and held that the breach of duty established a presumptive inference that it was the cause. The House of Lords reversed, holding that there was no onus on a defendant in such a case. Lord Bridge said that in _McGhe_e the House had done no more than adopt a robust and pragmatic approach to the drawing of an inference of causation, but the decision did not assist a plaintiff where there were four other possible causes.

A related question arose in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, where the Minister's failure to arrange for a ward to receive independent legal advice was held to be a cause of loss. The majority did not find it necessary to decide the present question. (416) However the judgment of Gaudron J is of assistance. She approved the statement of Mason J in Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 467 that:

"... when there is duty to take a precaution against damage occurring to others ... breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm".

"... generally speaking, if an injury occurs within an area of foreseeable risk, then in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach ... caused or materially contributed to the injury".

"... a duty is imposed by the common law by reason that it is a precaution which a reasonable person in the position of the person sued would have taken to prevent a foreseeable risk of harm of the kind suffered. Thus questions of the sufficiency of the precaution to avert the harm are inevitably subsumed in the finding that there was a duty: a precaution is not classified as `reasonable' unless it can be said that its performance would, in the ordinary course of events, avert the risk that called it into existence".

These decisions_,_ to which may be added Power v Snowy Mountains Hydro-Electric Authority (1956) 57 SR (NSW) 9, do not directly support this direction because they involved specific duties requiring precautions against foreseeable risks of injury. They did not involve breaches of general duties to take care not to injure others, and they did not involve indirect or consequential damage suffered as a result of initial injuries. There is no trace of the principle in Mahony or in March. Luntz, "Assessment of Damages", 3rd Ed 1990 at 81-7, discusses causation without referring to this principle, as does "Fleming on Torts", 8th Ed. However, error is not established merely because the Judge's direction was novel.

Causation is a question of fact, to be resolved as a matter of commonsense. The "but for" test has an important negative role but is not a comprehensive positive test, and value judgments and policy considerations are also relevant. See Bennett at 412-3, 418-9 and 428 and Medlin v SGIC [1995] HCA 5; (1995) 182 CLR 1.

If the jury concluded that the plaintiff's excessive smoking and drinking were caused by his stress disorder and were involuntary, they were entitled to find, on Professor Tattersall's evidence, that his stress disorder had caused his throat cancer. The defendant's submission that the plaintiff might have contracted throat cancer in any event raised a question on which medical science provided no clear answer.

Some of the plaintiff's consumption was not caused by the tort because the "but for" test was not satisfied. However on the jury's findings a significant part of his total consumption would not have occurred "but for" the tort. It seems to us that the rule in Bonnington Castings v Wardlaw and the related cases applies and that the nature of the duty and the chain of causation under consideration were not fundamental to those decisions. They supply a principle for deciding responsibility where injury results from a noxious substance or situation where only some of the exposure was caused by the tort.

Those cases do not stand alone. A tribunal of fact is entitled to find causation as a matter of commonsense from the sequence of events, although medical science does not support an affirmative answer, provided it does not exclude such a finding. See Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 at 563-4, 569; and Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720.

The principle established in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 is also relevant. The majority there said at 168:

"... where a plaintiff has ... made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant".

The plaintiff's pre-collision smoking and drinking habits were not literally a "pre-existing condition". However the defendant's case that the throat cancer would "in any event" have resulted from those habits is equivalent to the situations referred to in this passage. The later reasoning of the majority at 168 therefore applies:

"... it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary ... both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence ... which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence".

The defendant's evidence did not satisfy these tests. The defendant did no more than "suggest" that the plaintiff's consumption of alcohol and tobacco, without any increase due to the tort, could have caused the cancer in any event. In our judgment the direction to the jury that they were entitled to award damages for the cancer if they found that the increase in consumption caused by the tort was significant was correct.

The issue was causation in fact of an actual event, and not causation of an hypothetical event where the court allows for the probability that the event would or would not have occurred. See Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638. Causation in fact of an actual event is an all or nothing issue. The plaintiff was not entitled to recover anything for his throat cancer unless he established, on the balance of probabilities, that it had been caused by the tort. Once the plaintiff succeeded on that issue the defendant was not entitled to any deduction for the chance that the plaintiff might have contracted throat cancer in any event. See Hotson v East Berkshire Health Authority [1988] UKHL 1; (1987) AC 750 at 783.

We would add for the assistance of the judge who will preside at the inevitable new trial that it would be appropriate, if not essential, for the jury, when given such a direction, to be reminded that this principle is relevant when deciding whether the increased consumption of alcohol and tobacco due to the tort caused the throat cancer. It is not relevant in deciding whether the tort had caused that increase in consumption. That question has to be separately addressed, the issue being whether that increase was the result of intervening decisions by the plaintiff, or whether the tort was "a direct or indirect contributing cause" of those intervening decisions. See Medlin at 6-7. In our opinion there was a real risk that the jury would conclude from the direction given by the judge that if they found that the tort increased the risk of this injury because its contribution was significant, they need not consider the effect of the plaintiff's decisions to increase his consumption. This objection was not taken at the trial, and was not available to the defendant in this appeal.

Damages are recoverable for loss of earning capacity during the "lost years" that is, the years by which his life expectancy has been shortened: see Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94; Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563; Fitch v Hyde-Cates [1982] HCA 11; (1982) 150 CLR 482. It is well established that in awarding damages for this loss, it is necessary to deduct the expenditures which will no longer have to be made because the plaintiff will be dead. These it has been said are the plaintiff's probable living expenses in those years. The issue which arose at the trial is what should be included in "living expenses"? The defendant submitted that expenditure for "pleasures" should also be deducted and relied on O'Shea v Sullivan (unreported, Smart J, 6 May 1995).

The Judge ruled that only the plaintiff's ordinary living expenses should be deducted and not his expenditure on personal pleasures such as entertainment. Thus the items to be deducted included expenses such as rent, food, clothes, fares, gas, electricity and other accommodation expenses. The Judge directed the jury accordingly.

In Fitch v Hyde-Cates, Mason J at 297 referred to the rationale for the deduction of living expenses in these terms:

"He recovers damages for his loss of earning capacity which is equated with his future earnings less his probable living expenses in the lost years, for without that expenditure he would not have continued to exercise his earning capacity, and it is after deduction of that expenditure that there remains a surplus which he could spend as he wished on his dependants or otherwise".

Once the rationale for the deduction is understood, it is clear that there should be no deduction for expenditure on "pleasures". If O'Shea v Sullivan is to the contrary, it was wrongly decided. This ground of appeal has not been established.

The plaintiff was discharged from the Navy in 1968 on medical grounds and since then has received, and will continue to receive, invalidity benefits pursuant to the Defence Forces Retirement Benefits Act 1948. He claimed for loss of earnings from the date of discharge based on the income he would have received but for the stress disorder.

The defendant contended that the plaintiff's invalidity benefits should be deducted from any damages he was entitled to receive for loss of earning capacity. The trial Judge ruled that no such deduction should be made, applying Manser v Spry & Anor [1994] HCA 50; (1994) 181 CLR 428. The Court there held that the relevance of statutory benefits in the assessment of damages depends on whether they were intended to be enjoyed independently of and cumulatively upon a right to damages, which had to be determined on the construction of the relevant statute. The Court held (436) that there were 3 "possible indicia of a relevant legislative intent":

(i) the financial source of the benefits: if the scheme is funded by both employer and members' contributions, "as a kind of insurance against misfortune" this would indicate that the benefits are independent of damages. (It may be noted that nothing turns on the respective contribution rates because the employer's contributions are part of the employee's total remuneration package: Watson v Ramsay (1960) WN (NSW) 64, approved in National Insurance Co Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 at 598; and Grego v Mount Isa Mines Ltd [1972] QWN 33.)

(ii) provision for repayment of benefits from damages.

(iii) whether an implication of such a legislative intention should be drawn depends largely on the nature of the benefit. The Court approved the following passage from the judgment of Gibbs CJ in Redding v Lee [1983] HCA 16; (1983) 151 CLR 117 at 126:

"The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity . . . for which the plaintiff claims damages and it is not intended to replace the lost wages or remedy the loss of earning capacity".

". . .if all indicia of intent fail, the `settled principle governing the assessment of compensatory damages' ... must be applied".

The 1948 Act established a contributory pension scheme for service personnel with features characteristic of a superannuation scheme. At the relevant times it provided for the Commonwealth to pay 80% of the contributions and for the member to pay 20% (s 15(1)). It provided for payment of invalidity benefits to contributors who retired before retirement age (s 41) on grounds of invalidity or physical or mental incapacity to perform duties (s 51(1)). The Act did not require benefits to be repaid from any damages. The level of benefits is related to the degree of incapacity for civil employment (s 51 (2)). A new scheme introduced in 1972 did not affect the plaintiff who retired in 1968. The invalidity benefit under the Act is properly characterised as a receipt in the nature of insurance and not a receipt in the nature of wages. See Watson v Ramsay (1960) WN (NSW) 64; Parry v Cleaver at 14-16; Smoker v London Fire Authority [1991] 2 AC 502. The insurance character of the payments is an important indication that the plaintiff's damages are not to be reduced because of those payments.

This analysis demonstrates that a plaintiff's damages are not to be reduced because of the receipt of invalidity benefits. This ground of appeal has not been established.

The defendant has established that a number of errors occurred during the trial. In our judgment the cumulative effect of these errors constitute a substantial wrong and miscarriage to the prejudice of the defendant and however unfortunate it may be for the plaintiff and his family, an order for a new trial is inevitable. Although we have upheld a number of grounds of appeal we have rejected many others, and many more were not pressed. This was a long, hard fought and heavy trial involving complex issues extending over a third of a century, further complicated by the new Evidence Act and the presence of the jury. The case was prepared under great pressure, and the Judge had to give rulings practically daily, and then sum up under great pressure. We have found this a heavy appeal but we had time for reflection which was denied to the trial Judge.

(2) Verdict, judgment and orders consequential thereon set aside;

(3) Direct a speedy new trial of the action with a jury unless both parties agree to dispense with it;

(4) Leave for the defendant to file an amended statement of defence within 35 days to include the defence of contributory negligence in terms of the amendment sought during the trial;

(5) Any further amendments reserved for the Common Law Division;

(6) The respondent to have a certificate under the Suitors' Fund Act;

(7) The costs of the first trial to abide the order of the Judge presiding at the second trial;

(8) Liberty to either party to apply to Handley JA or Beazley JA on 14 days' notice for orders under SCR Pt 51 r 16 (5).

SANTOW AJA: I agree with Handley JA and Beazley JA that a new trial should be ordered and, save as to appeal ground 20 (i), their reasons for that conclusion. Even without appeal ground 20 (i), the remaining grounds of appeal which were established lead unavoidably to a new trial. I therefore confine my observations to appeal ground 20 (i).

It is common ground that, as put by Handley JA and Beazley JA:

"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".

The question upon which I differ, is whether the defendant had not only available to it a case on this issue which was independent both of Dr Shand's evidence and the terms of DSM-IV, but actually adopted such a case. In particular, did the defendant in the way it relied on concessions made in cross-examination by the plaintiff's witnesses, Drs Kerr and Weidmann, adopt such a case?

The primary focus must be an examination of the address to the jury of defendant's senior counsel, Mr Puckeridge QC. That must be compared to the trial Judge's summing-up. I have put the critical passages of the latter in bold, but it is important that it be read in context, particularly as the earlier portion refers to Drs Kerr and Weidmann. I quote this portion of the summing-up below:

"In those circumstances you may think there cannot be much doubt that as at 1968, when the plaintiff was discharged from the Navy, he was suffering from a significant psychiatric condition of some kind. Dr Kerr and Dr Weidmann say that is so. Dr Shand, being the only psychiatrist called by the defendant, does not say otherwise. So the existence of some kind of significant psychiatric condition at the time of discharge from the Navy in 1968, sufficient to render the plaintiff unfit for further naval service, you might think would appear to be common ground and therefore be a convenient starting point.

The main difference between Dr Kerr and Dr Weidmann on the one hand and Dr Shand on the other, you may think on this approach, is then one of diagnosis: what was that condition? Dr Kerr and Dr Weidmann say that it was post traumatic stress disorder resulting from the Voyager collision and its immediate aftermath; and indeed persisting to this day. Dr Shand says that this was not then, and has never been, a case of post traumatic stress disorder. His diagnosis is as follows - and I will read it twice because it is not short and, perhaps, not easily assimilated at one reading:

`Chronic anxiety state and chronic alcoholism with associated chronic brain syndrome (brain damage) and associated long-standing personality disorder preferred to post traumatic stress disorder both at the time of discharge from the Navy and ever since.'

`Chronic anxiety state and chronic alcoholism with associated chronic brain syndrome (brain damage) and associated long-standing personality disorder preferred to post traumatic stress disorder both at the time of discharge from the Navy and ever since.'

In short - and I hope I do his opinion justice - a chronic anxiety state and associated personality disorder, unrelated to any traumatic event and arising from the plaintiff's innate nature.

Now that was not the same kind of chronic anxiety state as Dr Kerr was speaking about. When Dr Kerr was speaking in those terms, he was talking about post-traumatic stress disorder. Dr Shand was talking about an anxiety state different from post-traumatic stress disorder and he made that very clear in the passage that I have just quoted. He was talking about a mental condition involving what he called a personality disorder.

Now, if you accept Dr Shand [should be "Dr Kerr"] and Dr Weidmann's opinion on this point, you may think there is little difficulty for the plaintiff in establishing his entitlement to damages, subject to what I shall say shortly about history. On the other hand, if Dr Shand is right about the diagnosis that the plaintiff's psychiatric illness arose not from the Voyager collision but from within the plaintiff's own personality, then the plaintiff must fail. Thus, if you accept Dr Kerr's and Dr Weidmann's diagnosis as to the nature of the plaintiff's psychiatric condition, it would appear that the plaintiff is entitled to your verdict, provided that you are satisfied about the basis upon which they express that opinion. On the other hand, if you accept Dr Shand's diagnosis or if the two approaches are evenly balanced, the defendant is entitled to your verdict.

Now, how do you go about resolving this conflict about the correct diagnosis? Dr Shand takes what you may regard as a strict view about what is necessary to establish post-traumatic stress disorder. He says that if the criteria specified in the publication DSM-IV are not satisfied, then it is not post-traumatic stress disorder. Dr Kerr and Dr Weidmann say, in effect, that post-traumatic stress disorder may be diagnosed without strict compliance with the criteria in DSM-IV.

In that regard, you might be influenced by what DSM-IV itself says on that very question.

Now, members of the jury, I don't know if you still have with you the copies of Exhibit 4 that were supplied at an earlier time. If you haven't, don't worry, because there are parts of that Exhibit that I would like to refer you to. If you have copies of the Exhibit, you might wish to refer to them, that is a matter for you.

The first part of DSM-IV that I would like to refer you to is what is referred to in the publication as a cautionary note. `Cautionary statement' it's called. It starts by saying:

`The specified diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses because it has been demonstrated that the use of such criteria enhances agreement amongst clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills'.

`That the criteria do not necessarily embody all conditions for which people may be treated'.

Then, having noticed that the publication refers to the diagnostic criteria as guidelines, one can see in the introductory section of the DSM-IV, p 23 of the publication, the following passage:

`The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cook book fashion. For example, the exercise of clinical judgment may justify giving a certain diagnosis to an individual, even though the clinical presentation falls just short of meeting the full criteria for the diagnosis, as long as the symptoms that are present, are persistent and severe'.

This passage appears under the heading `Use of clinical judgment'. It allows for the diagnosis of a particular mental illness, notwithstanding that the specified criteria are not fully satisfied.

What is meant by a clinical presentation falling `just short' of meeting the full criteria for diagnosis is not explained in the document. The authors of the text do acknowledge, however, by that statement, that there must be some degree of flexibility in the application of the criteria for particular illnesses. If such flexibility is allowable, it would have to be a matter of clinical judgment, as the text says, a judgment which lay people such as you and me would not be qualified to exercise. But when Dr Kerr and Dr Weidmann say that they do not think the criteria in the publication should be applied with absolute strictness, they appear to have the backing of the authors of the publication itself.

Now, the defendant, through Dr Shand, you may think, put its case squarely on the terms 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.

Well, you have heard the evidence about whether the DSM-IV criteria are satisfied or not in this case and you have heard addresses about that evidence. I am not going to review that evidence again and I'm not going to say much about what was said in addresses about it, because what was said in evidence and what was said in addresses raises matters of fact for your consideration which are in your province rather than mine. But I do have to draw your attention to one or two of the provisions of DSM-IV because of some of the things that were said about that document in the addresses.

Counsel for the defendant stressed that in Dr Shand's view the plaintiff's description of his recollections of the episode were not `intrusive'. Now, whether the plaintiff's recollections of the episode, such as they may have been, have indeed been intrusive or not, is a question of fact for you and I say nothing about it. What I wish to point out is that to insist on recollections being intrusive is not using DSM-IV as the test for post-traumatic stress disorder. Let me remind you of this. You will recall that the criteria for post-traumatic stress disorder were set out in Exhibit 4 under paragraphs A, B, C, D, E and F. The introduction to paragraph B, the opening words of paragraph B are: `The traumatic event is persistently re-experienced in one or more of the following ways' - one or more of the following ways. The first mentioned is recurrent and intrusive distressing recollections of the event. There are then four others which are alternatives to recurrent and intrusive, distressing recollections, one of which is recurrent, distressing dreams of the event. Another is feeling as if the traumatic event were recurring, including by dissociative flashback episodes. So, it is simply not correct to say that in order to qualify under the criteria set by DSM-IV, it is necessary that there should be recurrent and intrusive, distressing recollections, when there are other alternatives to that criterion mentioned in the document.

Whether the others are satisfied is a different matter. 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. A subject, without intrusive thoughts, who has post-traumatic stress disorder in some other way or for some other reasons, may be debilitated by any one or more of the symptoms mentioned. For example, in C or D where one has things like markedly diminished interest or participation in significant activities, feelings of detachment or estrangement, restricted range of affect, meaning emotion, a sense of foreshortened existence or career, and other things that are listed here, debilitation by intrusive thoughts is not a necessary feature of post-traumatic stress disorder according to this document.

Another matter which was stressed by counsel in final address was that the plaintiff stayed in the same bunk in 3 alpha port as the one he occupied at the time of the collision. Now, again, I leave the factual aspect of this to your consideration without any comment. Except for this, that you are apparently asked to find that the plaintiff, as an enlisted Navy serviceman, could have seen his way clear to telling his commanding officers that he would like to change sleeping messes because he was frightened to be there at night. Considerations of that sort are a matter for you. What I want to draw your attention to is that under this document, DSM-IV, avoidance of places is only one of three alternatives in one of the subcategories of criteria in paragraph C of this document.

Let me just say something about that. Paragraph C says, and this has to be satisfied,

`Persistent avoidance of stimuli associated with the trauma and numbing of general responsive (not present before the trauma), as indicated by three (or more) of the following.'

Then there are seven paragraphs, of which three have to be satisfied. One of them, and it is paragraph (2) states:

`efforts to avoid activities, places, or people that arouse recollections of the trauma.'

That includes `efforts to avoid places that arouse recollections of the trauma'. If that is satisfied, that counts as one out of three, three being necessary out of the seven. Not avoiding a place that arouses recollection of the trauma, according to this document, does not negate post traumatic stress disorder. You can still score three out of seven without paragraph (2). The others include things that you might think there is evidence of in this case, such as:

* markedly diminished interest or participation in significant activities.

* feeling of detachment or estrangement from others.

* restricted range of affect (eg unable to have loving feelings).

* sense of a foreshortened future (eg does not expect to have a career ...).'

Again, all I want to point out is that continuing to sleep in the bunk in 3 alpha port does not mean that the criteria in DSM-IV cannot be satisfied according to the document.

The next thing I want to point out in this document is the last entry in the description of criteria for this particular illness. It includes what you might call an instruction to the diagnostician. It says: `Specify' - in other words if you are going to make this diagnosis - `specify if' - and then it says three things:

`Acute: if duration of symptoms is less than three months.

Chronic: if duration of symptoms is three months or more.

With delayed onset: if onset of symptoms is at least six months after the stressor.'

According to DSM-IV itself the absence of symptoms a long time after the event does not matter. According to DSM-IV that is no objection to the diagnosis. According to DSM-IV there is provision, within the document itself, for recognising and specifying an instance of post traumatic stress disorder, in relation to which onset of symptoms is at least six months after the event.

I just wanted to point those matters out to you. When you are asked to accept expert evidence that DSM-IV should be applied strictly, you need at least to take care that the publication is read fully and read correctly."

In Mr Puckeridge's address to the jury, the following critical passage appears (at 2322):

"Well, members of the jury, all we intend to say in relation to DSM-IV is this. Whilst it's certainly criteria which is important to have a look at, the fundamental matters in relation to DSM-IV are whether or not there is persistent distressing intrusive thoughts of an involuntary kind. If you haven't got that, then the criteria is not satisfied. If it's true, if you accept the history one way in a certain way as, say, this memory as Dr Weidmann said in re-examination, he said `Well, accepting memory, I say that'. He is satisfied. Dr Shand, after all the cross-examination of Dr Shand, after all matters as to whether or not the DSM-IV is relevant or not, again comes back and says: `Apart from the word intrusive'."

What is clear from this passage is that Dr Puckeridge is seeking to state what is necessary to satisfy the criteria under DSM-IV. He does so immediately after discussing Dr Kerr's evidence and as a prelude to further references to Dr Kerr's evidence and Dr Weidmann's evidence. Nowhere in that passage, nor elsewhere, does Mr Puckeridge say that the two criteria (intrusiveness of recollection and avoidance behaviour) are relied upon independently of what DSM-IV says are the criteria for post-traumatic stress disorder ("stress disorder"). While he quotes or alludes to the evidence of Dr Kerr and Dr Weidmann, in particular in the passages referred to by Handley JA and Beazley JA, there is throughout an unreconciled and unacknowledged conflict between the defendant's reliance on that evidence and the defendant's case. That evidence, elicited in cross-examination, acknowledges that normally flashbacks to a particular incident are experienced, that one of the most significant matters with this disorder is invasive memories. Similarly Dr Weidmann found it "hard to explain" why the plaintiff had no intrusive thoughts of the collision; likewise he acknowledges that the plaintiff's willingness to go back to the same quarters points against a diagnosis of stress disorder.

That unreconciled and unacknowledged conflict in the context of the defendant's case as a whole leads me to the following propositions:

(1) The defendant relied principally for its medical evidence on Dr Shand. Dr Shand never based his case on other than DSM-IV, even in the alternative.

(2) An no time did the defendant state that, whatever Dr Shand might say as to DSM-IV, the defendant relied in the alternative on a case outside DSM-IV.

(3) It is true the evidence of Drs Kerr and Weidmann was independent of DSM-IV, because Dr Kerr did not accept that manual as definitive in the way that Dr Shand did. But when the defendant cited that evidence, the defendant at no point acknowledged that it was doing so in reliance on a case outside of DSM-IV, even in the alternative. That it was nonetheless doing so impliedly, is belied by the earlier passage quoted (at 2322) and by the defendant's continued unequivocal reliance on Dr Shand.

(4) It is also true that at 2297-8, the following is said by Mr Puckeridge in his address to the jury:

"... In looking at the evidence, you have heard a great deal of discussion between psychiatrists as to criteria under DSM-IV, and matters of that nature, as to what is a recognisable psychiatric disorder.

We would suggest to you however that in relation to this disorder, there is one matter in particular which falls within the category of a recognised psychiatric disorder which stops the person dead in his tracks and that is these persistent distressing recollections of the event. That is what it is which prevents the person from getting up and doing what he would normally do. Persistent distressing recollections of the traumatic event. We would suggest that that is the foremost criterion in relation to you coming to any judgment or decision on the facts as to whether or not Mr McLean, as a result of this incident, this collision, suffered a distressing - or had such an affront to his psyche, his mind, that he could not get it out and could not get out persistent distressing recollections, in particular, of particular aspects of that collision".

But a reading of that passage in its context, demonstrates again that what the defendant is seeking to do, is put a gloss on the construction of DSM-IV - not put a case alternative to DSM-IV. That in turn necessarily prompted the trial Judge to point out that such a gloss could not be justified by the words of DSM-IV. To rely on the word "however" in the first line of the second paragraph to suggest that an alternative case was being put, is to ask the jury to find such a case from what was at best a verbal smudge. The later reference to "foremost criterion" repeated the very term "criterion" which is the expression used throughout DSM-IV. There was no reference to some form of clinical assessment independent of DSM-IV, even in the alternative.

(5) In effect the defendant was seeking to have it both ways. To retain the forensic advantage of a case based on DSM-IV without weakening it by putting it in the alternative. Then to construe DSM-IV by placing an unjustified gloss on it, so as to emphasise those criteria which put the plaintiff's case under attack; relying, inter alia, on answers in cross-examination from Drs Kerr and Weidmann.

(6) In those circumstances, what the trial Judge properly did was to correct any impression the jury might have had, that DSM-IV could be so construed as to accommodate such a case. The trial Judge did not take away from the jury an alternative case outside DSM-IV. There never was one.

(7) In particular the trial Judge never directed the jury to disregard the defendant's evidence that intrusive recollection and avoidance were indispensable, or at least foremost features of stress disorder. Nor did he direct the jury to disregard any concessions by Drs Kerr and Weidmann in that regard. Indeed his Honour did refer generally to concessions as something a jury could rely on. What he did do was rather to direct the jury that they should not treat the indispensability (or vital importance) of these features as mandated by DSM-IV, as had been argued by the defendant. He reminded the jury that:

(b) There were alternative criteria to these features under DSM-IV,

(8) The trial Judge had put to the jury that "You may think" the defendant puts its case squarely on DSM-IV (2443). He then stated that this was "the approach taken by Dr Shand and adopted by the defendant for the purposes of this case". But undoubtedly given the centrality of Dr Shand's evidence, that was a proper conclusion to draw. Dr Shand, the defence's principal expert witness, made no case independent of DSM-IV. Rather Dr Shand tried to argue that DSM-IV made intrusive recollection an essential requirement of stress disorder. While shaken on this in cross-examination, Dr Shand never acknowledged that DSM-IV was therefore to be subordinated to his view that it was an essential requirement of stress disorder. Indeed in re-examination he attempted to recant from concessions made in cross-examination. Nor did Mr Puckeridge QC make any such subordination in his address to the jury, even in the alternative.

(9) The most then that could be said, was that there was a potential case outside DSM-IV, waiting to be put as an alternative by the defence. Instead it chose to put its case as wholly supported by DSM-IV, and only in that way. The defendant could therefore not be heard to complain that the trial Judge declined to do for the defendant what the defendant had chosen not to do for itself.

(10) As was stated by McHugh JA in Otis Elevators Limited v Zitis (1986) 5 NSWLR 171 at 206:

"The failure by the trial judge to emphasise the evidence which one party deems to be important is not a ground for a new trial. Even when the summing up of the trial judge is much more critical of the evidence called on behalf of one party than the other, it is not necessarily unfair".

In those circumstances, I do not consider appeal ground 20 (i) to be established.