Dr Angus MacKinnon v Bluescope Steel Limited

(i) Treating as trivial the Plaintiff's complaints. (ii) Despite showing visible signs of distress and/or verbalising such complaints, failing to provide appropriate assistance to deal with the situation enunciated by Dr Darling directly and/or manage the stress levels associated with the workload and/or environment generally. (iii) Failing to detect during the said course that the Plaintiff suffered a psychotic disorder. (iv) Failing to monitor during the said course that the Plaintiff suffered a psychotic disorder. (v) Manifestly failing to supervise the Plaintiff during the said course so that he was afforded a reasonable opportunity to interrupt his participation in the said course and seek immediate medical treatment. (vi) Failing to evaluate the nature of the course and/or failing to advise the Plaintiff of potential danger to psychological health associated with the course. (vii) Failing to provide the Plaintiff with immediate medical assistance at the course on his return to Sydney, and/or failing to assess and recommend medical assistance. (viii) Failing to ensure that the Plaintiff, on his return to work was not exposed, in any circumstances, to the direction, control or supervision of Dr Darling, when the First Defendant was aware of the stress imposed on the Plaintiff by the relationship with Dr Darling. (p) The First Defendant breached its obligations by its servant Neil Harvey in: (i) Failing to detect that the Plaintiff suffered a psychotic disorder. (ii) Failing to monitor the Plaintiff 's psychotic disorder. (iii) Manifestly failing to supervise the Plaintiff during the said course so that he was afforded a reasonable opportunity to interrupt his participation in the said course and seek immediate medical treatment. (iv) Failing to recommend immediate medical assistance to the Plaintiff on his return to Sydney. (q) Failing to have in place a collaborative framework between the employees to deal with situations within which the Plaintiff was placed. (r) Failing to supervise or properly supervise the Plaintiff and other employees. (s) Failing to properly address, if at all, the complaints made by the Plaintiff. (t) Failing to detect and/or assess the working condition which the Plaintiff was subjected to. (u) Failing to provide an adequate system of follow-up, or at all, as to the Plaintiff 's emotional well-being. (v) Failing to liaise adequately, or at all, with the Second Defendant. (w) Failing to have in place a collaborative framework between the First and Second Defendant to deal with situations within which the Plaintiff was placed. (x) Permitting a conflict of interest to arise in relation to the Plaintiff's WorkCover claim by assigning the Plaintiff's colleagues as the officers in charge of the claim. (y) Failing to undertake reasonable steps to ensure that attendance on the course by the Plaintiff would not cause him psychological symptoms or psychiatric injury. (z) Permitting and encouraging a situation whereby the Plaintiff was coerced into participating in the course. (aa) Failing to direct the Plaintiff to attend counselling or psychological or psychiatric care. (bb) Failing to advise the Plaintiff to attend counselling or psychological or psychiatric care. (cc) Failing to provide immediate counselling or psychological or psychiatric care, when the Plaintiff returned to Sydney. (dd) Failing to take any reasonable steps to ensure that the First Defendant undertook adequate screening procedures to ensure that the Plaintiff was suitable to undergo the course and that he was not exposed to the risk of psychological symptoms or psychiatric injury. (ee) Permitting other members of staff, in particular, the Plaintiff's supervisor Dr Darling, to attend upon the course with the Plaintiff when the First Defendant knew or ought to have known that there was a significant conflict between the Plaintiff and Dr Darling such that participation by both men in the same group would expose the Plaintiff to a risk of psychological symptoms or psychiatric injury. (ff) Permitting Dr Darling and other members of staff who the Plaintiff knew to attend the same encounter group/leadership course with the Plaintiff when the First Defendant knew or ought to have known that the participants at the course should not know the identity of other participants to avoid the probability of emotional distress or trauma being sustained and causing psychological symptoms or psychiatric injury. (gg) Failing to provide to the course independent medical practitioners to observe and supervise the Plaintiff and other participants to detect emotional trauma or medical unsuitability at an early stage so as to terminate attendance at the course before the Plaintiff suffered psychological symptoms or psychiatric injury. (hh) Failing to consider and act upon literature available at the time disclosing the negative effects of encounter groups on persons such as the Plaintiff including the risk to participants or psychological symptoms or psychiatric injury. (ii) Failing to qualify an independent expert, such as a psychiatrist, to provide a medical opinion as to the likelihood of the risk of psychiatric or psychological injury to participants in a leadership course, such as the one conducted by the Second Defendant and a medical clearance being issued by such a doctor regarding the Plaintiff. (jj) Failing to monitor during the said course the Plaintiff's psychiatric condition. (kk) Failing to supervise during the said course the Plaintiff such that he ought to have reasonably left the course and sought immediate medical treatment. (ll) Permitting the Plaintiff to attend an encounter group or leadership course using method of didactic presentation, self disclosure, testimonials, confessions, outpourings, gestalt guided imager, psycho drama and hypnotic techniques such that the Second Defendant knew or ought to have known that such techniques could result in participants such as the Plaintiff sustaining psychological symptoms or psychiatric injury. (mm) Failing to sufficiently or adequately warn the Plaintiff that by attending the course, he was exposed to a risk of psychological symptoms or psychiatric injury such that the Plaintiff did not have an adequate opportunity to properly determine whether he should attend the leadership course or at all. (nn) Permitting the raising of issues during the course which the Plaintiff specifically requested not be raised including, but not limited to, the Plaintiff's wife having previously suffered from breast cancer or the Plaintiff's ongoing conflict with Dr Chris Darling. (oo) Failing to provide the Plaintiff with any documentation adequately explaining the risks to him of participating in the course and, in particular, a pre induction interview whereby he was appraised of group goals, behavioural expectations, including a video tape of a sample group, and provided with advice that he could at any time choose to leave the course at any time and for whatever reason, and in particular the risk of psychological symptoms or psychiatric injury. (pp) Failing to take steps to ensure that the Plaintiff was removed from the course when it became clear that the Plaintiff was suffering from psychological symptoms, such that the First Defendant ought to have intervened and removed the Plaintiff from the said course. During the said course the Plaintiff was suffering from and otherwise exhibited or displayed: (i) hallucinations; (ii) persecutory nightmares; (iii) completing daily an emotional graph which was prominently displayed on a notice board that he was markedly depressed; (iv) completing a Meyers Briggs Type Inventory Form providing a self assessment as "a flagellant". (v) Participating in a psychodrama called a "group sculpture" whereby the Plaintiff was deeply distressed and "began weeping". (vi) Paranoia (vii) Confusion; (vii) Dissociation; (ix) Severe anxiety; (x) Unresponsive; (xi) Vague and unsure; (xii) Pale and shaky; (xiii) Sleep deprivation. (qq) Failed to vet, check, or scrutinise the validity of the "leadership course", its dangers or the mental, emotional and psychological well being and capacity of its employees and the Plaintiff to attend such course. (rr) Failed to ensure that the Second Defendant and/or those persons or entities who were charged with the running or facilitation of the course had the necessary qualification, experience, training and requisite skill to undertake the course and identify persons such as the Plaintiff who may develop a psychiatric condition, such to require their immediate cessation from the course, and to seek immediate medical treatment. (ss) Failed to use or implement alternative measures, which the First Defendant ought reasonably have been aware of, such as courses which had in place: (i) Trained and qualified medical practitioners. (ii) Practitioners with proven clinical experience. (iii) Practitioners with proper necessary education, qualification and experience to deal with any emotional crisis, or psychological or psychiatric symptoms exhibited or displayed by course participants. (v) Provide appropriate and trained medical treatment and advice. (tt) Failed to ensure that the Plaintiff on his return to Sydney was: (i) Accompanied (ii) Provided with immediate medical assistance and (iii) Provided with continuing assessment of his psychological health. …………………………………………….. 23. Particulars of Injury

(a) Acute reactive psychosis; (b) Acute psychotic depression; (c) Acute anxiety; (d) Extreme changes in mood; (e) Auditory hallucinations; (f) Passivity phenomena; (g) Catatonic psychiatric reactions including, but not limited to the adopting or postures; (h) Asyndesis; (i) Delusions; (j) Disorganised speech; (k) Grossly disorganised or catatonic behaviour; (l) Panic attacks; (m) Diurnal mood variation; (n) Suicidal ideation; (m) (sic) Chronic major depressive disorder. 7 BHP denied breach of duty and negligence. It also pleaded, inter alia, contributory negligence, voluntary acceptance of risk, failure to mitigate damages, and a statutory defence based on the Accident Compensation Act 1985 (Vic) SCOPE OF ISSUES RAISED: 8 As it seems to me, the pleadings and the evidence raised matters for consideration which included: · The childhood of the Plaintiff. · The schooling of the Plaintiff · The university education of the Plaintiff. · The Plaintiff's friends and relationships. · The career of the Plaintiff in the medical profession prior to joining BHP · The impact upon the Plaintiff of his wife contracting breast cancer. · The Plaintiff's employment by BHP. · The Plaintiff's presentation in the months prior to September 1996. · The Plaintiff's relationship with Dr Christopher Darling. · The Plaintiff's consumption of the drug Duromine. · The mental state of the Plaintiff prior to attending a leadership course from 27 September 1996 to 4 October 1996 (the Leadership Course). · The circumstances surrounding the Plaintiff's attendance at the Leadership Course and whether those circumstances involved a breach of BHP's duty of care. · The events of the leadership course involving the Plaintiff. · Whether there was a breach of BHP's duty of care to the Plaintiff during the Leadership Course. · The course of the Plaintiff's mental Illness from October 1996 to date. · The lex causae of any cause of action. 9 Upon the above matters there was much conflicting evidence, including sharp differences of opinion between highly qualified psychiatrists as to the nature and cause of the Plaintiff's illness. In the result, however, there was virtually no evidence to support most of the allegations of breach of duty against BHP and, reflecting, I think, the reality of the situation, much of the Plaintiff's case as pleaded and particularised was abandoned in final submissions. It was, of course, entirely proper for that to be done, but such wholesale abandonment suggests to me that what remains should be examined, rather more critically than might otherwise be the case. Breach of duty was ultimately confined, as I understand it, to: (1) the failure by BHP to recognise that by September 1996, the Plaintiff had, at least, the prodrome of mental illness. (2) that his attendance at the Leadership Course would expose him to significant risk of further psychological or psychiatric damage. (3) that in breach of BHP's duty of care, he was encouraged and permitted to attend the course. (4) that during the course there was such a discernable deterioration in his mental health that BHP should immediately have terminated his participation in it.

DAMAGES FOR PSYCHIATRIC INJURY: 10 Under this heading I propose to indicate the legal principles which, in my view, are applicable to the substantial issues raised in this case. 11 It is clear law that a claim for damages for psychiatric injury alone is not a separate tort, but merely the classification of the damages sought in an action based on the tort of negligence. For such an action to succeed there must be established a duty of care owed by the defendant to the plaintiff, a breach of that duty and damages of a kind recognised by the law causatively connected to the breach and suffered by the plaintiff. 12 The common law where only psychiatric injury is claimed is informed by the comparatively recent decisions of the High Court in Tame v State of NSW and Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 and Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845 13 That BHP as the Plaintiff's employer owed a duty to him is not open to question. Nor is the fact that, whilst in BHP's employment and attending a course established by it or held under its auspices, he displayed florid symptoms of a serious psychiatric illness. 14 The content of BHP's duty was to provide a workplace and system of work as safe as reasonable care and skill could make it. As a corollary, it had an obligation to take reasonable care for the health, including mental health, and safety of the Plaintiff. 15 In the course of her judgment in Tame, Gaudron J, with whose observations a majority of the Court agreed, said in relation to the touchstone element of foreseeability (omitting references to authority): "59 Although, in my view, it is not necessary to consider the question of foreseeability in relation to the first matter, it is necessary to do so in the second. It is in the context of foreseeability that the "sudden shock" and "normal fortitude" rules fall for consideration. When the law limited claimants to those who, by reason of their closeness in time or space, directly perceived distressing phenomena or their aftermath, as was implicit in the categories of persons identified by Evatt J in Chester , it was inevitable that the law should select sudden shock as that which rendered foreseeable the risk of psychiatric injury. So, too, because "reasonable foreseeability is an objective criterion of duty", it is understandable that the law selected "a normal person of ordinary firmness and mental stability" as a general test of foreseeability of the risk of psychiatric injury in the case of those who directly perceived distressing events or their aftermath. 60 In Jaensch v Coffey , Brennan J pointed out that the "normal fortitude rule" was not a universal rule determinative of foreseeability but that, where the question is whether it is foreseeable that members of the general public might suffer psychological or psychiatric injury, the answer "must generally depend on a normal standard of susceptibility". His Honour expressly acknowledged that the "normal fortitude rule" does not apply when "a plaintiff's extraordinary susceptibility to psychiatric illness ... is known to the defendant". Further, his Honour allowed a qualification to the rule in the case of persons for whom the phenomenon in question has special significance. Thus, in his Honour's view: "if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance - for example, the parent of a child injured in a road accident who comes upon the scene - the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce."

61 The observations of Brennan J in Jaensch v Coffey deny that "normal fortitude" is or could be the sole criterion of foreseeability of the risk of psychiatric injury. That it is not and cannot be the sole criterion is even more readily apparent once it is accepted, as it must be, that there may be special relationships or special features of relationships, including knowledge of the particular susceptibility of the plaintiff, that render the risk of psychiatric injury to the plaintiff foreseeable, even though it would not be foreseeable in the case of other persons. To say that "normal fortitude" is not and cannot be the sole criterion of foreseeability, is not to deny that, ordinarily, "normal fortitude" will be a convenient means of determining whether a risk of psychiatric injury is foreseeable. However, it will be otherwise if the defendant has knowledge that the plaintiff is particularly susceptible to injury of that kind or is a member of a class known to be particularly sensitive to the events in question." 16 On the subject of "normal fortitude" Gummow and Kirby JJ said: "199 However, it does not follow that it is a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of "normal" emotional or psychological fortitude or, if peculiarly susceptible, that the defendant know or ought to have known of that susceptibility. The statement by Spigelman CJ in the Court of Appeal in Tame that a plaintiff "cannot recover for 'pure' psychiatric damage unless a person of 'normal fortitude' would suffer psychiatric damage by the negligent act or omission" should not be accepted. Windeyer J observed in Pusey that the notion of a "normal" emotional susceptibility, in a population of diverse susceptibilities, is imprecise and artificial. The imprecision in the concept renders it inappropriate as an absolute bar to recovery. Windeyer J also pointed out that the contrary view, with its attention to "normal fortitude" as a condition of liability, did not stand well with the so-called "egg-shell skull" rule in relation to the assessment of damages for physical harm. 200 Analysis by the courts may assist in assessing the reasonable foreseeability of the relevant risk. The criterion is one of reasonable foreseeability. Liability is imposed for consequences which the defendant, judged by the standard of the reasonable person, ought to have foreseen. Of course, this can sometimes lead to sharply divided views in assessing the evidence. The application of that criterion by this Court in Bunyan v Jordan and Chester v Waverley Corporation led in each case to a denial of recovery for "nervous shock". The result in Chester , looked at today, perhaps shows that the determination of what ought reasonably to have been foreseen may differ from one age to the next. However, because the criterion is an objective one, what is postulated is a general (and contemporary) standard of susceptibility. It is in that context that references in judgments of this Court to hypothetical "ordinary" or "reasonable" standards of susceptibility to psychiatric harm are to be understood.

201 However, the concept of "normal fortitude" should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that, in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of "normal fortitude" is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk, in the manner indicated in Wyong Shire Council v Shirt . Where the plaintiff's response to the defendant's conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it. Thus, as Pound observed in 1915, where a putative tortfeasor "so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way". "

17 Hayne J discussed the ambit of the duty owed by an employer to avoid psychiatric injury to an employee in these terms: "281 Where there is a relationship between plaintiff and defendant, such as that of employee and employer, and psychiatric injury is suffered in consequence of that relationship, it may readily be concluded that the relationship is such that the duties of care owed one to the other include a duty to take reasonable care to avoid inflicting psychiatric injury. Exactly the same considerations of the control that an employer has over the place and system of work which require finding that an employer owes a duty of care with respect to physical injury support a conclusion that a duty is owed to take reasonable care about the place and system of work so as to avoid psychiatric injury. 282 Cases where there is a relationship between the parties, like that of employee and employer, may, therefore, be thought to present separate questions about the application of a test of reasonable or ordinary fortitude. Even in such cases, I tend to the view that the test of reasonable or ordinary fortitude should still be applied at least in the absence of the employer having particular knowledge of the employee's vulnerability. No doubt, the employee's safety is in the hands of the employer. And it is because the employee's safety is in the employer's hands that the employer's duty is to take reasonable care to avoid exposing employees to unnecessary risks of injury. 283 In any particular case, there may be real and lively debate about whether an employer ought reasonably to have been aware of the particular fragility of an employee, but, assuming that there is no reason for the employer to have been aware of that fact, there seems much force in the view that the employer's duty is then to be stated as a duty to take reasonable care to avoid psychiatric injury to an employee of reasonable or ordinary fortitude. It is, however, not necessary to decide that issue in these cases." 18 A majority of the court in Tame were of the opinion that the "normal fortitude" of the plaintiff is not of itself a precondition of liability although McHugh, Hayne and Callinan JJ considered that the concept of reasonable or ordinary fortitude should be preserved. However, even on the majority view, the concept of "reasonable fortitude" is a relevant consideration in the context of determining whether the risk to the Plaintiff was reasonably foreseeable and not far-fetched or fanciful. 19 Although neither Annetts nor Tame, apart from the quoted remarks of Hayne J quoted, expressly considered the duty of an employer to its employee in relation to the infliction of psychiatric harm, Koehler did so. Its factual matrix bears some similarity to the present case, in that the plaintiff claimed to have been overworked and to have suffered psychiatric illness as a consequence. Although she complained to her employer, no steps were taken to ease her work load and this, as found by the trial judge, constituted the defendant's breach of duty towards her, and led to an award of damages. 20 The Full Court of the Supreme Court of Western Australia upheld an appeal concluding that the employer could not reasonably have foreseen that the plaintiff was exposed to risk of psychiatric injury as a consequence of her duties at work. 21 The plaintiff's appeal to the High Court was dismissed. In the course of their joint judgment McHugh, Gummow, Hayne and Heydon JJ said (omitting citations of authority). "33 In Tame v New South Wales; Annetts v Australian Stations Pty Ltd , the Court held that "normal fortitude" was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful. 34 It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant. 35 The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton , the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.

36 Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.

37 Two caveats should be entered. First, hitherto we have referred only to the employer's performance of duties originally stipulated in a contract of employment. It may be that different considerations could be said to intrude when an employer is entitled to vary the duties to be performed by an employee and does so. The exercise of powers under a contract of employment may more readily be understood as subject to a qualification on their exercise than would the insistence upon performance of the work for which the parties stipulated when making the contract of employment. Secondly, we are not to be understood as foreclosing questions about construction of the contract of employment. Identifying the duties to be performed under a contract of employment and, in particular, identifying whether performance of those duties is subject to some implied qualification or limitation, necessarily requires that full exploration of the contractual position of which Lord Rodger spoke in Barber v Somerset County Council , against the relevant statutory framework in which the contract was made. ………………………………………….. 40 Nor is it necessary to decide this case on the basis that the appellant's agreement to perform the duties which were a cause of her injuries is conclusive against her claim. The identification of the duties for which the parties stipulated would require much closer attention to the content of the contractual relationship between them than was given in the evidence and argument in the courts below. For present purposes, it is sufficient to notice that her agreement to undertake the tasks stipulated (hesitant as that agreement was) runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed risks to the appellant's psychiatric health. 41 The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant's psychiatric health. " 22 There is another case which I think merits reference, namely Hatton v Sutherland [2002] 2 All ER 1, which was approved by the High Court in Zoehler. Hale LJ in a judgment to which the other members of the court (Brooke and Kay LLJ) "contributed", made some observations pertinent to the issues in this case. Inter alia, in relation to differences from other work related harm, she said: "11 ………………………………………………………………… (1) The most significant relates to who knows what. The employer is or should be aware of what is going on in his own factory, school or office. He is much less aware of what is going on in his employees' minds or in their lives outside work. There are many other people, such as family, friends and colleagues, who are likely to know far more about this than the employer. Indeed, the employee may very well wish to minimise or conceal the true state of affairs from his employer: no one wants to be thought unable to cope. (2) The employer is or should be largely in control of the workplace, equipment and physical conditions in which the work is done. He is much less in control of the way in which many of his employees, especially professionals or those who are expected to prioritise their own tasks, choose to do their work and balance the demands of their work and life outside the workplace. (3) The employer can be expected to take responsibility for keeping the physical risks presented by the workplace to a minimum. But responsibility both for causing and for doing something about its psychological risks may be shared between many people, family, friends and the individual himself, as well as the employer. An individual who recognises that he is experiencing levels of stress which may be harmful to him has to make some decisions about how to respond to this. The employer's room for manoeuvre may in some cases be limited. At the extreme, his only option may be to dismiss the employee who cannot cope with the job. [12] There are some jobs which are intrinsically physically dangerous: the most obvious examples are the armed forces, fire-fighting and the police. The employee agrees to run the inevitable risks of the job, although not those which are the result of his employers' negligence. Psychological pressures are inevitable in all jobs, although greater in some than in others. But it is, as the documents quoted show, rather more difficult to identify which jobs are intrinsically so stressful that physical or psychological harm is to be expected more often than in other jobs. Some people thrive on pressure and are so confident of their abilities to cope that they rarely if ever experience stress even in jobs which many would find extremely stressful. Others experience harmful levels of stress in jobs which many would not regard as stressful at all. ……………………………..

[15] Some things are no one's fault. No one can blame an employee who tries to soldier on despite his own desperate fears that he cannot cope, perhaps especially where those fears are groundless. No one can blame an employee for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his credibility or hopes of promotion, may be at risk. Few would blame an employee for continuing or returning to work despite the warnings of his doctor that he should give it up. There are many reasons why the job may be precious to him. On the other hand it may be difficult in those circumstances to blame the employer for failing to recognise the problem and what might be done to solve it. ……………………………… [22] There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do. But these claims do require particular care in determination, because they give rise to some difficult issues of foreseeability and causation and, we would add, identifying a relevant breach of duty. As Simon Brown LJ pithily put it in Garrett 's case: [2002] 2 All ER 1 at 13 'Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability .' (See [2001] All ER ( D) 202 (Mar) at [63]; my emphasis.)

[27] More important are the signs from the employee himself . Here again, it is important to distinguish between signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health. Walker 's case is an obvious illustration: Mr Walker was a highly conscientious and seriously overworked manager of a social work area office with a heavy and emotionally demanding case load of child abuse cases. Yet although he complained and asked for help and for extra leave, the judge held that his first mental breakdown was not foreseeable. There was, however, liability when he returned to work with a promise of extra help which did not materialise and experienced a second breakdown only a few months later. If the employee or his doctor makes it plain that unless something is done to help there is a clear risk of a breakdown in mental or physical health, then the employer will have to think what can be done about it. [28] Harm to health may sometimes be foreseeable without such an express warning. Factors to take into account would be frequent or prolonged absences from work which are uncharacteristic for the person concerned; these could be for physical or psychological complaints; but there must also be good reason to think that the underlying cause is occupational stress rather than other factors; this could arise from the nature of the employee's work or from complaints made about it by the employee or from warnings given by the employee or others around him. UNCONTENTIOUS MATTERS: 23 This section contains an overview of that part of the case mostly taken from the Plaintiff's evidence in chief, which is uncontroversial. I will deal with controversial issues under particular headings. 24 The Plaintiff was in the witness box for some 13 days of which for 10 days he was under cross-examination. Following the 3rd day of cross-examination, he apparently exhibited acute symptoms of mental illness which required hospitalisation. He returned to court after an absence of about 3 weeks, and completed his evidence.

25 He was born on 9 August 1961 and presently lives with his wife, Nantia (Nandy) and their two young children with his wife's parents at Clovelly.

26 He is the second oldest of five siblings having three brothers and one sister. The eldest is his brother, Duncan, who was born in August 1960 and with whom the Plaintiff has always been very close. His sister Fiona was born in October 1963, his brother Ian in January 1965 and the youngest, Lachlan, in November 1967.

27 The family has strong connections to the medical profession. His father, William, who migrated to Australia from England in 1964 was a medical practitioner in general practice and, aged 81, still practises medicine as a locum. Sheila, his mother, is a registered nurse not now in the workforce. His paternal grandfather and his father's brother, Angus, were medical practitioners as is his brother Duncan. His cousin, Angus, about whom there was a good deal of evidence because of the state of his mental health, was a medical practitioner, but is no longer entitled to practice.

28 His primary school education and first year of high school were at Pittwater House Grammar School but in 1974 he transferred to Sydney Church of England Grammar School (Shore) where he completed his secondary education. At Shore, he played cricket and football, swam and participated in surf lifesaving. With the encouragement of his family, he also played the bagpipes in the Manly Warringah Pipe Band and participated in Scottish dancing.

29 In the Higher School Certificate, which he sat for in 1978, he matriculated but his mark was well short of the mark required for enrolment in a faculty of medicine in Australia, that being his chosen profession. As a consequence, he repeated his final year at school and this time improved his mark quite considerably but again it was insufficient for admission to a local medical faculty. 30 However, at very considerable expense to his father, he gained admission to the College of Surgeons in Dublin where he earned degrees which enabled him to practice medicine in NSW. He graduated from the College in June 1986 and returned to Australia. 31 In Australia he first took up a six-month internship at Townsville General Hospital where he worked in casualty for 2 months, in a psychiatric ward for 2 months, and in outpatients for 2 months. Although he was obliged to work long hours his health remained satisfactory notwithstanding that the climate was not conducive to his very fair skin.

32 For 2 years from January 1987 he worked first as an intern and then as a resident medical officer at the Royal North Shore Hospital (RNSH) in Sydney. During this period he lived in a flat with his brother, Ian, at Cammeray. While at RNSH, he studied with a view to becoming a surgeon but failed the examination. His explanation for this failure was that he did not realise until days before the examination that it would encompass the study of physiology. He enjoyed his time at RNSH although it involved hard work. 33 In May 1988, while at RNSH, he became registered as a medical practitioner in NSW and he has remained registered ever since, although, effectively he is not presently entitled to practice.

34 His next appointment was for a short period as a medical officer at the Menopause Clinic, Ryde Women's Hospital. Then he was appointed to Mona Vale District Hospital for about 3 months and, for a shorter period, to the Hasting District Hospital. His intention at the time was to obtain as much experience in the various aspects of medicine as he could before moving to a rural location.

35 Between January 1990 and December 1994 he successfully completed a training course conducted by the Royal Australian College of General Practitioners. As part of that course he worked for varying periods at medical practices in the metropolitan area of Sydney and in several country towns.

36 In the meantime, in 1988, he met Nantia Sotiropoulos at a Scottish dancing function, which he attended with his parents. They formed a relationship and were married on 26 November 1989 when he was aged 28 and she 25. They have 2 children, Michael born 26 March 2003 and Jessica born 9 March 2006.

37 By January 1993, the Plaintiff, having turned his interests to occupational health, was in employment as a medical officer with Mt Isa Mines Ltd at Mt Isa. His duties in that position involved "everything from rehabilitation, to screening programmes, to acute injuries". His superior was Dr Robert Hoskins who was employed by Mt Isa Mines Ltd as its director of Occupational Health Services North Queensland. At Mt Isa he saw about 20 patients a day and was also "on call" alternate weekends, and outside ordinary surgery hours on alternate days of the week. He shared these duties with Dr Hoskins.

38 In September 1993, while still at Mt Isa, his wife was diagnosed with breast cancer and, in view of the limited medical services available there, they decided to return to Sydney. He did not work again for Mt Isa Mines but did not formally resign his employment for several months. I will need to return to the subject of his reaction to his wife's illness. 39 During the first half of 1994, he and his wife travelled for several months in Greece. In this period, he also worked for a time with the Australian Government Health Service in Sydney. In August 1994 he commenced employment with the Illawarra Occupational Health Service (IOHS). That service, which was privately owned, conducted clinical and rehabilitation services and screening programmes, especially for residents of the Illawarra area. He saw on average about 25 patients per day. There were 3 medical practitioners employed, including Dr Steven Ng, and he established good relations with them. The owner Dr John Hogg was a surgeon who worked elsewhere.

40 When at IOHS, the Plaintiff's intention was to obtain a specialist degree in occupational medicine and, at the time, he was undertaking a graduate diploma in Health Services Management. He was also still completing his training for the Royal Australian College of General Practitioners and had commenced a course with Monash University for a graduate diploma in Family Medicine.

41 In or about May 1995, he applied for an advertised position with BHP for a doctor in its Health and Occupational Safety Department located at Port Kembla. For this position he said that he was interviewed by a Mr Rod Harmon (as to which he was probably mistaken), a Dr Julian Caples and a human resources officer. He was told that BHP was seeking an occupational health physician who could be flexible and who would be expected to be on call at night and during weekends and who would actively participate in the company's occupational health services. After the interview, he said that he briefly met Dr Chris Darling, although it seems that he may also have been mistaken as to that. Nothing turns on these errors of recollection. 42 Following the interview, he was telephoned and told that his application had been successful and he thereupon resigned from IOHS. When he started with BHP in June 1995, he found that Dr Darling was his immediate superior and that he, in turn, reported to Mr Harmon.

43 For about the first 3 months he stayed in a hotel at Cordeaux Heights owned by BHP. Later, his wife, who had remained in Sydney, joined him in a rented house at Cordeaux Heights and in June 1996 they purchased a house at Bulli. Dr Darling, who had come to Port Kembla from BHP at Melbourne, also lived at the hotel and the two men established a friendly relationship. Dr Darling told him, "You will be the clinical person and I will be the boss under Rod Harmon". He also told him, "We need to fix up the occupational health services", adding "We have to improve the rehabilitation system as far as getting people back to work and recovering and managing the primary injuries as well".

44 Later, Dr Darling told him how he proposed to improve the rehabilitation service. The Plaintiff suggested that there should be a more "holistic" approach, involving each patient's psychological state as well as his or her physical condition, a proposal which Dr Darling seemed to accept and which was endorsed, unsurprisingly by Mr Neil Harvey, a psychologist employed by BHP as an occupational health officer. 45 In or about August 1996, Dr Darling told him that he had been selected to attend a leadership course in Victoria, at the end of September. He said that it was an important course and that those invited to attend it were regarded by BHP as having a significant future in the company. He was pleased to be selected, and in the weeks following various people, including Mr Harvey, told him something about it. He understood from Mr Harvey that being selected for the course indicated that he was regarded highly by BHP, although he also told him that one employee left the course in "a foetal position". The Plaintiff thought this meant it could be a life changing experience.

46 The course commenced with the arrival of most participants on the evening of Thursday 26 September 1996 and concluded in the afternoon of Friday, 4 October 1996. Business sessions started on Friday 27 September. It was conducted at a conference centre near Kilmore in Victoria. The Plaintiff travelled to Melbourne 3 days before the commencement of the course to meet other employees of BHP working there in occupational health and safety. 47 Whilst in Melbourne he spoke to other doctors at BHP's Occupational Health Centre including Dr Caples, who told him that the course he was about to undertake was " for movers and shakers". Upon hearing this, the Plaintiff "felt good, I thought it was going to be a really productive 10 days or whatever time it was". Everything said to him about the course was positive and no one sought to discourage him from attending it.

48 He was transported from Melbourne to the conference centre by bus. He found that about 26 men and women were participating, of whom a number were employed in BHP's Port Kembla occupational health and safety units, including Dr Darling, Mr Harvey, Ms Lisa Delaney, Ms Sue Cooper, Mr Stephen Keyte, Ms Diane Ford, Mr Lyle Hammond and Mr Harmon. The fact that these colleagues were attending did not concern him. He had known for at least several days that some, or all of them, would be there. 49 The centre itself was located in an isolated rural area. There were rooms for the course sessions, a communal dining room, recreational rooms and residential accommodation. The business sessions were held from 8am until 5pm or later. 50 When it came time to leave on the afternoon of 4 October, the Plaintiff was patently mentally unwell. He was unable to pack his bags and could not coordinate himself. When he held up the waiting bus someone came to his room and assisted him. Ultimately he managed to pack but he was the last person to board. 51 His appearance and behaviour came to the attention of both Mr Harmon and Mr Harvey who assisted him in boarding the aircraft to Sydney. He appeared to sleep during the flight. At Sydney airport, he was persuaded by Mr Harvey to take a taxi home, even though his car was parked there. He took the taxi to where his wife was staying with her parents at Fern Street Clovelly. 52 They went back to the airport together, collected his car and he drove to their home at Bulli. His speech to his wife was irrational and once home he told her that it had been a very intense week; that he had experienced strong feelings and sensations that were "very weird"; and that he had hallucinated seeing "black figures in the night". 53 From Bulli, his wife contacted his brother Duncan, then practising medicine at Bega, who travelled from Bega to be with them. A radio doctor service was called and Diazepam was prescribed. Within a few days, the Plaintiff was referred by a general practitioner, Dr Russell to a psychiatrist, Dr Peter Klug who, in turn, arranged for him to be admitted to the Evesham Clinic at Mosman where he remained from October 11 to October 31. He was readmitted to Evesham Clinic on 7 December 1996 and remained an in-patient until 13 December. 54 In April 1997, he returned to work at BHP, although he was still feeling unwell and anxious. For a time, he worked 3 or 4 days a week under Dr Gerald Viset at BHP collieries. This return to work was organised by an occupational therapist involved in his rehabilitation and it was stipulated that he was not to work under Dr Darling. His role with Dr Viset was as an observer only and the trial was not successful as he continued to experience anxiety and nervousness and suffer panic attacks. 55 At a meeting about August 1997 involving Dr Viset, a Mr Cassar and a Mr Turner, the question of the Plaintiff working under Dr Darling again arose and he reiterated that he could not work under him. In the result, he has not worked for BHP since August 1997 when he was readmitted to Evesham Clinic for a period which lasted until September 30. He formally resigned in March 1998 when he accepted a redundancy payment. 56 In the period between about March and May 1998, he worked in a trainee position as a Psychiatry Registrar at St George Hospital. Altogether he worked there for about 1 month but, in his words, "it was a disaster". He had many panic attacks each day and was unable to cope with the work. He was required to resign because of his poor performance. His next employment was as a locum for a Dr Davis at an occupational health assessment centre in Bondi Junction for 2 months whilst Dr Davis was overseas. Because of his extreme anxiety, he found the work beyond him. 57 From October 1996 up to the present, he has continued to consult Dr Klug, more or less on a weekly or fortnightly basis. He has also consulted a variety of other medical practitioners and health professionals and has been examined by psychiatrists and medical practitioners appointed by the Defendants and Cross-Defendants. The latter experience he found "terrifying at some stages and very depressing - because I am afraid they are judging me and I am - I feel embarrassed, humiliated, not very good because I have to go around justifying my life to these doctors". 58 In 2000, he started work with a trade union operated health service on the basis that he would work 1 day a week between 9am and 5pm. After only 2 days, he "could not make it to the - from the car to the medical centre due to my level of anxiety". He was "worried that I was out in the open - well that reminded me of being psychotic". 59 He attempted to work for the Australian Government Health Service performing examinations and assessments. The doctor supervising him assessed his work as unsatisfactory after 6 hours. There have been other positions for which he has unsuccessfully applied - "because I have always wanted to get back to work". 60 Since resigning from BHP he has undertaken further studies. He acquired a graduate diploma in Health Services Management, a qualification for appointment to hospitals as a medical manager. However, he has not attempted to obtain employment in that field because, "I make mistakes and I am not well". 61 During 2000, through the Workers Educational Association, he undertook a computer training course with a view to improving his employability. He applied for a number of positions, including some away from Sydney, but was unsuccessful in obtaining an appointment. He has always frankly disclosed his medical history to prospective employers. In December 2004, he undertook and later successfully completed the degree of Master of Health Service Management at the University of Technology Sydney. That is also a qualification for employment in hospital management but he believes he would not be able to cope with the work. He has also completed a Master of Health Administration course at the University of NSW and currently is studying at the University of NSW for the degree of Master of Health Informatics. 62 His present weekly regime is that most days, including weekends, he wakes early and goes to a gymnasium for about an hour and a half. He then returns home and sleeps for a short period. At about 9am on the days his son goes to day care, he drives him there. He then returns home and studies. About twice a week, he spends time at a gymnasium with a personal trainer and once a week or so he has a consultation with Dr Klug and also with a psychologist, Ms Louise Shepherd. He also attends a yoga course at Bondi Junction and, on the advice of Ms Shepherd, a meditation consultant. 63 He spends much time about his home where his cooking skills are limited to such things as making toasted cheese sandwiches. His father-in-law who is retired does most of the cooking. He does not wash the clothes despite the availability of a washing machine because, "I have trouble with figuring out numbers on the washing machine". 64 When he sees Dr Klug, he often goes with his wife but sometimes by himself. In the evenings, after dinner, he studies or watches television. His present medication is Abilify - 30 milligrams in the morning; Endep - 200milligrams at night and Seroquel - 200 milligrams.

RELIABILITY OF THE PLAINTIFF'S EVIDENCE: 65 As I have indicated most of what I have written above comes from the Plaintiff's own evidence and, to a large extent, is not in dispute. However, much of his evidence was challenged and it is convenient to make an assessment of his reliability at this stage. 66 He was closely and rigorously cross-examined by counsel representing BHP and the two Cross-Defendants. The cross-examination by Mr Joseph alone occupied more than 8 days. 67 The cross-examination, in my opinion, significantly undermined his evidence, but there are other difficulties in the way of assessing his credibility. The sheer passage of time since his childhood, his medical studies, and his professional life up to September 1996 suggest, I believe, a cautious approach. This inherent difficulty is compounded by the fact that by the end of the course in October 1996, he was floridly psychotic and has since displayed many symptoms of mental illness. Moreover, it was established that at different times he has given conflicting versions of important matters and he conceded, in evidence, that he did not always tell the truth to examining doctors. 68 I formed the opinion that the Plaintiff's memory, which he frequently claimed to be bad as a consequence of his illness, could selectively, when it suited his interests, be extremely good. He was very reluctant to give any evidence contrary to his perceived interests.

69 In the result, although I will hereafter make further reference to his evidence, I have concluded that I should regard the whole of it as potentially unreliable, in the sense that where in issue, it should not be acted upon without independent corroboration, or at least the exercise of the greatest degree of care. CHILDHOOD: 70 The effect of the Plaintiff's evidence as to his home life was that it was happy and that he was nurtured by loving and caring parents in a very stable environment. He described his father as "firm and loving and caring". On occasions, both his parents resorted to mild physical punishment but he was unable to mention any particular instance, nor did he suggest that there was anything untoward about it, or even approaching the exercise of inappropriate violence. 71 However, there was material which cast doubt upon this description of his childhood, for the most part constituted by histories given to examining doctors. I think it unnecessary to collect all the relevant references, some will suffice. They seem to commence with a note by Dr Klug on 11 October 1996, the date the Plaintiff first consulted him, "Father's brutal". 72 On 20 February 1997, Dr Klug recorded in his notes: "[Arrow upwards] unwell (I have spoken with family - father in particular). Attacks of severe anxiety/ associated with bizarre behaviour / hyperventilation/ also feels uncontrollably angry / can't relate it to anything in particular. Starting to relate if, father physical violence to them in childhood/ "that's the reason I don't like people touching me". Has been frightened of people in the street, in the cinema, verbally abusing him. Finds father very supportive now/ "he's me I owed". Knows he's an emotionally closed person/ found it very difficult to deal with Chris Darling's behaviour/ insistent on Angus changing his medical opinion/ CD's clinical ignorance/ "He kept on abusing me and abusing me but I could never show that I was upset, then I went to this course which changed me from an emotionally closed person to an emotionally open person and then I was criticised for not wanting to alter my opinion. Then he got more aggressive" / but it reminded me of my father's aggression when I was young/ "He'd stand over me (CD) - he's 6 foot 4 inches and 18 stone." / My heart rate (arrow upwards) whenever he came down the corridor to me." When really stressed, he wonders whether the door frame is moving. "At the course they opened me up like a fucking clam shell and I didn't know what to do - it's just madness to do that in a week". Father was essentially disciplinarian".

73 In the meantime, the Plaintiff's wife on 11 October 1996 had written a letter to Dr Klug, presumably to assist him in assessing the Plaintiff, which contained this paragraph: "Angus suspects a lot of this relates to childhood eg inconsistent parenting, not being good enough, feeling rejected from mother, and isolated from others eg he said he consciously remembers at age of 4 and 10 that he would be a stone and not let people hurt him and he jumped a class and he consciously wanted not to be first because they "kill tall poppies". 74 A number of reports of Dr Klug were admitted into evidence, some of which refer to the Plaintiff's childhood. For instance, in the second report dated 13 February 1997 addressed to BHP, there was the somewhat fleeting reference: "Once again he could not give a coherent answer with respect to this but voiced some difficulties in relating to his parents (Subsequently on recovery he has been living with his parents and their relationship appears normal)." And later in the report: "Dr MacKinnon's illness was in the absence of any prior psychiatric history. When he was psychotic he made reference to difficulties in his childhood but on recovery these do not appear to be relevant." 75 Apart from a similar brief reference in a report dated 27 October 1997, the next report of Dr Klug, which makes a reference to the Plaintiff's childhood, seems to be that dated 5 April 2006 which, when referring to a report by a Dr Yvonne Skinner, not in evidence, said: "She notes that "I…took a history from Dr Mackinnon that at the age of 10 he thought he would kill himself at some stage and at 26 years wanted to kill himself". This history was taken when Dr Mackinnon was severely unwell. He no longer maintains these views." 76 In a further report by Dr Klug dated 21 April 2006, commenting on a report by Dr Rod Milton, there were these observations about the Plaintiff's childhood: "In this section Dr Milton focuses on minor differences in history from various professionals, which would almost always occur with the examination of a particular patient over time and particularly when the patient has been intermittently unwell. Clearly some of other statements made by Dr MacKinnon over the years, particularly when he was very unwell, must be viewed in the light of his distressed emotional state at the time. Dr Milton comes to the conclusion, despite disparate views about certain details, that some features of his childhood" … were odd, even bizarre …", he comes to this view despite Dr MacKinnon's father, himself a general practitioner, stating that Angus' developmental and teenage years were normal. Nevertheless, Dr Milton assumptively concludes that Dr Mackinnon's parents "..were not aware that he was suffering". Dr Milton also concludes that it is likely that Dr Mackinnon concealed a range of significant problems from his parents during his childhood and adolescence. This is very speculative on the part of Dr Milton." ……….Dr Milton concludes, despite Dr Mackinnon's parents' reporting that he was a normal and happy child, that Dr Mackinnon nevertheless developed "schizoid and obsessional personality features". This is a highly speculative statement. I have regarded Dr Mackinnon as showing dependent and obsessive/compulsive behaviour at times but this has always been in the context of his being very unwell. …………………….. At the time I first saw Dr Mackinnon he was floridly psychotic and in this state made passing references to difficulties in his childhood. These have not been reiterated since his symptoms have ameliorated. On interview with his family, there is nothing to indicate any abnormality during his developmental years or any disturbed family dynamic. The contrary Dr Mackinnon's parents and siblings, whom I have met - in the case of Dr Mackinnon's parents on many occasions - impress me as nothing but normal, supportive, empathic people who are understandably concerned about their son/brother." 77 In May 2005 the Plaintiff was examined by Dr Philip Morris who took a history of "a happy stable and loving family upbringing". Consultant Psychiatrist, Dr Jonathon Phillips, who first saw the Plaintiff on 30 June 2005 recorded, "He grew up in the parental household his father being a general practitioner and his mother a nurse. He described a strict and hardworking family but he gave no history of physical or sexual abuse". 78 The Plaintiff's parents and his brothers Duncan, Lachlan and Ian all gave evidence which encompassed his early life, although Lachlan and Ian were of course younger. It was established that his sister Fiona lives permanently overseas. 79 Dr William MacKinnon described for the Plaintiff a normal childhood and satisfactory schooling, which included active participation in various sporting activities. According to him, the Plaintiff related well to his peers and he had no concerns about his development. In cross-examination by Mr Joseph, he denied that he was particularly authoritarian or excessively disciplined the Plaintiff. He said most of the disciplining in any event was left to his wife. 80 Mrs Sheila MacKinnon who trained as a nurse in England said that she has four specialist certificates, including in respect of sick children. She testified that the Plaintiff's birth was normal and that he had normal milestones. He played well with his brother Duncan who was a year older, and made good progress at school, to the extent that at one stage he jumped a class. He joined in games with his siblings and with neighbourhood children. When he went to Shore, she said that he played rugby, was in the school cadets, and participated in swimming and athletics. In relation to her disciplining of the children there was this exchange with Mr Miller. "Q. In relation to the times that your husband wasn't at home who was responsible for discipline around the house? A. Me.

Q. In what way did you proceed to discipline or attempt to discipline the children? A. Well I suppose I smacked them. I was the one that smacked the children really.

Q. In relation to Angus can you have any recollection of having smacked him? A. Not specifically, no.

Q. In relation to Duncan can you have any recollection of smacking them? A. Not specifically, no." 81 Mr Blacket in cross-examination pressed Mrs MacKinnon on the Plaintiff's childhood: "Q. Angus has said a number of things about his childhood that would suggest it was very, very unhappy at times and that he was a very withdrawn child who didn't communicate to his parents and others. I want you to assume that he has told the doctor that? A. Yes.

Q. Is it possible that you as his mother - Angus kept things from you without you realising that in fact he was a disturbed little boy? A. He never looked a disturbed, or acted disturbed, little boy to me. They did keep things from me that Lachlan had had the cane at school or things like that, but Angus was not a disturbed child. He was as normal as the rest of them and played around with the rest of them.

Q. He was, I significant to you - I think you have disagreed with this but I should put it again - he was a rather introverted quiet boy? A. Angus was not quiet. He certainly was not quiet or introverted. He was not very gregarious but none of them were, but nobody was quiet or introverted. It was a noisy house.

Q. Can you think of any reason why he might suggest that whenever he discusses his childhood he gets anxious? Can you think of any reason why that might be so? A. No, I can't really. Maybe his father shouted at him and he shouted at all of them sometimes.

Q. On occasions Angus was disciplined by his father, was he not, to your knowledge? A. No more so than Duncan, Lachlan and Fiona.

Q. One of his complaints that he made to one of the doctors who saw him was that in fact he was woken up as a child from his sleep to be punished by his father? A. That is absolute rubbish. That is rubbish.

Q. I think you-- A. Of course I was in the house with the children in bed.

Q. Was it not the job of your husband when he came home from time to time to discipline the children for offences that they had committed that you had not been able to punish them for during the day? A. Well, really I said to him "I will tell your father" but it didn't make any impression. He didn't come home and start waking them up and hitting them around.

Q. Well Angus has related that as having occurred, and something that he found upsetting at the time, do you think Angus was telling the truth about that or was he making it up to the doctor?

A. Well, I think he was ill." 82 Dr Duncan MacKinnon, the Plaintiff's brother, said that he enjoyed a close relationship with his brother. They were very competitive and played a lot of sport together, "we had a good childhood". Both of them had, he said, "a full life. We did highland dancing, sea scouts, bagpipes, cadets, little athletics in winter". 83 He said that the Plaintiff had a few friends at school and occasionally invited them home. He said that he was bullied at Pittwater House and he believed his brother was also. However, there was no bullying at Shore. As to relations with his parents and discipline in the home, he gave this evidence to Ms McFee: "Q. How would you describe your relationship with your father? A. I respected my father and was close to my father. I loved my father. And my mother. I had a very happy childhood.

Q. And insofar as discipline was concerned? A. Yeah, William was firm. He wasn't as firm as the schools were but he had strong principles and he wanted us to share those principles.

Q. Did he ever strike you? A. Yes. We frequently would get a clip across the ear if our homework was poor or messy or shoddy but that was the extent of it.

Q. Insofar as your observations are concerned did you observe any difference insofar as your father's disciplining of Angus was concerned? A. No, my father was the second of two children and the way it was in Scotland was the eldest child got all the attention. My father was very careful to ensure that we were all treated equally.

Q. And what about your relationship with your mother. You've already referred to a close relationship. Can you describe her method of discipline, if any? A. There were four boys and a girl. Fiona was a bit of a tomboy and I think we drove our mother mad. We disobeyed her all the time. We didn't do what we were asked to do. And her only way of trying to punish us was to use the strap, which she could rarely catch us to do. We did frustrate our mother terribly. " 84 Asked by Mr Blacket whether he had heard that the Plaintiff described his parents to examining doctors as "authoritarian" and his father as "brutal", he conceded that he had, but as to whether he had taken this up with his brother, he said: "A. I have had no need to because I was a witness there throughout Angus' childhood, so I know what occurred. So it hasn't been a problem for me to - I haven't challenged him. What I do know is that when he gets acutely agitated, anxious, he panics, he spirals into guilt and self-loathing, and that is when he comes out with stuff like this. During his lucid periods and intervening periods he won't communicate anything like that about his childhood, he will say, "I had a happy-childhood"." 85 Lachlan MacKinnon said that life in the MacKinnon family was "Good fun. It was good fun. I had an enjoyable childhood". Ian MacKinnon gave evidence to the same effect. 86 Upon the subject of the Plaintiff's childhood, I accept the evidence of his parents and siblings. In my opinion, the evidence is overwhelmingly to the effect that he had a normal and happy childhood with loving and caring parents who, in the matter of discipline, did no more than commendably control quite a large family by the imposition of moderate and appropriate punishments. 87 In so far as various doctors have recorded histories inconsistent with that finding, in my opinion, the histories are false and the product of the Plaintiff's mental illness at the time. In my view, his evidence to the court on the subject of his childhood is to be accepted. SCHOOLING: 88 As I have already indicated, the Plaintiff's primary school education was at Pittwater House Grammar School. That he was well regarded there is, I think, exemplified by a letter from Mr D. G. Archer, Master in Charge to Dr William MacKinnon and a reference by Mr Rex Morgan, Executive Principal. Those two documents are in the following terms:

It is my pleasure to inform you that your son, Angus has been making excellent progress in Third Form. My intention is to promote him to our Fourth Form (Mr Smith's class) as of next Monday 12 March. Unfortunately the work in our Third is not providing sufficient stimulation for him and he would benefit far more in a higher form where I believe he will not experience any significant difficulty.

Hoping that you will concur with the School's decision. Yours sincerely D.G. Archer Master in Charge. ………………….. 12 February 1980 To whom it may concern Mr Angus MacDonald MacKinnon was enrolled in the Pittwater House Schools from 1966 until the end of 1974. Throughout this time he performed at a high academic level and ability assessments placed him well within the range for ultimate university level study. His results were consistently good in all academic areas and he took Latin and French for most of his time at Pittwater House consistently gaining marks above average. Angus took a full and enthusiastic part in all aspects of school life. He played in several sports and was always in the highest representative team of his age group. He held positions of responsibility such as form vice-captain and was highly regarded by his peers and by members of staff. He showed great determination to succeed in whatever he did and his fine moral character reflected the very high standard of his home life in a family which is very widely respected in the community. When Angus was offered a place in a larger school we were delighted that he had been so chosen and were disappointed to lose him. I have no hesitation in recommending Angus in the highest terms to any prospective employer or for any course of tertiary study he might choose. Rex Morgan Executive Principal The Pittwater House School 89 As I understand the Plaintiff evidence, his school days were happy, he made friends and his academic progress was satisfactory. This impression is, I think, borne out by his school reports which note these comments by his Form Master for each of the years he was at Shore: "75/IV B2 Very pleasant boy - studious, good all-rounder. 76/V B1 Pleasant - well mannered, well spoken, well behaved. 77/LV1D Pleasant - respectful but unassertive. 78/UV 1A He has used the extra year well. Quiet and determined" 90 His headmaster at Shore, Mr B.A. Travers wrote on his final report, "A very sound year in all ways". 91 No doubt the Plaintiff suffered the ups and downs of strictly disciplined boys schools of the time. But nothing in the evidence persuades me that there was anything in either his primary or secondary schooling which has relevance to the issues before me.

TERTIARY EDUCATION: 92 Having failed to achieve a Higher School Certificate mark sufficient for enrolment in a local faculty of medicine, the Plaintiff in 1980 enrolled in the faculty of Science at the University of Sydney. Contemporaneously, however, apparently at the instigation of his father, he applied for enrolment in the College of Surgeons at Dublin, Ireland. The evidence of both the Plaintiff's parents and the Plaintiff himself was to the effect that enrolment in the College of Surgeons was effected by his father as a surprise, Dr William MacKinnon himself being a graduate. Although I think nothing turns on it, documents obtained from the College somewhat belie this evidence, in that they suggest that the Plaintiff was involved in a formal application to Ireland from the outset. I do not regard this as more than a perfectly understandable error of recollection of a sequence of events, which probably did not have much significance at the time they occurred more than 25 years ago.

93 In the result, the Plaintiff was accepted into the College of Surgeons at Dublin and he commenced study there in October 1980, having abandoned his science course at Sydney University in the meantime.

94 He remained in Dublin from October 1980 until graduation in June 1986, returning home once or twice during vacations. He completed the course within the allotted time but in a somewhat unusual manner in that (deliberately, he said), he failed some exams when he first sat for them, but then studied hard during the summer vacation and successfully sat for them again in repeat examinations at the end of vacation. Whilst at university, he said that he did not suffer any psychiatric or psychological problems of which he was aware. 95 He graduated on 6 June 1986 with degrees conferred by the National University of Ireland recognised as sufficient for him to practice medicine in Australia. 96 The records, exhibit AR, produced by the Royal College of Surgeons Ireland provide some support for his evidence as to his somewhat idiosyncratic approach to study, in that, although they are not entirely clear, seemingly, he was obliged to sit for repeat examinations in all 3 subjects studied in 1982 and in all 4 subjects studied in 1984. However, after his graduation, the College on 6 June 1986, over the hand of the Chief Administrator/Academic Secretary, certified that his academic record during his time at the college was "very satisfactory" and that he was " a consistently steady worker of good ability".

97 Moreover, the Dean of the Medical Faculty, Professor Kevin O'Malley, provided this reference on 24 January 1986: "I am pleased to supply a reference for Mr MacKinnon who will graduate from this Medical School in June 1986. He has a reasonable academic record and is in the middle third of his class. He applies himself well to his studies, and functions well in the clinical setting. He gets on with his contemporaries and seniors alike. I am sure he will make a good doctor, and I hope you will be able to accommodate him in your programme." 98 Apart from study, the six years spent in Ireland seem to have been uneventful. As I have said, he made the occasional visit home but of course he needed to devote a large part of at least some summer vacations to studying for repeat examinations. As with his childhood and schooling, I am not satisfied that anything in the evidence relative to his university education in Ireland has anything significant to contribute to a decision upon issues in this case. FRIENDS AND RELATIONSHIPS: 99 It is appropriate to note, as it was the subject of cross-examination, that up to the end of his schooling, the Plaintiff does not seem to have acquired many, or indeed any, close friends and that situation appears to have continued in Ireland with the possible exception of a fellow medical student, Basil Conomos, now a doctor in general practice at Moss Vale in NSW. However, according to Dr Conomos, who was called as a witness in the Plaintiff's case, their friendship in Ireland was not particularly close, although they had meals together from time to time. In a rather desultory fashion, the friendship continued on their return to Australia, hampered by geographical separation, but they attended each other's weddings and have "kept in touch". 100 The Plaintiff said he had girl friends in Ireland but does not seem to have had a serious relationship with a member of the opposite sex until he met his wife when aged 28. However, their relationship, by all accounts, continues to be close and mutually supportive.

101 It was suggested on behalf of the Defendants that the Plaintiff was a "loner". There might, I think, be some force in this contention, but I do not think that, if true, it has particular significance to this case. He seems to have had no difficulty in relating appropriately, at least up to September 1996, with those, especially work colleagues, with whom he was required to associate. GENERAL HEALTH: 102 Throughout his life the Plaintiff has been beset by a number of health problems. When aged 10 he underwent a surgical procedure to correct congenital hypospadias and when he was 13 or 14 he passed a kidney stone. He had some low back pain about 1988 for a short period and he suffers from short sightedness for which he wears corrective glasses. He suffered from atopic dermatitis in 1985, an anal fissure in 1982, and from glandular fever in 1989. This last mentioned condition kept him away from work for about 3 months during which period he experienced high temperatures, feelings of malaise or weakness, difficulty standing up, difficulty in swallowing and throat pain. He said that he did not, however, suffer any psychological symptoms.

103 More relevant, however, is the Plaintiff's reaction to his wife's breast cancer diagnosed in September 1993, to which I will make further reference hereafter. CAREER IN OCCUPATIONAL HEALTH: 104 As appears above, before joining BHP the Plaintiff studied for occupational health qualifications and worked for short periods in occupational health positions at Mt Isa Mines and at IOHS. It is, I think appropriate that I say something more about his work with those employers. 105 Dr Hoskins gave evidence from which it could be concluded that he formed a close personal and professional relationship with the Plaintiff in the months they were together at Mt Isa. With their wives they visited each other's homes and went camping together. 106 He said in effect that the Plaintiff was a conscientious, hard working and competent doctor. He observed nothing untoward about him in the period at Mt Isa from January 1993 to October 1993. As there were only the two of them as doctors in the mine medical centre he had abundant opportunity to make the observations reflected in his evidence. They worked together as a team dividing up the work on an ad hoc basis. 107 According to Dr Hoskins, they had a heavy workload. Between them, they averaged seeing between 40 and 60 patients a day. Some days it would be 80. Dr Hoskins had a general responsibility for the occupational health and safety of mine workers and he called upon the Plaintiff to share this responsibility with him. There were 4,500 employees and every job was classified according to its physical requirements and its work exposures. This led to them putting in place what Dr Hoskins described as a "task based fitness assessment". There was also a system for screening workers against the build up of lead and arsenic in their systems by blood and urine testing. This became part of the Plaintiff's responsibilities. 108 Dr Hoskins became aware that while at Mt Isa the Plaintiff was engaging in postgraduate studies although he did not know or remember the detail of them. He said that "he was particularly interested in university based education as opposed to things which had a more practical leaning". 109 In relation to Mrs Nandy MacKinnon's diagnosis of breast cancer, Dr Hoskins said that at the time there was no full time surgeon in Mr Isa "let alone one specialising in breast surgery". He said that she would not have been able to obtain either radiotherapy or chemotherapy treatment. 110 He said that the Plaintiff seemed to be distraught by his wife's illness but he did not observe anything which he regarded as abnormal. When he left Mt Isa, he did so on the basis that it was leave without pay but, as it seems, he resigned within a few months. 111 Incidentally, Dr Hoskins seems to have seen the Plaintiff on 2 subsequent occasions, once in Tasmania where he was working at the Bell Bay aluminium smelter and the other in Sydney when he was returning to Tasmania from a visit to Queensland and stayed at Bilgola with Dr William MacKinnon and his wife. Both occasions were after the Plaintiff left BHP. 112 In Tasmania, he said that the Plaintiff "was a wreck, he was a mess. He was not the Angus I had known in Mt Isa". He noticed either then or at Bilgola "confused speech" - "there were words that were nonsense, like Lewis Carroll words, that he would make up; like the beginning of one word and the end of another. The gist of it was clear enough, and you would understand what he was saying, but that was a feature I remember". 113 In cross-examination by Mr Joseph, Dr Hoskins agreed that in a previous statement he had described the Plaintiff's confused speech by the medical term "neologisms", a word that he agreed is used medically as a common symptom of schizophrenia. 114 Dr Ng gave evidence about the Plaintiff's time at IOHS of which he later became director. While the Plaintiff worked there they associated on a daily basis. He formed the opinion that he was professionally competent. 115 Initially, at least, both Dr Ng and the Plaintiff were also fellow post graduate trainees with a Faculty of Occupational Medicine and as such each had a supervisor or mentor. On occasions, together they attended faculty meetings for trainees, both in Sydney and in the Illawarra region, usually in the evening or on a Saturday. At these meetings participants were required to make case presentations. Dr Ng said that the Plaintiff appeared to be competent in both his presentations and in discussing the presentations of others. 116 According to Dr Ng the practice at IOHS was "very busy" and at times stressful. In his view the Plaintiff coped "quite well" with that situation. As to his relationships with other staff members, which included doctors, physiotherapists and social workers, Dr Ng said, "I remember that Dr MacKinnon was quite likeable and got on well with everyone". 117 After the Plaintiff resigned from IOHS and joined BHP they continued their relationship through the training program. He detected no significant change in the Plaintiff. 118 In my opinion, Dr Ng was an honest and careful witness. The reliability of his evidence suffers from the obvious shortcoming that he had no particular reason to remember the behaviour and presentation of the Plaintiff. Moreover, he conceded in cross-examination that he was not asked to give evidence until recently although, on one or two occasions since 1996, the Plaintiff had telephoned him about providing a reference. He was uncertain whether the Plaintiff worked for IOHS on a full or part time basis. 119 In general terms, I accept the thrust of Dr Ng's evidence. It seems to me likely that he would have remembered any strikingly unusual behaviour. I conclude that at the time he left IOHS the Plaintiff was performing competently as a medical practitioner and normally in social intercourse. WIFE'S ILLNESS: 120 As I have said, in September 1993, Mrs Nandy MacKinnon was diagnosed with cancer and the Plaintiff decided that he would bring her to Sydney for treatment. Fortunately, as it appears, the treatment was successful and more than 13 years later, she appears to enjoy good health.

121 The Plaintiff's reaction to his wife's illness seems to have been extremely severe, to the extent that he obtained a reference from her treating specialist, Dr Ramsey-Stewart, to a psychiatrist, Dr Robert Gertler, whom he consulted on several occasions. Dr Gertler wrote this letter to Dr Ramsey-Stewart on 16 December 1993: "I saw Angus on 15 December 1993 and he told me of the recent difficulties he had been having in coping with his wife's illness. He was quite distressed and tearful during the interview having difficulty in controlling his emotions and expressing quite a lot of anger and despair about the future. We spoke for some time about the current situation in which he finds himself as regards his work and personal life, his lack of motivation and general difficulty in concentrating. He did not appear to have any difficulty in talking with me and seemed to appreciate the opportunity. We agreed to meet again early in the New Year, after the Christmas period and after the first few weeks of his wife's chemotherapy. If he requires further time away from work then I will be happy to provide the necessary documentation for the insurance company."

122 On 24 December 1993, Dr Gertler provided a certificate, which diagnosed the Plaintiff's illness, Exhibit 1xD-12, as "Depressive reactive to wife's illness. Requires psychotherapy and antidepressants" and certified that he was totally disabled from working from 20 September 1993 until 20 March 1994. 123 The evidence does not seem entirely clear as to when the Plaintiff returned to the work force but it was sometime in the first half of 1994. He said that when his wife's health improved "a weight had been lifted from his shoulders". 124 Although, in her evidence in chief, Mrs MacKinnon indicated that the Plaintiff's reaction to her illness was little more than normal concern, she was cross-examined upon the subject by Mr Joseph: "Q. Did you at any time between September of 1993 - just think of these dates? A. Mm.

Q. Did you, at any time, assess Angus in your own mind as unable to do any work? A. I mean - -

Q. I'll put it another way. You refer to Angus as being "naturally sad" and we've been through - - A. Yeah.

Q. --that in the context of your illness and the treatment you were having? A. Yeah.

Q. It's been described as a "natural reaction", right? Did you ever observe Angus reacting to the point where you felt he couldn't work during the period September 93 till March of 94? A. He certainly was very worried and concentration in terms of work, yes, I wondered whether he wasn't sort of fit for it in the capacity of a job in terms of medically but again, I left it up to, you know, the medicos. There was a medical person involved, a psychiatrist, they make the independent assessment and leave it at that."

125 The Plaintiff's father also gave evidence upon the subject of his reaction to his wife's illness. He denied that he treated him as a patient but agreed that he wrote a letter to an insurance company, which suggested otherwise. He said "I was really counselling Angus about the problem", but he accepted that in the letter to the insurance company he said that the Plaintiff was suffering from "reactive depression", which he agreed was a diagnosis of a psychiatric disorder. 126 Mr Joseph pressed Dr William MacKinnon as to the extent and severity of his son's depressive illness in the period from September 1993 to March 1994. I formed the opinion that he was less than frank on the subject, as evidenced by the following extract from the transcript: "Q. Well, were you covering up for your son today in evidence when you described his condition as simply just depression? A. Well, I probably - no. He had a depression. That was the reason for the reactive, he is reacting to his wife's illness and he felt depressed.

Q. But you said to the Court this morning he was a bit depressed? A. Well, I suppose I should have said a bit more than a bit.

Q. Indeed. And did you not know, did you not realise that one of the issues before this court is the degree of depression your son had suffered before he went to work at BHP? A. No. I didn't think much of the 6 months depression really because he saw Dr Gertler who again saw him only for 4 months and said it was a typical thing that would happen to a person that sort of had a history of a wife having a cancer of the breast and thought it was a normality that he would be slightly, you know, depressed because of it."

127 I am satisfied that although the Plaintiff did not apparently accept medication, he did suffer a severe reactive depression to his wife's illness. This was a diagnosable psychiatric disorder and was sufficiently severe to prevent him working for a number of months.

INSURANCE: 128 Counsel for BHP and the Cross Defendants sought to make much of some insurance dealings by the Plaintiff in December 1993. It was suggested that they reflected on his probity, and hence his credibility. On that basis I will make reference to the evidence, although, in my view, it has no relevance to any issue in the case, except the Plaintiff's credibility. As to that however, it does, in my view, have some significance. 129 According to his evidence when he was 26 or 27 and working at the RNSH, he effected an insurance policy with The Prudential Assurance Company against loss of income due to disability. He made a claim under that policy in February 1988 and again in February 1989. Significantly to this case, he made a third claim dated 24 December 1993, in which he claimed a "depressive reactive" sickness related to his wife's illness. He nominated his father and Dr Gertler as the doctors he had consulted about the illness and said that he first consulted them respectively on 20 September 1993 and 15 December 1993. He claimed that his illness was the cause of "Total Disablement" which prevented him "from engaging in or attending to your usual profession, business or occupation" for the period from 20 September 1993 to 20 March 1994. 130 On 1 January, 1994, Dr William MacKinnon wrote to the insurance company in these terms: "My son, Dr Angus MacKinnon has been attending me as a patient from the 27th Sept 93 with distressing news regarding his wife's illness - he was obviously suffering from reactive depression and on my advice for treatment, he has been attending a psychiatrist. I am currently counselling him on a regular basis, but he finds great difficulty in coping with his wife's condition - he will require a great deal of support in this matter." 131 In the above circumstances, it seems curious to say the least that on 4 December 1993, he applied to Sun Alliance Life Assurance for a "Recovery Insurance" policy of $250,000. Although in the box on the application form requiring him to state the duties of his work, he said "currently of (sic) special leave because of wife's illness", he answered, "No" to the question, "Have you ever had ……. mental illness, depression, nervous condition or anxiety state?" 132 There was evidence that in about 2005, a claim was made upon the policy resulting in a payment to the Plaintiff of nearly $300,000. He was extensively cross-examined by Mr Joseph about this insurance and about the insurance claim made in December 1993. His evidence on the subject, in my view, reflects the flavour of much of the rest of his evidence in its vagueness, in its demonstration of his selective memory, and in illustrating his refusal to make any concession against his perceived interests, despite compelling contrary indications. For that reason I intend to include a rather lengthy extract. Of course, to some extent, the problems with his evidence may be a consequence of his mental illness but that knowledge provides little assistance in assessing his credibility.

"Q. Do you remember when it was that you took out - you signed the proposal form for this policy? A. No.

Q. I suggest to you it was on 4 December 1993? A. I've no idea.

Q. This is your signature, is it not, on page 3 of exhibit 24 (shown to witness)? A. Yes, it's got a cross right next to it.

JOSEPH: Q. And as at December of 1993 what was your health like? A. 1993?

Q. Just remembering just for the moment to assist you, you came back from Mt Isa in September of 93. I'm asking you about December of 93? A. I can't remember what I was like in December of 93.

Q. Nandy had been diagnosed with cancer in September of 93? A. Yeah, I don't remember how I felt then.

Q. I'm asking you to just try and reconsider. We're talking about a period of three months during which time your wife has been, firstly, diagnosed with breast cancer? A. Mmm.

Q. Secondly, had surgery? A. Mmm.

Q. Thirdly, had radiotherapy. Fourthly, had chemotherapy? A. They're quite often at the same time.

Q. Sorry? A. They're quite often at the same time.

Q. Be that as it may, I'm just trying to help you identify the period we are referring to, from September of 93 to December of 93? A. I don't remember. How do I figure that out?

Q. Pardon? A. How do I figure that out?

Q. Well, you went to see Dr Gertler, did you not? A. If I went to see Dr Gertler then I must have seen Dr Gertler.

Q. I'm trying to assist you in identifying what you were like at that time? A. I thought I had grief.

Q. Well, let's just explore that. How did you think you had grief? Were you having grief in December of 93? A. I don't know. I don't remember. I remember that-- ……………………………………………. JOSEPH: Q. You were off work, right? A. If that's what it says I was off work. I don't remember. I think I worked for the HGHS for some time.

Q. You would have understood there was a duty of disclosure in respect of an insurance proposal? A. Yes.

Q. You would have known that in December of 93? A. Yeah - well, not necessarily. If my wife asked me to tick on the form where it is I probably didn't read the policy. She used to tick where I should sign. She'd put it under me and say, "Can you sign that".

Q. Are you trying to avoid all responsibility for all the documents you might have signed at around about this time? A. With a cross next to them is basically where Nandy has marked for me to sign.

Q. But you've filled out this form, have you not? A. Let me have a look. …………………………………….. Q. Just the first page. That's your handwriting, isn't it? A. Yes, it is.

Q. And you would have known that in a policy you would have been asked about your health? A. Yes, if I filled it in about my health then I would have filled it in about my health.

Q. Let's try and concentrate on what your health was like in December of 93? A. I don't remember.

Q. Hang on, you say, do you not, that you were suffering grief? A. Yeah, grief. Grief can be a varying range of things.

Q. Pardon? A. Grief can be a varying range of things. People might have grief that's very grieving, other people might have grief that's very small.

Q. Your grief was so small, was it not, that you suffered a reactive depression which justified you receiving payments for the period you had off work which started - which started, because of the one month waiting period, started on 24 October and continued to 31 December at least? A. I didn't know I had reactive depression until people have told me during this Court case. Before when - the last month or so when you started up I had grief. ………………………………………. Q. You stated, did you not, as I think you have also noticed, the nature of your sickness was depression reactive. Correct? A. Sorry, I don't know.

Q. Well, I think I have shown you this? A. Yes. It says "reactive depression".

Q. It doesn't say "reactive depression", it says "depression reactive". It doesn't matter, does it? A. It does.

Q. Does it? Then you were asked question 2: "When did it first become apparent", and you said, "On the 20th September with the wife's diagnosis." Right? A. Yes.

Q. What became apparent? A. I don't know whether it became apparent exactly at the time diagnosed.

Q. What symptoms did you have? A. I had grief.

Q. Depression? A. I had grief. That's what I always thought I had. Doctors have given me other labels but they change all the time. I thought I had grief. It's only recently they've shown me - not shown me those documents - but people have said to me you had reactive depression.

Q. Well, were you at that stage in poor health? A. I don't remember. What do you mean by "poor health"?

Q. You're a doctor. If someone is suffering grief to the point where they are unable to work, whether you call it grief or depression or reactive depression, aren't you in poor health? A. Not necessarily. Because you can have varying degrees of grief. You can have varying degrees of depression. Some people can work with depression.

Q. Well, you weren't working with depression, were you? A. I thought I had grief.

Q. In fact you were claiming total disability, weren't you? A. I'm still saying I had grief.

Q. Whether you had grief or not you were claiming total disability, weren't you? A. Yes, if that's what it says. Can I have a look?

Q. This is exhibit 4, paragraph 4. To the question "Has the accident or sickness been the cause of total disability which prevents you from engaging in or attending to your usual occupation - business or occupation", and you have said "Yes." "Dates of total disability: 20 September '93 till the 20th March '94", and under the heading "Dates for Partial Disability" you have written nothing in. Just have a look at that. Have I not put on to the record what is on your document? (Given.) What I have read on to the record is the truth, isn't it? A. I'm just reading it. Can I just finish reading it?

Q. Right? A. Yes. I saw Dr Gertler.

Q. Forget that. I'm asking you whether that statement, when made, was the truth. That is, you were totally disabled for your work between September and March of 1993? A. I thought so at the time.

Q. So were you in poor health if you were totally disabled? A. I was able to look after my wife.

Q. Were you in poor health? A. I don't think I was in poor health. I looked after my wife. …………………………………….. JOSEPH: Q. And when asked when did you expect to return to work, you have said the 20th March 1994? A. Guesstimate.

Q. So you thought this illness was so disabling at this time that you thought you would be unfit for another three months? A. It depends how sick Nandy was.

Q. But that is-- A. Yes, because that's - I looked after Nandy.

Q. You were told by the insurance broker shortly after Nandy was ill that you would not be accepted - it would not be accepted as a payment of the policy that you simply had to look after Nandy. You were told that by the broker before you put in this claim form, weren't you? A. Yes. I had to look after Nandy, yes.

Q. No. You were told by the broker before you put in this claim for exhibit 4-- A. Several times he told us.

Q. -that if all you were doing was looking after Nandy you would not be entitled to the benefits of the policy. You were told that? A. Let me just think. Can you say it again?

Q. You were told by the broker-- A. Yes.

Q. -if your inability to work at the time was simply because you needed to look after Nandy, you would not be entitled to the benefits of the policy? A. He said - just let me think what he said. He said that first that we wouldn't be entitled to the policy because we wouldn't qualify.

Q. Because you had to be sick in order to get benefits under the policy? A. That's what he thought, but we disagreed. You can ask him.

Q. No, you didn't-- A. Ask him. Q. You see, two weeks prior to you filling out this claim form claiming total disability, claiming a reactive depression-- A. That's what Dr Gertler was telling me, yes.

Q. -and you, two weeks prior to that on the 4th December you filled out a proposal, this proposal to Sun Alliance. Right? A. I don't remember.

Q. And you were asked this question "Do you now have any sickness or disability or are you in poor health?" Do you remember that question being asked of you? A. No.

Q. And you ticked the "no" box, didn't you? A. I don't know. You'll have to show me.

Q. Exhibit 24. (Given.) You see that question there? A. I'm just looking. Looking at the whole document. Is that all right or not?

Q. No, it's question number B3 I think on that page, B3 on the second page. I think I have it open on the second page. A. What was it again?

Q. "Do you now have any sickness or disability or are you in poor health?" See that question? A. Yes.

Q. And you have ticked "no"? A. Okay, I ticked "no".

Q. And that wasn't the truth, was it? A. Well I'm not quite sure whether it was the truth because up the top there I've changed my mind. B1: Yes or no. Have I had any medical examination, advice or medical practitioner, chiropractor or health practitioner - for some reason I've crossed "no" off and ticked "yes".

Q. Because you were seeing your father? A. I can't remember. I may have seen my father, I can't remember.

Q. No, that's during the last five years you are being asked that question and you've ticked "yes"? A. I crossed it off "no" and then ticked "yes".

Q. Well, maybe the five years before 1993? A. I may have been confused.

Q. You may well have seen a doctor or might you not have? A. In the five years before?

Q. Yes? A. I don't remember seeing anyone except for Dr Gertler.

Q. In the five years before you filled out this form in December 1993? A. I can't remember seeing anyone before 1993 in the five years before. …………………………………………… JOSEPH: Q. Just finally I want to show you B4. You were asked this question: "Have you ever had any of the following: mental illness, depression, nervous condition or anxiety?" Number 15. (Given to witness.) See number 15 there? A. Which one?

Q. Was that the truth? A. I had grief.

Q. You describe grief as a form of depression or nervous condition or anxiety state? A. You'll have to ask the specialist that.

Q. I'm asking you, you're a doctor. A. I'm saying I had grief. I don't know the - it can be minor or major or it can stop people from working or it doesn't have to.

Q. If it stopped you from working it would have to be major, wouldn't it? A. Not necessarily, if I was worrying about my wife.

Q. Does it matter who you're worrying about as to whether it's major to the point of stopping you from work? A. It does matter because if I was worried a lot at a certain time, her hair was growing back, my condition varied over the time as she recovered.

Q. There are two alternative explanations as to the content of exhibit 4 or exhibit 24. Dealing with exhibit 24, which is your proposal form to the insurance company, you intentionally misled the insurance company as to the state of your then health in order to get the policy approved? A. If I intentionally misled the company why did they pay us out?

Q. That's a different issue, isn't it? A. No. It's the same issue.

Q. Maybe they were fooled by your fraud, Doctor? A. I don't think so.

JOSEPH: That's intentional mislead. That's what mislead is.

MCFEE: It has never been properly put and I object.

HIS HONOUR: Q. Dr MacKinnon, it is being suggested to you that in the proposal form you intentionally misled the insurance company. A. No. And it's nothing to do with that and people who know me would know that.

JOSEPH: Q. Alternatively, when you made your claim for compensation on the 24th December 1993 claiming total incapacity by reason of reactive depression, that you knew at that stage that you were suffering no illness and made a claim on the policy claiming an illness because you realised after a while that you had to have an illness before you were able to make a claim on the policy? A. No. I always thought I had grief. And you can ask Dr--

JOSEPH: Q. Your neat response is that you were suffering grief which did not amount to either poor health - correct? A. It varied over time. Sometimes.

Q. It did not amount to poor health? A. It may have at times.

Q. Well, did it amount to poor health prior to the 4th December 1993? A. I don't know, because I can't remember how sick I was.

Q. And that it never amounted to depression. A mental illness, a depression or a nervous condition or an anxiety state? A. I really didn't think grief was in that category.

Q. You indeed made the claim, I want to put to you also, at a time when you knew that shortly you were going to be referred to Dr Gertler and that you wanted to put the proposal in before you saw Dr Gertler? A. I don't think so.

Q. Because once you had seen Dr Gertler you knew that would have had to disclose the fact you have suffered some form of illness on the proposal form? A. Basically saying something that's not correct.

Q. Well, were you seeing your father during this period prior to the 4th December 1993 for any form of treatment? A. I could have been. I don't remember. ………………………………………………. JOSEPH: Q. You lodged a certificate of your father's in support of your claim form, didn't you? A. I don't remember. I don't remember.

Q. You don't remember? A. No. I don't remember. I may have.

Q. I want to simply suggest this to you that your memory concerning these events is unacceptable and is very recent? A. It's unacceptable to you.

JOSEPH: Q. You see, exhibit 14 is a certificate from your father which, I want to suggest, you obtained from your father in order to support your claim for total disability. (Given.) A. I can't really read it.

Q. Here's a typed version that might help you. A. Thanks. (Given.)

Q. Which the parties have agreed is accurate. And your father you believe is an honest man, don't you? A. Yes, I do.

Q. Were you attending him as a patient from the 27th September 1993 with distressing news regarding your wife's sudden illness, obviously suffering from reactive depression, and he gave you advice for treatment and that you therefore went and attended Dr Gertler. Does that help you? A. I don't remember talking to him with reactive depression. I basically thought I had grief.

Q. And I want to suggest to you that you used your father, you used your father to obtain this certificate when at all times you had not been treated by your father during that period from the 27th September? A. I don't understand what you're saying.

Q. Well, I'm suggesting to you that you know that this document is untrue? A. I don't remember suffering from reactive depression. It only came in the last, say, six months or three months when this court case started coming that people told me I had reactive depression. I had grief.

Q. It's on the claim form, Doctor? A. I had grief, and that's what I thought I had.

Q. You didn't put down "grief", did you? A. Can I see? Did I put down "grief"?

Q. No you didn't. You put down depression reactive? A. That's because the doctor said I had depression reactive. I assume. I don't remember that. Can you take this point? ……………………………………. JOSEPH: Q. Doctor, can you recall what it was that prompted you, in December of 1993, to obtain a further policy of insurance? A. I don't remember.

Q. Well, it was going to require of you to pay on-going premiums - obviously it was going to be some financial drain on your family's finances? A. I don't know, because I can't remember.

Q. But, you must have discussed it with your wife; here is the situation, you are out of work and she is out of work and you are going to engage in a commercial transaction that was going to cause you on-going financial commitment? A. No, and I can tell you why?

Q. What was it? You were going to be engaged in a commercial transaction that was going to cause you on-going financial commitment when this proposal was accepted? A. I don't remember taking another policy.

Q. But, this one, the Asteron one? A. Yes, yes. Can you ask me the question again?

Q. Can you recall any discussion you might have had which triggered the need for you to obtain another policy - just pause there - given that you already had a policy with Prudential, for weekly payments, should you become totally disabled? A. I don't recall talking to my wife about policy issues. Can you give me an example?

Q. Do you say you went ahead and got the policy without discussing it with your wife? A. I don't know, because I don't always discuss these things with my wife. There is an example of that, that I didn't discuss it with my wife. There was an - -

Q. Yes, of course, but I am asking about this particular policy? A. I don't remember discussing it.

Q. Isn't it the fact that at the very same time as you applied for a policy of insurance, your wife also applied for a policy of insurance? A. I said I don't remember. …………………………………………………

Q. I was just trying to sum up some things that happened in December 1993 and I want to do it in the one question, if I may. First of all, you signed a proposal for a policy with Sun Alliance; secondly, you went to see - you made a claim on your policy as against Prudential; thirdly your wife put in a proposal for a policy which was rejected, and, fourthly; your wife sought an increase and obtained an increase in the contributions that she was to make to her superannuation policy. Now, that suggests there was some concentrated concern - sorry, as a result of each of those things, there was going to be, obviously, an increase in financial commitment to insurance issues thereafter? A. Give me one question at a time, please. You had four questions in there.

Q. It was not a question, I was just telling you what the evidence was - - A. I thought it was a question.

Q. The question is; do you, now that some of the evidence has been reviewed before you, have a better memory of what occurred in December 1993? A. I must have signed some forms, since you have shown them to me.

Q. Not only did you sign form, you also ticked boxes? A. I don't remember that.

Q. I know you suggested that your wife put a spot on the proposal - - A. I don't know if she did. I think she put a cross there for me to sign.

Q. Be that as it may, you either ticked the box on the proposal - you don't deny that that occurred? A. No. I don't think I ticked any boxes. My wife usually takes care of those things.

EMPLOYMENT WITH BHP: 133 The terms of the Plaintiff's employment with BHP were recorded in a letter over the hand of Bruce McGowan, Manager Human Resources, dated 17 May 1995 as follows:

"Dear Angus Further to our telephone conversation on Monday, I would now like to offer you the position of Occupational Physician with BHP Slab & Plate Products Division at Port Kembla. The position is a monthly staff position reporting to the Manager Safety Occupational Health Risk and has a commencing salary of $78,000 per annum plus an expense allowance of $1,050 per annum. The position also entitles you to a fully maintained company vehicle such as a Falcon GLI or Commodore Executive. Salaries are reviewed on an annual basis as at 1 December each year. General conditions of staff employment include: a. Probationary employment for three months beginning on your start date. b. Immediate eligibility for admission to the BHP Staff Superannuation Fund. c. Annual leave of 4 weeks per annum with a 20% loading. You will also be eligible to participate in the Division's Lump Sum Payment scheme, which provides for an additional target payment of 4.5% per annum, subject to pre-set business performance targets being achieved. We will also assist you with reasonable removalist expenses should you relocate from Sydney to Wollongong. In addition, I confirm that 2 weeks paid leave per year will be allowed to enable you to complete your current Master Degree in Health Services." 134 The Plaintiff's evidence regarding his time at BHP, was that initially he saw only one or two patients a day but the numbers grew to the extent that by September 1996 he was seeing 25 to 30 patients a day, or more. He was assisted in his work by nurses (Carole Donald and Helen Calvert) working under his supervision, although they had additional responsibilities. Formally his hours were 8.30am to about 5.30pm, but he said that he made a habit of being available earlier so that he could attend to employees ending their night shift. 135 He claimed that Dr Darling's new policy meant that injured workers, who previously had been immediately referred to their general practitioners, were now clinically examined and evaluated by staff in BHP's Occupational Health and Safety Department and encouraged to remain under their care and management. Each physical examination, which he said took of the order of 20 minutes to half an hour, contributed to a heavy workload. 136 According to his testimony, there was tension on occasions between his views on the one hand, and those of Dr Darling, on the other. Sometimes, according to the Plaintiff, rehabilitation was delayed because workers on light duties became happy with their lot and did not wish to return, for instance, to heavy and dirty work at the coke ovens. 137 From time to time, Dr Darling would complain to him that a particular injured worker was not rehabilitating as quickly as the worker's manager thought appropriate. He, in effect, replied that his clinical judgment should prevail over that of the manager. He said that he did his best to rehabilitate injured workers but sometimes this involved the consideration of psychological problems, including depression and anxiety. 138 Within the Plaintiff's purview were also about 900 of what were termed chronic rehabilitation cases, many on light duties. He said that he was told by Dr Darling to "get them back to work". 139 All in all, the Plaintiff's evidence was to the effect that his various responsibilities amounted to a heavy workload, which was made more onerous by the fact that quite often Dr Darling, whose family remained in Melbourne, asked him to be on call at weekends and some week nights when Dr Darling was actually rostered. There was a particular disagreement upon this subject shortly prior to Christmas 1995 when Dr Darling asked the Plaintiff to be on call during a weekend on which he wanted to return to Melbourne. The Plaintiff declined as he was studying for an exam the following Monday. According to the Plaintiff, Dr Darling angrily said, "You are not a team player and this will be taken down as a mark against, a black mark against your name". He said that when Dr Darling was angry, he raised his voice and went purple in the face. 140 Into the first quarter of 1996, the Plaintiff said that he was seeing an average number of 30-40 patients a day, including cases dealt with by Sister Donald. He was also taking or making about 40 phone calls - "I was hectic, I was under pressure". He said that he was also experiencing "anxiousness". He testified to the effect that Dr Darling was, or became, unsympathetic to his "holistic" approach to patients and pressed him to work faster. As a consequence he sought to reduce his patient consultation times from 30 minutes to 20 minutes. He also caused records to be kept of his phone calls, a subject which he raised with Dr Darling in about August 1996 as further evidence of his increasing workload. Dr Darling remained, according to the Plaintiff, "not particularly sympathetic", and indeed, he formed the view that he had irritated Dr Darling by his frequent claims of overwork. Dr Darling's standard response was that the Plaintiff should not become involved in the psychological state of his patients, but rather attend to their physical needs and get them back to work. As to his capacity to work faster, there was the following exchange with Mr Miller: "Q. Was it possible for you to work faster? A. No.

Q. Why not? A. Because I had a chocker block appointment book and I was also seeing Carole's appointment book, people from Carole's office as well.

Q. "Carole" being Sister Donald? A. Donald.

Q. Why did you have to see them? A. Because my workload was so heavy that the overflow went to Carole's assessment. Then when she'd done her assessment she'd come over and knock on my door and ask me what she needed to do with the case that she was dealing with. I would quickly bolt across the corridor, look at the patient, listen to what she had to say and then make a decision about the rehabilitation of that patient."

141 Other evidence was given by the Plaintiff as to the conduct of Dr Darling, which he regarded as inappropriate, including entering his room without knocking, even when he was in the process of examining patients. He believed that Dr Darling also unfairly criticised him in relation to his treatment of certain patients, including his alleged mistreatment of a State Rail Authority employee, which became the subject of a formal complaint.

142 At a staff meeting held about August 1996 and attended by members of the occupational health team, including Dr Darling, the Plaintiff said that he complained to Dr Darling of overwork but there was no response. He said that he repeatedly asked Dr Darling for a formal written work description but one was never provided. But Dr Darling made it known that he was unsatisfied with the Plaintiff's work. 143 In or about September 1996, the Plaintiff said that he spoke to Mr Harvey and indicated that he was having "a major problem with Dr Darling, "He is upsetting me about the way I am managing cases". A meeting was arranged at which Dr Darling and Mr Harvey were to be present. The Plaintiff said that Dr Darling arrived about half an hour late, announced that he did not want to participate in the meeting as he had bigger matters on his mind and proceeded to leave. The Plaintiff said that this upset him because of "the amount of work I was doing, the inability to get Chris to understand that with rehabilitation you could not see people in five minutes, it was a complex situation and I was quite upset on a regular basis and worried Chris was going to come across and give me a hard time". On one occasion, the Plaintiff said that Dr Darling criticised him in relation to his treatment of a patient in the presence of a nurse who, at the time, was employed at the front desk of the Occupational Health and Safety Unit and was operating in part as a receptionist and in part as a triage nurse. On occasions, Dr Darling swore at him in language which he found offensive.

144 On another occasion, the Plaintiff said that he felt insulted when Dr Darling, in the presence of others, put his hands on his shoulders and said, "This is my clinical boffin".

145 He related an occasion about September 1996 when Dr Darling came to his office in response to a letter he had written to him, which itself was a reply to Dr Darling's request that he carry out a screening programme for workers exposed to benzine in the vicinity of the coke ovens. In the letter to Dr Darling, the Plaintiff had asked him to state what he wanted the Plaintiff to give up doing in order that he could carry out the study as he was already overworked. When Dr Darling came to his office, he said that he appeared angry and his face was "the colour of beetroot". When he reiterated that he was overworked and could not carry out the benzine study without neglecting some other part of his workload, he said that Dr Darling replied, "I'll make you do it". The Plaintiff testified, "I just didn't understand how I could possibly cope with the amount of work he was giving me". He said that the benzine study would have involved considerable work over a lengthy period.

146 Both Dr Darling and Mr Harmon gave evidence in BHP's case. Several other witnesses who were work colleagues of, or had contact with the Plaintiff at BHP, also gave evidence which I will need to say something about. 147 Mr Harmon testified that in September 1995 he was appointed manager of the section of BHP at Port Kembla, known as the Occupational Health and Safety and Risk Area. Previously, he had been a line manager in the steel works. By the time of his appointment to head the section, both the Plaintiff and Dr Darling were in their respective positions and he said that he had no part in interviewing or appointing either of them. 148 Mr Harmon described his role: "The context within BHP Steel at that point in time was they were unsatisfied with the safety and performance of the division, or of Steel. They had engaged external consultant specialists in that area, and as a result of their recommendation they recommended a high potential line manager take the role to help facilitate a rapid improvement in the safety performance of the division."

149 Responsible to Mr Harmon were a number of separate departments, namely, compensation, safety and risk, occupational health, rehabilitation, ambulance services, and security services. The heads of those departments reported directly to him, including Dr Darling as head of occupational health. 150 Although Mr Harmon's office was more than a kilometre from the office of the Plaintiff, they were both located at Port Kembla and Mr Harmon said he would visit the area where the Plaintiff worked and speak to the Plaintiff himself quite frequently. He could not recall the Plaintiff ever making a complaint to him about Dr Darling. 151 For the first six or eight months, he said that the Plaintiff and Dr Darling seemed to work quite well together. Then there were problems when Dr Darling sought his advice about making the Plaintiff a more efficient manager of patients. He could not recall any initiative put in place by Dr Darling to overcome the problem, but he could recall Dr Darling becoming increasingly frustrated and that there was tension between the two men. He was aware that Dr Darling held the dual role of the Plaintiff's superior at BHP and also his supervisor in an occupational health and training course of study. 152 Sometime before September 1996, Mr Harmon became aware that BHP was conducting a leadership course, which he was being encouraged to attend. He was also asked to nominate participants within the Occupational Health and Safety group. There was this exchange with Mr Joseph: "Q. Why did you think that that would be suitable; why did you think that would be suitable for your OH and S group? A. Two reasons. Given the feedback from around, for the people that attended, they found it personally worthwhile, so some personal development opportunity for people at that sort of middle management level and, secondly, given the role of the OH and S group within Steel and given that my understanding was most, or many, of the senior and middle management were undertaking this course, it would be very worthwhile for the OH and S group and people within it to understand what the course was about and whether that - the tools and the things learnt on it could be used within their role in influencing the line management of Steel in the safety area.

Q. Was there anything specific concerning what you knew about problems which were occurring between Angus and Dr Darling - was that in any way relevant to your decision? A. No.

Q. Did you know specifically that Dr MacKinnon was going? A. Yeah, I - I knew because it was - the way that people were - perhaps to answer the question, the way they were selected was predominantly based on availability and - and plus a smattering of people across the whole group so there was a - so, you know, a couple of people out of compensation and I think there was some out of Chris's area and I think there was a couple of safety guys that went on it, as well as myself, so that's principally how it - how it occurred.

Q. But some chance involved? A. Yeah, there was. I mean, I know that Chris almost didn't go because he - of other work commitments and the like, so it didn't really settle until very close to the beginning of the course."

153 Later in his examination of Mr Harmon, Mr Joseph addressed the suitability of the Plaintiff to attend the course: "Q. And, of course, you knew from the discussions you had with other people the nature of this course? A. Yes. Not in detail but certainly in a broad sense and certainly the material had objectives of the course on it and those type of things.

Q. At any time did you have any reason to believe that Dr MacKinnon might be at risk of damage if he went to this course? A. Certainly not.

Q. And if you had been on notice, would you have done anything about him going on the course? A. Absolutely.

Q. What? A. Well, if - if there was some indication that he shouldn't have gone or, you know, if there was medical conditions or - or he - if he himself objected not to go, he wouldn't have been forced to go.

Q. At any time prior to going on the course, had you observed anything about Dr MacKinnon just from your one-to-one dealing with him that made you think that he wasn't anything other than a hundred percent well? A. No.

Q. How did he appear to you in your discussions with him? A. Look, well, he certainly - look, I was very fond of Angus and still am, but Angus - or I have fond memories of Angus. He was - my impression of him was very academic, intelligent, caring sort of character and at the same time very inexperienced and naive. But in terms of his behaviour and - nothing extraordinary in my mind.

Q. Did he appear to be under stress? A. Not in any - any great degree, no.

Q. Was there any expectation he work anything other than the usual nine to five hours? A. Oh, he may have worked some extra hours but in the sort of roles that we had, you work the hours that you needed to work. A lot of that was self-managed as well, particularly a person of his level, but there were certain hours of which the - and I can't remember what they were, but certain hours of which the - his - not practice, but the facilities he was working in were open, which is standard sort of hours of eight hours a day.

Q. In terms of discussions you had with him, did he appear to - right up until the course I am now asking you about? A. Yeah, okay.

Q. Did he appear to present anxious in any way, specifically anxious? A. Not that I can recall, no.

Q. Anything about his speech that you can recall? A. No different to what his personality has always - was - always had been.

Q. What do you mean? A. Look, he - he - like anybody, he - he was articulate. He would sometimes get animated about if he believed something and wanted to tell you, which - in an excited way, but that to me is a fairly normal trait of all of us when we get excited about something." 154 Mr Harmon told Mr Blacket that Dr Darling got on well with other employees under his supervision. He said that Dr Darling had a personality conflict with Ms Susan Cooper, who was his equal in the hierarchy, but they managed that conflict in a responsible way. 155 Mr Blacket asked Mr Harmon about his personal feelings towards the Plaintiff: "Q. What sort of things do you remember about him? A. Look, I thought Angus was certainly very intelligent. He - I found him to be, you know, certainly an honest gentle sort of character. So I sort of have that fondness, and I certainly thought I had a very good relationship with him. Albeit that he was, you know, equally naive and quite inexperienced and that sort of made him endearing too.

Q. How did his naiveté show to you? A. There are a couple of ways I would describe it. The inexperienced side of it is more to do with his professional experience, so I certainly viewed him to be more academic rather than on the ground, you know in a steel works environment and practising. So that was my common experience. The naiveté side was more the general life thing. I found him inexperienced in a lot of what I call practical life skills.

Q. Did your views play any part in your decision to send him on the course, the fact that he seemed to be a little lacking in those skills? A. Oh look, certainly that he was - given that he was going to the course, I thought it would do him some good in a number of ways. One is certainly provide him with some other skills, but also to be networking with other people on the course from various parts of BHP, which would hopefully broaden his understanding of BHP and the culture and the people within it."

156 Mr Harmon agreed with Mr Marshall that the leadership course was about "personal development", rather than "team building". Moreover, in the case of the Plaintiff and Dr Darling, he was not motivated in recommending them for the course "about patching a fragmented relationship". He added, "however my understanding of the course was you could use the tools to improve interpersonal relationships in a broad sense". 157 Mr Marshall cross-examined Mr Harmon in some detail about his knowledge of the Plaintiff's relationship with Dr Darling and about the personal attributes of Dr Darling, as the transcript records: "Q. Would you see Angus on that impromptu basis at work on a monthly basis? A. It would have been, I mean not - it wasn't a scheduled thing, but probably an average, you know, at least once a month, and maybe I would pop in one week and then the next week, and then not for four weeks, so it was that sort of process, depending on my timeframe.

Q. Sometimes when you dropped in to see him he would be with patients? A. Yes, sometimes he would.

Q. And you wouldn't be able to see him? A. That's correct.

Q. Other times you had a cordial, friendly relationship? A. I believe we did, yes.

Q. You would talk to him? A. Within his office and just chew the fat, so he had ample opportunity to raise any - I mean, he raised the issue of the patient management approach, and things like that.

Q. Can we describe it as the philosophical difference of approach to Dr Darling's? A. Yeah, they disagreed on their approach.

Q. Did you understand through Angus, and indeed Dr Darling that this differing philosophical approach led to the fragmentation of their professional relationship? A. No, I wouldn't have described it to that degree from my observation. My discussions - both Angus, my recollection, both Angus and Chris seemed to be motivated to continue to work through it. Chris expressed from time to time the frustration that he didn't seem to be able to get Angus to his point of view. At the time - I'm not conceptualising it - strategically what I was trying to do with that focus for that area was we went through this injury management focus, and as things came down the plan was then to develop that capability, and it is not just Angus and Chris, I think there was - I can't remember the doctor's name now. ……………………………………….. Q. I want to stay for the time being on your relationship with Angus, and how often he saw you? A. Mmm.

Q. In addition to these monthly or so chew the fat meetings - if I can use your expression - you would see him socially outside the work area? A. We did occasionally, less so later on. I mean I can't recall the exact timings and how often, but we did catch up in the early days I think for a couple of meals, or something like that. But I wouldn't - outside of work I wouldn't call it that we socialised in any regular sense. I don't want to give that impression at all.

Q. It was perhaps two or three times in the nine months? A. I think so, it might have been twice. It was infrequent.

Q. Other people from the occupational health section would have been involved too? A. No, Chris and his wife - I've forgotten her name - I can recall one dinner that was at my place. I'm pretty sure there was another event like that. It was more of that ilk.

Q. Because you had other sections at work to look after other than the doctors? A. That's right, that's true.

Q. It is quite possible, is it not, that Angus complained to you about Dr Darling's behaviour to him? A. No, he never expressed concerns in that way, in my recollection anyway.

Q. He never suggested that Dr Darling, for example, was loud and overbearing? A. Not that I can recall. I mean it wasn't - Angus was never, to me, derogatory about Chris. He would express the difference of opinion that they had, and that was more the centre of his concern. So rather than, you know, a personal comment about Chris, it was more on a professional basis.

Q. Did you understand however, knowing Dr Darling as you did, that there would have been a stylistic difference between them? A. Oh, look, it was quite possible, but my discussions with Chris around all that, again, as I said, it was all about - Chris' motivation from what he was feeding to me was all about Angus' development and how to use it. There was never suggested, as an example, that Chris wanted to get rid of him or sack him or anything like that.

Q. It was never suggested that? A. Not to me, no, that I can recall at all.

Q. It was never suggested at any time that he be shunted off to Julian Caples? A. No, no, it was more about changing Angus' role. I think Chris came in the later part to a view that, you know, we could better use Angus' academic capabilities and the like in this - and there was a need on the plant for this as well in terms of the benzene, so there was some need for a change anyway, about using him in some of these monitoring areas, and better using his skill set that way, which might also better suit Angus' desires and the like.

Q. Did you understand that Dr Darling had quite a direct manner in the way he dealt with people? A. Certainly when he had a view he expressed his view.

Q. Did you sit in on meetings with him? A. Yes, quite often, and observed him in presentation in management.

Q. Would you describe his style as robust? A. Passionate was what I thought. He certainly is an extrovert, and he is passionate. When he had a view he was very articulate in presenting his view, so.

Q. Dogmatic? A. I wouldn't call him dogmatic, not with me. We had quite, you know, an open relationship where we could discuss things. If we disagreed, we disagreed, and work through them.

Q. When he disagreed with you was he passionate? A. Depending on the issue. If he had a strong view on it he would put his case and I would listen, but he was an expert in the area, so.

Q. Certainly you were brought in to BHP to initiate strategies to reduce lost time? A. That was in the OH&S area.

Q. As far as that was concerned? A. And improve - I had safety progress policies and standards, and that would lead to less injuries and less fatalities.

Q. The strategy which you in that context initiated was twofold, I take it. Firstly you wanted to increase safety awareness at a plant level? A. Through line management and competencies.

Q. And competencies. I take it that was to reduce the incidents of actual injuries? A. Prevention.

Q. I understand that. The second aspect of that was in the reduction of lost time injuries, the management of injured workers? A. Not just lost time injuries, but rehabilitation and injury management. That's correct. I mean that was, there were a couple of other bits to it, but broadly.

Q. Significantly you used Dr Darling to implement both those strategies, didn't you? A. No, just one of those strategies.

Q. Just the second one? A. The second one, and also the health management aspects and exposure issues, which was more in his ilk, and I had safety professionals and worked embedded in the plant departments.

Q. You were able to persuade Dr Darling that he could have a significant impact on the reduction of lost time injuries and the rehabilitation of workers if the health system was managed in a different way than it had been? A. That was part of it. It was the quality of, the quality of the technical medical services that were provided in the context of understanding the plant, and that's why we had some internal doctors rather than sending them external.

In and above that the second prong to that was also again looking at line management's responsibility in relation to caring for their injured employees as well. So it was the - from my viewpoint it was the vanguard - which is now common practice everywhere in Australia - of workplace rehabilitation. So in a lot of ways Chris was a little bit ahead of his time, and that has become the best practice of approach. To get the best return to work outcomes.

Q. He certainly was, he had taken on your strategy? A. Yes, certainly.

Q. Enthusiastically? A. Enthusiastically, and believed in it, and he brought his own, you know, interpretation of it as well.

Q. You supported this in him, didn't you? A. Absolutely." 158 Mr Marshall also asked Mr Harmon about the Plaintiff's capacity to perform the duties of his employment: "Q. Do you think Angus was in over his head with the job that-- A. Interesting question.

Q. --Dr Darling had asked him to do? A. No, look, I think in terms of what Angus was hired to do and in terms of his qualifications, he was certainly academically qualified to undertake the role that was asked of him. I don't think there was in that context any indication from my perspective that what was being asked of him was beyond what his job was and qualifications supported. The question of his capability with some hindsight, perhaps that wasn't, you know, the environment or the role that best suited him at the end of the day.

Q. Did you perceive in the last months that he was under any strain or stress? A. Look, I - not - not unduly. I mean, we are all - I mean, stresses are in the workplace every day but not to an unduly unacceptable level. That would raise a concern for me in that sense.

Q. I take it at some level you knew he was under pressure or strain in the workplace? A. Well, it - yes and no. I mean, it's in the context of Steel and the change and we were dealing with that and working hard so it was sort of in that context that I interpreted all that.

Q. Did you make any direct inquiries of Angus, how he was handling Dr Darling and stress or strain of the job? A. Again with these informal discussions that Angus would have from time to time, I can't recall again specific meetings but I would ask him generally how he was going and, you know, how we were developing, how he is developing, how is he handling the job, so those sort of generic questions which are sort of common questions I would ask, you know, people within the workplace and which I do today, so sort of a common - " 159 I found Mr Harmon to be an honest and impressive witness who did his best to assist the court. Not surprisingly, his memory was less than perfect regarding the detail of events which occurred 10 years ago, but on the other hand, his recollection in general terms appeared quite good. I will need to return to his testimony in relation to events at the leadership course itself. 160 Ms Carole Donald, now retired, worked for BHP as an occupational health nurse between 1965 and 1973. She returned in 1986 and remained with BHP until 1998. In all that period she said that the work of an occupational health nurse changed from being a doctor's assistant, applying dressings etc, to one where she was responsible for her own projects such as executive health and rehabilitation which she had to design and manage. These duties involved both clinical examination and the testing of various functions. Her workload also included preventative medicine such as screening programmes and the treatment and rehabilitation of injured workers. Some consultations with her were by appointment and recorded in a book. Her work always closely involved a medical practitioner to whom she deferred. 161 She recalled the Plaintiff joining BHP and that thereafter she worked under him for about 18 months in the No1 Occupational Health Centre. She described this work: "A. In my general duties as an occupational health nurse, which could include vaccinations, you know, for hepatitis or overseas travel, he would always have to supervise and sign for those injections. Other areas that I monitored may be eyesight tests for traffic workers or spirometry for refractory workers. That type of monitoring we did throughout the works; if there were any abnormalities then they would be referred to Dr MacKinnon."

162 Later in Ms Donald's evidence, there was this exchange with Mr Marshall: "Q. How did your work - just dealing with Dr MacKinnon now - and his work interact? A. We interacted mainly through rehabilitation cases.

Q. In what practical way did it operate? A. Because Dr MacKinnon was trying to solve the problems of the rehabilitation, his consultations took longer and therefore it was difficult for him to fit them all into his daily schedule. He asked me if I would see these patients in a monitoring capacity, and under his supervision, at least every other time, maybe I'd see them twice, but he would always see them by the third visit. This way, instead of what I just call rubber stamping them, he could try and solve their problems so that they didn't have to keep on the same track of these regular visits to the occupational health centre, that he could get some effective treatments and management systems in place. I was happy to do that.

Q. Could I just ask you one other matter about those particular patients? On their repeat visits, as you have described it, were the appointments made for you or for the doctor? A. They were made for me.

Q. Would you involve Dr MacKinnon in a clinical process on each occasion, or just every third occasion?

WITNESS: --because it was a learning process for me and it would be very unwise for me to not cover myself legally, I consulted him very frequently.

Q. Would that consultation process involve some time spent by Dr MacKinnon interacting, whether clinically or in an interview sense, with the patient? A. Yes.

Q. What was the proximity with which you worked to Dr MacKinnon? A. Do you mean in geographical sense?

Q. Yes. A. His office was just across the corridor from mine.

Q. When you say "across the corridor", a few feet away? A. Yes.

Q. Had you any involvement in keeping his appointment book? A. No.

Q. Do you know how that was done? A. His appointment book was kept at the desk by the administration staff.

Q. Had you any awareness of Dr MacKinnon's caseload during the time he was at the Southside occupational health centre? A. I couldn't say statistically" 163 Later, on the subject of the Plaintiff' workload, she said: "But in the course of our going in and out of our offices to get patients, and my knocking on his door to ask advice or ask him to see one of my patients, he always seemed to be fully employed.

Q. You have described him as "fully employed"; did you notice any change in that pattern, whether it increased or decreased over the time that he was --

A. He was always fully employed. His caseload did increase, which meant that he could spend less time with patients, less time than he needed to solve their particular problems in a meaningful way.

164 Ms Donald said that most but not all patients were seen in the clinic during the morning. She said that in her opinion the Plaintiff had sound clinical skills and that he seemed to spend more time with patients than other doctors. As to his personality, she said, "He was friendly, happy, joking - had a dry sense of humour, always available, always willing to help to educate. He was just quite refreshing". 165 However, she noticed a change in his personality six to eight weeks before he went on the leadership course "his affect changed, his body language became very closed. He was strict. He avoided eye contact. His face looked strained, where before it was always happy and smiling". Ms Donald said that she knew Dr Darling, but could not remember any particular interaction between him and the Plaintiff. 166 Asked to say what she knew about the Plaintiff's personal life, Ms Donald said that it was "busy"- "he was still studying" and "he seemed to have a lot of study to do". She had no recollection of the number of times he went to the coffee room and no recollection of any change in his weight, although she remembers him looking "drawn in the face" in the weeks before the leadership course. 167 Mr Colefax, in his cross-examination of Ms Donald, pressed her in relation to changes she noticed in the Plaintiff. Somewhat curiously and perhaps revealingly, she brought up the matter of schizophrenia. The exchange went thus: "COLEFAX: Q. Ms Donald, could I just ask you a bit about the changes you observed in Dr MacKinnon before the leadership course? You told the court this morning that, as you now remember it, the changes occurred six to eight weeks before the course? A. Approximately, as far as I can recall.

Q. When was the first time that you were asked to turn your mind to remembering these changes in Dr MacKinnon? Was it the 18-month period that Mr Joseph asked you about 18 months ago? A. Possibly.

Q. Around about the time this statement came into existence? A. Yes.

Q. Could it be, Ms Donald that the changes that you recall in Dr MacKinnon occurred maybe three months before the course? A. It's possible.

Q. As to these changes, you've told his Honour that Dr MacKinnon seemed to you to avoid eye contact? A. Yes.

Q. That his face seemed strained? A. Yes.

Q. And affect was changed? A. Yes.

Q. Did he also appear to you to be worried? A. Anxious.

Q. Would "nervous" fit the description? A. I think more like probably frustrated.

Q. Did you notice him to be sweating more than previously? A. Oh, I didn't notice. I didn't notice.

Q. Did you notice whether he was pacing more than you'd noticed before? A. I can't recall.

Q. You have told His Honour that Dr MacKinnon was less communicative than on previous occasions? A. Correct.

Q. Did you regard his behaviour therefore as being generally uncharacteristic compared to his previous behaviour? A. Correct.

Q. Did you observe him make any strange or unusual gestures? A. I don't recall.

Q. You couldn't deny that or admit it one way or the other; is that your position? A. No, it was just a thought. I was just wondering if you were alluding to schizophrenia or something.

Q. Were you? Why did you say-- A. Just because of the nature of the question. I was just - you know, I've seen that happen to other people, that's all.

Q. Has anyone before today discussed with you the possibility that Dr MacKinnon had schizophrenia? A. No.

Q. Can you explain to His Honour why it was that when I asked you about strange gestures, you volunteered the notion of schizophrenia? A. It's just a visual image I have of other patients in odd positions that you place them, and they stay there (demonstrating).

Q. To try and get that on the record, in providing that last answer, you held your arms out at a shoulder height with your wrists down rather like a scarecrow pose; would that be accurate description of what you just did? A. Or a tree.

Q. But when I asked you about strange gestures, Ms Donald, I didn't make any gesture of that or any other kind, did I? A. That's a schizophrenic gesture.

Q. Why did you immediately leap to a schizophrenic gesture when I asked-- A. I don't know.

Q. --when I asked you-- A. I can see it was a big mistake.

Q. Please wait till I ask the question. You seem very anxious to provide information that you're not asked about. If you could just wait for the question, please. Why was it when I asked you the simple question: "Did Dr MacKinnon make any strange gestures?", that you immediately leaped to the thought of schizophrenia? A. I immediately leaped to the thought that you might be leading me there.

Q. And why did you think that if no-one has raised with you before today the notion that Dr MacKinnon suffers from schizophrenia? A. What's the question?

Q. I'll ask that it be read back. It was a perfectly straightforward question.

HIS HONOUR: Q. Why did you raise that matter today if nobody had mentioned it to you before? A. I didn't raise the matter. I was responding to the question of a strange posture. That's what it suggests to me, from my experience, quite unrelated to Dr MacKinnon.

COLEFAX: Q. Are you quite sure no-one has raised with you-- A. I'm quite sure - sorry.

Q. What are you quite sure about? A. That no-one has raised that question with me.

Q. Can we just go back to this visit that Dr MacKinnon made to your house at Austinmer about 18 months ago. That was the first time that Dr MacKinnon had been to your house; is that correct? A. Correct.

Q. And it was the first time that you had had any social contact with Dr MacKinnon since he left the OH1 section at Port Kembla? A. Since I gave him the stethoscope after he had left.

Q. And that was about 10 years between these two events? A. Approximately.

Q. You said to his Honour that this social event of the MacKinnons travelling to Austinmer was the consequence of a telephone call from Dr MacKinnon? A. Correct.

Q. And you hadn't heard from him in 10 years? A. Correct.

Q. So this phone call came like a bolt out of the blue to you? A. Yes.

Q. You told his Honour in answer to questions from Mr Joseph, who was the first cross-examiner, the third barrister along from the end closest to you, you told his Honour in answer to questions from Mr Joseph that you did not discuss with the MacKinnons at this lunch what his case was about? A. Correct.

Q. He asked you whether you would provide evidence for him? A. If I would stand up in his defence.

Q. And then you say you didn't discuss the case further? A. That's correct.

Q. Can you explain to his Honour why it was necessary then for the MacKinnons to come to Austinmer for this lunch for the first time in their lives and for that question not to be asked of you over the telephone? A. I don't know why. Perhaps you should ask them.

Q. Well, I'm asking you because you're the one-- A. I don't know.

Q. --giving evidence of this lunch? A. They asked if they could come to see me. They had their new baby and I said that was fine.

Q. Well, madam, there was nothing to prevent Dr MacKinnon asking you over the phone the simple question, "Could you give evidence on my behalf in my case"? A. True.

Q. But that didn't happen. This completely unique social intercourse took place between you and the MacKinnons - that's what happened? A. Is that a question?

Q. According to you, that's what happened? A. They came down for lunch. Is that so bizarre?

Q. The MacKinnons had never been to your house before? A. True.

Q. You hadn't seen him for 10 years? A. True.

Q. He was not part of your social life when he worked at BHP? A. True.

Q. And, all of a sudden in the context of the case, they come and visit you? A. True.

Q. And you say to his Honour that there was no discussion at that time about schizophrenia? A. True.

Q. Did you think he was schizophrenic at any stage? A. No.

Q. You made reference to Dr MacKinnon's defence. Did you think he was being sued? A. One would assume so if he had to be defended.

Q. Don't you know that he is suing BHP? A. No.

Q. For a very large sum of money? A. Okay.

Q. You don't know that? A. I'm not sure who's suing what, or what the other parties are involved.

Q. Madam, do you say you've come to court today and you have no idea what this case is about? A. I know that BHP is involved and some other bodies. I'm not sure who they are.

Q. Who told you, first of all, that BHP was involved in the case? A. I don't recall.

Q. Apart from Dr MacKinnon, who else might it have been? A. I don't know. Perhaps it was a supposition on my part.

Q. A supposition of what? A. That BHP would be involved in this.

Q. Who told you about the other parties? A. I don't recall.

Q. Was it the same source, do you think, that told you that BHP was involved in the proceedings? A. If someone told me, maybe I just assumed it was BHP. But, yes somebody did tell me that there were other parties, but I don't know who told me or who the other parties were." 168 Later in the cross-examination, Mr Colefax returned to the subject of changes in the Plaintiff's behaviour as the transcript records: "Q. When Dr MacKinnon started to behave differently in the period before the course which you've referred to, did he display to you that he was acting suspiciously? A. Sorry, did you say suspicious? No, he just acted as if he was undue stress.

Q. In the period before the course, did you observe a frantic desperation about Dr MacKinnon? A. I did, a frustration.

Q. The expression I'm asking you about is not frustration. Did you observe a frantic desperation about him? A. I did.

Q. And was that in the context of Dr MacKinnon designing one paperwork system after another? A. That's correct.

Q. The overworked, case-loaded doctor was spending a lot of time designing paper systems, was he? A. In order to try and better the system.

Q. And the designing of this one paperwork system after another became so numerous, didn't it, as to be impossible to keep up with? A. True." 169 I assess Ms Donald as an honest witness but she was recounting events of a long time ago and had no reason to notice them at the time, or to bring them back to her mind until quite recently. Moreover, perhaps unconsciously, she struck me as being unduly defensive of the Plaintiff's position. But, in any event, nothing she said, in my view, made any contribution to the Plaintiff's case as pleaded, that in the period prior to the leadership course there were breaches by BHP of its duty towards him. She portrayed him as pleasant to work with, as hardworking and as a competent and conscientious employee. Nothing she said about Dr Darling suggested that he was anything other than a responsible manager seeking to control his department in an entirely appropriate manner. 170 Ms Helen Calvert has been a registered nurse since 1973. In 1992 she completed a graduate course at the University of New England in Occupational Health and Safety Management. 171 In 1986, she obtained employment with BHP as an occupational health nurse and remained there until her position became redundant in 2003. Initially, she was employed at Number 3 Occupational Health Centre under Dr Thambiran but in June or July 1996 transferred to No: 1 Centre where the Plaintiff worked. Others already there included Ms Donald and Ms Lori Lavis. 172 At No 1 Centre she worked in an administrative role at the front desk. Her responsibilities included screening patients for the Plaintiff, controlling stores, taking telephone calls and making appointments. Her section had team meetings which the Plaintiff always attended and Dr Darling occasionally attended. She said that the Plaintiff treated Dr Darling as a supervisor or boss but their relationship "seemed quite friendly". 173 She had the opportunity to observe the Plaintiff in his professional practice as she made appointments for him; saw him greet patients and sometimes was present in his room when he was with a patient. She formed the opinion that "he was a very good doctor. He was caring, he spoke well to the patients, he explained everything ……..". She found him "very friendly, very approachable". 174 As to the Plaintiff's workload, Ms Calvert said that he was always busy, "He had patients every morning in his clinics. He had patients a couple of afternoons a week, as well as - that's late afternoons a week. He usually saw patients just after lunch for medicals, attended a lot of meetings". Sometime she saw him go into Ms Donald's room to review a patient who was with her. She said he always seemed happy to help the nurses or talk to them. 175 Patients who made appointments to see the Plaintiff were recorded in the appointment book but no record was kept of occasions when he participated in procedures principally conducted by Ms Donald or Ms Lavis. 176 Ms Calvert testified to the effect that the Plaintiff's workload was not confined to the examination of patients in his room. He attended meetings elsewhere as part of his general responsibilities in occupational health and safety. He was also required to write reports for employees receiving workers compensation. 177 As the occupational centre's receptionist, Ms Calvert said that because of her training she was able to screen telephone calls to the Plaintiff and transfer them, where appropriate, to a nurse rather than to him. 178 Touching on changes introduced by Dr Darling, there was this exchange with Mr Marshall: "Q. Let me come at it a different way. Were you aware of changes since Dr Darling took over concerning the way in which long-term or lost time injuries were dealt with? A. I don't know if there was a big change. Dr MacKinnon was - we had a policy that anybody that had been off for three weeks, that had a works injury, that couldn't do their job, had to see the doctor, or anybody that needed a restriction had to see the doctor. So these long-term people were people that needed ongoing restrictions, so that they had to come back and see Dr MacKinnon and they needed that certificate for compensation. Dr MacKinnon was spending more time with them to treat them and to try to rehabilitate them, where previously I think they had come in and they were only quick visits, and the same restriction was repeated, but he was spending more time with the patients, trying to put some strategies in place to rehabilitate them."

179 Later in her evidence, Ms Calvert said that Dr Darling came to the centre where she and the Plaintiff worked, quite often "He often came to check our appointment book and to have a look at what Dr MacKinnon's workload was like". 180 Asked whether she observed any change in the Plaintiff's demeanour or behaviour before going on the leadership course, she said, "He did seem to be a little bit stressed just before they went to Melbourne". A little later she added that, "he looked tired". 181 Like Ms Donald, Ms Calvert painted the Plaintiff as a congenial, conscientious and competent doctor who worked hard and appeared to be under some stress in the period immediately before the leadership course. However, nothing she said indicated to me that either Dr Darling, or the normal course of the Plaintiff's employment, placed unusual or unreasonable demands upon him. Moreover, her evidence as someone who worked closely, at least in a physical sense with the Plaintiff, did not suggest that his demeanour or behaviour before going on the course made questionable his suitability for it.

182 Ms Dianne Ford is currently employed by BHP and has been employed by it and its predecessors since 1985. She trained as a nurse, was registered in 1976, and obtained a graduate diploma in occupational health and rehabilitation about 1992. At John Lysaght Ltd, she was its senior occupational health nurse until the early 1990's when she became the manager of its medical centre, in which position she continued until it merged with BHP about June 1996. There were 1,200 employees of John Lysaght and, as manager of the medical centre, she became acquainted with the workload of doctors working there. 183 Following the merger Ms Ford reported to Dr Darling, although her workplace did not change. She saw him at least once a week and began to attend meetings with doctors not previously known to her, including the Plaintiff whom she met for the first time. 184 Meetings were held weekly to discuss policies, procedures etc. Both the Plaintiff and Dr Darling participated and contributed where appropriate. She noticed nothing untoward. She said that the Plaintiff seemed to interact as in a normal working relationship with both Ms Lisa Delaney and Mr Neil Harvey. She recalled that "he liked theory" and, as I understand her evidence, would take any appropriate opportunity to raise theoretical matters. Ms Ford was one of the participants in the leadership course with the Plaintiff and said that, up to the time they went to Victoria, she noticed no change in his behaviour. 185 She described Dr Darling as a "very supportive" manager. As to the changes he was seeking to introduce, there was this exchange with Mr Joseph: "Q. Are you aware that there was a change of culture which Dr Darling was seeking to provide in respect of the provision of medical services? A. Yes.

Q. What change did you think Dr Darling was seeking to promote in terms of changing the culture of the provision of medical or rehabilitation services to employees after mid 1996 when you came under his control? A. I believe that he wanted to have a unified approach across the Illawarra and in that there's certainly different cultures between different parts of BlueScope Steel as it is known now. So he was looking at the nurses doing more and being much more involved in occupational health practices, policies, and procedures.

Q. What about the doctors? A. Certainly with the doctors providing a service to our injured employees for injury management and rehabilitation and that that was to get the early return to work of our injured employees. So certainly there were some changes that he was expecting.

Q. And did that create any resistance, to your knowledge? A. Yes.

Q. And from whom? A. My knowledge, there was quite a bit of resistance from the nurses, from the general way that things were done to the way that he was wanting things to be done.

Q. And from the doctors who came under your control? A. No. " 186 Ms Ford said that she could remember a meeting at which both the Plaintiff and Dr Darling were present and that the Plaintiff left the room after something Dr Darling said, but she could not remember any other details. It was Dr Darling who invited her to attend the leadership course saying, "It was to look at helping combine us as a team". She conceded to Mr Blacket in cross-examination that her contact with the Plaintiff before going on the leadership course was at meetings and that they did not actually work together. Their offices were some kilometres apart. 187 Asked by Mr Marshall about Dr Darling's personal characteristics, she said that he was not an aggressive person but did have a loud and booming voice and "spoke his mind". She said that to her, there was nothing intimidating about his behaviour. 188 Mr Stephen Keyte was another BHP employee who worked with and knew the Plaintiff prior to the leadership course, which he also attended. He was in the compensation section reporting to Ms Susan Cooper but his office after June 2006 adjoined that of the Plaintiff whom he then met for the first time. Previously Mr Keyte had worked for John Lysaght Ltd in another building some distance away. From June 2006 onwards he also began to have contact with Dr Darling. Asked about the Plaintiff, he replied:

"A. I thought he was a bit of an odd character. He walked very quickly, head down, all eyes down. I thought he dressed a bit differently to most. But that is about all." 189 As to his role and relationship with the Plaintiff, there was this exchange with Mr Joseph: "Q. You had some riding instructions from Mr Harmon as to the nature of your work to be undertaken from the time you moved over into this section? A. That is true.

JOSEPH: Q. What were those riding instructions? A. Part of the position I took was team leader at the flat products division and, at that time part of my role, other than leading the team of claims officers, was to also try to reduce our outstanding workers' compensation liability.

Q. What did that require you to do? A. A number of things. Basically, getting people back to work was the aim and taking people off workers' compensation benefits.

Q. Did that cause you to review some of the certificates issued by Dr MacKinnon? A. Yes, amongst others. We had an occupational position, which Dr MacKinnon was. He saw a large number of our employees as much as the external doctors saw them, so it applied with all doctors. It was reviewing claims, case by case.

Q. Did you actually, as part of that process, go to Dr MacKinnon's office and discuss matters with him? A. Yes, on occasion.

Q. What sort of matters were you discussing? A. What I looked at, what we were targeting were the claims that had a fair bit of longevity, trying to get people back to their pre-injury duties. So, I would approach the doctor and ask how was his progress going, what the likelihood of return to his pre-injury duties would be, and the duration.

Q. So, you did this on a case by case basis? A. That's right.

Q. Do you recall on any of those occasions Dr MacKinnon's response? A. On a couple of occasions.

Q. What do you recall? A. He would (sic not) be affronted as such, but would object to criticism. I was not criticising, I was asking why, what could be done or where can we go with this case. But I took the response, on occasion, that he was the doctor, I am not.

Q. Do you recall any other response other than that in some cases? A. One in particular. We had a lot of migrant workers at that time from non-English speaking background, and there were a number of them on long term restrictions. Dr MacKinnon felt that I was questioning his - because I was questioning the longevity of some of these claims, he said that he did not research the behaviour of people from Southern Europe background, in regards to injury or their behaviour.

Q. Did he provide you with something? A. Yes, he provided me with, I think, three or four journal articles, out of various medical journals, on this behaviour from people from Southern European background.

Q. Do you recall, when you were handed the articles, whether Dr MacKinnon said anything? A. I can. I recall the occasion, I could not tell you exactly what day it was and where my office was, and he came into my office with these articles, and it was six weeks or so after the initial question and his response to these particular cases, and I had forgotten about it, and he said, "Ever (sic I have) done some research and found these articles in regard to behaviour of people from this background? Have a read and you might understand a bit better what I have to deal with." Something along those lines, I can't exactly recall.

Q. Can you remember any other interchanges between you and Dr MacKinnon prior going on the course? A. Nothing significant. We interacted pretty well day-to-day. Nothing untoward and nothing substantial I can recall.

Q. Do you recall whether you interacted in the coffee room; did you share a coffee room? A. Yes, but there was no different interaction with anyone else.

Q. Did you see him in the coffee room? A. Yes. 190 Mr Keyte said that unless he had a patient with him the door of the Plaintiff's office was always open. 191 I assess both Ms Ford and Mr Keyte as honest and reliable witnesses and I accept the substance of their evidence. I will return to their evidence as to what occurred at the course. 192 Dr Gerald Viset who qualified in medicine in 1985 became involved with occupational health medicine in 1991 when he became employed by the Joint Coal Board. He had met the Plaintiff two years previously when they were fellow trainees at a general practitioners program. He said he took a liking to him, "He appeared to have a broad range of knowledge, good sense of humour, interacted well in the group discussions. He's the sort of gentleman that when you met, you would like, really."

193 He met him again in 1991 or 1992 when they were both enrolled in a 10 week intensive short course in occupational medicine. Dr Viset said that during the course he "got to know (the Plaintiff ) very well" and again found him very likeable "He was a very popular man in the course, popular because of his, I think, outgoing nature and his personality and so on. Again, in the course, he again showed an inquiring intellect. He interacted well with the others as well as myself." 194 In 1994, Dr Viset took employment with BHP as an occupational physician. About that time he became aware that the Plaintiff had joined IOHS and they renewed their acquaintanceship at college meetings. This contact left his previous opinion of the Plaintiff unchanged. 195 The following year Dr Viset learned that the Plaintiff had obtained employment with BHP albeit in a different area of operations, Dr Viset being in "collieries" and the Plaintiff in the flat steel products section. 196 They continued their association as fellow BHP employees in college, forums and in internal meetings. He also met Dr Darling. 197 During 1996, he became aware that the Plaintiff was having difficulty coping with his workload. He also gained the impression in a conversation with Dr Darling that he was frustrated with the Plaintiff but did not, in the conversation, go into details. 198 In July or August 1996 he attended a college forum case presentation, where he said that the Plaintiff made a case presentation which was not typical of him, in that he appeared "uncomfortable" and "a little under stress". Asked to elaborate on this opinion, Dr Viset said : "I guess the body language of Dr MacKinnon was "I don't really want to be here, I want to get this over and done with quickly." He didn't have his normal relaxed presentation style. It struck me, too, that the presentation itself was a little rough around the edges. The content was all right, like the facts about the case and all that, but the presentation - I got the impression that he may not have had enough time or he just didn't put the effort into putting it together into a bit more of a polished presentation."

199 Dr Viset did not have further contact with the Plaintiff for some months until he became involved in plans to assist the Plaintiff back into the workplace. He said that he was at that time "certainly different, he appeared nervous, withdrawn. He kept his conversation limited". 200 The arrangement whereby the Plaintiff sat in on examinations by Dr Viset continued for a month on a part time basis but, according to Dr Viset, although the Plaintiff's medical knowledge seemed intact, his concentration was limited and he lacked confidence. What seems to have been an experiment did not in the outcome prove successful. 201 Dr Michael Baynes who has been a medical practitioner for about 25 years joined BHP in Melbourne in 1995. When the Plaintiff went to Melbourne immediately before the leadership course, it had been arranged that he would spend some time with Dr Baynes. 202 Apparently on the day of his arrival the Plaintiff met Dr Baynes in his office. The following day they drove to Geelong to visit one of the steel factories there and, in particular, look at occupational medicine issues. Overall, including travelling time, they were in each others direct company for about 5 hours. They discussed various facets of their work, including the matter of taking patient histories, a subject upon which, according to Dr Baynes, they disagreed. The Plaintiff's opinion was that cultural and social history was the most important part and said that he would spend an extensive time getting that history out, taking one to two hours to do so. Dr Baynes expressed his opposition to this approach but added, "It wasn't an argument or disagreement but we just had different views". Dr Baynes said that the Plaintiff put his opinions in a logical and reasoned way. His presentation to Dr Baynes seemed "normal". 203 There was one curious feature of the visit in that Dr Baynes expected the Plaintiff to visit him the following day but for whatever reason, he did not appear. He could not remember whether any explanation was ever offered. 204 Dr Darling remains an employee of BHP and presently holds the position of Manager, Safety Health and Risk for Australia and New Zealand Steel Industrial Markets. He has held that position, which is based at Port Kembla, since June 2001. 205 He first commenced employment with BHP in April 1992. After a period in Melbourne he was, in June 1995, appointed Health and Rehabilitation Services Manager located at Port Kembla. His appointment to Port Kembla marked a change in the way injured workers were dealt with and managed at the steel works. He said that his specific brief was "to improve our injury management processes, to improve our injury management outcomes and to work with the rest of the team to decrease the number of injuries across the site".

206 Before joining BHP he had acquired medical qualifications including specialist recognition in occupational and aviation medicine. In January 1973, he joined the Australian Armed Forces, reaching the rank of Lieutenant Colonel before retiring in June1986. He thereafter pursued other activities in the medical and occupational health fields before joining BHP. 207 At Port Kembla, he reported to Mr Harmon. He also met for the first time the Plaintiff who became his subordinate. He said that he was not involved at all in the Plaintiff's appointment. Within Dr Darling's team were a wide range of occupational health and safety specialists. Such a team had been established previously but the emphasis under Mr Harmon and Dr Darling was better coordination in effort and clearer direction. 208 One means envisaged for achieving that aim was to encourage injured workers to seek treatment from the occupational physicians and para medical staff on staff, rather than from their customary practitioners. There was some worker resistance to this concept. 209 There was also an identified problem with the rehabilitation of injured workers: "Mr Joseph: Q. We've also heard that there had been a large number of employees, rehab employees, who didn't seem to be getting back to work and for whom some need to address arose by reason of this change. Would you tell us about that, please? A. When I arrived we had what I would call a long rehabilitation tail. There were a lot of people who had not been actively managed back into the workforce and were either sitting at home not doing any work, or were doing made up duties within that workplace that were not adding value to the business.

Q. So what was thought needed to be addressed there? A. It was thought that we needed to start to, sort of, practice some of the modern philosophies about early return to work, early injury management, making sure that people were doing work as part of their normal team, as part of their normal work environment, rather than simply made up work." 210 Although Dr Darling said that his office was 5-7 minutes walk from the building containing the Plaintiff's office, he went there when required, two or three times a week, although not always to speak to the Plaintiff. 211 As to the Plaintiff's duties, he said "A. My advice to Angus was that his duties were to provide high quality medical care, to get involved in making sure we got better return to work outcomes and, as a trainee occupational physician, to be seen out and about the plant giving advice to line managers about particularly the occupational health issues within his area of responsibility. "

212 He described a wide range of injuries and medical problems which presented themselves to his unit. They ranged from major injuries requiring referral to a hospital, to less severe ones which could be referred to medical specialists or could be attended to at the site. 213 He recalled an occasion when the Plaintiff asked him to acquire a slit lamp for use in extracting foreign objects from eyes. He declined, suggesting that, if a slit lamp were considered necessary for a particular procedure, it would be preferable to refer the patient to a specialist, which is the practice followed to this day. 214 He identified computer records, which provided some indication of the number of patient's seen by the Plaintiff on a daily basis in the months preceding the leadership course. Those records do not seem to indicate that the Plaintiff was overworked by being required to see an excessive number of patients. However, it was pointed out that they do not necessarily provide an accurate picture of his workload, in that he had responsibilities beyond consulting with patients. Moreover, the records did not attribute to him the patients of Ms Donald he was called in to see. 215 Dr Darling described his relationship with the Plaintiff in the first 3 months he worked at BHP as "very good". During that period, as mentioned, they were both living in the BHP owned hotel and ate meals together during which they shared personal and work related experiences. He said their relationship was "very promising and very positive". 216 He recalled the Plaintiff mentioning his wife's breast cancer and indicating that he was uncomfortable talking about it. It was never mentioned, he said, that the Plaintiff had suffered reactive depression or had consulted a psychiatrist. In the period between June 1995 and September 1996, he met the Plaintiff's wife and there was some socialising, to the extent that they apparently visited each other's homes at least once and attended team barbecues in a park. There was also a dinner party at Mr Harmon's house, which they both attended with their wives. 217 Dr Darling, very soon after the Plaintiff commenced with BHP, formally became his supervisor within the College of Occupational Medicine where the Plaintiff was a trainee. In that capacity, Dr Darling accompanied him to faculty meetings in Sydney. As a trainee applying for admission as a fellow of the College, the Plaintiff was required to provide six monthly reports about his activities in the area of occupational health. 218 In relation to the Plaintiff's performance in the early months of his employment with BHP, Mr Joseph quoted to Dr Darling a passage from the Plaintiff's evidence: "JOSEPH: Q. So can we just go - this is said about the system: "A. Dr Darling wanted us to control the cases and by going off plant to the general practitioners we could not manage the cases and the general practitioners would run the rehabilitation process.

Q. How did you learn about that? A. Because Dr Darling repeatedly told it to me, especially the lost time injury cases.

Q. What was your response to that, if at all? A. I said I would look after the lost time injury and rehabilitation cases and control the cases like he wanted me to.

Q. And you endeavoured to do that? A. Yes."

Firstly, do you agree with that, that you wanted the doctors to manage the lost time injury cases? A. Yes.

Q. And how did you in the first period up until, let's say, Christmas of 1995 - how did you observe Angus working with that endeavour in mind? A. My recollection is that he was working towards that and with an understanding that this would give us the best treatment outcomes.

Q. Did you observe his work? How did you observe his work? A. I observed his work not directly by sitting in the room with him, but by talking at the rehab meetings that we've spoken about. Talking to him about cases that he may have been doing, getting feedback from the line management and from the plant about their interactions and their responses and their feelings about how the employees who worked for them were being managed and treated.

Q. Did you, after a period of time - and I'm going to ask you when - start having concerns about his work? A. I started to have concerns some time, I believe, around late '95, early '96.

Q. And what made you have concerns? A. There were a number of things. I believed Angus' workload, as he saw it, was increasing. I believed that we were not getting the return to work outcomes with the speed that we should have been getting them. I was getting feedback from plant and from the line managers about their dissatisfaction with the process.

Q. Firstly, did you observe the period of time he was spending with patients, or was that reported to you? A. There was certainly discussions within the team where people were raising that the amount of time Angus was spending within individual patients did not seem consistent with their injuries or with their process in getting back to their original work or to suitable light duties. " 219 As to any philosophical difference between the approach the Plaintiff took towards injured workers and the approach Dr Darling wanted him to take, there was this exchange with Mr Joseph: "Q. There's evidence been given that early in the piece, at page 54, that Angus had made it clear that, as far as he was concerned, rehabilitation process included the physical and psychological aspects of the case to ensure good rehabilitation service and to look at the patient from the whole point of view, not purely the mechanical point of view. Now, do you recall, firstly, Angus expressing that to you? A. I don't recall specifically that being expressed.

Q. If it had been would you have had any problem with it? A. No, because I think it's an entirely realistic assessment of the issues around injury management

Q. In what way, what do you mean? A. The predictors for good return to work outcomes in a workplace - sorry, if I can rephrase that. The predictors for bad injury return to work outcomes within the workplace, a lot of them are around the psychological issues associated with the individual patient, the patient's relationship with their supervisor and a range of those issues. So you need to take cognizance both of the physical and the psychological issues to get best practice injury management.

Q. Well, jumping a bit again, it's been said in evidence that you were, in a sense of hyperbole, committed to a company outcome of getting people back to work and not a medical outcome consistent with them getting back to work. Now, was that a division of labour, if I can put it that way, that, firstly, Angus ever expressed to you? A. I recall a couple of discussions around that line, yes.

Q. And what can you recall being your response to it, that you basically were committed to a company policy and not to a medical policy? A. I find it difficult to separate the two. The best response for an individual which is to return to their original duties or a return to suitable selected duties in a best time frame as possible is actually the best outcome for the company. The two are interconnected. They cannot be separated." 220 The records of workers seen in the occupational health section where the Plaintiff worked, exhibits 65 and 66, were available to Dr Darling and although he said that he did not access the computer mainframe, the data on it was the subject of discussion at meetings with member of his team, including the Plaintiff. He said that he kept an overview of the Plaintiff's workload as he did of the other doctor in his team, Dr Thambiran. He said that he made the assessment that Dr Thambiran was dealing with his workload more effectively and efficiently than the Plaintiff. 221 By the end of 1995 or early 1996, Dr Darling said that plant line managers had begun to complain to him about the length of time it was taking for injured workers to return to work. Mr Joseph prefaced further questions upon this subject by reference to evidence previously given by the Plaintiff: "Q. The evidence that the plaintiff gave in this regard at page 60 says that as time progressed the system didn't work out. "It became increasingly dysfunctional". "People weren't rehabilitating. Simple injuries became complicated and more and more complicated".

Q. Can you tell us why a simple injury became more and more complicated? A. Say for example there was a back injury there would be patient's desires, what the patient wanted, and also the safety officer, what he wanted out of the case and also the line manager's desires, what he wanted out of the case. Q. In general terms what did you understand to be the differing wants or requirements? A. With the patient it would depend on the type of patient. When patients were injured they were put on light duties and sometimes away from unpleasant work and if they didn't want to rehabilitate to their original job they would not recover properly."

Is that the system as you saw it - that is from Dr MacKinnon's point of view. Is that the system as you saw it developing with Dr MacKinnon's patients in this period you're talking about? That is, an increasingly dysfunctional process? A. It certainly appeared to becoming increasingly dysfunctional, yes.

Q. Were you speaking to any of the nurses? A. Yes.

Q. Did you get any information from them as to problems Angus was having? A. So, again, in discussions with members of the team it appeared that the process that was running at occ health centre one was becoming dysfunctional, was not driving towards the outcomes that we wanted. And that was just from discussions with the nurses and with some of the rehabilitation coordinators as well.

Q. Doctor, the figures that exhibit 65 throws up - and I appreciate they're a range - range from approximately 54 to 71 patients a week over the whole categories of patients. Did you ever assess whether that workload as a patient workload, not referring to the other parts of his workload for the moment - as a patient workload was, firstly, any different from Dr Thambiran? A. My assessment was that it was certainly different to Dr Thambiran. There were increased numbers of - or increased repeat appointments, increased follow-up appointments.

Q. But even as a workload, doctor, did you form an opinion as to whether someone competently working as a medical practitioner should have been able to do it? A. I formed an opinion that someone who was working well and adequately should have been able to handle that workload, yes.

Q. That's per week? A. Yes." 222 By early 1996, Dr Darling was, according to his evidence, finding the Plaintiff a difficult person to manage: "Q. You have identified a period, December - or late 1995, early 1996, as your observations about difficulties that Dr MacKinnon was experiencing in administering his work. And was it that, that is the difficulties involved in the work that caused you to then do things thereafter in terms of changing that situation? A. It was that and I - about early 1996, I - you know, I started to observe some behaviours where we started to get circuitous arguments, we started to - I started to sort of get the - or I started to make an observation, make observations, that Angus wanted to be trained in something this week and then something else two or three weeks after. He would read an article and want me to send him off for training in a variety of things. So I started - we started - I started at that stage to make some observations that we weren't getting a clear focus on getting outcomes. We were starting to sort of see problems become bigger and bigger and more and more issues brought into the concept of treatment.

Q. Those observations, did they come about as a result of discussions? A. They came - they came about as a result of discussions I would have with Angus, discussions that we would have in the rehab team and feedback from other people within the rehab team about discussions they had had with Angus. 223 Dr Darling said that an issue developed regarding the mentoring or career development of the nurses in his team. There was this evidence: "Q. And what was that? A. One of the roles that again I thought the doctors needed to play was to develop the nurses that worked for them and to use the nurses in the development of systems to make sure that the workload was properly managed. And to - to develop the nursing staff so that they did some of the work that the doctor was doing and to help take some of the workload off the doctor.

Q. And did you make any observation concerning Dr MacKinnon's efforts in that regard? A. There were - yes, there were a couple of observations that were made. One is he seemed unwilling to put systems in place to make the nurses be accountable for outcomes and the other one was that he was - he became very focused on, "If I am going to be accountable for the nurses, I have to know what they are doing every ten minutes", so he developed some spreadsheets and some charts to literally have the nurses record on a - I think it was a ten minute basis, everything that they were doing, which is again just increasing the complexity of the work and not necessarily making it clear about, you know, how you can use the nurses to help you.

Q. Did he then review those charts? A. He would then try and review those charts, yes.

Q. Would that add to his workload? A. Yes.

Q. So that towards March, April 1996, what were you trying to do in respect of his work? A. I - it became apparent at that stage - well, it became apparent at that stage that we needed - we weren't getting the outcomes that I thought we should have been getting. That we weren't getting the clarity of focus and what I call the organisational discipline to deliver some of those outcomes and that some of the discussions that I was having with Angus by this stage were starting to become counterproductive. It was fairly obvious to me that there was starting to become some tension between the two of us and, therefore, I went looking for some other ways in which we might be able to help Angus manage his workload." 224 In an attempt to assist the Plaintiff, about May or June 1996, Dr Darling appointed a support team comprising psychologist, Mr Harvey, Rehabilitation Coordinator, Ms Lisa Delaney, and Ms Ford. This was discussed with the Plaintiff, the objective being to help him manage his workload. He said he thought this group finished its role before the leadership course. Dr Darling recalled that he attended one meeting of the group and asked, "Do you mind if I sit in and listen". The others invited him to stay but the Plaintiff said, "I don't want you to be here". 225 Asked whether he gave the Plaintiff a "hard time" by belittling him or trivialising his work, he replied, "I can recall making comments about some of the performances but I cannot recall ever trivialising them". 226 As to what seems to have been a deteriorating relationship with the Plaintiff, there was this further evidence: "Q. Did you make observations yourself about what was happening in Dr MacKinnon's workplace? Did you visit him from time to time? A. I visited him from time to time, yes.

Q. It's suggested that you would barge in whilst he had patients in the room much to his embarrassment. At page 94, I'll just read it to you. Before I do that, do you recall whether you entered rooms whilst Dr MacKinnon was with a patient from time to time in this period before the course? A. I can't recall ever entering a room when he had a patient.

Q. It's said that you did this two or three times a week. You were coming over to complain about the LTIs. You'd sometimes bring with you a file and ask him, "How are you managing this case?" And, "We need to control the case". You were telling him that the cases were taking too long and you were suggesting that he was touchy feely. And that you'd be often upset, your face would go red, your voice would boom. Can you recall any parts of that evidence? A. Well, there are very many components to that evidence. So, yes, would I have discussed treatment of patients, probably. I still do with the doctor who now works for me on site.

Q. Would you have barged in on patients? A. No.

Q. Barged in on the doctor whilst he had a patient? A. On the doctor whilst he had a patient, no. What were some of the other ones, I'm sorry?

Q. That you would get angry and you'd do this two or three times a week and your voice would get raised and you'd go red? A. I think we've already said in evidence that I was across at the - I did visit the centre two or three times a week. So we're now saying that every time I came across to the centre it was to barge in and make complaints about how things were happening. I don't think it was anywhere near that frequency that I discussed patients.

HIS HONOUR: Q. Would you know whether he had a patient with him or not? Was there any sort of receptionist? A. There was receptionist and my recollection is he used to do his consultations with the door shut.

JOSEPH: Q. So that was the hint? A. Yes.

Q. There was, however, an issue which you did take up with him concerning the use of his phone, did you not? A. Yes, there was.

Q. Can you remember when that was? A. My recollection is somewhere around July. July, August, but that's hazy.

Q. What was it? A. Angus had a phone that you could put a do not disturb sign on it and he started to use the do not disturb sign when he was having consultations. And my suggestion was that he either needed to forward his phone to the nurses so they could answer it on his behalf, or answer the phone himself because I just didn't think it was - you know, it was setting the level of service that I thought we should be giving to the plant. If you've got a do not disturb sign on your phone it gives you no way for the person phoning in to leave a message and no degree of urgency or of what the message is. It's very simple to forward that to the nurses and get them to do that for you.

Q. What was his response, do you remember? A. My recollection is that he wasn't happy with that.

Q. Did you, on the other hand, make it clear that you thought this was not appropriate? A. My recollection is I said, "Look, you know, we're here to provide" - words like, "We are here to provide a service. We need to be conscious of how we're seen". "

227 Dr Darling said that he was moved to discuss his problems with the Plaintiff with Mr Harmon and to contemplate removing the Plaintiff from his role of treating patients. This proposal was, according to Dr Darling, discussed with the Plaintiff, as was the suggestion that he spend some time on project work at BHP's Melbourne office, initially under the supervision of Dr Caples. As to the competence of the Plaintiff, Dr Darling gave this evidence: "Q. At one point do you recall Angus ever talking about being worried about being sued? A. Yes, I recall a couple of discussions around that.

Q. Can you just give us the context, please? A. Again, my recollection is that he was worried about, again, people seeing his treatments or his medical - the medical treatments he provided and that the outcomes of those treatments would potentially lay him open to being sued through medical negligence or those sorts of issues.

Q. And what discussion, if any, can you remember? A. The discussions would have been along two lines. One is that's why the company pays for your medical indemnity insurance. The second one would have been around well, hold on, we are actually employees of the organisation and people will challenge the organisation rather than individuals.

Q. Did you have any reason to believe prior to the course that Angus was making bad clinical judgments? A. Can you define bad?

Q. All right. Suboptimal clinical judgments? A. I thought a number of his decisions were suboptimal, again around the injury management and the rehabilitation." 228 Mr Blacket sought from Dr Darling some information as to his experience prior to joining BHP: "Q. In terms of that medical experience prior to arriving in Wollongong, had you had any experience in dealing with what might be described as the psychological aspects of medicine, dealing with people you know who had psychiatric disorders or depression, or did you ever treat people in the services from time to time who had those sort of conditions? A. Yes, I did.

Q. In the services medical corps, and I think you had some experience in both air force and army, is dealing with stress in combat troops an important part of military medicine, if I can put it that way? A. It is certainly something that's talked about and training done on, yes.

Q. Were you trained to recognise symptoms and signs of mental disorder when you were in either your medical training or, alternatively, in your service training? A. You are trained to recognise some of the early signs, yes.

Q. And had you had any medical experience of people suffering from either schizophrenia or schizo-affective disorders or major depression? A. I had certainly been in the treatment role for people with all of those conditions, yes." 229 Later in the cross-examination, Dr Darling, who was about 10 years older than the Plaintiff, told Mr Blacket that he would describe the Plaintiff as "fairly serious", "a reader", "a bit of a loner" and "on the introverted side". He said: "My initial impression was that he was enthusiastic, that he was learning something of the skills, what I believe, that an occupation physician should have, that he was very keen, and that he had a high degree of energy, trying to treat patients correctly." 230 Later, he said that he had some concerns about his medical skills and spoke to him on a number of occasions but "Angus' responses to discussions about medical treatment were always defensive". He discussed with him, "How do we make sure we get value for the time you are spending with patients?". 231 Around August 1996, Dr Darling told Mr Blacket that he noticed a change in the Plaintiff's behaviour. There was this exchange: "Q. What were the changes you noticed? A. He would have at times long circuitous arguments on either a psychological basis or about a range of matters in general.

Q. Did he show any preoccupation with ethical issues in relation to conflict of interest between patients and BHP's role? A. There were certainly a number of discussions about what Dr MacKinnon perceived as the ethical issues between being an employee of a company and trying to undertake treatment of a patient.

Q. Did you see those issues as having merit or were they false issues, in your opinion? A. I think they are issues that anybody working in a company needs to be aware of, but I do not see them as issues stopping you from doing a high quality job as a treating occupational physician."

232 A little later in the cross-examination the transcript records: "Q. Were there other issues that were raised by Dr MacKinnon as being apparently significant to him? A. There were a range of issues that Dr MacKinnon would bring up, yes.

Q. Perhaps, flesh them out a bit? A. He would read an article, for instance, and he would then want to put in practice everything that that article talked about. He would read an article and wanted to be trained in how to read x-rays. He would start to develop a range of systems for how the medical centre should work, but then would start to change those systems a week or two later.

Q. Did you, in fact, become aware that he was drafting a whole lot of pro-formas for use in the medical section? A. Yes.

Q. And that, I think, according to one of the nurses, he had about as many as 40 pro-forma documents for different things? A. There were, what I would consider, a large number of draft pro-forma documents, and, from my recollection, none of which ever got into use.

Q. Did you see that as practical solution to the treating of patients, there? A. I certainly see the use of a range of treatment pro-formas as being very useful, but they need to be finalised and put into practice and followed.

Q. By this time, in July or August, were you having verbal confrontations, at all, with Dr MacKinnon? A. Yes.

Q. Did they ever become heated? A. I would describe them more as passionate than heated.

Q. Did you speak in a loud voice? A. I probably did at times, yes.

Q. Did you ever belittle Dr MacKinnon in front of other people? A. Not to my knowledge, no.

Q. Did Dr MacKinnon respond in similar kind to you when you had an interchange, and you were speaking in a loud voice? A. Yes.

Q. Speaking in a loud voice, was that part of your normal affect? A. My voice can get raised at times, yes.

Q. A large man, with a booming voice, sort of connotation of a regimental Sergeant-major, parade ground, that is the impression that perhaps some, Dr MacKinnon perhaps, it evokes; were you like that at BHP? A. Generally?

Q. Did you ever throw chairs at meetings? A. No.

Q. Did you ever bang fists on the table and shout at Dr MacKinnon in front of other people or swear at him? A. I think yesterday I admitted to swearing, but I do not believe that I ever swore at Dr MacKinnon." …………………….. Q. Did you ever detect rapidity of speech on the part of Dr MacKinnon? A. Yes.

Q. Was that something you noticed throughout the time that he worked at BHP or was it something that you noticed at a particular time? A. Something that developed over his time with us.

Q. In terms of the interchanges between you and Dr MacKinnon, you had weekly meetings, is that right? A. I think I said they were either weekly or fortnightly, I can't remember.

Q. Did those meetings as between the two of you become more difficult as time went on? A. Yes.

Q. In the last four months or so, did you notice any significant behavioural changes in Dr MacKinnon, in terms of his affect? A. Yes.

Q. What did you notice about him? A. Again, his affect would vary times. He would be very quiet, sometimes he would be very argumentative, sometimes he would go into these long circuitous discussions again.

Q. He complained of overwork to you? A. Yes.

Q. Did he complain of fatigue, as well? A. Not to my recollection.

Q. Mr Joseph mentioned that he was undertaking more than one course at that time? A. Yes.

Q. Were you aware that he was studying at night? A. Yes.

Q. Were you aware that he in the months heading up to the course developed an interest and read a large number of books on neuro-linguistic programming? A. That rings a bell.

Q. Did he talk about that? A. Yes.

Q. Prior to going on the course? A. I believe so."

233 Mr Marshall questioned Dr Darling as to the extent he mentioned to Mr Harvey his observations and concerns about the Plaintiff: "MARSHALL: Q. I am returning again to Mr Harvey. You said at page T5159 yesterday that you had discussions with Mr Harvey about his observations of Angus, using his observations during team meetings, and with his background in psychology, to help you, to help give you with his interpretations of some of those issues. Do you remember giving that answer to Mr Blacket? A. Yes.

Q. What issues were you talking about? A. The issues that we have discussed this morning, the circuitous arguments, the quietness at times at meetings, the repetitive talking at meetings, those issues we have talked about this morning.

Q. Those are the same issues that you raised with Mr Harvey? A. Yes.

Q. And did Mr Harvey give his interpretation of some of those issues? A. My recollection is that Mr Harvey gave me some advice about how, about what I could do to change the interactions with Angus, to become more positive.

Q. Did he give you any interpretations as to some of those issues? A. He gave me - again, I am not trying to be difficult - but he gave me his observation about Angus' behaviour whilst he was talking. ………………………………….. MARSHALL: Q. The question you were asked, starting at line 50: "What were the issues concerning Angus that you discussed with him?" You answered that by saying:-

"In any team you have discussions amongst team members about what, well, what's going on within the team. So I would have, I had discussions with Neil about his observations of Angus, using his observations during team meetings and with his background in psychology to help give me his interpretations of some of those issues."

That is what you said yesterday? A. Yes.

Q. What did you mean by his interpretation of some of those issues? A. What I meant was Mr Harvey's observations and advice about the issues that we had talked about and that he had observed.

Q. Were these interpretations of some assistance to you? A. They gave me some other things to think about and things that I would have considered in how I interacted with Angus. …………………………………………. 234 Dr Darling's evidence occupied some 91 pages of transcript. I have, so far, referred to but a small part of it, although I will make further reference in the section of this judgment dealing with the Leadership Course. It is appropriate, however, to say at this stage that I was impressed with Dr Darling as an honest witness seeking to do his best to assist the court. He has had a distinguished career both in the Armed Services and with BHP. Nothing in his evidence, to my mind, portrays him as other than a conscientious, diligent, and concerned manager in the period at Port Kembla prior to October 1996. Wherever his evidence conflicts with the Plaintiff, I would prefer the testimony of Dr Darling. 235 In referring to the work colleagues of the Plaintiff in the context of considering whether there was a breach of duty of care by BHP, I should mention the position of Mr Harvey. Submissions were made by Mr Marshall as to inferences to be drawn from BHP's failure to call Mr Harvey who is still in its employ. 236 There are several things to be said about that submission. The first of course is that it was perfectly open to the Plaintiff to call Mr Harvey if he thought his evidence important. A second is that although Mr Harvey was a psychologist who worked in the same section as the Plaintiff and was part of the group established by Dr Darling to assist the Plaintiff, he was not the Plaintiff's psychologist in the sense that there was any professional relationship between them. Perhaps of greater significance is that Mr Harvey wrote to the Plaintiff on 24 October 1996, the first paragraph of his letter reading: "Recently your brother Duncan has been in contact with me and I am happy to hear that you are getting better although I guess from your point of view it is taking a long time. Duncan also said that it would be better that I didn't visit or speak with you directly for a while since I evidently aggravate you when I do. He also said that you were angry with me because I didn't "rescue" you from the course at Lancemore Hill. I was unaware of your feelings about this since we seemed to talk freely and these things didn't come up but I am sorry that I aggravated and angered you - it was not intended. Naturally, I respect your feelings and won't visit you until asked to do so but it did concern me that you may feel as though I lost interest in your welfare if I didn't visit you. As such I write this note to let you know that I am still thinking of you and will do what I can to help you. The other advantage of a note is that it will be easier for you to recall things since I understand from Duncan that you have some difficulty in remembering what is said. Of course as time goes by your memory will also improve." 237 This extract from the letter seems to me to suggest that Mr Harvey noticed nothing in the Plaintiff's presentation which would have been a contra indication to him going on the course. 238 In the result, I do not think it is appropriate to draw any inference from BHP's asserted failure to call evidence from Mr Harvey. 239 I do not accept (in contrast to the position of the Plaintiff in Koehler) that the Plaintiff's workload was in any way unreasonable and reject his evidence to that effect, in line with what I have earlier said about his credibility. In my opinion, he was expected to do no more than the work he contracted to perform. This is not to deny that he perceived that his workload was unduly onerous. 240 I am satisfied that by September 1996, he was not performing satisfactorily the duties for which he was employed and that Dr Darling was frustrated by his refusal, or inability, to meet his reasonable requirements. 241 I will need to consider separately whether the decision to invite or permit the Plaintiff to attend the leadership course constituted a breach of BHP 's duty towards him. PRESENTATION TO FAMILY PRIOR TO OCTOBER 1996: 242 Of course, the Plaintiff's presentation prior to October 1996 was not confined to his work colleagues. Members of his family also gave evidence upon the subject. Nandy MacKinnon recounted conversations with her husband wherein he referred to difficulties in his relationship with Dr Darling and told her of his heavy workload, but, on the other hand she said that they purchased a house at Bulli about June 1996 because, "We were committed to staying in Wollongong, Angus really enjoyed the work". 243 She was pressed about her husband's activities in the period up to October 1996. She recalled he read a lot, including books about interpersonal relationships. She was also asked about the letter she wrote to Dr Klug on 11 October 1996, which included the paragraph, "In the last 6 months Angus has been very stressed at work due to management style differences and personality clashes with his boss". 244 This letter also related as fact a number of matters concerning her husband, which suggested his mind was disturbed. However, on their face, none of the matters seem to relate to her personal observations but rather to what he told her after returning from the Leadership Course, at a time when he was undoubtedly suffering mental illness. She said as much to Mr Joseph: "WITNESS: May I explain? This is a very delicate issue, this one. This letter was written at the height of Angus' illness, as you can see the date. Angus came home and was saying these sorts of things. I thought it was useful to write things as Angus had said to me. It was not the true facts. I was not saying everything as this is the fact, I know it is a fact, that was not the intention of that letter. And I know if people can have different interpretations on the letter. I took the letter to Dr Klug and I explained as best I could to Dr Klug why I was writing what I was writing. It was really to give a snap-shot of what was going on and I was just as confused by that stage as Angus was presenting to me. I didn't know what was truth and reality at times.

JOSEPH: Q. I beg your pardon. Are you saying that you should write to a doctor and tell him of certain matters when you yourself didn't know what the truth was? A. I was really saying those things as his symptoms of what he was saying, what he was doing, his behaviour." 245 Dr William MacKinnon said of the Plaintiff at the time: "Q. Do you remember, do you recall him telling you that he was working hard, do you? A. He recalled he worked hard down at Bulli.

Q. I'm talking about BHP. A. BHP, I'm sorry.

Q. Did he tell you what he was doing there? A. He just doing occupational work, working with the men who were ill, who came in to see him.

Q. Did he tell you he was enjoying it? A. He was enjoying it in that way. He was having a bit of a problem with one of the supervisors.

Q. Dr Darling? A. Yes. And Angus wanted to say to the patients, you know: I don't want you to be treated by me alone. You got a choice to see your general practitioner if you wish. And then I think the company was saying: We prefer you to treat them Angus. And Angus said: Well, that's up to the patient. I'll treat if I have to. They have the right to see their own GP." 246 Mrs Sheila MacKinnon gave evidence to the same effect: "MILLER: Q. Did he tell you anything about working at BHP? A. Yes, he said he was - when we visited them in Wollongong he said to me that he was having trouble with Chris, his workload was getting very heavy and that this Chris came and shouted at him a lot and criticised him a lot and it was upsetting Angus considerably.

HIS HONOUR: That's not evidence of the fact, of course. It's just the fact that it's said, but not otherwise. MILLER: Q. On any other occasion did Angus or did he not raise the subject of complaints such as you've just referred to about Chris? A. Only when we went down to visit him. He said to me that he was having trouble with Dr Chris Darling.

Q. And you said words to the effect, and it upset him, do you remember that? A. Well, he said to me that he didn't like it and it really was upsetting to have this doctor criticising him all the time and shouting. JOSEPH: I take it, the same limited purpose, your Honour.

HIS HONOUR: The evidence of the state of mind of the plaintiff." 247 His brother Duncan took the matter no further when he said in relation to conversations he had with the Plaintiff before he went on the leadership course: "Q. Did he tell you anything in respect of his state of mind in so far as his employment was concerned? A. Yes, he was under a certain amount of stress.

Q. Doing the best you can, we appreciate the difficulty involved but put it back in the conversational context? A. Angus said that he did been asked to change some of his findings and he was unhappy about that because he felt compromised. That happened on more than one occasions, this is what he said to me. There were areas of conflict with his employer Chris.

Q. You have to remember, "He said to me" and "I said to him"? A. He told me that he felt pressured by his supervisor." ATTENDANCE AT LEADERSHIP COURSE: 248 I have already said something about the invitation conveyed to the Plaintiff by Dr Darling to attend the Leadership Course in Victoria commencing at the end of September 1996. 249 Prior to the course, he said that he received letters and documentation relating to it although, apart from a letter addressed to him personally, he could not recall having previously seen specific documents shown to him in the course of his evidence. He did, however, remember completing one form and returning it to Dr Darling's office where he and Mr Harmon shared a secretary. He agreed that the form invited him to indicate any particular concerns or issues, which he wanted to discuss before the course commenced, and he said that he stated that he did not want any discussion about his wife's illness. He said that he also put on the document that he was "going from a dominant submissive position with my boss, Chris Darling, to a dominant assertive position".

250 As previously indicated, in the days before the course, he travelled to Melbourne and spent some time there with other employees engaged in occupational health and safety work. While in Melbourne, about 2 days before the course was due to commence, he received a telephone call from Mr Tim Dalmau, principal of the Second Defendant. The Plaintiff's evidence in chief as to the conversation was as follows: "Q. Did he tell you why he was ringing you? A. Yes. He said he was having a hard time finding me and he was ringing me concerning the letter that I'd filled in, the page that I'd filled in and he went on to ask me a couple of questions.

Q. What did he ask you? A. He said, "I see you've written about not wanting to discuss breast cancer in the course" and I said, "No, I don't want to discuss it on the course" and he said, "How is your wife now?" and I said, "She's fine, no problems".

Q. Was there anything else that was raised with you by he? A. Yes. He said that, "I see you've written - you're going from a dominant submissive to a dominant assertive position with your boss. That must be really hard" and I said I wanted to - "that must be hard" and I said, "It wasn't that difficult". I - you know, I'm forgetting. I'm just having a loss of memory. I remember - I haven't forgotten totally but I have just forgotten for the moment the rest.

Q. Do you recall anything other than that being said to you by Mr Dalmau? A. No."

251 Mr Joseph cross-examined the Plaintiff about the conversation during which he agreed that it lasted between 5 and 10 minutes. There was this exchange regarding the Plaintiff 's relationship with Dr Darling. "Q. Did he ask you about your work situation? A. Yes.

Q. Did you tell him that Dr Darling always previously asked you about your wife's cancer? A. No.

Q. Even though that was the reason, one of the reasons, why you didn't want this topic raised, because of Dr Darling's behaviour, and you knew Dr Darling was going to be on the course. You made no effort to tell Dalmau that the reason why you didn't want this topic raised, at least one of the reasons why you didn't want it raised, was because Dr Darling had caused a lot of stress to you by raising it previously? A. He caused me irritation.

Q. But, you never told Mr Dalmau that at all, did you? A. You would have to read out. I said to him - -

Q. You didn't tell him anything about - - A. I said we were having a situation.

Q. You never said to Mr Dalmau that Dr Darling had made mention of your wife's breast cancer previously? A. True. Q. Because it never happened? A. It happened. Ask my wife.

Q. Other than out of a concern for her? A. I don't think so.

Q. Were you already confused when you were speaking to Mr Dalmau as to what was reality and what was not? A. I don't think so.

Q. You possibly were? A. No, I may have been having some beers at the time.

Q. Beers? A. I went out to a party with the three doctors from BHP and we had dinner and some drinks, and I'm not sure if that was the last day, the first day or the second day.

Q. Where did this the call with Dalmau occur? A. In my hotel room.

Q. So, you think you might have been affected by alcohol? A. No, not necessarily, no.

Q. In any event, did you tell Mr Dalmau that you were redefining the relationship with your boss, right? A. Yes.

Q. And did you tell him that he is unhappy about it, that is Dr Darling is unhappy about it? A. Yes.

Q. Did you tell Mr Dalmau that, "If Chris Darling doesn't like it, he will have to lump it"? A. True."

252 Although Mr Dalmau did not give evidence in the case, he followed the telephone conversation with an email to Ms Colleen Durant, a senior employee in the Human Resources Division of BHP, located at Port Kembla: "Hi Colleen I tried to call you today but no luck. Hope you got the message. I spoke today with this person who is scheduled for the next SLC starting in a couple of days. I am concerned about him going into the program Without going into too many details he has a very sick wife and seems under some quite severe work stress. I advised him to think carefully about going on the program and suggested he might think of deferring. I "offered" him the opportunity of possibly doing it at a later stage when things might be more settled in his life. Hope this is OK. He seems determined to go on the program and says he is looking forward to sorting some things out with his boss. Not sure what to do more than this. These things are BHP 's call and if you want to talk some more pleas get in touch. Should be contactable on my mobile tomorrow. Regards Tim"

253 There was no evidence as to what, if anything, Ms Durant or any other employee of BHP did in response to Mr Dalmau's email. Ms Durant did not give evidence. 254 It is appropriate that I next say something about the Leadership Course, as it was known to BHP in September 1996. I have referred to it by the name "Leadership Course" because that seems to me, on the evidence, to be the most appropriate appellation. Sometimes in the medical evidence it was referred to as an "encounter group", perhaps to give it a sinister connotation, but that does not appear to be a well accepted or defined description. There was no evidence acceptable to me that the course which the Plaintiff attended should be categorised as an "encounter group", whatever that expression might mean. BHP called it a Leadership Course and that is what the course documents called it. 255 I am satisfied that the Plaintiff received two letters regarding the course, each dated 30 August 1996. One gave him formal directions about such matters as address, travel arrangements, check in times, dress and the number of participants. It told him that the course director was Ms Fiona Shand and how she could be contacted. The letter was signed by "R J Shaw, General Manager Organisation and Human Resource Development". 256 The other purported to emanate from "Tim Dalmau and Phil Boas" but was on the letterhead of BHP. It was much more informative as to the substance of the course, the commencing sections reading:

"Dear Angus, Welcome to the BHP Leadership Course. In this course we aim to provide you with some experiences which will increase your level of competence and effectiveness as a leader of people in whatever role you perform for BHP Steel. The course is centred on the following key areas:- A deeper appreciation of people issues involved in the management and leadership of people. An appreciation of the wider global, financial and business realities in which BHP operates. An appreciation of the value and positive outcomes to be derived from capitalising in the workplace on individual differences among people. Increased appreciation of the value and dynamics of collaboration Understanding and tools for changing the impact of your behaviour on others Techniques and skills for improving your own leadership and management behaviours. Appreciating how you can render yourself ineffective in what you seek to do with and through others in the workplace. Building a group of leaders within BHP who possess a more diverse and effective range of flexible leadership traits. The course process involves providing you and your colleagues with a range of practical skills and comprehensive frameworks related to the issues mentioned above. The fields from which we will draw these skills and framework are:- * Group dynamics * Individual difference studies * Literature on effective leadership * Archetypal psychology * Precision communication * Political analysis and strategy * Financial management * Professional and personal effectiveness techniques * Action methods * Organisational behaviour *Design and management of learning environments A timetable (agenda) will be available at the program. We intend to treat the timetable as a guide, and there may well be changes to it as the course progresses in the light of our collective experience. During the week most of the events, inputs and exercises will be conducted by course staff. There will be two guest speakers during the week from within BHP, and on Thursday afternoon there will be a group exercise to engage with Ron McNeilly or his nominee and other Senior Managers. We think you will find this course extremely interesting, challenging and will enable you to make real and lasting improvements. To ensure that you have the best possible experience of this course, there are a number of tasks we ask you to complete before you arrive." 257 The rest of the letter asked him to bring some photographs to the course; asked him to complete the form referred to above and send it to a Ms Berghan, and urged him to read accompanying documents and references. The photographs he was asked to bring were: "-2 of your self -1 of your spouse or partner, if you have one -1 of your children, if you have any - 1 of the person you report to as your senior - at least four of your peer colleagues with whom you interact most frequently; and - at least five of you subordinates (if you have subordinates), including at least one person with whom you may tend to have some difficulty at times."

258 In relation to the form he was requested to send to Ms Berghan, he was told: "This information is for use by course staff only, in strictest confidence, and is not recorded in any BHP files" 259 Although the Plaintiff could not recall specific documents, I am satisfied that amongst those sent to him were 3 respectively headed, "Requirements of Participants", "Course Director" and "Caretaking Procedure". 260 The first of these documents apart from a short introduction stated: "About the Program" Taking responsibility for yourself begins with your commitment to attend and participate in this program. In this course we hope to provide you with some experiences which will increase your level of competence and effectiveness as a leader of people in whatever role you perform for BHP. Participants on the program can expect to work hard, face and deal with complex issues regarding the management and influencing of people in the workplace, learn new models and theories about complex organizational dynamics and face up to changing their own values and their own behaviour to make themselves more effective. The program is a 24 hour experience; that is the total experience of individual participants with one another and with the staff group inside and outside the formal sessions of the program provides "grist for the learning mill" through reflection, comment and analysis. This is a course for managers who already work well with others and who wish to become leaders of people and organisations. It is a course which requires a conscious commitment to attend by both the participant and his or her superior, along with an explicit agreement to implement the learning and changes gained. It is both an arduous and very satisfying experience. Operating Assumptions In order to help you get the best out of this course for yourself, it will operate on the following assumptions which we have:- * This week is mostly about exploring what makes for effective leadership, by paying attention to how you actually go about gaining commitment, enthusiasm and practical support of your subordinates. * It is also an opportunity to learn concepts, strategies and processes for effective leadership of large organizations. * It is an opportunity for you to study yourself, and the leadership roles you occupy in relation to various groupings within BHP. * It is an opportunity for you to try out some new behaviours during this time together, do some new things, behave in different ways and see what works for you. * It is an opportunity for you to take responsibility for your own learning and your own behaviour. * A very large part of your learning will come from the relationships you form with the other participants. * We assume you want to increase the range and effectiveness of your leadership behaviours, improve your effectiveness as a leader, and your own learning in some way, or better understand some of the things happening around you. * We assume you will take responsibility for giving and acting on feedback about the design and conduct of the week as it unfolds. * We assume you want to learn more than be taught, and that you see it as important to help others learn. * We assume you will take time to make contact and network with as many of the other participants as you can. * We assume that you will take care of your body so that the maximum amount of your attention and energy is available for your own learning and that of the other participants during the whole of the course time together. * Through the course, we assume you will find a way of responsibly and sensibly balancing activity, sleep, exercise and the ingestion of chemicals, such as alcohol, so that you are fully alert and able to participate to the maximum in all sessions. * In particular, we assume you will manage your alcohol consumption and sleep on the last two nights of the program to be fully alert and able to participate to the maximum in all activities on the last two days of the course. * We assume you will be on time for all sessions and participate fully. * We assume that you have completed accurately and fully the Personal Details Form, especially the last item which asks you to tell us about life stresses you or your family may be experiencing. (NOTE: This information is available only to the staff of the particular program you are attending and no-one else.) * We assume you will refrain from entering into business or other arrangements which require you to leave the venue during the eight days of the program. * We assume you will not be joined by your partner, spouse or other visitors during the life of the program. * We assume you will complete all written assignments and preparation tasks on time. * We assume you will make whatever arrangements are necessary to have all your job requirements attended to by others. * We assume you will arrange with your superiors, subordinates, and peers to leave you free of work demands for the duration of the course. * We assume you will accept responsibility for helping your colleagues on the course learn as much as possible and help them sensitively in this regard. * We assume you will pay particular active attention to the physical and emotional health, well-being, care and safety of your walk-talk partner. Note This course is not a program for those who have major interpersonal or other operational skill deficits, who are well defended against acknowledging their own part in problems around them, or for those who do not wish to attend. The course is quite demanding of participants' energy and attention. It is also an extremely satisfying and useful experience. As you can see from the above, the social contract is an essential component of the effectiveness of the Steel Leadership Course experience. In the event that your family situation does not allow you to comfortably comply with all the above assumptions, then it is understood that your family needs to take precedence at this point in time and a place on a future Steel Leadership program will be held for you when your family situation makes it appropriate for you to participate fully in the experience. If you are a nominated or potential participant and any of the above do not constitute correct assumptions for you then we urge you to discuss your attendance with your manager immediately. If you are a manager or superior of a nominated participant and you have any doubts about the participant in terms of these requirements, then we urge you to address and resolve your doubts with the person concerned."

261 The document headed "Course Director" set out the qualifications and role of the Course Director, including "Requirements

1. No one shall be Course Director who has not previously been a participant on the program
2. No one shall be Course Director alone unless they have been coached into the role during a previous program by a pre-existing Course Director.
3. The Course Director and staff group will have for one another a mutual positive regard (like each other), will be able to communicate with each so that there is real understanding, and should be able to share and manage confidential and sensitive information mutually trustfully.
4. The Course Director will have previously have been agreed to by the Course Staff as being experienced and skilled enough in the relevant fields of knowledge and skill and will be a person with whom they feel they can work effectively.
5. The Course Director will have previously agreed to the role after agreeing that the Course Staff are people with whom s/he can work happily and effectively.
6. The Course Director will have appropriate experience, knowledge and skills in group dynamics and facilitation, group intervention skills, and familiarity with the conceptual models and frameworks used in the program. Functions and Behaviours
7. Person is bridge between program content/exercise and the real work: exercise this role through story-telling, etc. a) Tells stories which illustrate application back in the work place of concepts and ideas put before group of participants by consultants during the actual sessions. This normally should be minimum of twice per day. b) Tells stories informally over meals and at night in the same vein. c) In the staff meetings each day act occasionally as a reality check to the consultants. 2) They are a bridge between participants and venue management. a) Organise dining room arrangements. b) Obtain and store information about emergency and safety procedures, including lost room keys late at night. c) Manage relationships between participant's dietary needs and catering staff. d) Inform catering staff of movable meal time arrangements etc. e) Arrange and schedule all bus and travel details and procedures. f) Obtain and store phone numbers and venues for local doctors, dentists, psychiatrists and hospitals. 3) Informal social system monitor a) Be an informal friend and guide to participants:- individual 'havachats', counsel, guide, support: Been there done that before. b) Check on condition of emotional and health conditions of participants outside formal sessions. c) Follow up on specific individuals for whom staff have concern from time to time. d) Provide for coordination, communication and travel arrangements as necessary with participants' family and superiors in the event of incidents.

262 The document in relation to care taking procedure contained these provisions:

"The purpose of these procedures and mechanisms is to provide the maximum active care and protection to participants before, during and after their participation in the Course. The program has outcomes at a number of levels: intrapersonal, interpersonal, team and organization. It is an arduous and very satisfying program. During the course participants can expect to be given the opportunity to explore and confront unresolved issues in all of these levels. In so doing they are likely to feel uncomfortable at times as they face up to questions, issues feelings, beliefs and attitudes they may have which they discover are either inappropriate or ineffective. The caretaking system is designed to identify in advance (as much as this can be done) people for whom the program may be inappropriate at this stage in their lives. It is designed to provide the highest possible level of active care to each individual participant during the course and, finally, it aims to provide post-course follow-up and checking. 1) Prior to the course commencing each participant is asked to complete a Personal Details form. 2) Participants send this information to Ruth Berghan via fax or snail-mail. ………………………….. 6) If the person in his judgement needs follow-up then either the Senior Course Director (Colleen Durant) of a particular program or the Program Executive (Bob Shaw) would be told about the person if Tim deems the information poses a problem of some sort or another, either to be clarified or resolved. …………………………….. 10) The Senior Course Director or Senior Process Consultant then contact the person about the problem. 11) Whether or not it is the Senior Course Director depends on the nature of the possible problem identified. If it is a career, company or role related problem (eg too much recent travel) then the Senior Course Director would do it. If there are indications of deeper or more personal issues then the Senior Process Consultant usually contacts the person. 12) If the telephone call to the individual throws up any severe question about their suitability for the program then Tim contacts the Senior Course Director and Program Executive for guidance and follow-up. 13) On the morning of Day 1 of the Program, the Course Director and Process Consultant for that particular program ask participants (when restating the social contract) to inform them privately of any additional relevant information that was not included on the Personal Detail Form but which has arisen since they forwarded the completed form to Ruth Berghan. 14) If any such information arises they inform both the Senior Course Director and the Senior Process consultant. 15) Participants and their superiors are also given before the program a copy of a social contract which is very explicit in detailing the requirements and commitments of participants. 16) The venue is required to supply the Course Director with 24-hour contact details for medical, dental, psychiatric, physiotherapeutic and chiropractic resources close by. In recent times it has become important to make sure the contact information covers full 24 hr access. …………………………….. 22) The Course Director as part of his/her role checks on the emotional and health conditions of participants outside formal sessions. 25) If there are indications from any source that an individual participant may be suffering unnecessary stress or confusion then one of the staff are designated to approach the person concerned and check them out. More often than not this falls to the Course Director, unless symptoms indicate otherwise. 26) Each participant is teamed up from Day 1 with a walk /talk partner with whom they are required to debrief each day in the evening. 27) The walk/talks are told they have an extra responsibility to look out for their partner and bring to the attention of the staff any concerns they may have. 28) The aim with these system elements is to monitor each person and intervene early if there are signs the person may need some help. 29) If an individual participant display any unusual or bizarre behaviour (eg hallucinations, verbal confusion, leaving venue at unscheduled times, failure to attend sessions, sleep deprivation, dramatic eating pattern changes etc.) then the staff immediately interview that person and make an assessment of their suitability to continue on the course." 263 Thus it was, that at the time the Plaintiff was invited to attend the course, BHP knew of the nature and propensities of the course and of the safeguards and control mechanisms in place, to the extent they are revealed in the documents to which I have referred. BHP was also aware that it had previously conducted some 17 such courses. There was no evidence of any untoward incident at any of them and I draw no adverse inference from the absence of any direct evidence on the subject. It also knew that the leader of the course, Mr Phil Boas, was a registered psychologist with considerable experience in the leadership of groups such as the one under discussion, an experience which, at the time, seems to have been of the order of at least 16 years. He was supported by Ms Liz McKenzie, a registered psychiatric nurse, and BHP's own employee, Ms Fiona Shand who, at the time, was undertaking a course in psychology.

BREACH OF DUTY OF CARE? 264 It should be stated that, in my opinion, the Plaintiff was in no way compelled to attend the course. It was not part of the duties of his employment and, in my view, there was no evidence that a reluctance to attend would have imperilled his employment, either in law, or as a matter of fact. Indeed, it seems clear on the evidence that it was not uncommon for invitees to decline to attend for one reason or another. However, the invitation to attend was accompanied by statements to the effect that he had been identified as a "mover and shaker" within BHP and other encouragement and this may well have led him to believe that it would be helpful to his career if he accepted the invitation. In my view, there is an important distinction to be made when considering the question of breach of duty and, as it seems to me, the references in the Plaintiff's submissions to a decision to "send" him on the course overstate the effect of the evidence. In my view the Plaintiff's case against BHP could on the evidence go no higher than the contention that it was a breach of duty of care to invite him to attend the course; to permit him to attend; and to allow him to remain at the course until its conclusion.

265 In Koehler, the High Court pointed out that to focus an enquiry as to negligence only upon breach of duty invites error because it may fail to take fundamental aspects of the relationship between the parties into account. That proposition seems to me to have less force in this case, in view of my finding that the Plaintiff was not directed to attend the course and could have declined without detriment to his career. 266 Once the superimposition of contractual obligation is put to one side, the issue, in my opinion, following Koehler is whether the Plaintiff has shown that it was reasonably foreseeable to BHP that his attendance at, and completion of, the course would cause psychiatric injury. 267 This question needs, in the context of the case, to be considered in two parts, the first confined to the period up to the commencement of the course and the second to the period of the course itself. There was no expert or other evidence to the effect that the leadership course could foreseeably cause psychiatric injury to a person of normal fortitude, nor would I infer that from the evidence that was adduced in relation to the course. The question of foreseeability thus requires concentration upon the presentation of and signs given by this particular plaintiff, the emphasis being on presentation as it appears possible, with the benefit of hindsight, that by September 1996 he was in fact in the prodrome stage of a psychiatric disorder.

268 It was argued by the Plaintiff that the decision (to select and invite) him to the course constituted a breach of BHP's duty because it knew that he, at the time, was in a "compromised or compensated psychological state" and it also knew that the course involved the confrontation or challenging of participants in a way likely to expose the Plaintiff to risk of psychiatric injury. 269 Although the selection of the Plaintiff for the course was actually made by Mr Harmon, it seems to me that the question of whether the selection was a breach of BHP's duty must primarily be viewed from the perspective of his immediate superior, Dr Darling and, indeed, that is how the Plaintiff's submissions were focussed. 270 In this case, as I have found, the Plaintiff's workload was not excessive in fact. He was coping with it, although not to the satisfaction of Dr Darling, as the year 1996 progressed. There was friction with Dr Darling, which he might reasonably, in my view, have regarded as simple intransigence by a subordinate in implementing the new system which he introduced and which it was his responsibility to resolve. 271 It is true, as Mr Marshall pointed out, that Dr Darling was aware of tension between himself and the Plaintiff which he had taken steps to address; that he had observed the Plaintiff pale and agitated; and that the Plaintiff complained of overwork. In my opinion, however, there is a large gap between those indications or signs which, in any event for the most part, do not seem to have been apparent to others until about August 1996, and a finding that Dr Darling, and therefore BHP, should have concluded that the Plaintiff was at risk of psychiatric injury by attending the Leadership Course. Although BHP knew that the course would be arduous and stressful, it also knew that it was to be conducted by experienced professionals in the field and that elaborate procedures were in place to safeguard participants from harm. Moreover, signs identified in Hatton, such as express warnings by the Plaintiff and frequent or prolonged absences were entirely absent in this case. 272 Furthermore, and in my opinion, very importantly, the Plaintiff himself was a medical practitioner trained and experienced in occupational health. Rather than decline the invitation to attend the course, according to all the evidence, he welcomed the opportunity to attend and looked forward to it, inter alia, as a means of resolving his friction with Dr Darling. 273 Also relevant is that the Plaintiff's presentation to his closest work colleagues, according to the evidence, was as a hardworking, competent and conscientious doctor albeit under a degree of stress; his presentation to his family was of a man enjoying his career and looking forward to the opportunity to advance it; and that Dr Darling, himself, who had experience with mentally disturbed people and whose evidence I accept, did not regard the Plaintiff as mentally ill or at risk of psychiatric illness by attending the course. He may, possibly, have thought differently if he had been aware of the Plaintiff's psychiatric reaction to his wife's illness 3 years earlier, or that he was taking Duromine, but that is entirely a matter of speculation. 274 The Plaintiff also relied on the telephone conversation with Mr Dalmau as providing the contrary indication, which BHP should have acted upon. However, there is no reason, in my view to doubt that his email to Ms Durant accurately reflects the conversation. Significantly, when Mr Dalmau suggested that the Plaintiff defer attending the course to another time, the Plaintiff insisted that he was determined to go in order to work out with Dr Darling the difficulties which had arisen between them. Mr Dalmau's email did not, in my opinion, provide a reasonable basis for BHP to withdraw its invitation and exclude the Plaintiff from the course, particularly as he was, at the time, actually in Melbourne preparing to attend it within the next day or so. 275 I observe that the email from Mr Dalmau indicates to me that there was an adequate screening process in place although, of course, its effectiveness, necessarily, largely depended upon the adequacy of the information disclosed by the participants. By failing to disclose his psychiatric reaction to his wife's illness and, perhaps, that he was taking Duromine, the Plaintiff himself undermined the screening process which he now claims was inadequate. 276 In my opinion, prior to the Plaintiff attending the leadership course, it was not established that psychiatric injury was reasonably foreseeable to BHP as a consequence of the Plaintiff's attendance. THE LEADERSHIP COURSE: 277 Thus I need to consider the second part of the question identified above, namely, whether there was a breach of BHP's duty constituted by it permitting the Plaintiff to remain at the course until its conclusion. Again, this enquiry focuses on the Plaintiff's presentation during the course and not upon the actual state of his mental health. 278 Much evidence, not always easy to reconcile, was given by a number of witnesses as to what transpired during the Leadership Course itself. There were in all about 26 participants. The course leaders or directors were Mr Boas, Ms McKenzie and Ms Shand. There was no evidence, in my opinion, to suggest that the course was conducted otherwise than professionally, competently and responsibly by the three leaders. 279 In the absence of expert evidence upon the subject, little that occurred, so far as I could glean, even arguably, would be likely to have had an adverse impact upon the Plaintiff's mental health and then only because of a particular vulnerability. In my judgment, the actual content of the course, so far as the evidence reveals it, was unlikely to have affected the mental health of a person of normal fortitude. 280 According to the Plaintiff's testimony, at the first business session on 27 September 1996, Mr Boas introduced himself as course leader and also introduced Ms McKenzie and Ms Shand. He said that the course would be difficult but a lot would be learned. Early in the proceedings, he told the attendees that they were to select a "walk/talk partner" who would remain their partner for the whole course. 281 One other matter Mr Boas raised concerned a chart upon which each participant was requested to plot each day by reference to a horizontal line, whether his or her feelings that day were positive or negative. The charts were attached to a corkboard on a wall in a room, which was open to everyone, although primarily used by the course organisers. The Plaintiff said that he plotted his feelings as positive on the first day, but on subsequent days plotted them towards or into the negative side. He said that no staff member raised this circumstance with him. 282 As to the selection of a walk/talk partner, a Mr Bruce Blackman from BHP in Melbourne approached the Plaintiff and suggested that they might be walk/talk partners. The Plaintiff agreed. 283 Another exercise which the participants were asked to perform, as contemplated by the course documents, involved them bringing to the course photographs of themselves, their families and their workmates, including workmates with whom they had some difficulty. These photographs were arranged on large pieces of butcher's paper upon which they were requested to write what they thought of the people in the photographs and what they believed those people thought of them. They were then mounted on a wall. In relation to himself, the Plaintiff said that he thought he was "selfish, a sociopath". Asked, in the witness box, what he meant by that, he said, "Basically that I was abnormal, I was - a sociopath is a very negative thing to say about someone, extremely negative". He was unclear as to what others thought about him. He thought he used the words "friendly" and "intelligent". Asked by Mr Miller what caused him to reflect his emotions as negative on the second day of the course, he said that he was unsure of what was going on and had a feeling of anxiety about the course and the people on it. Asked what was causing him to be anxious, he replied, "I don't know, I was unwell". 284 He described a session in which he said they all sat in a semi circle in the middle of the room with Dr Darling in the centre. The members of his occupational health and safety group were then asked to hug Dr Darling, which they did together. They were then individually asked what they thought about that. The Plaintiff said that it made him feel physically unwell, which caused laughter. He said, "I felt very distressed". As to his concern about hugging Dr Darling, he said, in evidence, "I just didn't like to hug someone I didn't get along with or I didn't like". 285 On what the Plaintiff thought was the third day of the conference, there was what he described as a "psychodrama". He said they were assembled in the main course room when people dressed in black with musical instruments entered and performed a dance as they played drums, tambourines, and maracas. While this was occurring, individual participants were asked to come to the front and discuss aloud what sort of person they would like to be. He said that he replied that he would like to be either the drum or a small piece of material on the floor about the size of a handkerchief. He said that by this stage of the course he was feeling "confused, agitated, shaky, nervous" and that he was only sleeping lightly for a few hours a night. He said that at the time he thought, "people were controlling me through my food" and gave evidence of an incident when, after food had been brought to him at the dining table, he abruptly stood up and left the room. 286 On day 5 of the course, he said that participants were asked to participate in the "Meyers-Briggs" personality inventory. This included the completion of a questionnaire on which he described his occupation as, "Flagellant". Explaining this, in evidence, he said, "I was basically referring to people who, some Muslim groups, Sunni, Shiites, beat their backs with steel wire, a handle and steel wire to draw blood and they do it as a form of penance". When asked why he put flagellant on the form, he added, "Because I was feeling extremely negative about myself at the time". 287 He said that no one at the course discussed with him what he had written on the questionnaire, which was handed to Mr Boas. Subsequently, however, the attendees were classified, his classification being "introverted". When Ms Lisa Delaney called across the room that he was in fact "extroverted", not "introverted", Mr Boas said, "It is not like what other people think you are, it is what you think of yourself". 288 There was another incident, which, according to the Plaintiff, took place about 2 days before the end of the course and involved only Mr Harmon, Mr Harvey and Dr Darling. He said that, apparently at the instigation of Mr Harmon, the four of them came together in a corridor outside the conference room. Mr Harmon said to the Plaintiff, "Come on we have got to sort this problem out between you and Chris about the, well, argument". The Plaintiff said that he replied, "OK", but, at first in his evidence, could not remember the response of Dr Darling. Later, I gave him leave to revisit this subject and his evidence was that Dr Darling replied. "You fucking bastard, it is all your fault". When he said this Dr Darling spoke loudly, went red in the face and pointed his finger at the Plaintiff. 289 By the end of the 5th day of the course, the Plaintiff said that he was feeling, "disorganised, confused, anxious, shaking, tired, exhausted and I really was having trouble following what was going on". At about this time, or a little earlier, he said that he was upset by a confrontation between Mr Boas and an engineer attending the course, who was arguing that he should not be required to divulge personal matters. The argument took place in front of all participants and following it the engineer left and did not return. Although the Plaintiff said that he told Mr Boas that the engineer "missed an excellent opportunity to develop himself", he really wondered if Mr Boas had put unfair pressure upon him. 290 Asked further about his sleeping habits during the course, the Plaintiff said he was only sleeping two or three hours per night and in wakeful periods resorted to reading the Bible on his beside table. This, he said, made him "really agitated - I was worried that the passages in Revelations were referring to me in particular and I was worried about how this referred to me and how the information got to the Bible. I went over this many, many times; I was confused". 291 On what seems to have been the night before the course ended, the Plaintiff said that at midnight, fully dressed, he went into the main course room and stood before the photographs attached to the wall. He said, "I was trying to figure out the hidden meaning on what was written on the notes". He stood there for "an hour, maybe longer", during which Mr Harvey at one point entered the room and spoke to him. He said that at the end of the course, all participants were asked to remove the photographs and everyone complied except him. Mr Blackman went to the wall and brought his photographs back to him. He said that he scrunched up the paper and photographs and threw them away. 292 Each morning during the course, he said that either Mr Boas or Ms McKenzie started proceedings by reading aloud, for about 10 minutes from a book called "The Third Ear". He said that he could not understand the meaning or significance of what was read and became worried about it. As the course progressed, however, he said, "Well, I basically came on mind, I thought that I was developing a third ear that I could discern hidden meanings in the language they were reading from the book. I was getting insight into people, the reading itself". 293 About half way through the course, the Plaintiff said that he considered leaving it, as he was "worried, anxious and confused". During a coffee break he walked to the perimeter of the land upon which the course compound stood, a distance of about 150 metres. He stood at the entrance to the property for about 20 minutes, deciding whether he would stay or not. He decided not to leave "because I thought I would be letting down Phil Boas". At one stage, he said that another member of his group, Ms Sue Cooper told him that what was happening on the course was unfair and discussed leaving, but ultimately this came to nothing. 294 What was called a "Human Sculpture" occurred, according to the Plaintiff and Mr Blackman on the 4th day but, according to others, some time later. It involved Dr Darling placing members of his group about the room according to how he saw their relationship to him. He placed Ms Cooper and the Plaintiff in separate positions towards the extremities, while others were clustered closer to him. Ms Cooper appeared to be upset at this and the Plaintiff said that he, himself, started crying. Mr Boas came to him and asked what was the matter to which he replied, "I know too much" and continued crying. The Plaintiff said that he understood that the concept of the sculpture was that it determined how people felt about each other and their relative status. 295 During the course the Plaintiff said that he formed the opinion that hypnosis was being used and he raised this subject with Mr Harvey, who he said agreed with him that hypnosis was being attempted but added, "It doesn't work on me". The Plaintiff said that he was led to his conclusion about hypnosis because, among other things, of the way Ms McKenzie moved her fingers as she talked. He said that he does not now believe that there was any attempt at hypnosis and I interpolate that none of the evidence in the case suggested otherwise. 296 At the end of the course, the participants sat in a semi-circle and individually were called to the front to receive a certificate of participation. The Plaintiff refused to go up to receive his certificate. Mr Boas and Ms McKenzie walked to him and handed it to him. He said that he threw it on the floor. 297 What I have said so far regarding the content of the course derives from the Plaintiff's evidence upon the subject, which I accept was an honest attempt to assist the court and was substantially accurate to the extent that it reflects, at least, his perceptions and feelings, as he now remembers them. However, as I have earlier indicated, it is not the Plaintiff's feelings and perceptions that are important to the issue of negligence in this case, but how the Plaintiff appeared to, and was perceived by, others. In that connection I will make reference to the evidence of other witnesses, commencing with Mr Blackman. 298 Mr Blackman, who lives in Melbourne and is now self-employed as an IT consultant joined BHP in 1989. By 1996 he was a Manager Information and Technology, and in that position was invited to attend the leadership course. He drove to Lancemore Hill from his home in Melbourne on the morning of Friday 27 September. After checking into the accommodation and meeting some colleagues from Melbourne, he was ushered with other participants into the main room where the course was conducted. There were introductions of the course leaders and Dr Caples spoke about the benefits which could be derived from it. 299 There was then a light-hearted session where participants were invited to fantasise as to how they might have wished to travel to the course. Sometime after this the matter of each participant selecting a walk/talk partner was addressed. They were told that the concept of a walk/talk partner was that he or she would, in effect, monitor their partner's mental and physical progress through the course. He took the initiative in selecting the Plaintiff. Asked what prompted him to do so he replied: "Okay. So when we did our fantasy stories earlier, I guess we spoke for a short few minutes, but the things that I observed about Angus at that time was that he was very well spoken, like articulate; quiet, but very, very good pronunciation, and polished. You could tell that he was from a professional background, from the way he spoke and his wording and sentence structure and things like that. He was, like I say, a little bit quiet by nature, and I thought that it might be a fair contrast to my character, and thought it might be good for me during the course of the week to actually have someone who's pretty much all of the opposites of probably what I perceive myself to be." 300 Afterwards, he said that he and the Plaintiff took the opportunity to discuss each other's family and work background. He said that he formed the impression that the plaintiff was "a quiet type of more introverted person ……… there was a bit of type of nervous energy in relation to what the course was going to bring". 301 He testified in much the same terms as the Plaintiff in relation to the display of family and work colleague photographs, the charts designed for the plotting of emotional feelings and the Meyers Briggs questionnaire. He described another session on the afternoon of the first day when they were all asked to lie down, close their eyes and dream, while the presenter walked about the room saying, "warm and cosy words". Although there were some chairs around the walls of the room, he said that mostly they sat on the floor during course sessions. 302 The formal part of the first day concluded, as did subsequent days, around 7pm when they broke for dinner. He had a short discussion with the plaintiff about the day's events. He noticed nothing abnormal and said the Plaintiff seemed tired but relaxed. 303 Mr Blackman said that at the close of each day's proceedings, the three leaders would meet in a room next to the main course room for the purpose of reviewing what had occurred during the day. All participants were invited to attend these meetings as observers. 304 At dinner in a communal dining room, participants sat where they pleased. The course leaders ate at a separate table and did not mix with the participants. After dinner alcoholic drinks were available in another room furnished with comfortable chairs and couches. There was also a games room 305 Mr Blackman said that he slept well the first night and awoke without the anxiety and nervousness he felt the day before. He looked forward to experiencing "more probably meaty content". 306 Day 2 started with the reading of a story about geese which was related to leadership and teamwork. Later, there was a general review process whereby participants sitting on the floor expressed their feelings about the previous 24 hours. A similar session occurred each subsequent day. 307 Mr Blackman recalled that on Day 2 there was a talk about management team leader roles in influencing others. During the morning participants were asked to plot their feelings on the emotional graph and this was subject to general discussion. 308 Part of the morning of the second day was according to Mr Blackman, devoted to a consideration of the Meyers Briggs personality inventory and discussion of the four groupings or quadrants to which it gave rise. 309 In the afternoon, as on subsequent afternoons there was a period given for recording thoughts about the course in a journal or diary. These were open for discussion and Mr Blackman could recall comparing notes with the Plaintiff. Each day there was a formal session with walk/talk partners. Again, on the second day, Mr Blackman noticed nothing untoward about the presentation of the Plaintiff, "he seemed to be quite relaxed and quite energetic and ….. talking about the material with enthusiasm". 310 Mr Blackman seemed to have only a hazy recollection of day 3. He "vaguely recalled" being read a story called "The Prince and the Magician", but could not remember that it was followed by group singing. He recalled that the Plaintiff plotted his emotional feeling at a lower point than the day before, but still above the neutral line. 311 Later there was a session about "self defeating behaviour", during which Mr Blackman recounted an incident involving Dr Darling: "I believe what I remember of that is that Chris Darling stood up in front of the group in a very - actually was in a very frustrated and agitated state and was actually quite violently or aggressively, like, pointing (demonstrating). Am I allowed to do that?

Q. You are indicating your finger in a pointing motion? A. But more in a thrusting, rather than just a solid point, (demonstrating). He was actually in time with his words--

Q. Thrusting his finger forward, you're indicating? A. As with his words, with the raising of his voice and emotion in his voice, that he actually pointed directly towards and focused his eyes and that to Angus and said, "You're the cause of my problems", to that effect, or that, "Without you here, I wouldn't have the problems that I did." It came out of a fair bit of - I didn't understand the context, but it was what I--

MARSHALL: Q. You were telling us what he said. Were there other things that he said at that time that you can recollect during this self-defeating behaviour session? A. I just remember the moment very vividly and I remember him gesturing and specifically pointing, just saying, "You're the fault - you're the fault of my problems", or words to that effect. It was repeated on a number of occasions, I believe.

Q. This process of Dr Darling pointing to Dr MacKinnon and saying things to him, how long did that take? A. Two or three minutes, or something like that, the specific actions that I can remember. It was quite a turning point to me and it was very specific and for a short period of time.

Q. Was it spoken quietly or loudly? Could you describe how it was spoken? A. Loudly, as in that everyone in the room clearly, or even if you were in the hall, like, outside of this room, would actually hear very easily. It was said with a lot of type of gusto in the voice, frustration, anger. I would probably describe it that Chris, at that point, had probably lost his temper, lost control of what he was saying.

Q. During this process, were Phil and Liz and Fiona present, to your recollection? A. I can recollect Phil and Liz. I remember Phil actually - I looked at Phil because I expected that that behaviour--

MARSHALL: Q. You anticipated something happening. I want to ask you about that. Did Phil or Liz, during the course of this two or three minutes, I think you described its duration, interrupt Dr Darling from what he was doing? A. No.

Q. How far away was he from Dr MacKinnon whilst this two or three-minute process was taking place? How far away from Dr Darling? A. Two to three metres, and I believe that he actually stepped towards Angus as he spoke and pointed to reinforce that he was - that it was focused towards him.

HIS HONOUR: Q. Was everyone standing up or sitting? A. No, we were actually, like, sitting and--

Q. Sitting on the floor? A. Yeah, sitting on the floor, and Chris had the floor at the time as a part of - sorry, "floor" is the wrong word. He was like the central point talking about some things or responding to some comments that I can't remember. Quite often the person responding to those would stand up and address the rest of the group, but then he went into this very aggressive type behaviour. Like I say, we're sitting around at a lower level to him, but it was just stand-back type of - I don't think anyone was prepared really for that. That was, like, the first--

WITNESS: I wasn't prepared for that, I guess, is a better expression.

MARSHALL: Q. How far away from Dr MacKinnon were you when this was taking place? A. I probably would have been 3 metres, myself, so probably a triangle between where Chris was, Angus was and I was back here.

Q. Did you see Dr MacKinnon's reaction, at least his facial reaction, to begin with, to this? A. I can't recollect his - I was more looking at Chris; so probably no, and, like I say, I flicked across to look at Phil to see at what point he was going to intervene. I can't recollect Angus's face. I probably looked for a short period of time, but it doesn't stay with me as a memory." 312 In the afternoon of the 3rd day Mr Blackman said there was a session about "filters" which he could remember but he could not recall much else. 313 During the day, however, he had an opportunity to talk to the Plaintiff about the incident involving Dr Darling. He said that he seemed pale and his muscles were tensed. He told Mr Blackman, "I can't work with Dr Darling. I can just see that I'm never going to be able to work this out. I can never work with him because of the way he behaves". 314 Mr Blackman said that the Plaintiff's speech was slower and not as flowing as he had previously experienced it and that he appeared "very anxious and nervous, he was shivering a bit as in, or the body was trembling a bit". 315 Asked what he remembered about day 4, Mr Blackman said there was the usual review session, then he continued to Mr Marshall: "The thing that stands out on day 4 to me is one particular exercise that was conducted. I can't recollect the events leading up to it, but Chris Darling was actually asked to do a group exercise where he was asked to put the people in his work place physically around him, based on where he saw his relationship with them. That was actually done in the morning. What I recollect about that was he had some people close, or physically close, to him, in a type of tight circle, being Rod Harmon, Susan Cooper, Lisa Delaney. There might have been a couple of others there that were a part of his group that I don't remember their names or their characters as well. But what was evident was that he very specifically placed Angus really as far as he could from within the working envelope of the room out, and actually said, "That's how I believe the relationship is and how I would like to work." 316 Mr Marshall continued his questioning:

Q. Could I just ask about how this was physically done? A. Sorry, Chris was allowed to construct or actually move the people within the room.

Q. Were you on the floor again? A. Yes, on the floor, and ask them to actually be located in a position that he had constructed them or had control over where they would actually be placed.

Q. How far away from him were these people? A. So he had them - like if he was me, within the metre, metre and a half perimeter, he would actually have the people in a tight group, and again, if I use the analogy that the conference room was about the size of this room, it would be three-quarters of the way to the far corner that he had actually placed Angus, and said, "That's where I see the relationship is."

Q. About seven or eight metres away, perhaps? A. Yeah. That was the thing that stood out to me in the morning. Like I say, lots of run-of-the-mill events probably transpired, but I can only remember really the things that actually stood out of significance, or they are certainly more significant in my memory, if you like.

Q. Can we come back to this group placement exercise? Who facilitated that? A. I believe it was Phil.

Q. Was Ms McKenzie there? A. I believe she was in the room, but not as active as Phil.

Q. What about Fiona Shand? A. I don't know that I could recollect that.

Q. Was anything said by the course facilitators about Dr Darling's placement of these people? A. Yeah. Phil actually asked him why he actually put people that way.

Q. And what do you recall Dr Darling saying? A. Dr Darling said, "That's how I see that the relationship and the way that we work is."

Q. Can you recall anything further said? A. I can't remember any other conversations, apart from some behaviour that occurred after that.

Q. What occurred next? A. When Angus was physically instructed to sit out in that - at that very distant place--

Q. Could I stop you there? Who instructed him to sit in that distant-- A. Chris. Chris orchestrated the movement of all of the people at his request.

Q. Do you recall how he instructed Dr MacKinnon, or what he said? A. All I can recollect is him telling Angus to go a number of times further over there and like, you know, just used a hand gesture. Not in an aggressive way or whatever, said "I would like to you go a bit further over there", and he asked the people that he wanted closer to come in around him, like with gesturing and a voice instruction.

Q. I interrupted you. You were going to tell us what happened next? A. Yes. Angus at that point broke into tears. You could physically see tears coming down both sides of his face and, you know, the face type of cringed and the head went down, and you could hear him actually crying, apart from seeing the visual tears that you could - yeah, you could see.

Q. Was there anything further that you can recall about that session? A. I know that the tears lasted for, well, what I considered to be a fair period of time, possibly three to five minutes, and a couple of people in his work group, I believe Susan Cooper and Lisa Delaney, actually moved out of the group and actually physically comforted him, put their arms around him and told him that it was all right and not to type of take it too personally, or something like that. It was quite a moving moment for me to sit in the room just to see the mechanics of it unfolding and Angus' reaction, which is why it is so, I guess - I can still see it clearly, actually, in my mind now.

Q. What happened after the comforting? A. I don't believe that there was any intervention by the facilitators in any way in the comforting. Again, I believe the group actually healed itself to move on to the next exercise." 317 On the morning of the 4th day, Mr Blackman said that he saw the Plaintiff plot his feelings on the emotional chart below the neutral line. 318 In their later walk/talk session, Mr Blackman said he tried to raise with the Plaintiff what had occurred during the morning but there was little response. The Plaintiff again seemed pale and nervous or anxious. 319 Mr Blackman could recall little of the detail of the rest of day 4 except that it contained further discussion regarding the Meyers Briggs documents. However, at lunch that day he said he raised concerns about the Plaintiff and his relationship with Dr Darling with members of his Port Kembla group, including Lisa Delaney and Susan Cooper. He also observed to them that the plaintiff was starting to miss meals. 320 At dinner that night, Mr Blackman said that he raised with Mr Harmon his concerns about the Plaintiff and asked Mr Harmon to speak to the Plaintiff. He said that he could not recall Mr Harmon's reply but the subject was discussed at length between those at his dinner table, including Mr Harmon. 321 On day 5, Mr Blackman said he felt very tired. He plotted his emotions in the neutral area, the lowest they had been. He saw that the Plaintiff plotted his lower than they had been the previous day. 322 As to the rest of the day, he remembered the review session and discussion about the departure from the course of Mr Jim O'Neil who had been a participant. He remembered the Plaintiff lying on the floor in an "unnatural position" and saying repeatedly, "I'm tired'. 323 He could remember a "sculpture session" when they all lay on the floor in various positions, and group exercises led by Mr Boas which involved discussion about particular work experiences. 324 In the afternoon of day 5, he said there was a presentation by Mr John Mathieson, Acting General Manager of BHP Research who spoke about leadership and health and safety. 325 On day 6 or 7, Mr Blackman said that he repeated concerns about the Plaintiff to Ms Shand, "I don't think he is coping or dealing with the course very well, I have genuine concerns". He could not recall her response. 326 Mr Blackman said that all he could remember about day 6 was the review session and that both he and the Plaintiff plotted their emotional levels below where they had been the day before. He remembered Lisa Delaney commenting about this in the review session. 327 At their formal walk/talk session he said that the Plaintiff seemed unwilling to engage in conversation. Physically, he appeared pale, drawn and tired. 328 Day 7 was the penultimate day of the course. That night senior executives of BHP referred to as "the gods" were to attend at dinner. There was discussion during the morning about a task to be done in preparation for "the gods". He said that the Plaintiff again plotted his emotions at a lower level but this subject was not discussed openly. At their walk/talk session, he could remember the Plaintiff saying that he was looking forward to going home. Again he looked tired, drawn, tense and anxious and his speech was slow. 329 He remembered one session on day 7 upon the subject of anchors. His belief was that the Plaintiff attended this session as he had attended every other session. In the afternoon, some members of the group were selected or volunteered to engage "the gods" in conversation about the course. 330 The dinner was duly held on the seventh night, the Plaintiff attended and three senior executives of BHP mixed with the participants and appeared very interested to hear their experiences of the course. He could not recall any particular contribution made by the Plaintiff. 331 Day 8, the last day, according to Mr Blackman, was "a very powerful day". Mr Boas led the morning session. Participants were asked to take their photographs from the wall and discuss their experiences of the course. When it came to the Plaintiff's turn, he responded to the invitation to speak with "a blank stare". He removed his photographs from the wall and turned them upside down on the floor. He also refused a cap proffered to him by Mr Boas and put it on the ground. Mr Blackman described his appearance, "he absolutely looked terrible …. ghostly white, all of the facial features stressed, tired …" 332 The course closed at lunchtime. The Plaintiff walked away without his photographs and cap but Mr Blackman picked them up and followed him with them. The Plaintiff did not join in the general farewells that took place, although he thanked Mr Blackman. 333 Mr Joseph, in cross-examination, sought to undermine Mr Blackman's reliability by suggesting that he consumed excessive amounts of alcohol during the course and missed some sessions. These suggestions were denied as was the suggestion that he had been disinterested in the Plaintiff during the course and was now trying to reconstruct conversations in order to discharge, retrospectively, his responsibilities as a walk/talk partner. He conceded, however, that on at least two occasions he observed Mr Boas speak to the Plaintiff about his emotional chart and apparently take an interest in him. Mr Blackman told Mr Joseph, that he was not in a position to deny that after the exercise in which Dr Darling placed the Plaintiff at the extremity of the group, he said to him, "You're not part of this group yet". Mr Blackman also agreed with Mr Joseph that what he saw in the Plaintiff's journal or diary constituted coherent thoughts of his perceptions regarding the conference. Further, he agreed that neither, when he placed the Plaintiff at the extremity of his group nor, on any other occasion, apart from the one mentioned, did he see Dr Darling act aggressively towards the Plaintiff. 334 Cross-examined by Mr Blacket upon the incident where Dr Darling raised his voice and pointed his finger at the Plaintiff, Mr Blackman agreed that it was an inappropriate but spontaneous eruption. He also agreed that immediate compassion for the Plaintiff was openly displayed by others present, including Susan Cooper and Lisa Delaney, who actually moved to and physically comforted him. He agreed with Mr Blacket that Mr Boas and Ms McKenzie were present with the group for close to 12 hours a day and seemed to work hard to keep the group focused and in control. 335 Other witnesses who gave evidence as to what occurred during the course were Ms Ford, Mr Harmon, Mr Keyte and Dr Darling to whose evidence, in another context, I have already made reference, and Mr Lyle Hammond. 336 Ms Ford was asked to go on the course by Dr Darling, a month or so previously. He told her that it was to help the John Lysaght and BHP sections combine as a team. 337 She arrived at the conference centre on the evening of Thursday 26 September. The following day with the other participants, she chose a walk/talk partner. She met the Plaintiff and, indeed, sat at his table for dinner the first 2 nights. She noticed nothing different from his presentation to her at Port Kembla. She told Mr Joseph that the course coordinators, Mr Boas and Ms McKenzie, were present every day and were, in effect, readily available. She was able to speak to them without difficulty. 338 Early in the conference, she had a minor confrontation with the Plaintiff who upbraided her for not having his photograph among her photographs of work colleagues. 339 She recalled a session about the middle of the course when the Plaintiff was lying on the floor and appeared in an emotional state. He told her that he had a problem with Dr Darling because he reminded him of his father. She remembered what seemed to be normal conversation between the Plaintiff and Mr Harvey. She also testified about the incident mentioned previously, which she said occurred about day 5, when Dr Darling sculptured his team by placing members of it where he thought they should be in relation to him. She said the Plaintiff was placed to one side and he was unhappy about that but could not remember what he said. Other team leaders, she said, performed similar exercises. 340 At a meeting between Mr John Cleary, the Plaintiff, and herself, in Mr Cleary's room when they discussed a matter which had to be reported back to the course leaders, she said that the Plaintiff contributed coherently. She had no concerns about his health. 341 At the end of the course, she flew direct to Brisbane on annual leave and did not return to Port Kembla for a week. She then found that the Plaintiff's workload had been taken over by a Dr Roger Parish. 342 In cross-examination by Mr Blacket, she said that she could not recall Dr Darling being offensive, or aggressive, or swearing at any one during the group activities at the course. 343 Mr Marshall raised with Ms Ford the evidence she gave concerning the Plaintiff while he was lying on the floor. There was this exchange: "Q. You told us yesterday Angus was on the floor some time in the middle of the course. What was he doing on the floor? A. Laying on the floor.

Q. During a session? A. In a conference room. I don't recall when it was.

Q. By himself? A. On the floor by himself?

Q. In the conference room by himself? A. No.

Q. Who else was in the conference room? A. I was there. I don't recall who else was there.

Q. Were there other people there? A. I believe so.

Q. And where was Angus? In the middle of the floor and were people standing around him or what? A. No, he was just lying on the floor where we were.

Q. By himself? A. That's correct.

Q. What was it about Angus being on the floor that you remember 10 years later? A. That he was on the floor.

Q. Is that unusual? A. Well, he was the only one on the floor.

Q. In the whole 10 days of the course were there other people on the floor, lying on the floor? A. That's correct.

Q. Was that unusual? A. It was when we were doing our relaxation sessions and everyone was lying on the floor.

Q. Were there other occasions when people would lie on the floor? A. Not that I witnessed.

Q. So this occasion stands out: Somewhere in the middle of the course Angus was lying on the floor and that was unusual. Is that right? A. That's correct.

Q. And what was he doing? Was he crying? A. I don't recall.

Q. Was he laughing? A. I don't recall.

Q. It was unusual. Was anyone attending to him, seeing if he was all right? A. Well, we were there together.

Q. How did it come about that he was on the floor? A. I don't recall.

Q. You just have this memory, separate, of Angus being on the floor. Nothing preceding it, nothing after it? A. That's what I remember.

Q. And you were there and some other people were there who you don't remember? A. I don't recall who it was.

Q. And you don't remember if Angus was crying or laughing or anything? A. He was talking.

Q. He was talking. Normally? A. Yes. " 344 Mr Keyte met the Plaintiff at the course centre on the Thursday night. During the course, or at least the first few days of it, he socialised after hours and played pool with him. Mr Keyte found that the Plaintiff was able to recount stories from a considerable store of jokes. He drank quickly and was good at pool, which the Plaintiff explained was a heritage of his years at University. Other course participants who joined them in playing pool included Mr Blackman. He said that this socialising was usually after dinner and occupied to about midnight. He remembered a particular night when he and Mr Blackman continued until 2am and Mr Blackman was missing from the first session of the course the next day. 345 He said that Mr Blackman did not express to him any concern about the Plaintiff's health but did indicate that he was unhappy with him as a walk/talk partner because they did not have much in common. 346 The Plaintiff, he said, at these post dinner gatherings "would probably have gone to bed before me". 347 Mr Keyte testified regarding an incident early in the course, which suggests to me that, at least at that stage, there was nothing apparently wrong with the Plaintiff's mental processes: "Q. There was an occasion where there had been an interchange between you and Dr MacKinnon earlier in the course? A. Yes.

Q. When was that, can you remember? A. I think that was the first full day.

Q. What was that, can you tell us? A. One of the things we got in our package was a disposable camera. We had to take a number of photographs of different people. On the first day we got a piece of butchers paper and we put a photo of ourselves in the middle, then superiors above, and peers alongside, and, then, the family below. Then, we had to write underneath each photograph I think three different responses about them. One being, what you thought of the person, what you think you thought the person thought of you. I think they were the two things we had to put. Once we completed this task, they were put on a wall, and we had to go around and have a look at them, and make comments. When I saw what Dr MacKinnon had under my photograph, he had written that I thought he was gullible, or easily led, or something like that. So, I asked what he meant - well, I said, "I do not think that of you. How have you come up with that conclusion?"

Q. Do you remember his response? A. Yes. His response was something along the lines, "You think I believe what the injured workers tell me".

Q. But the word was "gullible"? A. I think so.

Q. Of? A. He felt I thought he was gullible, easily led."

348 Asked whether he recalled interchanges between the Plaintiff and Dr Darling, he said there were two. The first concerned the human sculpture exercise which he said occurred on Tuesday, day 5. Mr Keyte described the incident to Mr Joseph: "Q. Just walk us through it, if you would? A. Okay. For that particular one that I was involved in, Dr Darling was asked to describe the current make-up of the department, how he saw the department made up. So, he placed all of the Occupational Safety Health and Risk Department people in different places, according to the way he saw it. It was his view of it.

Q. Firstly, where you were placed? A. I was probably as far away from him as he could get me.

Q. Do you recall Lyle Hammond? A. Yes.

Q. Were you anywhere near him? A. We were both as far away from him as possible. The only difference was, I was looking away where Lyle was looking at the group, in the middle.

Q. You were not looking towards the work centre? A. No, I was looking in the opposite direction.

Q. At the duck pond? A. Yes, out the window, yes.

Q. What else can you recall happening, in respect of, in particular, Dr MacKinnon; where was he placed? A. My recollection is Dr Darling put him close to him. He put those who he had contact with close to him, this is my view of it.

Q. This was the exercise? A. He put those people tightly around him, those, I assumed, he had close contact with.

Q. Who were? A. There was Neil Harvey, there was Dianne Ford, Lisa Delaney, Rod Harmon.

Q. And was there-- A. And they were tightly close and then a little further out was Ken Horspool, who is a safety person, and Dr MacKinnon, and they were looking at that group.

Q. They were looking at the group? A. Yes.

Q. What about - do you remember - did you mention Susan Cooper? A. Oh, no, Susan Cooper, who was my manager, was equally distant--

Q. From - equal to whom? A. To where I was and Lyle Hammond away on the other side, behind the white board.

Q. Yes. That is not encouraging. But Dr MacKinnon was closer than Susan Cooper? A. Oh, yes, yes. Only within metres.

Q. Of? A. Of this tight group, so probably the distance we are.

Q. You are suggesting I am Dr MacKinnon, you are Dr Darling? A. Yeah, about three or four metres.

Q. And there were people beyond? A. Yes.

Q. Including Susan Cooper beyond a white board? A. Yes.

Q. And you and Lyle Hammond? A. Yes.

Q. Do you remember anyone else? A. That's about all I can recall.

HIS HONOUR: Q. The placing included which way you faced, not just where you stood? A. That's right. 349 Mr Keyte said that the Plaintiff asked why he was out of the inner circle and was told by Dr Darling, "You are not - you are not part of the team yet", or words to that effect. He said that the Plaintiff sought to pursue the matter further but, as far as he could remember, the only outcome was referral for further discussion. He said that the Plaintiff seemed "agitated or upset", but added that he did not recall anything "significantly dramatic". 350 The other interchange Mr Keyte recalled between the Plaintiff and Dr Darling occurred, he said, the next day. He described it thus: "Q. Yes? A. And in one of the sessions, I can't recall the context of it other than Dr Darling was on his feet and it was in follow-up to the human sculpture from where - around the department structure and - because part of the - the reason we were there was to try to get the - was to look at how to - for the whole organisation, not just our department, but BHP was changing the structures of the organisation away from a hierarchical structure to a little more - something actually completely different, but - so it was in context of how we were to interact and how we were going to work and I recall this one - the next occasion of anything of substance to me was this discussion around how the department was working, our OH and S department, and basically Dr Darling was talking and he had an outburst at who he felt the problem was.

Q. What was his outburst? A. You want the full term?

Q. Yes? A. "You're the fucking problem".

Q. Did he use anyone's name in that? A. "You're" and he pointed towards Dr MacKinnon.

Q. Did he appear aggressive? A. I didn't take it - I couldn't see Dr Darling's face but I could see Dr MacKinnon. I was behind Dr Darling but in the context it appeared to be out of frustration.

Q. You said you could see Dr MacKinnon's face. What did you observe about it? A. He just looked down.

Q. Anything further you can recall about Dr MacKinnon? A. I don't recall him actually responding.

Q. Do you recall him in any way crying? A. No.

Q. Did anything happen after Dr Darling did that outburst, to your recollection? A. I think the course facilitators just intervened and it came to an end. Again similar type of thing, we put - if there was any - this happened with other - I think this happened with other situations as well. It would be put aside to be dealt with later if there was anything continuing, rather than interrupt the - the direction of the course as a whole.

Q. So this would be on about the Wednesday? A. I believe so." 351 Mr Blacket raised the subject of this incident in his cross-examination of Mr Keyte: "Q. I think this was Wednesday, Day 6, you described an interchange that took place when Dr Darling suggested that Dr MacKinnon is the problem; do you remember that discussion? A. Yes.

Q. You said the course facilitators intervened. Did other persons intervene, as well, in the sense of coming around to Dr MacKinnon and appearing to give him some sort of support? A. I think that the people sitting nearby him might have tapped him on the shoulder, you know, something like that.

Q. Of sympathy or extension of some feelings? A. Yes, but no-one came from any other rows. I think those around may have done that, something like that, I recall.

Q. Do you remember how long this interchange took place between Dr Darling and Dr MacKinnon? A. I do not believe it was very long, I mean minutes.

Q. Did Dr MacKinnon continue to participate for the rest of that session? A. Yes. 352 Mr Keyte also told Mr Blacket that at the "warm up" segment at the beginning of each days proceedings, all the participants were asked to state in a couple of words how they felt. He could not recall the Plaintiff saying anything in this exercise which alerted him to any problem he might be having. 353 Mr Hammond, in 1996, was employed in the compensation area of BHP. He was located at Port Kembla and was responsible to Ms Susan Cooper. He did not work with the Plaintiff and could not recall attending any meeting with him. When he arrived at the course on the Thursday night, however, he knew who the Plaintiff was. 354 He remembered having dinner one night, about midway through the course, a dinner which he particularly remembered because it was delayed. He said that the Plaintiff was quite active in conversation and spoke about his university years. He was also humorous. Nothing gave him any concern for the state of the Plaintiff's health. 355 He said that he remembered the human sculpture exercise which he thought, but was not certain, occurred after his dinner with the Plaintiff. He described the sculpture thus: "Q. And what do you remember of that event, firstly? A. It was done in the morning. I remember that the conference room where the course was held had large glass windows and Dr Darling was asked to put together a sculpture and I was part of - I guess the Port Kembla team, and so he involved me in that sculpture but he placed me way out towards the window and I had a view of the duck pond.

Q. How far away from Dr Darling were you? A. Oh, I was certainly to the periphery of his human sculpture. Right on the edge.

Q. And do you recall where Dr MacKinnon was? Was he further out than you, or inside you? A. Oh, I really don't recall but probably further towards Dr Darling than - than I would have been.

Q. Do you remember anyone out in Siberia where you were? A. Stephen Keyte who worked with me I think was out towards Siberia.

Q. And do you recall any interchange at that sculpture session concerning Dr MacKinnon and Dr Darling or-- A. No.

Q. Do you recall ever observing Dr Darling being upset during that sculpture session? A. No." 356 Asked by Mr Joseph whether there was a time he observed something unusual about the Plaintiff, he replied, "certainly on the last day, I observed that his behaviour was not normal". He said that he observed that the Plaintiff seemed "extremely fatigued" and vague and "certainly distant from the activities that were going on within the group". He related the incident of the Plaintiff putting his photographs on the floor and leaving them. 357 In cross-examination by Mr Blacket, Mr Hammond said that his work relationship with Dr Darling was such that "I fully expected to get placed out near the duck pond". 358 Mr Harmon told Mr Joseph that he used the opportunity of the course to seek to bring Dr Darling and the Plaintiff together. He arranged a meeting which he said occurred in a "break out" area with chairs. The Plaintiff, Dr Darling, Mr Harvey and himself were present. The meeting, he said, took place in the "middle beginning part of the Course" and lasted about 10 minutes. At the meeting, he said that the Plaintiff contributed and did not present in an unusual manner. 359 According to Mr Harmon, Dr Darling expressed frustration in relation to professional technical areas of dispute:

"But at the end of it, they both thought it was a good idea and - and my observation after that event, they actually were getting on well and communicating within the course, so I thought it had a positive impact and they were genuinely attempting to - to - to use the opportunity that presented itself". 360 As to the issue between Dr Darling and the Plaintiff, Mr Harmon said: "A. Look, it was more an issue of a - as I said, a professional difference. Chris felt that he - he wasn't getting through to Angus to - was looking for ways of educating Angus, getting him to understand, broaden his role, so it was all in that sort of context. So it was more related to that type of - in my mind, at least, at that point in time, it was really related to - to addressing those sort of issues and given, as I said, the course was very much about interpersonal skills and communication and - and the like." 361 Asked whether he heard Dr Darling say to the Plaintiff "You fucking bastard its all your fault", he replied, "No, I can't recall that. I have never seen Chris talk like that to, or address somebody like that. If he had I would have taken action". 362 Mr Harmon could not recall a session in which Dr Darling pointed his finger at the Plaintiff and said words to the effect, "You are the cause of all my problems" or any session in which Dr Darling confronted the Plaintiff in an angry manner.

363 In the human sculpture exercise, Mr Harmon recalled Dr Darling placing the Plaintiff on the outskirts of the group. He said he remembered the Plaintiff "seemed to look a bit put out", to the extent that he asked, "How are you going Angus", who replied, "Fine". Mr Harmon added "you are doing well", or something like that. Mr Harmon said he regarded the incident as innocuous. He said that he did not see the Plaintiff cry at that incident or at any other time during the course. 364 He did not recall Mr Blackman telling him of his concern about the Plaintiff's health. If that had occurred he would have done something, in particular, he would have spoken to the course leaders. He did, however, have concern about the Plaintiff's health on the last day and possibly the day before. He said on the second last day, he looked "washed out and exhausted". He did nothing about this observation. 365 On the last day Mr Harmon said the Plaintiff seemed even paler than he was the day before. He deliberately sat next to him in the bus from the course centre to Melbourne airport, intending to speak to him but, in the result, the Plaintiff slept all the way. 366 When they reached Sydney airport, he saw that the Plaintiff still looked pale and exhausted. He also noticed that his speech was unusually fast, in what he described as " a clipped, rapid speech way". Although, aware that the Plaintiff had his car at the airport, Mr Harmon arranged for him to take a taxi to where his wife was waiting at her parent's home. He asked Mr Harvey to telephone his wife and tell her what was occurring. Prior to this, the Plaintiff had never exhibited to him any incoherent thoughts. 367 Dr Darling met the Plaintiff on the bus from Melbourne Airport to the course. He said that he appeared pale and agitated. He said that during the evening Mr Harmon told him of a conversation with the Plaintiff wherein he told him that Dr Darling reminded him of his father by whom he had been abused. Later that evening, he, Dr Darling, spoke to the Plaintiff and told him that he was available to talk to him about issues between them. He also discussed the matter with Mr Boas who told Him, "Well anybody with half a brain could see he has got some problems so thank you". 368 Dr Darling seemed to have little recollection of the formal sessions but he did recall the meeting between the Plaintiff, Mr Harmon, Mr Harvey and himself, which he thought was organised by Mr Harmon and occupied about 45 minutes. As to what occurred during the meeting the transcript records: "Q. Do you remember what was it about? A. I think it was prefaced by Mr Harmon saying, "I don't know what's going on between you, Chris and Angus but we need to sort it out, so let's have a discussion about it".

Q. Well, what do you recall was said by you and what do you recall was said by Angus or Mr Harmon or Mr Harvey? A. Look, I have very little specific recollection of any of the comments that were made during that period of time. I remember, as I said, it lasted about 45 minutes and at about 45 minutes I made a comment like, "We're not getting anywhere here and I'm going to leave". So I walked away from the discussion.

Q. Well, do you recall swearing at Dr MacKinnon at this meeting? A. Swearing at him? Sorry?

Q. Well, in fact, did you ever say to the group, "You can all fuck off"? A. I don't have any specific recollection, but it was a fairly stressful time for a range of people, so I can't specifically say no.

Q. "It's all your fault", to Dr MacKinnon, "You fucking bastard"? A. That's not the way I normally speak, no.

Q. This is with Mr Harmon present? A. That's not the way I normally speak to people.

Q. During this time do you remember any contribution being made by Dr MacKinnon during the 45 minutes? A. No, I don't recall.

Q. That you became cherry red, raising your voice during this meeting? A. I don't recall.

Q. Do you recall discussing why it was that you had problems with Dr MacKinnon at this meeting of 45 minutes? A. As I said, I don't recall much of the detail of the conversation. " 369 He agreed that during the course he had verbal exchanges with both Mr Boas and Ms McKenzie. With Mr Boas, he said it was a "rigorous debate" concerning the way he, Dr Darling, carried himself, his body language and how people saw him. The exchanges with Ms McKenzie, he said, were much less confrontational concerning, "the prodding the pushing to try and help you explore and learn". 370 He said that he could not recall ever saying to the Plaintiff "It's all your fucking fault" or words to that effect. 371 He remembered the human sculpture exercise, which he thought occurred on day 2 or 3 of the course but, as I understand his evidence, could have been day 5 or 6. He said that close to him were Mr Harvey, Ms Delaney and Ms Ford. Farther away were Mr Keyte and Mr Hammond. Even further away was the plaintiff and still further Ms Cooper. He said that the Plaintiff became upset and was comforted by Mr Harvey and Ms Delaney. He said the Plaintiff asked him why he was placed where he was and he replied, "Because I don't see you as a full part - as close to me as the other parts of the group". 372 Asked whether he observed any change in the Plaintiff after the human sculpture, he replied: "A. My recollection is that during the course he gradually became more withdrawn and at the same time more agitated, and was engaged with a small number of people in fairly animated discussions at times.

Q. Did anyone ever report to you that he was ill in any way? A. No.

Q. If someone had been, if you had been told one of your employees was ill, what would you have done? A. I probably would initially have discussed it with Neil Harvey and I almost certainly would have shared it with the course conveners, as I shared that information on the first night." 373 After the course, Dr Darling was met by his wife and commenced a holiday in Tasmania. He did not travel with the others in the bus to the airport. He said that he remembered the Plaintiff on the last day as being both agitated and withdrawn. From Tasmania, he telephoned Mr Harvey to enquire about the Plaintiff and learned he was ill. 374 On December 16 1996, he attended a meeting at which Mrs Nandy McKinnon was present. The meeting was called to discuss the options for rehabilitating the Plaintiff back to work. At the meeting he was given the Plaintiff's letter to Ms Lisa Delaney, Ex 28: "Dear Lisa, At the moment I've got severe panic attacks and severe depression. I've been in hospital 3 times now. I've got to stay in until next year. I am keen to come back to work, but unfortunately my panic attacks have focussed on Chris and work overload. No blame should be attached to Chris, he just reminds me of unfortunate things that happened to me when I was young. For example forcing more work on my already overworked state. I am unfortunately really fearful of seeing him, so I need you to understand this. I want to come back, but not until they let me out of hospital. I probably need to report to Julian Caples or some other manager rather than Chris. Chris can still get me to work on projects through other supervisors. Direct and indirect contact and discussion with Chris of my personal medical problems (or much else) worries me extremely and is the reason why I'm back in hospital now (I've been thinking about it - that's enough to cause more panic attacks. I don't mind if you tell him the contents of this letter, so he can understand my problems and tell his wife ..thanks once again for the card she sent me Regards Angus PS I'd like to hear from Neil, but I've lost my voice so it's a bit hard to converse over the telephone. PPS I hope you all have a great Christmas and New Year!" 375 He said that the fact that the Plaintiff did not want to work under him came as no surprise. 376 In cross-examination, Mr Marshall asked Dr Darling whether before the last day of the course he had concerns about the Plaintiff's mental condition. He received the reply, "I had some observations about his behaviour. Did I have concerns? No, not specifically". He agreed with Mr Marshall that he did not speak to Ms McKenzie upon the subject nor, as far as he could recall, to either Mr Boas or Ms Shand. 377 Dr Darling agreed that he found the course emotionally confronting: "Q. That wasn't surprising to you, was it, given the knowledge you knew about the course before you went to it? A. I think the extent was surprising, yes.

Q. You knew it was going to be confrontational, didn't you? A. I didn't know it was going to be confrontational.

Q. Did you know it was going to be emotionally challenging? A. Yes.

Q. And you knew that it was going to involve you dealing with personal issues? A. My own personal issues?

Q. And you knew that at the time you had the discussions with Mr Harmon concerning the appropriateness of sending Angus to the course, didn't you? A. Yes." 378 Although Ms Shand did not give evidence, a three-page document compiled by her concerning the Plaintiff was admitted into evidence as part of Exhibit X. The first section of the document headed "Incident Report - Angus McKinnon" reads: "This is a record of events concerning Angus, starting from 27 September (Day 1 of SGLP 18). Angus was part of the OH&S group and it soon emerged (without anyone stating it explicitly in the group) that there were some relationship problems between Chris Darling and Angus, and that Chris believed that Angus was the cause of the problems in the group. Chris made reference to this in a MRG session without mentioning Angus' name. The following morning, before the start of the program, Chris, Neil Harvey, Tod Harmon and Angus met, and attempted to resolve some of the issues. The exchange was apparently quite heated, but concluded to the satisfaction of the parties involved. This was discussed during the MRG, and the OH&S group expressed their support for Angus. Sculpting of the group on Wednesday morning - Chris was asked to sculpt the group and put Angus way out of the OH&S group. When asked how he felt about this, Angus burst into tears and expressed his dismay at being left out, and felt he should have been in the group. Other members of the OH&S group said they shared this view. During the week Angus talked openly and intelligently about his feelings, about his observations of the group and its members. Angus appeared to be OK during the guest speakers session on Thursday, and interacted well with the Leadership guest speaker on Tuesday. However, on Thursday he came in the staff room and spoke to Liz, Phil, Col and me about how he was concerned about using his skills and how he might unintentionally damage people. He mentioned this again to me on Thursday evening, saying that he was aware that Phil had programmed some things in him but he was frightened of damaging people. Friday morning, Angus was unresponsive, lying on the floor during the MRG. When we checked with walk-talks that their partner was OK to return home and to work, Angus' W-T (Bruce Blackman) said he wasn't sure. Angus was vague and unsure. When his photo sheet was returned to him he took his photo and turned it face down on the sheet. He said nothing and looked pale and shaky. Angus came up to me and thanked me for everything during the week before he left for the airport." 379 It is unclear when Ms Shand's report was compiled but I infer from other sections of the document that it was probably written during October 1996 and thus is a reasonably contemporaneous and accurate record of the matters referred to. It is probably authoritative as to the human sculpture exercise occurring on the Wednesday morning, that is day 6 and as to the fact that the Plaintiff did have conversations during the course with herself and the other course leaders. 380 In dealing with the course itself, there is one further piece of evidence which I think should be mentioned. It is clear that participants were perfectly free to telephone their families and, seemingly, telephones were provided in each of the residential rooms. Nandy McKinnon said she thought the Plaintiff rang her twice from the course, on the Monday, which would have been day 4, and "a few days after that". In the first conversation he told her the course was "intense" but he was finding it "challenging". In the second conversation, he told her that the course leaders "are asking a lot of very personal intimate questions and trying to get all of us to disclose too much, I think".

381 She agreed with Mr Joseph that in effect nothing said in the telephone conversations suggested a person who was not coping or needed any help. 382 In my opinion, all the evidence given as to what happened during the course was given honestly. Having regard to the long hours each day, and the somewhat intense nature of the sessions, let alone the lapse of time since, it is unsurprising that recollections, particularly as to matters of detail are imperfect. 383 I am satisfied that on the Thursday night soon after arrival, Mr Harvey spoke to Dr Darling about the Plaintiff and he, in turn, spoke to Mr Boas, receiving a reply to the effect given in evidence. 384 I am satisfied that there was a meeting between the Plaintiff and Dr Darling in the presence of Mr Harmon and Mr Harvey during which Mr Harmon sought to effect a reconciliation or rapprochement between the Plaintiff and Dr Darling but which ended somewhat inconclusively. I am satisfied that there was a human sculpture, probably on day 6, in which Dr Darling placed members of his team in a way which upset the Plaintiff, and I am satisfied that at some point in the course Dr Darling pointed at the Plaintiff, in the presence of others, and said words to the effect, "You're the cause of all my problems". I am satisfied that at times during the course the Plaintiff presented as pale, nervous and anxious. I am satisfied that by the last day of the course his presentation was such that he was obviously mentally ill and this was observed by Mr Harmon, Dr Darling and Mr Harvey, who between them ensured that the Plaintiff arrived safely home where he could receive proper treatment. 385 Further, I am satisfied that the leaders of the course were, throughout, freely available and had appropriate systems and resources in place to deal with any physical or mental illness which came to their notice. 386 I do not, however, accept the evidence of Mr Blackman as to the extent he made known his concerns for the Plaintiff. If he was as concerned as he would have the court believe, I would have expected him, as the walk/talk partner, to report his concerns to one of the three leaders earlier than day 6 or 7 when, according to his testimony, he spoke to Ms Shand. Moreover, my opinion of Mr Harmon as a responsible and conscientious senior manager is such that I accept his evidence that if Mr Blackman had told him of his concerns, at the level he expressed them to the court, Mr Harmon would have taken action. 387 More than one witness suggested that Mr Blackman did not throw himself wholeheartedly into the serious or business aspects of the course and it is possible that, in truth, there was some neglect of his walk/talk responsibilities. TERMINATE PARTICIPATION ? 388 The question whether the Plaintiff should, in effect, have been ordered home by BHP during the course creates some difficulty. The breach of duty alleged somewhat differs in character from the alleged breach considered earlier, in that upon this aspect of the case, the Plaintiff's contention, as I understand it, is that his mental disorder during the course was patently manifest, as was the impact upon him of some of the events occurring during it, such as Dr Darling's accusation and his remote placement by Dr Darling in the human sculpture. 389 It followed, so it was contended, that (at some undefined stage) his continued attendance should have been prevented by BHP. Given the nature of the course and the absence of any expert evidence, I would not have regarded the two incidents mentioned above as intrinsically significant. Uninformed by expert evidence, they strike me as the sort of events very likely to arise in a leadership course involving senior executives of a large company. Stressful and upsetting, perhaps, but hardly likely, in my opinion, to be productive of psychiatric disorder in an adult holding a senior and responsible position. 390 Nor, in my opinion, was it proved that before the last day the Plaintiff displayed anything which might reasonably have been regarded as the onset of mental illness to those with whom he was in contact. He certainly exhibited signs of stress and anxiety but, on the other hand, there was ample evidence that during the course, in business sessions and in social intercourse, he contributed normally and sensibly. 391 Moreover, there were only about 26 participants, and I think it impossible to escape the conclusion that the course was conducted in such a generally caring atmosphere that florid symptoms of mental illness or signs that the course was responsible for an emerging psychiatric illness would have been detected early and appropriate measures taken as occurred on the last day, when undoubtedly the Plaintiff manifested a mental disorder. 392 The Plaintiff's description of himself as a "flagellant" might well have been perceived as a manifestation of what seems to have been a well-developed sense of humour and the plotting of his emotions at, or below, the neutral line seems to have been more or less the same as Mr Blackman. I do not regard these matters as particularly significant. Again, it is, I think, relevant to bear in mind that he was a doctor, experienced in occupational health matters. If he had concerns about the impact of the course on his health, he had the ready means of saying so to the course leaders. He also had the option of leaving, as one participant did, and one or two others, including himself, considered. 393 Another aspect worthy of mention is that although I do not think the cause to do so, reasonably arose in this case, the effective termination of the Plaintiff's place at the course would not have been something lightly undertaken. It obviously had the potential to impact adversely upon his career. 394 In the result, I do not regard the fact that BHP allowed the Plaintiff to complete the course as constituting a breach of its duty of care towards him. Although it was pleaded, in effect, that following the course BHP failed to provide appropriate assistance, such an allegation, in my opinion, could not be maintained as there was no evidence to support it. 395 Once he was home in the care of his wife, everything reasonably possible, in my view, to meet his medical needs was done. Within hours, appropriate medication was prescribed; within a week he was in consultation with an experienced psychiatrist and on the same day was admitted as an in-patient to the Evesham Clinic. 396 The findings I have made as to the absence of any breach of duty by BHP are sufficient to dispose of this action and to result in a verdict in BHP's favour. There being, in my opinion, no delictum, there is obviously no basis for determining the lex causae, it being common ground that the law as to breach of duty is the same in NSW as in Victoria. However, in the circumstances of the case, I think it appropriate that I say something about some of the other major issues. DUROMINE: 397 Much evidence, including that of two pharmacologists was given upon the subject of the Plaintiff's consumption of Duromine, probably in the period immediately prior to him going on the course. 398 A reference to Duromine appears in the history taken from the Plaintiff by Dr Klug at his first consultation on 11 October 1996. His notes record "was on Duromine (from father, a GP) last four months - one tab per day - stopped it at the course". 399 The Plaintiff's evidence on the subject given to Mr Miller was: "Q. Have you ever taken Duromine? A. Yes.

Q. When did you first take that? A. About a month before the Leadership Course.

Q. For how long did you take it? A. One month.

Q. Who prescribed it for you? A. My father.

Q. Why were you given Duromine, as you understand it? A. Because I wanted to fit into my trousers, I was gaining weight.

Q. What is the function of Duromine? A. It is an appetite suppressant.

Q. How long did you take it for? A. A month, four weeks.

Q. What effect did it have on your appetite? A. It made no difference.

Q. Did you notice anything unusual about your health whilst you were taking it? A. No.

Q. Did you notice anything unusual about it after you had finished taking it? A. No.

Q. Had you ever taken Duromine prior to that occasion? A. No.

Q. Have you ever taken it since? A. No.

Q. Have you ever self-prescribed it for yourself? A. No."

400 Mr Joseph cross-examined him upon the subject: "JOSEPH: You admit to taking Duromine immediately before the course. A. Yes.

Q. Had you taken it on any other occasion? A. I don't know.

Q. You had taken it on a prior occasion, when you were in general practice? A. Not that I remember.

Q. You told Dr Skinner in February of 2005, page 13, that you had taken it on an occasion when you were a general practitioner for one month? A. No.

Q. You deny you told Dr Skinner that? A. I don't remember telling Dr Skinner that.

Q. Were you trying to paint yourself black when you told Dr Skinner that you had taken Duromine? A. I don't recall what I was trying to paint myself at that point.

Q. Were you telling her the truth? A. Basically I wasn't sure.

Q. What was the purpose do you say of taking it on this occasion --

Q. The occasion just prior at the course? A. Why was I on it?

Q. Yes. A. Because I asked my father whether I could go on it for two months.

Q. Why? A. Because I didn't want to prescribe for myself.

Q. What was the problem that you were having? A. I was having trouble fitting into my trousers.

Q. That is not correct, is it? A. It is correct.

Q. You were certainly not obese? A. No, I wasn't.

Q. You certainly had not put on any weight during the time you had joined BHP, had you? A. No, I had put on weight.

Q. What do you say, what weight had you put on in the time you joined BHP to the time you went on Duromine? A. I basically put on weight when I sit down all day and eat because I am nervous and I gain weight.

Q. I didn't ask you why you put on weight, I asked you how much weight do you say you did put on from the time you joined BHP to the time you went on Duromine? A. I have no idea.

Q. Where did you purchase the Duromine? A. I don't remember." 401 Dr Klug was examined about Duromine by Ms McFee: "McFEE: Q. It is apparent from your reports, doctor, that you obtained a history in relation to the plaintiff taking a drug known as Duromine? A. Yes, that's correct.

Q. And what history did you obtain in relation to that? A. My initial history is that he had been taking it for some months prior to the course in a prescribed dose, a normal prescribed dose for - it's a drug that is - has an amphetamine like action or is in fact an amphetamine and it is used - was and still is, I think, used in low dosage because those types of drugs cause loss of appetite and weight loss.

Q. Notwithstanding the history that you obtained concerning his taking Duromine, you didn't come to any conclusion that the psychotic disorder that he presented with was substance-induced? A. I did not come to that conclusion, that it was substance-induced, that's correct." 402 Dr William McKinnon was also questioned upon the subject by Mr Miller as follows: "Q. Now I want to ask you about Angus consulting you in relation to weight; do you remember that? A. Only one period of time. It was about a couple of months before he went on the course. He said he was a bit fat around the stomach area.

Q. Did you have a look at him, examine him? A. No, I didn't. I just believed what he said.

Q. And what did he say to you? A. He said to me could I help him out in some form of diet tablet. I said, well, I'll give you some.

Q. What did you say you'd give him? A. Duromine capsules, 15mg, a low dose capsule.

Q. For how long? A. Just a course, I think it's 28 or 30. Just one a day but I warned him about it and I said he was not to get any more, you know.

Q. Did you ever prescribe him any more than the one month? A. No, not at all.

Q. Did he ever ask you for any more than one month? A. No, no, because he already had the lecture from me.

Q. That's the lecture that you gave him when you wrote it out? A. That's right.

Q. Did you have a practice or not have a practice of giving that warning when you wrote out that prescription for Duromine? A. All patients I did."

403 In cross-examination there was this exchange with Mr Joseph: "Q. Then you tell us however that just before he -- at some stage before he went to the course he came up to Sydney, and spoke to you about his weight? A. He may have; I can't remember that, he may have, but he possibly did, because that is the two months before when I gave him the Duromine capsule small dose of 15 milligrams.

Q. I am trying to work out how it was that he came to you, you told us? A. I was just visiting, and saying hello, and how are you, that's how it was I suppose.

Q. Did he come to Sydney especially to get this prescription off you? A. No, no, no, just came to see me; he would see his mother.

Q. This was one of the four or five occasions he would come up over this period? A. Yes.

Q. He came up to you to have this social visit and somehow or other the issue of his weight came up? A. I would say he mentioned the fact that he was a bit tubby round his waist.

Q. A bit what? A. Tubby, bit fat.

Q. You observed that or he observed that? A. He observed it.

Q. How tubby was he? A. Not that much, really. I wouldn't know, I couldn't tell you unless I examined him. I didn't examine him to see how much fat he had round his waist, he was just expressing an opinion about himself.

Q. Exactly, did you think in fact that maybe he was not a bit tubby? A. No, I didn't at all. I thought he was well built.

Q. Had he told you he had been to the gym? A. I can't remember.

Q. Did you know he had been going to the gym all through that period? A. No.

Q. Did you ask him what it was that had made him want to lose weight? A. No, I didn't really. Just came and asked could I help him with some dietive way of losing some weight.

Q. It came out of the blue? A. Yes.

Q. You didn't think of that fat? A. He had his clothes on so I wouldn't actually know, looking at him.

Q. You see, this is a drug that should only be prescribed in certain circumstances? A. Well, in familiar obesity, yes.

Q. It is a drug that should only be prescribed for not just -- it is marked obesity, not just slight obesity? A. Through my years of practice you get mostly women come, anything to slim down, you know, get a nice little waist, so I would prescribe Duromine, a very common thing, over many years. It was a safe capsule to give out.

Q. How many men would come in and ask for Duromine? A. Some men, mostly women. After pregnancies, it's, you know, they want to slim down.

Q. Surely you would have enquired a little bit about the need for it before you -- A. The patient, sorry, the patient, yes.

Q. I am talking about your son? A. He has been a doctor, he knew all about Duromine, he knew all about the side effects, things like that.

Q. You are a doctor, you are the one he is asking to sign the prescription? A. Yes. I was not prepared -- I gave him a --

Q. He has not tried to do it himself? A. No, but I gave him a lecture on Duromine; "I am not going to give you another prescription of it Angus".

Q. I suggest to you that lecture either didn't occur or was tongue in cheek, or because you would have never given him the prescription in the first place because you have concerns about it? A. Well I knew, common sense, to give him a trial of one month would either show he was losing weight or not losing weight. I was not prepared to give him any more.

HIS HONOUR: Was it an appetite suppressant? A. Yes.

Q. Side effects? A. Sides effects, you can become agitated or nervous. You would be very careful who you gave it to someone with cerebral -- thyroidism or pregnancy, or psychotic, you wouldn't give it lightly."

404 Professor Graham Starmer has been practising as a pharmacologist for 40 years. He is presently an Honorary Associate Professor of Pharmacology at the University of Sydney. 405 In his report of 27 January 2006, Professor Starmer said that Duromine is a proprietary presentation of phentermine. He concluded the report with these paragraphs: "Adverse reactions to normal or (usually) elevated doses of phentermine include nervousness, tremor, confusion, headache, tachycardia, hypertension, hallucinations, psychotic episodes, nausea, vomiting, rapid respiration, cardiac arrhythmias, hyperthermia, convulsions and circulatory collapse (Baselt, 2002). Despite the potential of phentermine to cause a wide range of toxic effects, I consider that it would be unlikely for side-effects of Duromine to occur some time after the patient stopped taking it. Furthermore, as noted above, where psychiatric side effects occur, they would be expected to dissipate as the concentration of the drug in the blood declines. In view of the known properties of the Duromine preparation, I consider it unlikely that this drug, if taken as directed over a relatively short period, would have been a causal factor in Dr MacKinnon's acute illness episode." 406 His evidence in chief to Mr Marshall contained these excerpts: "MARSHALL: Q. Doctor, you have concluded at paragraph 7 on page 5 that it would be unlikely for side effects of Duromine to occur some time after the patient stopped taking it. I want you to consider that opinion in the light of the following facts: Dr Mackinnon took the lowest dose of Duromine, 15 milligrams, took it daily, took it for one month preceding the course stopping I think the day before the course commenced? A. Yeah.

Q. Would that history cause you to change your opinion? A. Not really. There is a possibility that untoward effects could have occurred, but I would rate the possibility fairly low.

Q. In terms of likelihood or unlikelihood? A. Unlikely.

Q. Can you explain why you-- A. Well, the dose is small. Any effects I would - any untoward effects would be expected to have occurred somewhere during the course of treatment, not right at the end or after the end of treatment. ………………………………………. Q. If the facts were different to that I have put to you, namely, that he had taken the drug for a four month period on a daily basis at a dosage of 15 milligrams, what do you say the likelihood or otherwise of side effects occurring during that time if there were any to occur? A. I don't think the experience with this particular formulation would suggest that there was any great chance of untoward effects occurring, but at the back of your mind you always have to keep the notion that phentermine is an attenuated amphetamine and theoretically it is capable of producing side effects.

Q. In terms of the experience over a four month period, would you expect it to be more likely or less likely if there were to be side effects, would they become apparent during that time? A. I think so. I mean for most drugs if you are going to get side effects they occur early, but not, obviously, always." 407 Cross-examination by Mr Joseph included these exchanges: "Q. But, as you say, there is a significant body of literature concerning the clinical observations of people taking amphetamines and associated drugs? A. Yes, yes.

Q. And there is no doubt that there is such a thing as amphetamine psychosis? A. Oh yeah.

Q. And without doubt, it can often mimic many of the symptoms of schizophrenia? A. Yes. ………………………………….. Q. Now what I want to ask you, Doctor, and I don't know if this is within your area of specialty or not-- A. I will say if it isn't.

Q. --but the effects of drugs on psychiatrically vulnerable people as opposed to normal people or people without a vulnerability? A. Yeah.

Q. Is there a distinction? Do you feel confident to tell us as to literature or knowledge that you have as to the variations that might occur in consequences if the drugs were taken in those two classes of people? It might be obvious to say. A. It is, it a commonsense observation, but further than that you'd have to talk to a psychiatrist.

Q. Thank you, Doctor, I appreciate your frankness. Commonsense tells you, for example, that a person with, let's assume, a significant vulnerability at the time of taking a drug could in respect of even the minimum dose of Duromine have more significant consequences than a person who did not have such vulnerability? A. Yes, I think that would be possible-- ………………………………………. JOSEPH: Q. Doctor, I am just trying to find out whether there is anything else in the report that helps us on this issue as to when you assumed he stopped taking the drug. A. Let me see if I can find it.

HIS HONOUR: The paragraph at the top of page 3 suggests that he stopped taking it about a month before the course.

JOSEPH: That is the one inference, your Honour. I don't know, your Honour. He was given a course of it.

MARSHALL: Yes, 30 tablets, the second last line at page 2.

JOSEPH: Q. Doctor, I should complete that point. You are unable to identify with any degree of probability as to what your instruction was as to when he last took the Duromine? A. It does appear so.

Q. Doctor, I want you to assume that the plaintiff had - I don't know if you know the term, prodromal? A. Yes.

Q. He was in the prodromal stage at the time he was taking the Duromine? A. Yes.

Q. Of course, you would know that a prodromal stage is the antecedent of fully blown schizophrenia? A. Yes.

Q. If the plaintiff was at that stage and assume it wasn't known at the time, but that he then took Duromine, that would significantly increase the likelihood that some of the symptoms which occurred on the course, and I will come back on to those, were materially caused by the drug itself? A. Well, they could have been.

Q. Is this your position, Professor: One never can know with certainty what is the cause of psychotic events? A. Yes.

Q. They can be drug related, there is no issue about that? A. Yes.

Q. They might not be drug related even though in the presence of drugs? A. Or they might be related to the absence of drug.

Q. Yes. But they can certainly be accelerated by the use of drugs? A. This particular drug has the potential to do it. I have said that consistently." 408 Mr Blacket tendered the report of Professor Jason White dated 11 April 2006. Professor White holds the positions of Professor (Chair of Addiction Studies) and Head Discipline of Pharmacology University of Adelaide. He was asked, inter alia, to make these assumptions. "The Plaintiff consumed Duromine (or Phentermine) for a period prior to the SLP (Steel Leadership Course), because he was reportedly concerned with his weight which he wanted to lose. However, there is no evidence that the plaintiff was obese prior to commencing Duromine. In the month prior to the SLP, the Plaintiff is reported as having lost 6kg (report of Stephen Davison dated 29 February 2000) There are conflicting reports as to how much Duromine the plaintiff took and over what period of time. The majority of reports state that the Plaintiff took Duromine for two months prior to the SLP, but allegedly stopped the day before the course. However, there is a possibility that the Plaintiff consumed Duromine for four months prior to the SLP, or on two occasions for one month duration prior to the course and one month at some time before that. It is possible that the Plaintiff took Duromine for longer periods of time and may have in fact been a chronic user, however, there is no evidence of that. Dr Skinner reports that "while he was working at BHP, Dr MacKinnon was taking the weight reduction drug, Duromine". The Plaintiff's father, Dr William Ewen MacKinnon, is said to have prescribed the Plaintiff (his son) Duromine (15mg daily for one month). The Plaintiff is also reported to have been consuming large amounts of caffeine. The amounts reported in the medical reports vary from a range of 10 to 20 cups per day or approximately 15 cups of coffee per day. The reports indicate that this was consumed while taking Duromine." 409 He was also provided with numerous reports as to the Plaintiff's mental illness. 410 Professor White's report contains the following passages: "Does the literature support an association between Duromine and psychosis and are there predisposing factors? There are two lines of evidence to support an association between Duromine and psychosis. The first and most direct is that there are case reports in the clinical literature of people experiencing psychosis in response to administration of Duromine. It should be noted that in these cases the people have typically used Duromine in amounts in excess of the recommended therapeutic level. The second line of evidence is that such effects are consistent with those produced by amphetamine and other similar stimulants. The symptoms induced by stimulants mimic a broad range of schizophrenic symptoms. They include positive symptoms such as persecutory delusions, extra sensory perception, ideas of reference, thought insertion as well as auditory, visual and tactile hallucinations. Negative symptoms of psychosis are also experienced and these include flattened affect, psychomotor retardation and poverty of speech. In the absence of other information it can be difficult to differentiate a stimulant induced psychosis from acute schizophrenia. It is also known that administration of amphetamine-type stimulants to people with schizophrenia worsens the symptoms of that condition. On the basis of this evidence and the general clinical impression that many people have gained, it is usually supposed that those with a predisposition to schizophrenia are more likely to experience psychosis as a result of administration of amphetamine or an amphetamine-like stimulant such as phentermine. This is supported by our understanding of schizophrenia as a disorder that arises principally from over activity of the neurotransmitter dopamine in the brain. The evidence that drugs such as phentermine and amphetamine increase dopamine activity suggests that those who have an underlying biological predisposition to schizophrenia may have some degree of brain dopamine overactivity and will therefore react more strongly to a drug such as phentermine. Such a reaction could potentially include a psychotic reaction. What effect can the consumption (including a sudden cessation) of Duromine have on a person and can it precipitate a psychotic episode in a percentage of individuals? Duromine produces a range of effects on a person. These include physiological changes such as increased heart rate, blood pressure and body temperature. With a standard therapeutic dose of Duromine these effects are likely to be relatively small in magnitude. Other effects may include some degree of arousal and diminished fatigue. If taken late at night it is likely to cause difficulty in sleeping. The drug also suppresses appetite. This effect is usually of limited duration so that within a few weeks of taking Duromine no further weight loss occurs if the dose is kept constant. If a person takes a dose of Duromine that exceeds the normal prescribed amount, adverse effects can occur that may include significant increases in blood pressure and heart rate with a risk of heart attack and stroke. The person may be over-stimulated and may appear to be restless, not thinking clearly and sometimes with an exaggerated self-confidence. Psychotic episodes that may include hallucinations, delusions and paranoia may be experienced. The exact effects of Duromine will depend on the dose taken and the characteristics of the individual. The larger the dose that is taken the stronger the effects that will be experienced. In particular, if the person exceeds the normal therapeutic dose range and the range of doses to which they are accustomed, then adverse effects such as those described become more likely. At these higher doses the effects of phentermine more closely resemble those of amphetamine. At normal therapeutic doses, only mild effects of the drug would be expected. Nevertheless, there is some variation between individuals in response to any drug and the same applies to Duromine. The factors determining whether or not a person experiences psychotic symptoms are not entirely understood. It is unlikely that a normal therapeutic dose would cause psychotic symptoms unless the person already had schizophrenia or was in a prodromal phase of schizophrenia. In such a person, the dose of Duromine that might induce psychotic symptoms would be significantly less than for a person without schizophrenia and with no predisposition to schizophrenia.

Cessation of Duromine can result in a withdrawal syndrome. Although the syndrome is not well documented for Duromine, it can be predicted based on the known withdrawal symptoms for other amphetamine-type stimulants. Thus, the symptoms are likely to include fatigue, excessive appetite, depression, irritability, aggression, diminished activity and dysphoria. The magnitude of withdrawal symptoms will depend on the amount of Duromine consumed by the person prior to cessation. It would be expected that with a normal therapeutic dose of Duromine the withdrawal symptoms would be relatively mild. The symptoms are likely to commence the day following the last dose of phentermine and would peak within three to four days of last use. They are likely to be at a low level and possibly non-detectable by a week to 10 days after last use. …………………………………. What effects would consuming high levels of caffeine have on a person who was also consuming Duromine? The effects of caffeine combined with Duromine would likely be additive. That is, it would be expected that the combined effects of each of the drugs would be experienced by the individual. There are, however, several sets of symptoms that overlap between the two drugs. It would be expected that the magnitude of arousal may be elevated by the combined use of Duromine and excessive levels of caffeine, compared to use of only one of these drugs. The degree of arousal may appear to external observers to be exaggerated and may be associated with anxiety and nervousness. Even with a therapeutic level of Duromine, the total amount of stimulant drug being consumed in someone drinking 10 to 20 cups of coffee a day and taking Duromine is very large. It may also be expected that there could be some difficulties in sleeping and if insomnia was experienced, the person may have difficulty functioning normally due to sleep deprivation and/or sleep disturbance. The other potential area of overlap concerns psychotic symptoms. In large doses Duromine has the potential to produce psychotic symptoms or to increase the risk of psychotic symptoms in those who have an existing schizophrenic condition or some predisposition to it. Caffeine has lesser effect but may also produce some increase in the risk of developing psychotic symptoms. When combined, it would be expected that the risk of psychotic symptoms would be enhanced as a result of consumption of the drugs at these levels. What effects if any would a person suffer as a result of suddenly stopping a course of Duromine? If any symptoms would arise, when would they be expected to occur? Would they be observable? Ceasing use of Duromine is likely to result in a withdrawal syndrome that will include symptoms such as depression, sleep disturbances, fatigue, irritability, aggression, excessive appetite and dysphoria. The effects are likely to commence the day following the last dose of Duromine and are likely to peak within the first three to four days after cessation. By approximately 7 to 10 days after last use the effects are likely to be at a very low level. Could the consumption of caffeine together with Duromine and then suddenly ceasing taking Duromine cause a psychotic episode in a person, in particular, the Plaintiff in these proceedings? Use of caffeine and Duromine is most likely to cause psychosis when the two drugs are being taken. It appears that the Plaintiff in this case had taken both drugs (that is, caffeine in excessive quantities and Duromine) in the period prior to the leadership course and possibly for many years. If this drug combination caused a psychotic episode during the Leadership Course, then it is likely that he would have experienced adverse effects of the drugs at an earlier stage. There is some evidence that the Plaintiff did exhibit signs and symptoms that could be attributed to the consumption of high doses of caffeine and Duromine. These are noted, in particular, in the reports of Dr Rod Milton (20/9/98 and 3/4/06) and Prof Gordon Johnson (6/2/01). In the months prior to the leadership course, Dr Mackinnon experienced a number of symptoms consistent with combined use of Duromine and large amounts of caffeine. These included urinary frequency, tension headaches, cold extremities, insomnia, rapid speech, acting and feeling under pressure, anxiety and frustration. While Dr Milton and Prof Johnson attribute these to consumption of Duromine, it is also likely that the caffeine consumption played a significant role. In particular, urinary frequency is likely to be due principally to caffeine rather than Duromine, while caffeine could play some role in headaches, insomnia and anxiety. Could the consumption of Duromine and/or the sudden cessation of it, have played a causative role in the development of the Plaintiff's psychotic state, on the balance of probabilities? On the evidence presented to me, Duromine could have played a causative role. The Plaintiff had apparently been consuming the drug on a regular daily basis for an extended period of time. It would normally be expected that he would have developed some degree of tolerance to the drug. However, there is evidence of adverse effects that are consistent with use of Duromine together with high doses of caffeine. The diagnosis of a prodromal schizophrenia prior to the course indicated that the Plaintiff was a susceptible individual and/or that he was at that stage experiencing some pro-psychotic effects of his stimulant use. These may have worsened during the period of time he attended the course. The extended nature of his condition does not preclude a role for Duromine as there are reports of psychosis commencing with amphetamine use but continuing or recurring. It is unlikely that cessation of Duromine use itself played a causative role in the development of the Plaintiff's psychotic state excepting that it may have increased his general level of psychological distress." 411 I have found it impossible to assess the part, if any, the consumption of Duromine by the Plaintiff played in this case. The conflicting accounts given by him as to the period or periods during which he took the drug and as to when he stopped taking it, render his evidence on the subject, unreliable. His father's evidence on the subject was also rather vague and I could not rely on it. 412 The opinions of Professor White, which I accept, indicate that some or all of the aspects of the Plaintiff's presentation in the months prior to and during the course, which were remarked upon by various witnesses, could have been due to his consumption of Duromine, rather than psychiatric disorder. This may have been the case, but the question, whether or not it was, lost much of its significance when the Plaintiff abandoned that part of his case which alleged, in effect, that the manner of the exercise by Dr Darling of his managerial responsibilities (aside from inviting and permitting him to attend the course), in the months prior to the course, constituted a breach of BHP's duty of care. The issue of breach of duty, in the result, came to be determined upon the Plaintiff's presentation, and the signs given by him, however caused. PLAINTIFF'S MENTAL ILLNESS: 413 The nature or diagnosis of the Plaintiff's illness was a subject upon which there was disagreement between highly experienced and qualified psychiatrists. The question was important to the issue of causation. On the part of the Plaintiff, it was contended that he suffered the mood disorder of major depression with psychotic episodes. On behalf of the Defendants, it was claimed that the Plaintiff was, by the end of the course displaying florid symptoms of schizophrenia, a psychotic disorder from which he continues to suffer. 414 Schizophrenia is classified in DSM - IV-TR, Exhibit AE, as a disorder "that includes psychotic symptoms as a prominent aspect of their presentation". In contrast, mood disorders comprise disorders that have a disturbance in mood as the predominant feature. For instance, the mood disorder known as Major Depressive Disorder is characterised by one or more major depressive episodes. 415 So far as the evidence in the case relates, the proponents for the diagnosis propounded by the Plaintiff were Dr Peter Klug, Dr Philip Morris and Dr Jonathan Phillips. The Defendant's position was supported by Professor Nicholas Keks and Dr Rod Milton. There was reference in the evidence to differing views expressed by other psychiatrists whose reports were not tendered. 416 As I have said Dr Klug has been the Plaintiff's treating psychiatrist since 11 October 1996 and for that reason, I think, his opinions should be given particular weight. Many of his reports were tendered in evidence, as were his notes. He gave evidence over 8 days. 417 Initially, as appears in his notes of 11 October 1996, he recorded a diagnosis of "schizophreniform illness", however, as will appear, he quickly moved away from that diagnosis. 418 In his earliest report dated 30 January 1997 to BHP, he said that his provisional diagnosis was "reactive psychosis" but he subsequently changed this to "psychotic depression" which he said, as at January 1997, was in partial remission. A number of supplementary reports were sent to BHP. The first of a medico legal nature was to the Plaintiff's then solicitors dated 27 October 1997. In that report he repeated his diagnosis of "severe psychotic depression now in partial remission", which he attributed to the Plaintiff's experiences at an "encounter group" organized by BHP, at which "extremely poor professional control, monitoring, illness recognition, and duty of care were evident". 419 More recently on 21 April 2006, Dr Klug summarised and restated his views in a letter to the Plaintiff's solicitors which, inter alia, offered comment on a report by Dr Milton: "Dr MacKinnon clearly became unwell during the leadership course in Melbourne in 1996. This is the history I obtained at initial interview and he has been consistent about this since that time. This is also the history I have obtained from his wife. Both he and she state that, prior to departure for the leadership course, there was no significant history of psychiatric illness and certainly none suggestive of psychosis. However, he returned from the course in a psychotic state. There is little to suggest that Dr MacKinnon was a vulnerable person prior to his staring work with BHP. Despite some assertions otherwise, he was not psychiatrically unwell while he was living in Ireland and completing his medical degree. He had a probable adjustment disorder with a depressed mood at the time he was working in Mr Isa when his wife was diagnosed with a potentially terminal illness and underwent a mastectomy. He saw Dr Gertler, a psychiatrist, at that time and Dr Gertler's opinion is referred to in the body of my report and the reports of others. Dr MacKinnon suffered infectious mononucleosis (glandular fever) years ago and took some time off work. It is well known that this condition can cause chronic tiredness as well as a variety of other complications and it would be grossly assumptive to nominate this as a psychiatric episode. At the time I first saw Dr MacKinnon he was floridly psychotic and in this state made passing references to difficulties in his childhood. These have not been reiterated since his symptoms have ameliorated. On interview with his family, there is nothing to indicate any abnormality during his developmental years or any disturbed family dynamics. To the contrary, Dr Mackinnon's parents and siblings, whom I have met - in the case of Dr MacKinnon's parents on many occasions - impress me as nothing but normal, supportive, empathic people who are understandably concerned about their son/brother. In the history I have taken from Dr MacKinnon and his wife, it is apparent that there were increasing stresses at the workplace, particularly with Dr Chris Darling, his superior, over a period of approximately twelve months prior to his attendance at the leadership course. This gave rise to significant and increasing anxiety for Dr MacKinnon. It is my view that the leadership course was very stressful and conducted in a very intense manner. It went for eight days. Apparently each session was approximately ten hours long to my knowledge. It was an exhausting process. Open confrontation was allowed to occur, particularly between Dr MacKinnon and his superior, Dr Darling. It is my view that this was severely stressful for Dr MacKinnon. This was particularly so as it is clear that Dr MacKinnon became progressively unwell, probably from about day two but no appropriate support or intervention occurred. I note the comments by Mr Blackman and I refer you to the body of my report. It is well known, as I have discussed in my report of 1997, that encounter-style groups are of ethical concern and have the potential for causing severe psychiatric problems. Dr MacKinnon was using Duromine, a stimulant for the purpose of weight loss, in the period leading up to the course, but he was not abusing this drug and was taking it in a recommended dose. In this dose, it is most unlikely that such a drug could cause a psychotic episode. Following the resolution of his initial psychotic episode, he experienced intermittent psychotic symptoms. These, however, were in the context of an affective presentation (i.e. a mood disorder) characterized by depressive features and periods of marked anxiety and agitation. A prominent aspect of Dr MacKinnon's symptomatology has been a fear of becoming psychotic again. When Dr MacKinnon becomes excessively anxious and agitated he tends to have a restricted affect rather than a blunted, flat or inappropriate affect. He also engages in repetitive movements such as rubbing his thighs or stamping his feet when he is seated. I believe that these are symptoms of excessive anxiety. They are not persistent. They are intermittent and worse in situations when he feels under pressure such as medico-legal assessment interviews. His on going symptoms following the leadership course were in the context of a persistent failure of resolution of workplace tensions and also the eventual cessation of liability and workers compensation payments. Dr MacKinnon's treatment has required frequent appointments, although at times they have been less frequent when his state has improved. He has required intermittent in-patient treatment. He has responded to electroconvulsive therapy which is a treatment primarily used in mood disorders. He has also responded best to an antidepressant regime in conjunction with a major tranquillizer (or antipsychotic) belonging to a class of the more modern drugs known as the atypical antipsychotics, such as Zyprexa (olanzapine), Seroquel (quetiapine) and Abilify (aripiprazole). These atypical antipsychotic agents are widely used in the management of a variety of mood disorders and are viewed as adjunctive treatment agents for mood disorders. They are not simply used for the treatment of schizophrenic illnesses. Dr MacKinnon in his current state (and for a considerable period of time) does not have any psychotic symptomatology. He does not experience delusions and hallucinations. There is no current formal thought disorder. His affect is normal. Generally his state has improved and his current state is the best it has been since he became unwell. His current medication is an antidepressant and an atypical antipsychotic agent. He also attends a psychologist, Ms Louise Shepherd, for management of his excessive anxiety. He has also been using mindfulness techniques under another psychologist which he finds helpful. He is academically successful and continuing to make considerable academic achievement. He and his wife have recently had a second child and he greatly enjoys his family. His relationship with his wife is good. He enjoys good relationships with his parents, siblings and family-in-law. His personal life is not characterized by any significant conflict. Dr MacKinnon has insight into his prior psychotic experiences. When he becomes very anxious or overtly depressed he becomes intensely fearful of experiencing such symptoms and has suffered a partial and transient loss of insight at such times. There are no prominent negative features of schizophrenia to suggest that he has a schizophrenic illness. He certainly does not lack motivation, which is a common negative feature of schizophrenia. He is not suffering a cognitive decline and, to the contrary, appears to be achieving well in his studies. His affect is normal unless he is very anxious or depressed. The general course of his illness is affective in nature. Not only is there an absence of an overall decline in his state, he appears to be improving. Kraepelin, one of the pioneers of modern psychiatry, argued that schizophrenia was characterized by an early onset followed by a chronic and deteriorating course with a deject end state. I t has become apparent that there are more optimistic outcomes with the group of schizophrenic illnesses especially where there is treatment intervention. Schizophrenia is a serious disease and it is clear that there are a variety of long-term outcomes. Although this group of illnesses does not always result in a greatly deteriorated state, it is nevertheless apparent that in the majority of cases there are severely adverse outcomes. Dr MacKinnon's state is improving. It is of note also that schizophrenia typically has an early onset. This was not the case with Dr MacKinnon. My diagnoses, which have been elaborated while commenting on Dr Milton's report, are: Brief psychotic (or possibly schizophreniform) episode (in remission) and a chronic major depressive disorder with mood incongruent psychotic features (in partial remission). The latter may be conceptualised as a schizo-affective disorder. It is also of note that there have been significant anxiety-based features, which wax and wane. I believe that the leadership course in the context of the preceding work-related stresses at BHP has been a substantial causative factor with respect to these illnesses. 420 Dr Philip Morris of Ashmore Queensland, Consultant Psychiatrist, provided 5 reports, the first dated 2 May 2005 and the last 21 September 2006. 421 In the first of the reports, he recited a history which included: "Over time he began to believe that he was being placed in an unethical situation where the interest of managers and the plant was being put ahead of the interest of the injured workers and their rehabilitation. Over the three months from June to late September 1996 (when he undertook the Leadership Course) he became more preoccupied with his legal and ethical liabilities arising out of this clinical situation and the conflict it raised with his supervisor Dr Darling. He would fear Dr Darling would burst into his office. He would panic on the way to work thinking about these fears. In response to these concerns he became preoccupied with safety, the way patients seemed to be alienated from the works medical service and himself, and his medical responsibilities. He began to work harder and saw more patients and did not take lunch breaks. He often slept in his car during lunchtime because he did not have enough time to go home. After, work he was preoccupied and worried at night time with work related issues, he took work home with him to do at night, and often could not get off to sleep. He became fatigued. He was drinking four to five cups of coffee a day and tended to urinate more frequently. Because of the extra work, he was not able to exercise and noticed that he was becoming unfit and gaining weight. He wished to lose weight and asked his father (a medical practitioner) to prescribe a weight loss medication, Duromine, 15 mg a day, (a mild stimulant) to assist him lose weight. He took this medication as prescribed for one month from August to September 1996. The medication did not diminish his appetite and he did not notice any side effects from the tablet. He had taken Duromine twice in the past for a month each time to try and suppress his appetite. The most recent time had been two years before this episode. Over the three month period from June to September 1996, he became increasingly angry with Dr Darling and had confrontations with him. During this period he claims that Dr Darling claimed he contributed to the death of a plant worker who had been cut in half by a train because he had not ordered certain eyesight tests by the medical service nurses. He felt that Dr Darling had a conflict of interest in that he was placing unreasonable demands on him as his direct line manager and yet was also responsible for his supervision in the occupational medicine training program. He noted that he was placed on weekend duties at the plant more often that the other doctors and felt this indicated that Dr Darling was discriminating against him. 422 Under Mental State examination, Dr Morris said: "On examination he was a man of average build who sat in a rather stilted fashion repeatedly stroking his thighs with his hands during the interview. The stroking was more prominent at the beginning of the interview but diminished towards the end of the interview. The stroking of his thighs seemed to be a manifestation of anxiety. He showed no significant distress but had a rather constricted or anxious way of communicating and was not openly cheerful or gregarious. There was no abnormality in speech. His affect revealed anxiety with occasional periods of despondency. He was not emotionally labile. His mood was euthymic. There was no abnormality in thought form. His thought speed, stream, possession and coherence were normal. There was no abnormality in thought content. There was no evidence of delusions, or fixed ideas. He had no abnormality in perception. There was no evidence of hallucinations or illusions. On the day of examination he did not express any suicidal or homicidal ideas. He had not been feeling suicidal for some weeks but had been feeling suicidal the last time that he had been depressed. He was alert and orientated. His attention and concentration were unimpaired to gross testing. His memory was intact. He was of above average intelligence and showed good verbal fluency and a considerable vocabulary. His judgment and insight were unimpaired. In particular, he had insight into previous periods when he suffered distortions in thinking and perception. I conducted a brief cognitive examination using the Heidelberg Cognitive Screen. He generally performed well on this screening assessment of cognitive function except for the fact that he had one episode of difficulty with comprehension; He took a prolonged time to do a simple calculation. He also made an impractical response to a question requiring some judgment. I interpreted these results as being evidence of performance difficulties related to his anxiety and tension that was present during the examination." 423 Dr Morris discussed differential diagnoses in these paragraphs: "During the three month period leading up to the Leadership Course, it is possible that his experience of anxiety, frustration and ethical concern was due to an earlier onset of a psychiatric illness such as a depressive disorder or schizophrenia. I think this unlikely as there was no evidence of depressive mood disturbance, nor was there evidence of psychotic symptoms or behaviour. Dr MacKinnon's experiences during this period might be explained by his use of Duromine. I think this unlikely as he was taking only a small amount of this medication, and it has a short half-life and his anxiety and concerns went well beyond the time the medication would have had its maximum effect following ingestion. During this time he was drinking four to five cups of coffee a day. While the coffee may have contributed to his need to urinate more frequently, it is unlikely that this amount of coffee would induce anxiety symptoms. The main differential diagnosis for the initial psychotic episode is a severe major depressive disorder with psychotic features (some mood incongruent). While the distinction between a brief psychotic disorder with prominent affective features and a severe major depression with psychotic features is difficult, in this case the sudden onset of the condition during a period of stress (the Leadership Course), the perplexed mental state, and the fluctuant nature of the depressive symptoms points to a brief psychotic disorder as the most likely. The initial psychotic illness may be considered to have been an episode of bipolar disorder (manic/hypomanic phase). I think this unlikely as there is no past or family history of bipolar disorder, and, other than being talkative for a short period (said to reflect his usual communication style), there were no other symptoms of mood elevation. It is possible that he developed the initial psychotic illness in response to the Duromine sympathomimetic medication. I do not think this likely because he was only taking a small dose for one month prior to the Leadership Course and he had stopped taking the medication by the time the course started. His psychotic experiences built up as the course progressed, a feature that would be inconsistent with a stimulant induced psychosis which should fade rapidly with the excretion of stimulant. Some individuals can experience dysphoric mood for a short period after ceasing stimulants. However, this usually only occurs in situations where the individual has a prolonged and heavy addiction to the stimulant - not the case with Dr MacKinnon. As well, Dr MacKinnon's initial illness was a much more pervasive and profound disturbance than isolated mood dysphoria, again inconsistent with a condition induced by Duromine cessation for these reasons Duromine is unlikely to be the cause of his initial illness. The chronic psychiatric condition that followed the initial psychotic disorder raises the possibility of a diagnosis of schizophrenia or schizoaffective disorder. Schizophrenia is unlikely in this case because the psychotic features (hallucinations and delusions) only occurred at the time of prominent mood disturbance and their total duration has been brief compared to the periods of depressive illness. Schizoaffective disorder is unlikely because during the course of Dr MacKinnon's illness there have not been any significant periods of time where the psychotic symptoms were present in the absence of prominent mood symptoms. The good insight demonstrated by Dr MacKinnon into his psychotic symptoms goes against the diagnosis of schizophrenia. 424 In the result, Dr Morris summarised his views: Dr MacKinnon had no ongoing psychiatric problems until three months before the BHP Leadership Course in late September 1996. Over a three month period he became anxious, preoccupied, distressed and angry about workplace conditions and the way he was being treated by his supervisor, Dr Darling. These symptoms escalated and were aggravated when he attended the Leadership Course where Dr Darling was a participant. During the course Dr MacKinnon became acutely psychotic and soon after returning to home had to be hospitalised for treatment of a brief psychotic disorder. This condition improved but developed into a recurrent major depressive disorder and an anxiety disorder NOS. These two conditions have become chronic. The depressive disorder has improved (but not resolved) over the past two years, but the anxiety condition has remained constant." 425 In a report to the Plaintiff's solicitors dated 8 May 2006, Dr Morris discussed in greater detail his reasons for rejecting schizophrenia as the appropriate diagnosis: "Dr MacKinnon's enduring psychiatric illness is a chronic major depressive disorder accompanied by psychotic features and an anxiety disorder not otherwise specified (a pan-anxiety state). Assuming that Dr MacKinnon's ongoing presentation is predominantly mood based, I do not believe the diagnosis of schizophrenia can be justified. I say this for the following reasons: Dr MacKinnon's history obtained on examination by me, and its description in other medical reports, particularly the reports of his treating psychiatrist, Dr Klug, indicate that he has suffered from a persistent disturbance of mood from the end of 1996. This chronic mood disturbance has had a fluctuating course and, at times of worsening, is accompanied by psychotic features. It has been difficult to treat and has required courses of ECT, as well as antidepressant medication and antipsychotic medication. During periods where his depressed mood intensifies he also suffers from loss of interest in activities and hobbies, he is unable to enjoy thing, his sleep increases, his concentration and memory diminishes, he develops suicidal thinking and is preoccupied with suicide, and he feels guilty and a burden on his wife and family. He suffers from low self-esteem and his confidence erodes substantially. These periods last for longer than two weeks. When he is depressed he suffers from a lowered libido but his libido improves when his mood improves. His pattern of symptoms justifies a diagnosis of major depressive disorder. In considering whether a diagnosis of schizophrenia can be applied in Dr MacKinnon's case, the diagnostic criteria for schizophrenia from the DSM-IV Test revision (DSM-IV-TR) (APA 2000, page 312) should be consulted. The diagnostic criteria for schizophrenia includes Criteria D, "schizo-affective and mood disorder exclusion". In effect, this criteria indicates that a diagnosis of schizophrenia should not be made unless schizoaffective disorder and mood disorder with psychotic features have been ruled out because either (1) no major depressive, manic or mixed episodes have occurred concurrently with the active-phase symptoms; or (2) if the mood episodes have occurred during active-phase symptoms, their total duration has been brief relative to the duration of the active and residual periods. This makes schizophrenia a diagnosis of exclusion (Meltzer and Fatemi 2000) In Dr MacKinnon's case, major depressive episodes have occurred concurrently with the active-phase (psychotic) symptoms and his mood disturbance has been the constant feature of his disorder. The psychotic symptoms that he suffers from episodically have been brief in duration relative to the rest of his illness. In my opinion, based on the application of the DSM-IV diagnostic criteria to Dr MacKinnon's case, the diagnosis of schizophrenia as proposed by other expert opinion cannot be supported.

426 The third psychiatrist relied upon by the Plaintiff was Dr Phillips, who first assessed him at the request of his solicitors on 30 June 2005. 427 In a report dated 3 August 2005, he reviewed in some detail the history he relied upon, which immediately creates a difficulty in that much of the history, particularly that concerning his claim to have been overworked; the alleged unprofessional management techniques of Dr Darling; and some aspects of the leadership course, were not proved and, indeed, in my opinion, established to be false. However, upon the history he took, Dr Phillips said: "It is rather difficult, on the information to hand, to reach a categorical view regarding Dr MacKinnon's diagnosis. At first cut, he appears to have suffered a schizophrenic illness. However there are a number of matters which lead me to question that diagnosis. He is not within the usual age group for the development of schizophrenia, he has experienced marked mood swings throughout his period of illness, he has retained his warmth and his capacity for empathy and his insight is intact. He has required treatment not generally essential in the management of schizophrenia (antidepressant agents, ECT) in order to make improvement. More probably than not Dr MacKinnon has a schizoaffective disorder DSM-IV-TR 295.70, noting that in addition to frank psychotic symptoms the plaintiff has had prominent mood symptoms (depression) and his mood symptoms have been prominent throughout the course of his illness. Schizoaffective disorder generally has a better prognosis than schizophrenia, but I acknowledge that the disorder can prove very difficult to treat. Dr MacKinnon will understandably require ongoing assertive therapy, as has been chosen by Dr Klug. He almost certainly will require both supportive psychotherapy (preferably one consultation every two weeks indefinitely) and medication with a combination of antipsychotic and antidepressant agents. He may at various times in the future require intermittent in-hospital care if his symptoms cannot be controlled adequately on an outpatient basis. Overall the Plaintiff has a guarded prognosis. Putting all information together, Dr MacKinnon decompensated psychologically in late 1996 as a direct consequence of the stress which he experienced during the leadership course organized by BHP. He may have been predisposed to psychological decompensation at that time as a consequence of being medicated previously with Duromine, but this cannot be proven. He had developed a complicated and rather treatment refractory schizoaffective disorder. Whilst coping with his family life, the plaintiff has not been able to return to his professional life. I do not foresee him being able to take on professional duties in the immediate future." 428 In a report dated 12 April 2006, Dr Phillips reviewed a report obtained from psychiatrist, Dr Yvonne Skinner, which is not in evidence. Towards the conclusion of his report, Dr Phillips said: "The issue of Dr MacKinnon's diagnosis remains problematic. Specifically: * There should be no doubt that the Plaintiff developed psychotic symptoms during the period when he attended the BHP leadership course, with worsening of his symptoms at the time of his return to Sydney and thereafter. * There should be no doubt that the Plaintiff has continued to suffer from a psychotic disorder of fluctuating type since then. He has required at various times in-hospital treatment and has a need for ongoing psychotropic medication. * The specific diagnostic entity within the psychotic spectrum of illness remains uncertain. * Dr Skinner maintains that the Plaintiff has a schizophrenic illness. I advised in my report of 3 August 2005 that it is more probable that the Plaintiff has a schizo-effective disorder, noting particularly his tendency to have prominent mood symptoms in addition to primary psychotic symptoms." 429 A report by Dr Phillips dated 27 April 2006 contained these paragraphs: "Given that Dr Klug has had far more contact with Dr MacKinnon in his role of treating psychiatrist than colleagues who examined the plaintiff for medico-legal reasons, substantial weight needs to be given to Dr Klug's opinion that the plaintiff (his patient) has primarily an ongoing affective disorder with psychotic features." …………………………….. Despite knowledge that there are at least three reliable, valid and statistically appropriate prospective clinical studies linking life stress with the onset of psychosis, it is not possible to state categorically that absent life stressors, Dr MacKinnon would have been spared his psychological decompensation taking the form initially of a brief psychotic disorder and then a more substantive psychological disorder (either a schizophrenic disorder or a severe affective disorder with psychotic features). However, on the balance of probabilities, and taking into consideration all information now available to me, Dr MacKinnon would not have developed his escalating psychological symptoms during and following the leadership course in the absence of particular life stressors. To put it another way, the above mentioned stressors were the trigger for the plaintiff's psychological decompensation at that particular moment in time. I cannot state that Dr MacKinnon was going to experience psychological decompensation during and following the leadership course, or that his decompensation was going to be less severe and less chronic, in the absence of the above mentioned stressors. However, it is probable, but unprovable, that absent those stressors, he would have coped with the leadership course or would have merely developed less significant non-psychotic symptoms during the course (e.g. the development of an adjustment disorder with anxiety and/or depressed mood, noting particularly that he had previously developed a 'reactive depression' at the time when his wife was diagnosed to have breast cancer)." 430 On 6 September 2006, while the trial was in progress, Dr Phillips provided a fourth report. In its production, he had regard to a schedule which he had requested, but which was apparently prepared by the Plaintiff's counsel. The schedule purported to comply with the requirements of Dr Philips. "Specifically, I indicated that it was important, as far as possible, to quantify relevant information in Dr MacKinnon's matter. With this in mind, I advised that clinical information might best be divided into symptoms referrable to a mood disorder, and symptoms more suggestive of a psychotic disorder. Specifically, I advised five categories: primary depressive symptoms (incorrectly labelled Mood in the document), primary anxiety symptoms, mood congruent psychotic symptoms, positive and negative symptoms more suggestive of schizophrenia." 431 The report contains these passages: "Dr McKinnon was undoubtedly suffering an acute psychotic disorder of some type at the time of admission to the Evesham Clinic in October 1996. The plaintiff had broad-ranging symptoms at the time which could encompass an acute psychotic disorder, a mood disorder with psychotic symptoms, or an organic psychosis. Symptoms of importance included visual hallucinations, tactile hallucinations, ideas of reference, posturing, pressure of speech and fears of darkness. The plaintiff's symptoms changed to a degree in the days following his admission, with significantly greater mood related symptoms as time went by (particularly anhedonia, anxiety, panic symptoms). The issue of the large shadowy figure into which Dr MacKinnon retained insight is interesting but has little diagnostic value. The plaintiff was reported as not having delusions or hallucinations by 18 October 1996, but he was thought to have pseudo-visual hallucinations (with insight) on 19 October 1996. Symptoms thereafter are rather mixed but mainly suggestive of a depression and/or anxiety spectrum disorder. However, Dr MacKinnon had a further mixed group of probable psychotic symptoms on 25 October 2006 (sic) during a subsequent period of in-hospital treatment, but these did not continue. The plaintiff's symptoms were predominantly in the depression and/or anxiety spectrum at least from 14 October 1996, but with possible paranoid interpretation of work-related matters on 22 December 1996. Particular note should be taken of an entry made by Dr Klug on 24 December 1996 where he changed Dr MacKinnon's diagnosis from reactive depression to psychotic depression, and an entry by Dr Lyndon on 27 December 1996 where he advised inter alia that the plaintiff exhibited hopelessness, despair, tearfulness, suicidal thoughts, loss of appetite, early morning waking with diurnal mood variation and panic symptoms. He found no evidence of psychotic phenomenology at the time. There was a single file entry on 23 August 1992 (sic 1997) in which Dr MacKinnon reported auditory hallucinations (external to his head). Reference is made on 25 August 1997 to the plaintiff fearing a shadow and to so-called pseudo-hallucinations on that day, and additionally to an hallucination (type unspecified) on 31 August 1997. There is no useful evidence beyond late August 1997 to suggest Dr MacKinnon had any diagnosis beyond the depression and/or anxiety spectrum. However there is a file entry on 3 October 2000 that BHP was poisoning his food, this probably being a psychotic symptom. The pro forma admission document completed by Dr Short on 11 January 2001 (probably 2002) advises that Dr MacKinnon had a blank facies and that he had a flat humourless affect. The psychiatrist considered the plaintiff to have chronic schizophrenia. The plaintiff thought himself to be the "scum of the earth" at the time. Dr MacKinnon reported believing there was a GPS tracking device in his stomach on 18 August 2003, but he retained insight at the time into the abnormal nature of his belief." …………………………………… Dr Klug described Dr MacKinnon on 19 April 2000 as suffering from depersonalisation and derealisation, and to have paranoid thoughts by 16 April 2000. The plaintiff experienced increasing depressive thoughts by 16 August 2000 (particularly guilt) and 27 October 2000 being a burden to others) and again to have depressive thoughts (principally denigration) on 15 June 2001 and severe depressive symptoms on 26 June 2001. The psychiatrist advised that there had been a deterioration in Dr MacKinnon's condition on 19 October 2001, particularly that the plaintiff had further paranoid experiences and possibly ideas of reference, and some panic symptoms on 12 December 2001 and again paranoid symptoms on 1 February 2002. The plaintiff again experienced derealisation during May 2002 (exact date unrecorded) and increased anxiety on 27 June 2002 and derealisation on 28 august 2002. Dr Klug noted Dr MacKinnon to have probable paranoid symptoms on 24 June 2003, and broad-based anxiety on 30 October 2003, and derealisation on 5 February 2004. the plaintiff was identified as having an unusual experience if not an hallucination (the smell of burning flesh) on 26 February 2004, chronic anxiety symptoms on 22 April 2004, 6 May 2004 and 20 May 2004. The plaintiff developed suicidal ideas following a medico-legal interview on 12 December 2004. He was recorded as being depressed on 24 February 2005 but not suicidal, and to be remaining anxious on 14 July 2005 and to have a variable mood state on 1 September 2005, and to be chronically anxious on 13 October 2005 and 5 November 2005. ………………………………… I am in broad agreement with notations contained within the schedule. It will become obvious on review of the schedule and cross-reference to the file entries that by far the greater number of entries will support Dr MacKinnon suffering from a depression and/or anxiety spectrum disorder, undoubtedly complicated at times by psychotic phenomena (generally on the basis of self-report). Dr Klug's clinical notes should be accorded particular diagnostic weight, given that he is Dr MacKinnon's treating psychiatrist. …………………………………. There should be no doubt regarding Dr MacKinnon experiencing episodic psychotic symptoms. Psychotic symptoms always occurred in the context of ongoing depression and anxiety spectrum symptoms and are far more probably related to a worsening in the plaintiff's background mood disorder rather than representing other forms of psychotic disturbance (including schizophrenia). Dr MacKinnon had mentioned on a number of occasions a strange experience perhaps best described as a "black person". On my review, the plaintiff appears to be using the words in metaphor to refer to deeply seated uncomfortable depressive thoughts, which are difficult to describe. I doubt that this experience represents a hallucination. Whilst I did not choose to record Dr Klug's attempts to medicate Dr MacKinnon, my colleague's clinical notes confirm that at various times the plaintiff had been medicated with anti-depressant, mood stabilising, anti-psychotic and benzodiazepine agents but without particular therapeutic success. More likely than not the plaintiff has a medication-resistant psychological disorder, this of course not being uncommon. Dr MacKinnon's psychotic symptoms (as recorded) are hardly typical of schizophrenia. They include visual and tactile hallucinations (more suggestive of an organic disorder, for which there is no other firm evidence), or so-called pseudo-hallucinations (more typically associated with histrionic symptomatology). I refer you particularly to the entry relating to hundreds of spiders. Additionally, given the volume of the material, there are relatively few file entries which suggest delusional thinking. Perhaps the most striking is a comment by the plaintiff that he had a GPS tracking device located within his abdomen. However, the plaintiff retained insight into the bizarre nature of his thought, reducing significantly the likelihood that the symptom was based within a schizophrenic disorder. It is critical to understand that psychotic symptoms are by no means restricted to schizophrenia. Psychotic symptoms reflect a person experiencing a break from reality, this generally being a marker for the magnitude/seriousness of the psychiatric disorder suffered by the person, rather than indicating a particular diagnosis. On my evaluation, virtually every psychotic symptom recorded in the clinical file is consistent with Dr MacKinnon having a severe mood disorder. Additionally there are comparatively few entries in the clinical file to suggest Dr MacKinnon was experiencing so-called negative symptoms of schizophrenia. Whilst Dr Short put some emphasis on what he considered to be negative symptoms, I believe the symptoms mentioned by him will equally or better be explained on the basis of a depressive disorder. ……………………………….. The making of a psychiatric diagnosis is often an iterative process. This is the case with Dr MacKinnon. As mentioned in my previous report, I have altered my diagnosis from a schizoaffective disorder to a major depressive disorder, on the basis of the additional information now available to me. My alteration of diagnosis is entirely in keeping with analysis of the material in its totality and best medical practice. I have been forced to discard the diagnosis of schizoaffective disorder because, on my analysis of Dr MacKinnon's clinical notes, criterion B for this diagnosis cannot be met, specifically noting that the criterion determines that the plaintiff must have "delusions or hallucinations for at least two weeks in the absence of prominent mood symptoms". Criterion A probably can be met and criteria B and C are met. On the other hand, Dr MacKinnon clearly meets criteria for a major depressive disorder including experiencing a persistent anhedonic mood state, diminished interest and pleasure from the usual activities of life, sleep disturbance, significant psychomotor changes, intermittent fatigue, feelings of worthlessness, cognitive perturbation, nihilistic thoughts and noting particularly that his symptoms have caused distress and impairment in social, occupational and other significant domains of his life. The diagnosis of schizophrenia has to be ruled out, noting in particular that criterion D for the disorder cannot be met as major depressive symptoms have occurred concurrently with other active-phase symptoms of the disorder. Specifically criterion D advises that "no major depressive, manic or mixed episodes (of illness) have occurred concurrently with the active phase symptoms (of schizophrenia)" and "if mood episodes have occurred during action -phase symptoms, their total duration has been brief relative to the duration of the active and residual periods". Put simply, mood symptoms rather than psychotic symptoms have been dominant in the case of the plaintiff." 432 As long ago as 1998, BHP arranged for Dr Milton to assess the Plaintiff. He wrote a long report to Mr Keyte of BHP on 20 September 1998, which included these paragraphs: "Dr MacKinnon then joined the Illawarra Occupational Health Service, a private occupational health practice, and in mid-1995 joined the BHP occupational health service. Dr MacKinnon said his employment with BHP represented an innovation for the company in that he was to be employed treating patients, whereas doctors employed by BHP previously did nothing more than assess work injuries and refer patients to general practitioners. He said the situation was not easy. He described the atmosphere in Wollongong as being a male-dominated culture and agreed it was polarised in regard to unions versus management. BHP was a self-insurer for workers' compensation and his office was next to the workers' compensation section, which he said placed him in a difficult situation because workers, already suspicious of him, thought he was automatically allied with management, and his proximity to the workers' compensation section increased these suspicions. …………………………….. Although the situation was demanding he did not feel it troubled him for the initial time he was there. The first six to eight months were largely uneventful apart from issues mentioned. Dr MacKinnon felt bothered by Dr Darling. He said when Dr Darling was about his pulse went faster than at other times. About this time Dr MacKinnon was taking a stimulant, Duromine, for weight control and palpitations and tachycardia are side effects of that drug, suggesting it at least contributed to that symptom. ………………………………. On occasion Dr MacKinnon challenged Dr Darling but felt that doing so damaged Dr Darling and he should not have done it because Dr Darling responded angrily, which proved to Dr MacKinnon how fragile that other really was. (It is difficult to separate truth from reality in this regard - it is possible Dr MacKinnon was himself in a fragile emotional state and in consequence perceived his colleague in that light too). Dr MacKinnon's patient numbers built up. He was successful in getting workers to trust him and many attended, and at one stage he was seeing between 30 to 40 patients a day. Your letter of referral stated that the plan was for the industrial medical officer to see about as many patients daily as general practitioners do. Dr MacKinnon said, however, that although some cases were simple, some were complex and he was also asked to write reports about many patients and found that demanding. …………………………… Dr MacKinnon became concerned about his work load from about March 1996. He said Lisa Delaney sometimes commented to him about how much work he was doing. He said he had a couple of two-hour meetings with Dr Darling, Lisa Delaney, Di Ford and the ambulance officers in order to work out some way of reducing his work load. These meetings were not always harmonious and Dr MacKinnon felt that Dr Darling did not handle them properly. He considered not much was achieved by them. I note at page 2.2 in your letter of referral that the health and rehabilitation department was in the process of examining Dr MacKinnon's work load not long before he participated in the leadership course, but that Dr MacKinnon was reluctant to relinquish control of his work duties. This suggests Dr MacKinnon made a rod for his own back, at least to a degree. Dr MacKinnon thought he began to develop problems from about March 1996. However, he dismissed certain symptoms as being purely physical in origin, although later he considered they were a reflection of his upset emotional state. He sometimes suffered a pain in his throat, and his hands and feet were cold. ……………………………. In addition to his cold hands and feet, he suffered urinary frequency. It is probable both these effects were from Duromine, the first by peripheral vasoconstriction, and the second by Duromine making him anxious and aroused. Further, he was said to have talked faster than normal, which could also have been a side effect of the arousal caused by Duromine. He considered he was under pressure, and said that others commented about it, e.g. a general practitioner who observed Dr MacKinnon do a presentation. He was not sleeping too well, another likely side effect of Duromine. He was, however, getting on well with his wife and she was supportive to him, and he maintained relationships with a small group of friends. …………………………………. Further he began to suffer what he described as tension headaches from about March 1996. (I note that headache is listed as a side effect of Duromine, although his account indicated he was probably not taking it at that time). He suffered low back pain and had a CT scan of his spine, but this showed no abnormality." 433 In an even longer and more detailed report dated 20 April 2000 to BHP's solicitors, Dr Milton reviewed and updated the history he had previously taken. He also extensively analysed the medical and hospital notes and records made available to him, including those of Dr Klug and Evesham Hospital. His report included these paragraphs: "I questioned him specifically about psychotic phenomena, explaining the reason for these questions. He denied experiencing hallucinations and ideas of reference. He said he sometimes gets a feeling that people are talking about him but this is not a belief, i.e. a delusion. He said Dr Crino is helping him work on that tendency. He does not have a feeling or belief that the human race is invaded by aliens, or that thoughts are being inserted into his mind or that his thoughts are being broadcast to others. He does not consider people are conspiring against him. He said he is not psychotic and the reason he takes the antipsychotic chlorpromazine is because of his depression. ……………………………………. (Dr MacKinnon has obsessional tendencies. A medical practitioner with such tendencies often has trouble separating important from unimportant issues and tends to take a long time over consultations. He is not as efficient as a person without those qualities. It is possible that something of this nature applied, and when Dr Darling brought it to his attention Dr MacKinnon was inflexible and this caused conflict. Obsessional people tend to be inflexible and do not like negotiating compromise.) Dr MacKinnon did not present too badly on this occasion. He showed some spontaneity, e.g. when he was telling me about the skin cancer clinic in which he worked briefly, I mentioned that sometimes I was sent patients with skin cancer, general practitioners mistaking me for Professor Milton, whose field that is. Dr MacKinnon gave a spontaneous and normal grin at that. As noted, he often banged his foot on the floor, saying this gave relief of anxiety. As the interview progressed, however, the foot-banging became somewhat less. When asked about certain topics the foot-banging stopped altogether, e.g. when I asked him about marital relations and when I went through the list of items supporting his claim for compensation. He is thus capable of being distracted from his anxiety by topics that interest him. Dr MacKinnon was pleasant and cooperative, was wearing glasses and had a moustache. He seemed generally anxious and had a limited range of affect. There was no thought disorder or other obvious indications of psychosis. I think it probable that Dr MacKinnon had emotional difficulties for a considerable time but used his good intelligence to cope with them. These pre-existing problems probably resulted in him having two periods, each of six months, off work, although the first was stated to have been associated with a severe viral infection, and the second with the shock of learning his wife had cancer. Nonetheless, it is unusual for such long periods of total incapacity to follow stresses of this kind in an otherwise normal person, and it is unusual for one person to have two periods of such incapacity from different causes. The most probable explanation is that there were serious pre-existing difficulties Dr MacKinnon appears to have had a particular problem dealing with people in authority. There was mention from time to time of such childhood difficulties and of him trying to cope by putting his feelings aside. One note referred to him trying to make himself "a stone" so he would not have feelings. There was reference to him regarding pain in an unusual fashion, as something to be desired. Dr Klug described him consciously starving himself when he was a child and also referred to him having lost a good deal of weight at work by intentional dieting prior to the training program. (This could also be consistent with using an appetite suppressant, as described in my first report.) The material referred to him having developed an unusually strong interest in non-verbal communication and as having read a large number of publications (30 books) in that field in the months before the course. The training course, in my view, precipitated a psychotic episode, which Dr Klug appropriately referred to as a "schizophreniform psychosis" (although Dr Klug later diagnosed schizophrenia when applying for medication). As noted, psychosis of this kind were sometimes observed following encounter groups but usually responded quickly to antipsychotic drugs, hospitalisation and support. Appropriate treatment of this kind was applied by Dr Klug during Dr MacKinnon's first admission. Although he was floridly psychotic when first admitted, as is usually the case in such illnesses, the psychotic symptoms responded well to medication and after a time disappeared altogether, except for an occasional recurrence when he was under particular difficulty. In recent times there was no hint of him showing psychotic phenomena, with one exception to which I shall refer later. Careful questioning about delusions and hallucinations revealed negative results when I assessed him, and Dr Klug's detailed observations over many months were consistent with the disappearance of psychotic symptoms. I suggest that significant problems, unrelated to occupation, were already in existence before the training program and these made it difficult for Dr MacKinnon to function efficiently at work. I think it probable these included obsessional tendencies (although there is no clear evidence of these); but in any event, his efficiency at work was not high, and when he was replaced by a locum the latter appears to have achieved better results in less time. One explanation is that Dr MacKinnon lacked confidence or was troubled by obsessional habits or by a mild and slowly developing schizophrenic illness, and in consequence took a long time to make decisions and, in the event, was ineffective in getting people back to work, though perhaps being critical of the methods of others who had more success. The acute psychosis precipitated by the training group settled, and, as sometimes happens, was followed by severe depression. This too, responded to appropriate treatment by Dr Klug, in this instance, electroconvulsive therapy. I noted above that Dr MacKinnon showed no residual psychosis, with one exception. I refer to the very poor abstract thinking ability demonstrate in his two interview with me. This raises the possibility that Dr MacKinnon has for some time been gradually developing a schizophrenic illness but was able to cope with it because of his good intelligence. The poor abstract thinking ability demonstrated by him at my interviews is suggestive of schizophrenia rather than a "schizophreniform", or temporary, psychosis evoked by the training course. I would not expect the effects of the course to have a permanent influence on Dr MacKinnon's abstract thinking ability, that deficit being better explained as a part of a slowly developing mild schizophrenic illness. That is consistent with the training group evoking a very florid psychosis. Dr MacKinnon had already shown some eccentricities, e.g. starving himself as a child, trying to act like a stone and having no feelings, lacking colour vision for many years prior to the training course, and for fifteen years prior to the training course having no sense of smell. These phenomena might in fact have been more than eccentricities - they could have been indicators of a gradually developing schizophrenic illness. 434 Dr Milton next reviewed the Plaintiff in September 2003. In his report dated 2 September 2003, he expressed this opinion: "Dr Angus MacKinnon shows increasingly the typical features of schizophrenia as it manifests in an intelligent patient with insight. He also shows the unfortunate decline in personality (oddity and blunting), which accompanies that illness. He still requires large quantities of antidepressant and antipsychotic medication, despite my earlier hopes that he might have been able to reduce this medication in due course. In my opinion, he will not be able to return to work as a medical practitioner, and I doubt that he will be capable of any other occupation because of his continuing severe mental symptoms. Resolution of litigation will be helpful, but he is likely to continue to go downhill as time passes. He denies an intention to suicide; but persons suffering from schizophrenia have a significantly higher rate of suicide than others, and in my experience this applies particularly to the patient of good intelligence and insight who perceives the gradual deterioration of his own mind. There is, in my view, a significant chance of Dr MacKinnon taking his own life within the next ten years, despite Dr Klug's skilled help and the support Dr MacKinnon receives from his family. Despite an absence of any family history of the condition, I believe it is most likely constitutional in origin and not caused by the subject incident. In my experience, persons who become psychotic under circumstances like this (in encounter groups) recover with appropriate treatment, and I believe the treatment received was adequate. His failure to recover is because of constitutional factors and I am of the opinion he would have deteriorated and developed schizophrenia even had he not been exposed to this unfortunate experience. I suggest that the effect of attending the course was to cause his symptoms to emerge earlier and in more florid form. In other words, even if he had not been exposed to the experience in the BHP course, it is likely his obsessionality (already a problem before the course) would have increased, he would gradually have become less and less efficient as a medical practitioner, and would in time have shown personality oddities which in time would have developed into a clearly recognisable psychotic illness requiring treatment with antipsychotic drugs and preventing him form working." 435 On 17 January 2006, Dr Milton reviewed the Plaintiff again over a period of 2 hours, his wife being present. Dr Milton's report of 3 April 2006 contains these paragraphs: "In regard to Duromine, he said his father prescribed this for weight loss and gave him a prescription for only one month. However, he said he began taking it three months before the course and his last tablet was on the first day of the course. He recalled passing urine frequently in the time before the course, and drinking six or seven cups of coffee a day, an activity to avoid seeing patients. Clinic staff seemed to think he was hiding in the toilet and used to knock on the toilet door to tell him patients were waiting to see him. He remembered that during the period after being in hospital under Dr Klug he used to go to the Westfield shopping centre "to have a snooze" in the car. He recalled Neil Harvey telling him at some stage that he was working too hard (prior to the course). Dr MacKinnon recalled that during treatment by Dr Klug, he travelled to BHP in order to prove he could go there. He remembered taking antipsychotic drugs, antidepressants and Valium, and having counselling for anxiety from Mr Rocco Crino (other accounts indicated he saw Dr Crino for treatment of obsessional behaviour as well as anxiety.) In regard to the current situation, Dr MacKinnon told me he sees a psychologist, Ms Louise Shepherd, once every week or so "to try to get over some of the problems". He said, "I can't watch TV sometimes". Some advertisements he watched showed dogs singing and this disturbed him because he thought it was his psychosis returning. He said Ms Shepherd's treatment for this fear was to get him to write the following sentence many times: "You are not going psychotic, this is just a random event". The technique caused the fear about the dogs singing to disappear, but only temporarily, and he still has it. He avoids science fiction and horror movies. Early in 2005, he was taking the antipsychotic drug Abilify (aripiprazole). Schizophrenic patients are often non-compliant with antipsychotic medication and, like them, Dr MacKinnon decided he no longer needed that drug. He began to wean himself off it during March 2005, although he continued to take the anti-depressant Endep (amitriptyline). The usual result of antipsychotic drug non-compliance in schizophrenia is relapse. Dr MacKinnon relapsed, although he described his relapse as "depression", as many schizophrenic patients do, depression being more socially acceptable than schizophrenia. He said, "I just become more and more depressed". It is relevant to note at this point that depression is not provoked by ceasing an antipsychotic drug, and also to note that Dr MacKinnon continued to take an antidepressant, which should have protected him from becoming depressed. The most likely explanation is that ceasing the antipsychotic drug Abilify caused his psychosis to re-emerge, consistent with him suffering schizophrenia. …………………………………… He did not tell Dr Klug about ceasing Abilify, so Dr Klug thought his relapse was because this antipsychotic was insufficient - that Dr MacKinnon required an additional antipsychotic drug, and therefore added Seroquel (quetiapine). Later Dr MacKinnon told Dr Klug about having ceased Abilify. and after learning this, Dr Klug weaned him off Seroquel and continued Abilify. For a time, Dr MacKinnon was taking both antipsychotic drugs together and said he felt better, the suicidal ruminations being much less. This positive response to a higher dose of antipsychotic medication by way of taking two such drugs concurrently favours the diagnosis of schizophrenia. When on only Abilify he went downhill again, so Dr Klug re-introduced Seroquel, with benefit. Dr MacKinnon referred to the way he feels at present, saying, "I don't spend the whole day ruminating how I will kill myself". He firmly denied any feeling that the televison talks to him. ……………………………………… Dr MacKinnon said he is still registered with the Medical Board. He spoke to the Medical Board and informed them that he has a mental illness and is currently registered as "non-practising". He said the Medical Board staff thanked him for his frankness and said they would leave it to him to make the next step. Dr MacKinnon said he would love to return to medical practice but cannot stand the pressure of people's demands and the feeling of responsibility. Comment: Such a statement is not typical of the chronically depressed person, who would probably have lost interest in his profession along with most aspects of existence. On the contrary, Dr MacKinnon expressed a continuing love for practising medicine and a wish to do so. A depressed person would also be likely to say he could not work because of lack of energy or because he felt sad or uninterested, but would be less likely to say, as did Dr MacKinnon, that he felt frustrated with people's demands and was troubled by responsibility. Dr MacKinnon said he enrolled in a college of medical administration, his mentor being Martin Mackerjich. He said the other course he studies is acceptable as credit for qualification in medical administration. He said in order to complete this course he would have to do hospital work but feels he will be unable to cope with it. At some stage he will complete a PhD, probably in about seven years. (He is allowed to do this course because he is working under provisions for disabled people). He said if he does not occupy every minute of his day he stars ruminating (evidently about suicide). These thoughts never leave him. Comment: In my experience the depressed person usually does not say he ruminates about depression. Rather, he might say he feels bad because he has lost interest in life and deserves to die. In contrast, Dr MacKinnon's suicidal ruminations have an obsessional and somewhat bizarre quality, not as though they arise from feelings of sadness or hopelessness. …………………………….. During the interview I made various observation of Dr MacKinnon's presentation. The first of these was as follow: "Keeps ritual movement arms up and down legs - little emotion". The second was well in to the interview and was as follows: "Continues to move hands up and down thighs". The third was, "Continues to move hands (up and down thighs) - no tremor". Dr MacKinnon was cooperative and gave a reasonable account, but claimed to have forgotten a good deal of his history. He wore spectacles and a moustache and looked overweight, his appearance having changed considerably since 1998. He wore a black baseball cap (he has been losing his hair and was perhaps embarrassed about it). Apart from making ritualistic movements he sat still in a hunched posture. He showed no restlessness or other obvious sign of anxiety. He was not hostile or suspicious. Mrs MacKinnon was pleasant and cooperative, and was in the last stages of her pregnancy. Dr MacKinnon spoke with reasonable force and energy, although his responses were more limited than when I first saw him and his tone of voice was more uniform, showing fewer inflections. I noted an absence of formal thought disorder. He was more emotionally blunted than when seen earlier. He did not look depressed and did not break down and weep at any time. His manner impressed as bizarre and his mood not congruent with his utterances. Comment: I consider Dr MacKinnon's presentation to be typical of a person with chronic schizophrenia, including increasing emotional blunting, a reduction in the quality and degree of speech, ritualistic movements, a rather bizarre effect overall, and weight gain. He did not show the retardation, lack of interest, anergia, sadness, feelings of guilt or weeping often seen in the severely depressed person. 436 In evidence in chief to Mr Joseph, Dr Milton expanded upon his opinion as to the Plaintiff's condition, immediately before and during the course: "JOSEPH: Q. Insofar as you thought the plaintiff was in a prodrome before the course, what do you mean by prodrome in that sense? A. I mean a state which perhaps has some features of psychosis, perhaps has features of eccentricity, it is a little hard to tell the difference between the two. But it certainly is not a normal state, and it is not an explicable state on the basis of personality conflict or something of that nature. It suggests that there is something going on that is of concern, and perhaps is of concern in the long-term. But that often becomes obvious in retrospect.

Q. Is there a disease present at that point of time? A. I think there probably is.

Q. Insofar as there is a disease present, does it have implications in terms of the person's conduct and reception to stress? A. I believe it does.

Q. Have you identified that conduct and those reactions in your reports that you consider that the plaintiff exhibited prodrome symptoms? A. Yes, I stated things that I thought were abnormal before the course.

Q. In particular do you not state them - I think one of the words you used is prankishness, is that right? A. That was in the first day or two of the course, yes.

Q. Given those assumptions, that is the plaintiff was in the prodrome of the disease schizophrenia when he entered the course? A. Yes." 437 The fifth psychiatrist who gave evidence at trial was Professor Keks also called by BHP. Although I thought his presentation as a witness was extremely impressive, he differed from the other psychiatrists in that he saw the Plaintiff only once, as recently as 13 January 2006, and did not himself conduct the interview. 438 Rather, Professor Keks "sat in" on an interview over one and a half hours conducted by Dr Skinner. He sat during the interview to the left of and slightly behind the Plaintiff and did not himself ask any direct questions. He did, however, beforehand and during a break, discuss with Dr Skinner the issues requiring exploration. 439 Before preparing his report of 1 March 2006, Professor Keks was provided with all of Dr Klug's reports, a number of other medical reports, some of which are not in evidence, and various statement of the Plaintiff and other witnesses etc. Although counsel for the Plaintiff was critical of Professor Keks' methodology, in my view, the criticism was unfounded. I am of the opinion that Professor Keks, from the interview and from his reading of a large amount of relevant material, had a sufficient basis for the formation of the views he expressed. 440 The history taken by Professor Keks included these paragraphs: "Dr MacKinnon related that in May 2005, he was admitted to Manly Hospital Emergency Department some time after having stopped his antipsychotic and antidepressant medication. …………………………………. Dr McKinnon was then admitted to Northside Clinic and antipsychotic medication was restarted. Currently, Dr MacKinnon experiences a range of sources of anxiety. He is afraid of the dark and needs to sleep with his light on. Arguments cause him to feel distressed. He is afraid of strangers arguing in the street. He does not like being left alone. Dr MacKinnon continues to ruminate about suicide, suicide methods and death. However, he could not link his suicidal thinking to reflections concerning his relationships, predicament, or views of the future. In discussing his experiences at the leadership course, Dr MacKinnon indicated that the coordinators were using hypnosis to control him through his food, which somehow was connected to Maslow's hierarchy of needs. Dr MacKinnon could not explain these matters further. (Maslow's hierarchy refers to a psychological theory which postulates an order of priority of human needs). Dr MacKinnon described experiencing severe anxiety when seeing certain cartoon characters on television, which then proceed to alter their shape in a way which causes him to feel terrified. 441 Under "Mental State Examination", Professor Keks recorded: "Dr MacKinnon was polite, cooperative, talked freely and gave extensive answers to questions. He was sitting on his hands during the interview. His posture was tense. He made regular sequential heel-toe tapping movements of both feet. These movements were mannerisms. There was no evidence of akathisia. …………………………… Dr MacKinnon's speech was rather monotonous, and without much emotional expression. Affect was anxious in quality; there was no depression. Range of affect was blunted, and there was impairment of modulation. Intensity of affect was, however, high. Thought stream was normal. With respect to thought form, on at least one occasion, loosening of associations occurred in thought process, when discussing recollections of food poisoning and control by external agencies at the leadership course with reference to Maslow's hierarchy. Thought content revealed preoccupation with suicidal ideation. There were several examples of what appeared to be delusional memory, mostly in relation to leadership course. In perception, there were no auditory hallucinations. Formal cognitive assessment was not carried out, but on interview, there was no evidence of disorientation or short-term memory deficit. Concentration was grossly adequate for the Plaintiff to answer detailed questions for a prolonged period. Insight was relatively poor, and Dr MacKinnon did not recognise the delusional nature of many past recollections, although he was aware of his illness in some respect. 442 Professor Keks commenced the section of his report headed "Diagnosis" with these paragraphs: "There are a number of diagnostic systems in use by psychiatrists, and differences between systems constitute part of the explanation for disagreement between psychiatrist concerning diagnoses. Diagnostic systems for schizophrenia, the difference between systems, and their significance, are described in the Reference Keks et al, Psychiatric diagnosis after death: the problems of accurate diagnosis from case history review and relative interviews, chapter in Dean, BHP, (Ed), Using CNS Tissue in Psychiatric Research: a Practical Guide, Harwood Academic Publishers, 1999. In my opinion, it is good practice for psychiatrists to refer to the diagnostic system being used when a diagnosis is made. In this case, I will utilise the two most commonly used diagnostic systems: the ICD-10 Classification of Mental and Behavioural Disorders from the World Health Organization (1992) and the Diagnostic and Statistical Manual of Mental Disorder, 4th Edition, Text Revision, American Psychiatric Association (2000) (DSM-IV-TR). In Australia, most psychiatrists use the American system (DSM-IV-TR) although the nation's official classification is the ICD-10. Using the ICD-10, in the case of the Plaintiff, the diagnosis is schizophrenia (F20). This diagnosis requires clear positive symptoms of psychosis to have been present for more than a month. Dr MacKinnon has had clear psychotic symptoms, many of them first rank Schneiderian psychotic symptoms over a period of years. (Schneiderian first rank symptoms are particular delusions and hallucinations, which were found by K. Schneider in 1959 to be characteristic of schizophrenia. The symptoms constitute a key component of diagnostic criteria for schizophrenia in both ICD-10 and DSM_IV-TR). Dr MacKinnon has also manifested catatonic behaviour, and negative symptoms, such as apathy, blunting of emotional responses, poor motivation, social withdrawal and lowering of social performance. Negative symptoms of schizophrenia are associated with cognitive dysfunction, and commonly lead to social and occupational deterioration and disability in functioning. Dr MacKinnon's negative symptoms have not been due to depressive illness. While suicidal thinking has been a prominent part of the clinical picture, in my opinion, this is part of the psychotic schizophrenic process rather than due to a depressive syndrome. Core manifestations of the depressive syndrome, such as depressed mood, loss of interest and pleasure in usual activities, ideas of guilt and unworthiness, and hopelessness abut the future, insomnia, anergia, low libido and psychomotor retardation, have either not been present, (particularly not before the onset of psychotic symptoms) or have constituted a relatively minor part of the clinical picture, in contrast to the primary psychotic schizophrenic manifestations. The psychotic symptoms have fluctuated (for example, the bizarre delusion concerning the GPS transmitter in the Plaintiff's intestine), however, the fluctuations have generally coincided with periods of treatment, and relapses have occurred when antipsychotic medication had been ceased. This is characteristic of schizophrenia. A depressive syndrome did not occur before the initial onset of psychotic symptoms. When relapses have occurred, such as the recent relapse requiring attendance at Manly Hospital Emergency Department and then admission to Northside Clinic, the relapse was psychotic in nature, rather than depressive. …………………………………. In my opinion, Dr MacKinnon's schizophrenic illness has been episodic, with progressive deficit (F20.X1). It is clear that negative symptoms have progressively accumulated over the last 9 years. This is also characteristic of process schizophrenia. According to the DSM-IV-TR of the American psychiatric Association, Dr MacKinnon's diagnosis is also schizophrenia (295.90). He had experienced all 5 characteristic symptoms of schizophrenic psychosis (only 2 required), social and occupational dysfunction for a significant portion of the time since the onset of the disturbance, with functioning markedly below level achieved prior to onset, a duration of at least 6 months. Mood Disorder with psychotic features and Schizoaffective Disorder are ruled out because full syndromal mood disorder has not occurred concurrently with characteristic symptoms, but has occurred only briefly relative to the total duration of the psychotic illness. As indicated above, Dr MacKinnon's psychopathology does not constitute a depressive syndrome; rather, the suicidal ideation and depressive thoughts are secondary to his psychotic process. ……………………………………… The longitudinal course of the schizophrenia is episode, with inter-episode residual symptoms, and with prominent negative symptoms. The Plaintiff's age at first episode of psychosis (34) while older than average, is by no means unusual in schizophrenia. According to the DSM-IV-TR schizophrenia typically starts between the late teens and the mid thirties (page 307). ……………………………………. The main differential diagnosis in this case, is schizoaffective disorder. In schizoaffective disorder, according to DSM-IV-TR, there must be a mood episode that is concurrent with the active-phase characteristics of schizophrenia, mood symptoms must be present for a substantial portion of the total duration of the disturbance, and delusions or hallucinations must be present for at least 2 weeks in the absence of prominent mood symptoms. In contrast, mood symptoms of schizophrenia either have a duration, which is brief in relation to the total duration of the disturbance, occur only during the prodromal or residual phases, or do not meet full criteria for a mood episode. ……………………………………… Another differential diagnosis is major depression with psychotic symptoms. Dr MacKinnon has experienced typical schizophrenic psychotic symptoms in the absence of a depressive syndrome over the course of the last several years of his illness. The course of his illness has been typical of that of schizophrenia and quite uncharacteristic of that for the course of depressive disorder. Although suicidal ideation has been prominent, the full criteria for major depression have not been met (see Point 22). ………………………………….. It is not uncommon in schizophrenia for some depressive symptoms, for example, dysphoria and suicidal ideation, to be present concurrently with schizophrenic positive and negative symptoms. In such cases the depressive symptoms may be secondary to, or driven by as it were, the schizophrenic illness process. Brief Psychotic Disorder is mentioned for completeness, but cannot be diagnosed in Dr MacKinnon's case. It is an episode of disturbance of less than one month where the individual has a full return to premorbid level of functioning. According to the DSM-IV-TR, Dr MacKinnon's continuing illness excludes this diagnosis. In the ICD-10, psychogenic psychosis is listed, but the requirement is that it does not last beyond 3 months. Dr MacKinnon's illness has lasted a number of years." 443 In a report dated 6 March 2006 Professor Keks commented upon the aetiology of schizophrenia as presently understood in the science of medicine: "1. Although the onset of schizophrenia can be abrupt it usually commences with a pre-psychotic prodromal phase. (Reference:DSM-IV-TR). Over a period of months there is a gradual onset of behavioural difficulties related to anxiety, social withdrawal, irritability, paranoid thinking, and social/occupational deterioration. 2. The pre-psychotic prodromal phase is eventually followed by the onset of the active or acute psychotic phase of schizophrenia, where frank positive symptoms (delusions, hallucinations and disordered thinking) are evident. 3. The cause of schizophrenia is unknown. The strongest aetiological evidence implicated genetic factors. First-degree biological relatives of individuals with schizophrenia have a risk of schizophrenia that is abut 10 times greater than that of the general population. Genetic factors are confirmed in adoptive and twin studies. Differences between monozygotic and dizygotic twins indicate that about 80% of the aetiology is genetic and 20% is environmental (Reference: Genetics in Schizophrenia, B Riley et al, chapter in Hirsch SR and Weinberger D [Eds] Schizophrenia, 2nd Edition, Blackwell, 2003). 4. What is inherited is likely to be what is called the 'schizophrenia spectrum': Schizophrenia, Schizoaffective Disorder and Schizotypal Personality disorder (Reference: American Psychiatric Association DSM-IV-TR 2004). 5. Of environmental factors, the most established is the occurrence of maternal obstetric complications at time of birth, particularly perinatal hypoxia. Other strong associations with schizophrenia include head injury, stimulant drug abuse and cannabis abuse. 6. There is little persuasive evidence to suggest that stress is a cause of schizophrenia. Seventeen studies which have examined life events prior to onset of schizophrenia episodes (reviewed by P. Bebbington and E Kuipers, Schizophrenia and Psychosocial Stresses, chapter in Hirsch SR and Weinberger D (Eds), Schizophrenia, 2nd Edition, Blackwell, 2003) yield conflicting results. 7. It is possible that in some patients, life events trigger schizophrenia when a patient was already strongly predisposed by, for instant, genetic vulnerability (Brown et al, Psychological Medicine 3:159-176, 1973). However, the contribution of such a 'trigger' is minor and does not account for the progression of the schizophrenic illness, particularly the frequent psychosocial deterioration that occurs. 8. From my long experience as a clinician specialising in the diagnosis and treatment of schizophrenia, it is apparent that in the majority of patients, the illness occurs without discernable stress precipitants. Schizophrenia is a brain disease, and historically, one of its key clinical characteristics has been that it cannot be understood from background psychological antecedents such as the patient's stress experience and stress response. Where stress is apparent in the schizophrenia prodrome, it has usually been coincidental or caused by manifestations of the illness. 9. On the other hand, stress and related factors play an important role in the prognosis of schizophrenia in that family stresses can result in a higher rate of relapse during the subsequent course of schizophrenia. 10. The most persuasive evidence against stress as a factor in the aetiology of schizophrenia, comes from studies involving prospective assessment of people who have undergone sever psychological trauma. Such studies, which are regarded as scientifically more valid than retrospective life event studies, reveal that people exposed to psychological trauma, compared to those who have not been, are at higher risk of Post Traumatic Stress disorder, depression and neurotic disorders. An increased risk for psychoses is not revealed in such studies. 11. A recent study compared immigrants to the United States from South America who had experienced political violence to those who had not. Those who had experienced violence had a higher risk for Post Traumatic Stress disorder, depression, panic disorder and chronic pain. There was no increased risk for psychosis such as schizophrenia or schizoaffective disorder (Reference: D Eisenman et al, Journal of the American Medical Association, 290: 627-634, 2003) 12. In the case of the Plaintiff, it is alleged that firstly work stress, and secondly stress of the leadership course resulted in the Plaintiff's illness. 13. In my opinion, it is most likely that the Plaintiff's illness commenced as a pre-psychotic prodrome during his period of employment with BHP. There are numerous indications that the Plaintiff was experiencing various symptoms attributable to anxiety and paranoid thinking, which are consistent with prodromal symptoms of schizophrenic illness. 14. The acute psychotic phase of the schizophrenic illness most likely commenced coincidentally with the start of the leadership course, as hallucinations occurred on Day 1. 15. In my opinion, at least a portion (and possibly most) of Dr MacKinnon's stress response to work stress at BHP and leadership course stress was due to his psychotic illness, schizophrenia; that is, the occurrence of anxiety, agitation, delusions and later, hallucinations, which distorted reality appreciation at the time, and subsequently resulted in memories of events which were traumatic, but had not actually occurred. It is possible that some of the work stress reported was due to early persecutory ideation (for example, Dr MacKinnon feeling persecuted by Dr Darling). 16. During the leadership course, there were numerous examples of delusions and hallucinations (for instance, food being poisoned, and various ways in which the Plaintiff felt that he was being influenced). 17. Dr MacKinnon indeed suffered a great deal of stress, but in my opinion, most of it was due to his psychotic illness, schizophrenia. 18. In the circumstances, I do not know the objective level of stress which occurred as a result of work at BHP and the leadership course. Assuming the worst possible case (severe stress as a result of those experiences), in my opinion, the role of such stress in the aetiology of the Plaintiff's illness, was not significant. 19. Schizophrenia is not a disorder which occurs due to stress, as outlined in the scientific evidence above. In other words, it is neither probable nor likely that stress was a material contributing factor to the Plaintiff's illness. 20. The stress of work at BHP and the leadership course could have acted as a temporary aggravating factor to the Plaintiff's schizophrenia. However, I would not consider such a temporary aggravating facto to be a material contributory factor to an illness which is usually progressive and lifelong after onset, and is not scientifically related to psychosocial stress or trauma as causal factors. 21. During the schizophrenic prodrome and the acute psychotic phase, it is likely that virtually any environmental circumstance may be perceived as stressful, due to the distorting effects of psychotic symptoms on reality perception, irrespective of the objective reality of the environmental circumstances. 22. It is likely that the Plaintiff's schizophrenia would have occurred in any event, irrespective of work stress at BHP or leadership course stress. The illness was already in progress during Dr MacKinnon's period of employment with BHP. As indicated above, at least some of this stress could be attributed to the interaction of the psychotic illness with work and the leadership course. 23. In my opinion, if Dr MacKinnon had not attended the leadership course (if, for instance he had been excluded through a screening procedure), it appears inevitable that his illness would have proceeded regardless, and would have manifested itself in the home, work or social circumstances. 24. Long term prospective studies have revealed that the first indications of schizophrenia often occur years prior to the onset of acute psychosis (Reference: H Hafner et al, Course and Outcome of Schizophrenia, chapter in Hirsch and Weinberger, 2003). It is possible that Dr MacKinnon had experienced earlier episodes of unwellness which may have appeared to be reactive depression, but which were actually early manifestations of schizophrenia

444 As I understand the evidence, Professor Keks' comments are largely uncontroversial in so far as they relate to the aetiology of schizophrenia and I would accept them. 445 Professor Keks furnished reasons for his disagreement with those psychiatrists who had formed a different opinion to his diagnosis of schizophrenia. It is, I think, unnecessary for me to refer in any detail to this critique. He also provided two further reports, 29 May 2006 and 8 September 2006, in which he commented on reports by Dr Klug, Dr Morris, Dr Phillips and Dr Bruce Westmore. Again it is unnecessary to deal with these comments in any detail. It suffices to say that Professor Keks maintained his opinion that the Plaintiff is, and has been since October 1996, schizophrenic. 446 Each of the psychiatrists to whose reports I have referred gave oral evidence and were closely and skilfully cross-examined. It is fair to say that those called by the Plaintiff, Drs Klug, Morris and Phillips maintained their position that the Plaintiff's mental illness was, and is, a mood disorder with psychotic features, while those called by BHP, Dr Milton and Professor Keks, maintained that the Plaintiff is schizophrenic. 447 All of the doctors have impressive qualifications and experience and I do not doubt the honesty of the opinions expressed. Each said he had read and understood the expert code of conduct and had complied with it, although Dr Klug, quite rightly, drew attention to the tension between his role as treating psychiatrist for 10 years and his duty to the court to give objective and dispassionate evidence. I do not mean to be critical when I say that he did not always, in my opinion, manage to separate entirely his relationship with his patient from his duty to the court. 448 The evidence of Dr Morris was also, I think, undermined on occasions when he seemed to adopt the role of advocate rather than expert. 449 The intrinsic difficulty involved in seeking to prefer one or other of the competing diagnoses is compounded by the problem of relating them to reliable histories or, in other words, factual substrata established by the evidence. 450 Although I do not propose to analyse the oral evidence and cross-examination of the doctors, the following extracts illustrate the difficulty. The first I take from the cross-examination of Dr Phillips by Mr Joseph: "Q. Do you refer to the issue of memory as being a problem in this case? That is, Dr MacKinnon not being able to remember anything about what was happening in 1995 and 1996? A. No, I don't, but I put it in because, at a theoretical level at least, it is something that again a clinician must be concerned about.

Q. Certainly, in your case, because you were trying to, in 2005, deal with events of 1995? A. Correct.

Q. The point I am getting to is that, in the statement of Nandy MacKinnon, which was provided to you - for the record there appears to have been two, although one is headed "Statement of Nantia MacKinnon" signed on 27 July 2003 and an affidavit of hers signed on 11 November 2003 - in this document, the following is stated - I am going to read it to you.

The question is going to be: This provides a different, significantly different, interpretation of the stressor, in the terms of Dr Darling, than the one that you obtained. Okay?

"Between January and June 1996 we were quite settled in Cordeaux Heights property. Angus enjoyed residing there and working at BHP. He found it a structured environment. Similarly, he was excited by his work prospects. He also found comradeship with Dr Chris Darling. I recall having Chris to dinner and was quite happy for the relationship to be a work acquaintance. It seemed that Angus got on well with him and from my observation they seemed to share work goals and experiences."

Right? Now, that does create a different impression as to the relationship between Dr Darling and the plaintiff, as you obtained it? A. It certainly does. Could I just check the dates with you again, if you wouldn't mind?

Q. January to June of 1996. They are the dates you are interested in? A. Yes.

Q. Your history, as I think we have just identified it, started in late 1995 and continued, in an escalating fashion, until the leadership course? A. Yes.

Q. Now, of course, if in fact that is accepted on its face, then you would not attribute work prior to the course as being of sufficient duration to have been causative of a developing psychiatric disorder, or a psychiatric disorder itself? A. I think you used the word "work". I think you perhaps meant stress in that period.

Q. Yes, I did. A. Well, there is certainly a very different view.

Q. Yes. A. If Mrs MacKinnon's understanding or perception is correct, over those dates the stress was certainly less than I was told by Dr MacKinnon.

Q. Yes, and in a significant way? A. Well, certainly.

Q. In terms of whether it was of sufficient duration, that is June to September, we are now dealing with, assuming everything else in Dr MacKinnon's favour - and I will come to that period shortly - it would suggest that the stress was more likely than not not to be of sufficient duration to be able to attribute it to any developing psychiatric condition, or psychiatric condition, prior to the course? A. I broadly agree. I just make the point, again, that we can't be terribly categorical about timing.

Q. I understand that. There is a couple of things you cannot be categorical about. Timing is one? A. Yes.

Q. The state of fragility is another? A. Yes.

Q. And the objective nature of the stress. All of those things are very difficult to assess? A. Yes." 451 The second example I take from the cross-examination of Dr Milton by Ms McFee: "I take it, as a general proposition, you would agree with me that the diagnosis of schizophrenia is based as much on the exclusion of other psychotic disorders as the presence of specific patterns of symptoms? A. Well, yes, I think that's part of the diagnostic process, yes.

Q. You are aware of the various approaches towards the diagnosis; you are aware of the literature of McGorry referring to how difficult it is to diagnose a schizophrenia and I think the literature comes within the heading of, you know, spurious position? A. Yes.

Q. You are, of course, aware of Professor Keks' views where he supports an alternative approach to diagnosis rather than reliance on the strict interpretation of the DSM-IV criteria? A. This is Professor Keks, you said?

Q. Yes? A. Yes, that's, I think, a very common view.

Q. And I take it that you would agree with the general proposition that the boundaries of definition are quite blurred these days? A. Yes, I think that that's very much the case.

Q. That being so, there needs to be a consistency of approach to the diagnostic procedure? A. Yeah, I think consistency but not rigidity.

Q. It would be necessary to avoid an implementation of an approach such as an apparent psychosis is psychosis, wouldn't it? A. Sorry?

Q. It would be necessary to avoid implementation of a theory along the lines that apparent psychosis is psychosis? A. Yeah, I'm not sure that I - I am familiar with that line of reasoning.

Q. One thing that is for sure is that there is a need to ensure that unrelated events are not related, made to have a relationship? A. Oh, I don't think you can contrive relationships in a meaningful, sensible fashion.

Q. Do I understand that you hold the view that delusions are generally maintained with a fixed belief? A. That - that has been the sort of classical teaching about delusion, but there are lots of shades of delusion that don't fit a firmly fixed belief that you can't talk the person out of.

Q. But you can't have a delusion with partial insight, can you? A. I think you can. Mostly by the earlier definition, you have - delusion means you haven't got insight because you have got a false belief, but I think, as I was trying to describe yesterday in regard to ideas of reference, you will find that the patient will half believe it and half have insight, but this is vastly different from the normal person who would dismiss the issue at once.

Q. There is a clear distinction, nevertheless, between ideas of reference and delusions of reference, isn't there, doctor? A. Yeah, people make a distinction, that's right.

Q. And you don't? A. I don't - don't feel it is necessary to rigidly classify things. I think if you are doing research or in an academic position, one needs to do that for a research paper or something of that nature, but in ordinary diagnosis, it doesn't have quite as much meaning.

Q. His Honour directed a question to you yesterday about the definition of ideas of reference as opposed to delusions of reference and I take it would you agree with this example, by way of example rather than definition is that, "I listened to the TV last night and the news reader was speaking directly to me"; now, that is a delusion of reference, isn't it? A. That is a delusion, yes.

Q. Whereas the comment, "I'm increasingly concerned about the TV news, I don't like watching it any more because it's getting too personal", that doesn't have that delusional context, does it-- A. Not quite.

Q. --it is more of an idea of reference? A. Not quite. It's a little in that direction but not fully-fledged, one might say.

Q. Do I understand the import of your evidence, nonetheless, to be that you don't require the delusion of reference that an idea of reference is sufficient in order to conclude that there is a psychotic phenomena occurring? A. In the context of other phenomena, if you take it on its own then it doesn't mean much, but if you take it in the context of others, you can give it some meaning.

Q. And just pausing there, of course, psychotic phenomena is not unique to schizophrenia; it occurs in many other disorders as well? A. Yes.

Q. Including mood disorders with psychotic features? A. Yes.

Q. Just in general terms, my learned friend Mr Blacket raised a concept with you of paranoid ideation? A. Yes.

Q. Again there is a distinction between paranoid thoughts and paranoid ideation? A. There is.

Q. And would you agree that paranoid ideation has less than delusional proportions and usually involves suspicion or belief that one is being followed or unfairly treated or persecuted? A. I would agree with that."

452 Many of the reports, in my opinion, magnified the difficulties the Plaintiff had with Dr Darling well beyond the level of reality. Some, in my view, used emotive language, unsupported by the evidence, in relation to the course. Furthermore they referred, contrary to the evidence, to a lack of professionalism in its conduct and to an inadequacy of systems in place for the welfare of participants; they failed to acknowledge adequately the possible significance of the Plaintiff's consumption of Duromine at about the time of the course and his very serious reaction to his wife's illness; and they referred to childhood difficulties with his father and an excessive workload at BHP, which again, in my opinion, were not supported by the evidence. 453 On any view of the matter, the correct diagnosis of the Plaintiff's mental illness was plainly a matter of difficulty upon which very highly qualified and experienced psychiatrists could legitimately differ. In the circumstances, I do not think it appropriate for me to state my preference as the correct diagnosis. Rather, I think I should say that I am not satisfied, on the probabilities, that the Plaintiff has discharged the onus of proving the diagnosis for which he contends. CAUSATION: 454 I agree with the Plaintiff's submission that if BHP encouraged or permitted the Plaintiff to attend the Leadership Course in breach of its duty and such course caused foreseeable psychiatric damage, then BHP would be liable for that damage, notwithstanding what might be regarded as a novus actus interveniens in the form of the course. 455 However, in my opinion, the cases relied upon by the Plaintiff such as Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070 did not absolve him from the obligation to establish causation between the leadership course and the damage actually suffered, in other words, a causative link between the course and whatever illness it is from which he suffers. It is true that the common law encourages a "robust" factual approach to causation issues (see for example what was said by Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSW LR 307). The Plaintiff's counsel also relied on what was said by Rich ACJ in Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 53 at 563, in a workmen's compensation case where the issue was whether the Plaintiff's employment materially contributed to his sudden death from a coronary occlusion and there was substantial conflict in the medical evidence. His Honour said: "I do not see why a court should not begin its investigation, ie, before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology." 456 However, as it seems to me, a "robust" approach and the presumptive inference referred to in Forst are not particularly helpful in this case. They must give way to the evidence that while a breach of duty by BHP may have been causally related to a mood disorder with psychotic features as diagnosed by Drs Klug, Morris and Phillips, in light of current medical knowledge it was unlikely to be related, except in a very limited way, to a psychotic disorder such as schizophrenia. 457 As Mason P explained in T.C. by his Tutor Sabatino v State of NSW [2001] NSWCA 380: "……. Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett) is necessarily based upon a hypothetical enquiry. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered."

458 Here it was important for the Plaintiff to prove, on the issue of causation, that his illness has been predominantly a mood disorder rather than schizophrenia. It would also, of course, be important on the issue of damages if that had arisen for determination. 459 As the Plaintiff, in my opinion, has failed to prove the psychiatric disorder for which he contends, it follows as a consequence of my acceptance of Professor Keks' opinion as to the aetiology of schizophrenia that he has also failed to prove any causal connection between the Leadership Course and the mental illness from which he suffers. WORKERS COMPENSATION PAYMENTS: 460 By letter dated 6 December 1996 to Mrs Nandy MacKinnon, BHP accepted liability for the Workers Compensation claim "made by Angus for psychological condition". 461 Apparently, payments and benefits were thereafter made and provided to the Plaintiff until August 2001, when BHP, by letter, informed him that "further liability has been denied". The ground for such denial was stated as "any continuing disability that you may suffer from is not related to your employment with this company". 462 The Plaintiff submitted that the payments under the Workers Compensation Act constituted an admission that, at the time the payments were made, the Plaintiff was incapacitated as a result of injury received in the course of his employment and that his work was a substantial contributing factor. There is authority to support that proposition which Newman AJ described as trite in Wiki v Atlantis Relocations (NSW) Pty Ltd (2003) NSWSC 481. 463 However, at most, the admission would only, in this case, go to the issue of causation. It has nothing to say in relation to the issue of breach of common law duty. 464 Moreover, there is I think, much force in Mr Joseph's submission that in the circumstances of this case, the weight of any admission constituted by the making of workers compensation payments is extremely slight and likely to be overcome by other evidence. FAILURE TO CALL WITNESSES: 465 Counsel for the Plaintiff submitted that I should draw the usual and permitted inferences from BHP's failure to call without explanation, Colleen Durant, Neil Harvey, Fiona Shand, Dr Julian Caples, Lisa Delaney and Susan Cooper, most, if not all of whom are still employed by BHP. 466 Counsel for BHP addressed the submission in some detail with extensive reference to authority. Inter alia, it was submitted that the so called rule in Jones v Dunkel (1959) 101 CLR 298 must be considered with regard to each situation in which a witness is alleged to be absent; that it is not to be used to complete gaps in evidence or to convert conjecture into inference; that the rule only applies where a party is required to explain or contradict something; that it only applies where the party might reasonably be expected to call the witness; that the rule does not require a party merely to call cumulative evidence and that the rule applies to both parties. 467 In this light, I will make brief reference to the persons identified by the Plaintiff's counsel: Ms Colleen Durant - There was evidence that she now lives in the USA. This satisfactorily explains, I think, why she was not called. I draw no inference from her absence. 468 Mr Neil Harvey - I have earlier given reasons why I draw no inference from his absence from the witness box. 469 Ms Fiona Shand - No explanation was given for BHP's failure to call Ms Shand, although a document prepared by her was admitted into evidence. As she was the course director, she presumably was just as available to the Plaintiff as to BHP. It is true that she may have been able to deal with Mr Blackman's assertion that he alerted her to his concerns about the Plaintiff. However, Mr Blackman's evidence on this particular subject was rather vague and, in any event, related to day 6 or 7 of the course. Moreover, he could not remember her response. I draw no inference from BHP's failure to call Ms Shand about events, which, of course, occurred 10 years ago. 470 Dr Julian Caples. - Although Dr Caples apparently remains a senior employee of BHP, I would not have expected it to call him. There is, in my opinion, no reason to suppose that he could have given relevant evidence not otherwise called, for example, through Dr Baynes. 471 Ms Lisa Delaney - She also apparently remains an employee of BHP. She was involved with the Plaintiff to some extent in the months prior to the course, in that she formed part of the group established by Dr Darling to assist him. She also attended the course. However, there was what I regard as ample evidence from others as to the Plaintiff's presentation prior to and during the course. Ms Delaney may or may not have had a good recollection of the events of those times, but there is no particular reason to think she is likely to have a better recollection than those who did give evidence. I draw no inference from her absence from the witness box. 472 Ms Susan Cooper - Ms Cooper in the compensation department was, as I understand it, equal in rank to Dr Darling, with whom she had apparently a difficult relationship, albeit managed professionally. She is still with BHP and, indeed, sat in court during the trial from time to time. Again there is no reason to think that she would have a particular recollection of the events of August, September, October 1996, enabling her to make a useful contribution to the case. I draw no inference from BHP 's failure to call her. 473 Counsel for the Plaintiff and counsel for BHP commented on the fact that their respective opponents did not rely on reports from all relevant doctors. There was evidence that the Plaintiff, at the behest of BHP or Cross Defendants, was examined by psychiatrists, Drs Flanagan, Shand, Skinner and Brown, none of whose reports were tendered. In light of the large amount of medical evidence that was tendered, I do not draw any inference from the fact that not all the available material was put into evidence. Indeed, so far as Dr Skinner was concerned there was evidence that her view accorded with that of Professor Keks. 474 Counsel for BHP commented on the Plaintiff's failure to call Dr Gertler and some or all of the many medical practitioners he has consulted before and since October 1996. Again, in light of the large amount of medical material tendered in the Plaintiff's case, I do not think it appropriate to draw an inference in respect of any other material which may have been available. 475 Counsel for the Plaintiff commented on BHP's failure to produce documents relating to the Plaintiff which may have had relevance to issues in the trial but which, according to the evidence, have been lost or, at least, cannot be found. There is no basis, in my opinion for the drawing of any inference in respect of such documents.

DAMAGES: 476 Although I am mindful that a trial judge finding for the defendant is nonetheless encouraged to assess damages, I do not think it would be appropriate for me to attempt to assess damages in this case. The reason for that is that not only, in my opinion, has the Plaintiff failed to establish breach of duty of care, but he has also failed to establish a causal connection between the alleged breach or breaches and his mental illness. At most, on my view of the case, he would be entitled to nominal damages only.

COSTS: 477 Although I apprehend that costs will largely follow the event, BHP in its submissions foreshadowed that some particular questions might arise in light of these reasons. Accordingly, I will reserve costs and give parties liberty to apply in respect of them. 478 ORDERS:

1. The proceedings against both Defendants are dismissed and there will be verdicts and judgment for such Defendants.
2. All outstanding cross-claims are dismissed.

4. All parties have liberty to apply regarding costs on 7 days notice.

5. Exhibits may be returned. -o0o-

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