Manly Municipal Council v Skene

Court of Appeal (NSW)|2002-12-02|Before: Heydon JA, Santow JA, Mr P, Mr J

CITATION : Manly Municipal Council v Skene [2002] NSWCA 385 FILE NUMBER(S) : CA 41022/01 HEARING DATE(S) : 22/08/02 JUDGMENT DATE : 2 December 2002

PARTIES : Manly Municipal Council (Appellant) Cameron Skene (Respondent) JUDGMENT OF : Heydon JA at 1; Santow JA at 50

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2652/97 FILE NUMBER(S) : DC 503/94 LOWER COURT Phegan DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41022/01 DC 2652/97 DC 503/94

2 December 2002 MANLY MUNICIPAL COUNCIL v SKENE Tort - negligence - duty of care - breach - damages - quantum - psychiatric damage - whether finding of causal contribution of psychiatric damage to plaintiff's state of being open on the evidence - liability not in issue

The plaintiff was present on a balcony when the balcony collapsed. In District Court proceedings he alleged inter alia that the defendant's negligence contributed to him suffering psychiatric damage involving depression and other symptoms associated with bipolar disorder. The trial judge found that the defendant owed and had breached a duty of care to the plaintiff, and awarded damages calculated to include the alleged psychiatric damage. He did so on the basis of oral testimony and the written reports of experts who were not called for oral examination. The defendant appealed alleging that the calculation of damages should not have proceeded on the basis that the plaintiff's psychiatric condition was caused by or contributed to by the fall suffered when the balcony collapsed because the trial judge's findings of fact as to psychiatric damage were not open on the evidence. The Court was constituted in accordance with s 46A of the Supreme Court Act 1970 (NSW).

Held (Heydon JA, Santow JA agreeing), dismissing the appeal, It is common in the District Court in cases of personal injury where written expert reports were relied upon by both parties for there to be no cross-examination of expert witnesses. In those circumstances the absence of cross-examination to test experts' testimony meant that potentially difficult questions resolving apparent conflicts between experts' testimony may be left to the trial judge. The judge is left to arrive at some conclusion without real assistance from experts who, though they have a much superior background in the relevant discipline, have different and inferior access to factual material and a relatively restricted range of factual assumptions compared to those with which the judge is working. The factual findings in this case were made in these circumstances and did not exhibit any significant error of primary fact or of law and analysis of all the relevant evidence. The conclusion that the plaintiff's psychological state was caused by or materially contributed to by the fall suffered in 1993 was open to the trial judge on the evidence: [20]-[23], [48]. Purkiss v Crittenden (1965) 114 CLR 164, considered.

The appellant is to pay the respondent's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41022/01 DC 2652/97 DC 503/94

2 December 2002 MANLY MUNICIPAL COUNCIL v SKENE Judgment 1 HEYDON JA: This is an appeal against an order made by Phegan DCJ on 23 November 2001, after a hearing on 25 October and 21 November 2001, that the defendant pay $307,150.40 in damages to the plaintiff. 2 The damages were awarded in consequence of injuries which the plaintiff, together with various other plaintiffs, suffered when a balcony on which they were standing collapsed. 3 Only one ground in the Notice of Appeal, which is limited to quantum issues, is persisted in: "It was not open to conclude, and Phegan DCJ erred in concluding, that the Respondent's psychiatric illness and psychological state was caused by, or materially contributed to by, the fall which he sustained due to the Appellant's fault on 20 February 1993."

The trial judge's reasoning 4 The trial judge referred to evidence of the respondent's mother that the respondent displayed social isolation and intermittent difficulties with self- care while convalescing after the accident in 1993. He said: "he did withdraw, … he did isolate himself socially and … he did show, even after he was physically able to take care of himself, signs of lack of self care."

The trial judge also said that those symptoms were displayed again in 1998. 5 The trial judge also said of the mother: "She … confirmed that she had never seen any signs of depression prior to the incident in February of 1993, and drew a very clear distinction between his moodiness and his tendency to withdraw and to show a general lack of interest in both his own personal hygiene and in those around him, which became indicative of his condition after the accident, and the absence of such symptoms up to February of 1993. She conceded that the most severe onset of symptoms is associated with and has occurred since the beginning of 1998, but at the same time she gave quite graphic description of what he was like after he came out of hospital until he left home. Her general impression that the symptoms which were displayed during that first twelve month period following the accident, although she conceded they improved, never disappeared entirely." 6 The trial judge immediately turned to the evidence of a friend: "In this respect, there is also the evidence of a friend of the plaintiff, Mr Matthew Holdt, who had known the plaintiff from school days. Mr Holdt had continued to see the plaintiff socially, although after he himself went to university in 1993, tended to see the plaintiff on a less regular basis than he had before. Nonetheless, it was sufficient to enable Mr Holdt to notice the decline in the plaintiff's behaviour after February of 1993. He described him as becoming less sociable and less active and over time, less happy and less interested, that he socialised less with the people he had mixed with before and that as time passed, these problems, to use Mr Holdt's words 'deepened', he became even less active and depressed, that his routine broke down, he started to get into trouble with his job which I have already referred to, and started to drink excessively. He visited the plaintiff in hospital after his initial attempt at suicide in 1998. He described his observation of mood swings in the plaintiff which are consistent with the underlying bipolar disorder in which the plaintiff would suddenly become animated and interested and seemed to get his confidence back, followed by periods of much more acute depression." 7 The trial judge then said: "I have to say that all of that evidence does not take the matter very much further with regard to what I will refer to as the lost years, at least between 1995 and 1998. There is very little direct evidence of the observation of the plaintiff's condition and behaviour over that time, and that lack of evidence does lend some weight to the case put on behalf of the defendant, that there was a period of depression, admittedly not as acute as that which came about in 1998, but which did substantially resolve, insofar as one can tell, from the plaintiff's work history from the time he left his job which he had at the time of his injury, and then proceeded to periods of sustained employment in which he appeared to be reasonably well adjusted, and certainly until his attempted suicide, did not lead to any confrontations with his employer of the kind that had brought an end to his earlier job as a picture framer. The question is whether in the light of that very limited history over that intervening period of time, it is nonetheless possible to accept as Mr Stewart, on behalf of the plaintiff, has submitted, that there is sufficient evidence to establish a causal connection between the plaintiff's psychiatric condition and the fall in February 1993. In this respect, attention was drawn by Mr White for the defendant, to a definition of the respective disorders, namely bipolar disorder and major depressive [disorder] contained in the fifth edition of Moseby's Medical Nursing and Allied Health Dictionary. Referring in particular to the definition of major depressive disorder, it stated: '… the disorder is one which may develop over a period of days, weeks or months. Episodes may occur in clusters or singly, separated by several years of normality. Causes of the disorder are multiple and complex and may involve biologic, psychologic, interpersonal socio-cultural factors that lead to an unidentifiable intra-psychic conflict.' I have to say, notwithstanding the reliance placed on that definition by the defendant, that when one looks at that description, it does fit the circumstances of this case to the extent that it does not exclude the connection in a causal sense between the consequences of the fall in February of 1993 and the plaintiff's present condition. The reference to the fact that episodes may be separated by several years of normality is itself a possible explanation for what appears to have been the relatively uneventful period from 1995 to 1998. It certainly does not exclude the possibility that there was a substantial period of the absence of symptoms which were then quite suddenly, but consistently with the definition, exacerbated and experienced in the early part of 1998. The further point which was made quite understandably by Mr Stewart on behalf of the plaintiff was that while there is this long and unexplained period of apparent lack of symptoms, culminating in the onset of a series of attempted suicides beginning in early 1998, no explanation is forthcoming from the defendant as to what else might have explained the sudden onset of acute depression, apart from the earlier period of depression immediately following the injuries. There is the evidence which I have already indicated I have no difficulty in accepting, that whatever underlying condition the plaintiff may have suffered from up to the time of his fall, this had not at that stage manifested itself in any observable symptoms to anyone other than the plaintiff himself, and that these only appeared as a consequence of the fall. It is possible in those circumstances to make the necessary connection between the fall and what has occurred since, including the acute onset of depression over the last three and a half years." 8 After quoting Purkiss v Crittenden (1965) 114 CLR 164 at 168 and saying that the appellant had not done what that case called for, the trial judge said: "I am satisfied on the balance of probabilities that the present condition of the plaintiff, which has been diagnosed as a combination of a major depressive disorder, coupled with a bipolar disorder was a consequence of the fall in February of 1993 for which the defendant is responsible in the sense that the immediate consequences of that fall were effective in releasing in what was an already fragile psyche, all of the early symptoms of depression which have now taken on in more recent years a much more acute form. In the plaintiff's own words, up until that time he had managed to keep the problems to himself, and even over the intervening period after the initial onset of depression, he had succeeded in keeping the worst of the consequences bottled up until they were finally released in the early part of 1998. The injuries consequent on the fall were a significant contributing factor to the very unhappy situation in which the plaintiff now finds himself."

The appellant's arguments 9 The appellant argued that the trial judge did not consider, or did not give sufficient weight to, certain medical evidence. 10 One item of this evidence was a statement of the respondent's treating psychiatrist (Dr Ladd) dated 12 August 1998. It is headed "Mona Vale Hospital and Community Health Services" and "Progress Notes". It reads: "Received a letter from Cameron's solicitor P J Harkin of Mark Kennedy & Co requesting clinical notes, they wish to establish if his mental illness is related to his involvement in a previous accident (collapse of a balcony in Manly some years ago). Copy of relevant clinical notes should be sent. In my opinion Cameron's diagnosis of Bipolar Mood Disorder is most unlikely to be related to any injury he may have sustained in that accident."

The appellant attributed significance to the fact that Dr Ladd was not called by the respondent. 11 Another item was a report of Dr Dyball dated 2 July 2001 containing an opinion that the respondent's manic depressive disorder did not occur until 1997 or 1998. 12 A third was a report of Dr O'Neil, a consultant neurologist, dated 28 September 2001, stating the view that there was no association between the respondent's head injury of 20 February 1993 and the subsequent development of a bipolar psychiatric illness. 13 Another was a report of Ms Martin, a clinical neuropsychologist, dated 3 September 2001. She said the respondent had a history of undiagnosed depression which long predated the accident of 20 February 1993 and which may have been exacerbated by alcohol and drug abuse unrelated to the accident. In 1998, she said, the respondent's condition deteriorated in a way unrelated to the accident. She agreed with Dr Ladd. 14 The appellant directed particular criticism to the trial judge's handling of one passage in Ms Martin's report. That passage was: "His social isolation and intermittent difficulties with self care appear to have only occurred since his psychiatric admissions in 1998 and are in my opinion not attributable to his accident on 20 February 1993."

The trial judge said: "The evidence given by his mother, which I have no reason not to accept, was that these very symptoms were conspicuously displayed during the period of his convalescence after the accident, that he did withdraw, that he did isolate himself socially and that he did show, even after he was physically able to take care of himself, signs of lack of self care, all symptoms which had re-emerged during this more recent period of acute depression."

The appellant's criticism was that Ms Martin was aware of the respondent's psychiatric condition immediately after the accident. Her reference to "social isolation" was a reference to the respondent's having cut himself off completely from all other contact, which was not the case in the post-accident period, in which he lived with his mother, resumed work after recovering from his physical injuries, maintained a steady relationship with his girlfriend and had a circle of friends. 15 The appellant continued: "The reference to ' intermittent difficulties with self care ' referred to by Ms Martin was also intended to be a reference to the evidence that after early 1998 the respondent reported that he ' spent most of the day in his unit, had no social contact, slept in his clothes, did not shower for up to one week, lacked energy, concentration and motivation and spent most of his time staring at the wall or surfing the internet ' (see para 7.38 of the Martin report) (Blue AB88.H-J). Whilst the respondent may have been 'neglectful in his appearance' following the accident (para 7.12 of the Martin report) (Blue AB81.H) this was likely to have been as much the consequence of his physical disabilities than any other reason (T53.24-35) (Black AB53.K-O). His Honour was in error in finding that Ms Martin had assumed there were no signs of social isolation and self-care difficulties immediately following the fall. In fact Ms Martin in her report refers to such evidence. She was clearly drawing a distinction between the psychiatric state of the respondent immediately after the fall which resolved itself within about 12 months and the present psychiatric condition of the respondent which manifested itself only in early 1998. There was nothing in Ms Martin's report that was inconsistent with the evidence of the respondent's mother - indeed the respondent's mother had told Ms Martin a similar history (see paras 4.7 and 4.8 of the Martin report) (Blue AB 76F-N). His Honour was therefore in error in rejecting Ms Martin's conclusions as to causation." 16 The appellant criticised the trial judge's statement that while there was a long and unexplained period of apparent lack of symptoms, no explanation was forthcoming from the appellant for the sudden onset of acute depression. The appellant submitted: "the Council did adduce evidence to show that within 12 months of the accident the symptoms of depression had settled and the respondent for the following four years: (a) went on to obtain a number of jobs; (b) was virtually in continuous employment; (c) enjoyed working as a barman for about two years; (d) was involved in social and leisure pursuits; (e) maintained a three year relationship with a girlfriend; (f) lived independently of his family; (g) had contact with a circle of friends; (h) had no difficulty with domestic duties or self-care. See paras 3.3, 8.2, 15.10, 15.14, 7.43 (p 25), 16.4 and 16.5 of the Martin report (Blue AB74R-97I). It was that evidence together with the respondent's long history of depression and the remoteness of his subsequent deterioration from the accident which caused Ms Martin to conclude that the respondent's present bipolar disorder was not causally related to the accident." 17 The appellant contended that the respondent had not established a prima facie case that his post 1998 psychiatric condition was the result of the February 1993 accident and that Purkiss v Crittenden required the appellant to do no more than it did. 18 The appellant said: "The definition of bipolar disorder was considered by his Honour to support the conclusion that there was a causal connection between the fall and the respondent's present condition because it did not exclude such a connection. Yet the definition refers to the causes of the disorder as being multiple, complex, involving biologic, psychologic, interpersonal and socio-cultural factors. It also refers to episodes occurring in clusters or singly separated by several years of normality. His Honour regarded that aspect of the definition as explaining the ' relatively uneventful period from 1995 to 1998 '. Yet there was no evidence as to when the respondent acquired the condition known as bipolar disorder and certainly no evidence that the condition was pre-existing at the date of the accident. Dr Dyball's report states that he believed the bipolar disorder did not occur until 1997 or 1998. It is also not clear why his Honour chose the timeframe 1995-98 when the evidence was that the respondent's psychiatric condition immediately following the fall resolved within about 12 months. To the extent the definition of bipolar disorder referred to by his Honour gives any assistance it is nothing more than that the causes of it are not able to be readily identified. The fact that it does not exclude the connection between the fall and the respondent's present condition does not positively establish it. Without evidence as to when the bipolar disorder arose, his Honour was unable to draw assistance from the definition in the way that he did. The other basis upon which his Honour relied in finding causation was the outward manifestation of the respondent's psychiatric condition following the fall (Red AB202.L-T). Ms Martin considered that whilst the fall appeared to have had some increase in the respondent's symptoms of depression after the accident on 20 February 1993, this settled down over the next 12 months (para 15.14 of the Martin Report) (Blue AB95.K-U). She also recorded that: 'reports indicate that [the respondent] complained of some feelings of depression and anxiety in relation to his physical problems in the months following his accident' and ' … it appears that [the respondent] may have suffered from a reactive depression following the accident in 1993 but that this had largely resolved by the time he saw Dr Darveniza on 18.5.94 and Mr Rawling on 28.8.95' (para 7.43 on p 25 of the Martin report) (Blue AB96.L-S). His Honour's finding that the outward manifestation of the respondent's depression immediately following the fall made it possible to conclude that the bipolar disorder diagnosed in early 1998 was causally related to the fall was erroneous. There was no basis for such a finding having regard to the evidence that from about 12 months following the fall those matters had resolved and the respondent was able to engage in the activities referred to in paragraph 12 above for a period of about four years prior to the deterioration in his psychiatric condition." 19 Finally, the appellant contended that the trial judge should not have preferred the reports of Drs Dent and Parmegiani because: "they did not attempt to grapple with the significant issue that from about 1994 the respondent's psychiatric reaction to the fall resolved and he was able to engage in the activities set out in paragraph 12 above without apparent difficulty. Further, the emphasis placed by those doctors on the 'stress' suffered by the respondent following the fall which is said to have 'precipitated' the bipolar disorder likewise cannot be accepted given that from about 1994 the respondent's psychiatric condition returned to its pre-accident state. No explanation is given as to how after such a lengthy period of stability the respondent's deterioration in 1998 could be said to be related to the fall. These were matters specifically dealt with by Ms Martin and should have been preferred to the conclusions reached by Drs Dent and Parmegiani. The conclusions reached by Drs Dent and Parmegiani must also be considered in circumstances where by early 1998 the respondent's physical disabilities had resolved."

The problem of finding disputed facts on the basis of expert evidence not subject to cross-examination 20 This case is typical of those in which parties to personal injury proceedings in the District Court in which significant sums may be at stake and which raise potentially complex issues turning on a contest of well-qualified experts decline to offer the court whatever assistance might be obtained by cross-examination of those experts. The respondent had two medical experts to support his case on the issue which is crucial to the appeal. The appellant had three medical experts to support its. On key aspects they collided. Yet no attempt was made to confront the experts with the collision, to seek explanations for the collision, or to test the colliding opinions. The appellant, for example, criticised Drs Dent and Parmegiani by saying that no "explanation is given as to how after … a lengthy period of stability the respondent's deterioration in 1998 could be said to be related to the fall". Had they been cross-examined, they might have had an explanation. And if, on cross-examination, they admitted they had no explanation, the competing body of medical opinion would have been strengthened. In this appeal there were also debates about what particular doctors meant and about what they had or had not assumed which could have been cleared up in cross-examination. 21 To the extent that civil litigation - a law suit - attempts to arrive at a just resolution of the dispute by a rational approach to the underlying facts, it tends towards the irrational that the law suit should be decided on imperfect materials which could have been improved - expert reports having deficiencies, both in their manner of expression and in their being based on a fragmented set of factual assumptions. A trial judge will usually have a much sounder grasp of the evidentiary materials than any medical expert. That is so if only because medical experts - whether they be doctors who were engaged for the purpose of treating the plaintiff or other doctors engaged solely for the purpose of giving evidence about the plaintiff - sometimes see the plaintiff at a relatively early stage and sometimes at much later periods. 22 Under the classical model of the common law trial, the lay evidence called by one party is given first, and medical experts called by that party then offer opinions based on a range of assumptions devised to accommodate all possible combinations of factual findings which the trier of fact will make at the end of the trial. The process is then repeated for other parties. Quite apart from the value which cross-examination can have in elucidating the meaning of and testing expert evidence, the forensic power of, and the forensic advantages to be derived from, the oral evidence in chief of a capable expert answering non-leading questions can be very considerable. There are numerous practical reasons why the classical model is not employed in the District Court, where most personal injuries litigation in this State takes place. In many cases the range of dispute is narrow. It is socially more desirable for doctors to spend much more time treating patients than giving, or waiting to give, evidence. The classical theory of trial may consume disproportionate amounts of time and money compared to the District Court system of written reports exchanged in advance and supplied by experts who are rarely cross-examined. But there are important cases - the verdict in dispute in this case, for example, is a large sum to the respondent and a large sum to the appellant - which can only be justly resolved by a concentration on the vital point and a thorough elucidation and testing of it in oral evidence. There are some disputes the resolution of which is much assisted by a barrister thrashing the matter out face-to-face with an expert witness. If that is not done, the trial, so far as any conflict of experts is concerned, becomes analogous to a game of chess or cards played by competitors not entirely familiar with the rules. Impersonal materials are moved around. Formulae are incanted. The judge is left to arrive at some conclusion without real assistance from experts who, though they have a much superior background in the relevant discipline, have different and inferior access to factual material and a relatively restricted range of factual assumptions compared to those with which the judge is working. 23 In these circumstances an appellant who complains of a particular choice by a trial judge experienced in the field for one body of medical opinion over another, which is expressed in a careful, thoughtful, balanced and detailed judgment not exhibiting any significant error of primary fact or of law and analysing all the relevant evidence, faces, and ought to face, a difficult task in persuading the Court of Appeal to jettison the trial judge's view and substitute for that view another view. The judgment under appeal is of that character.

Consideration of the appellant's arguments 24 The appellant contended that the trial judge had made a significant error of primary fact in relation to his conclusion that Ms Martin had erred in saying that the respondent's "social isolation and intermittent difficulties with self care" had not occurred before 1998. The error was said to lie in overlooking passages in Ms Martin's report revealing awareness of the respondent's psychiatric condition immediately after the accident. Ten references were given, but only two gave real support to the argument. At paragraph 4.7 Ms Martin said that after the accident the respondent "slept a lot and seemed to have reduced motivation and level of self care. He would not talk about the accident to [his mother]." At paragraph 7.12 this was repeated: "Mrs Skene reported that Cameron had been very negative and withdrawn for 12 months after the accident and had refused to discuss it. She said that Mr Skene 'for a time' isolated himself in his flat, was neglectful of his appearance and disinterested [sic] in his work." 25 The difficulty with this line of argument is that the assessment of the respondent's behaviour just after the accident and in 1998 must necessarily turn on words of evaluation, impression and judgment. The words which Ms Martin reports Mrs Skene as having used convey a less dramatic picture than the words which Mrs Skene used in the witness box. Whether or not the trial judge's handling of Ms Martin's report meets the high standards demanded by the appellant, there was evidence to support the trial judge's view that after the accident the respondent did not just have reduced motivation and self-care, was not just very negative and withdrawn, and did not just isolate himself in his flat "for a time", but had symptoms of the same order as those which were observed in 1998. Mrs Skene said: "Q. Now, while he was at home convalescing, did you notice any changes in him compared to how he was before the accident, leaving aside the physical disabilities that you observed? A. Yes, I noticed a lot of changes. Q. What are some of the changes that you observed? A. He was vague, he wasn't communicating, he was sleeping a lot, he appeared to me to be depressed, he was not coming out of his room and he wasn't taking particularly good care of his -- HIS HONOUR: I am sorry I just missed that last bit. [COUNSEL FOR THE PLAINTIFF]: Q. Wasn't taking particularly good care of his -- A. He wasn't taking particularly good care of his personal hygiene after we gave up the process." 26 She also said: "Q. During the period from the time he went back to work until he left your home, did those changes so far as you could observe persist or did they - he revert back to his old self or what? A. No, they persisted to an extent. Q. All right? A. And the extent being that he couldn't stay in his room all day because he had to get up to go to work. Q. What about on the weekends? A. Not particularly good. He used - he wasn't communicating very well with anybody at that stage." 27 In answer to a question directed to the fluctuating condition of the respondent during the period since the time when the respondent was in intensive care in Manly Hospital after a suicide bid in 1999, she said: "Q. All right and that's been happening since he was in intensive care, he has been going through these fluctuations? A. Well, now that I am aware of it, he has been going through it since he had his accident." 28 In cross-examination she said: "Q. I take it from your observations of your son that you would agree that since 1998 there has been a severe deterioration in his mental health? A. I think the deterioration started in 1993." 29 In evaluating the mother's credibility, and in determining what it was that she was conveying, the trial judge must have taken into account his impression of her in the witness box. The appellant did not contend that Mrs Skene was not to be believed. The trial judge took into account the extent, and the limitations on the extent, to which she was able to make observations of her son's condition. It was open to him to conclude, on the strength of her evidence, that while the respondent's symptoms had their most severe form from the beginning of 1998, they were the same symptoms as those which appeared after the accident. That is different from the factual position which Ms Martin assumed. She treated the 1998 difficulties as being of a different character and degree from those of 1993, and saw it as unlikely that they were related to the accident. This feature of her report reflects no discredit on her: it may be explained simply by the fact that Mrs Skene conveyed a different impression to Ms Martin from that which Mrs Skene conveyed to the trial judge. Given that the trial judge accepted Mrs Skene's sworn evidence and that the appellant did not criticise that acceptance, the trial judge's consequential qualifying of Ms Martin's approach was open to him. 30 Thus the appellant has not demonstrated that the trial judge erred in failing to realise that Ms Martin was aware of the similarity of the symptoms in 1993 and 1998. 31 The appellant's contention that the trial judge erred in accepting Drs Dent and Parmegiani because they "never grappled with" the significant resolution of the respondent's problems in the years 1994-1998 raises questions about the tactics employed at the trial. If that contention were sound, the appellant could have objected to the conclusions they arrived at as wanting in reasoning. Alternatively, the appellant could have cross-examined these doctors with a view to obtaining a withdrawal or modification of their opinions in the light of their supposed failure to grapple with a key difficulty. Neither course was adopted. The appellant did object to some of the medical reports relied on by the respondent, but not these; and no medical expert was cross-examined. Of course it remains open to the appellant to point to deficiencies in the reasoning, but the failure to attempt to have the evidence rejected and the failure to attempt to compel either of them to make adverse concessions leaves the appellant in some peril in this Court in view of the trial judge's acceptance of the evidence. 32 Dr Parmegiani received a history which, while it revealed less about the respondent than the evidence at the trial did, did record Mrs Skene's perception of her son's symptoms in 1993. "Mr Skene's mother told me she noticed a change in her son's behaviour shortly after the fall. She said he became increasingly depressed, disinterested and withdrawn. She said his attendance to work was erratic, and she sometimes received phone calls from his employer enquiring where he was." 33 Dr Parmegiani's report also recorded the respondent's present position: "He spent most of the day in his unit, and had no social contact. He slept in his clothes, and he did not shower for periods up to one week. He continued to lack energy, concentration or motivation. He avoided answering the phone, and most of his time was spent either staring at the wall or surfing the Internet." 34 Dr Parmegiani said that the respondent had a major depressive disorder. "It is difficult to determine when his symptoms began, although there appears to be a gradual deterioration over the past 8 years. He lost a significant amount of weight, and his sleep was poor. He was socially withdrawn, unmotivated and unable to concentrate. Mr Skene's depressed mood increased in severity over the past two years. He attempted suicide on a number of occasions, and he required psychiatric admission. His symptoms did not respond to a number of antidepressants and mood stabilizers, including Lithium. He led an impoverished lifestyle, and he had no social contact. He dropped out of treatment, as he lost faith in doctors." 35 It is not correct to suggest, as the appellant did, of Dr Parmegiani's report that it failed to take account of the various jobs which the respondent had had since the accident or the relationship with his girlfriend or other friends. At Blue 42V-43G he said: "At the time he was employed by Australia In Focus, [as] a picture framer. Mr Skene returned on light duties, but he found it difficult to cope with the physical demands of his job. He explained that he was unable to lift or carry large pieces of wood. He found another job with Action Framing, where he remained for one year. He was then retrenched as the business ran out of work. Mr Skene spent two months at a friend's farm in Leighton. He then returned to Sydney and he found employment at the Newport Arms Hotel. He worked in the bar, bistro and bottle shop. He stopped working in 1998, after two years."

At Blue 45P Dr Parmegiani said: "Mr Skene had a number of relationships, the longest lasting two years." Nor is it correct to suggest, as the appellant did, that Dr Parmegiani viewed the position of the respondent as being uniform from 1993 to the present day. Dr Parmegiani noted that the respondent told him that in 1998 "his mental state deteriorated, and he was admitted to hospital following a suicide attempt. Mr Skene did not return to work"; and that the respondent "had no contact with mental health professionals before 1998". He also said: "Mr Skene's depressed mood increased in severity over the past two years." The report was dated 30 March 2001. The assumptions on which Dr Parmegiani was operating were not so removed from the factual background established in the evidence as to make his conclusions so unsound that the trial judge ought to have left them out of account. 36 Further, the appellant accepted that when the trial judge said the post 1993 depression "did substantially resolve" he did not mean that it had resolved entirely. That weakens criticism of Dr Parmegiani based on a supposed failure to appreciate the improvement in the respondent between 1994 and 1998. 37 The appellant, orally but not in writing, also attacked Dr Parmegiani's report on the basis that, though prior to 1993 the respondent had a depressive illness, Dr Parmegiani assumed he had not. Counsel for the appellant referred to the words "Mr Skene did not have a personal or family history of mental illness". Counsel for the appellant said: "Now that suggests that what Mr Skene was telling the doctor was that prior to the fall he had no psychiatric condition." However, the next sentence of the report said: "It is unclear whether there was a mood disturbance in his early teens, when his academic performance deteriorated."

The appellant has not demonstrated that Dr Parmegiani's perception of a possible, though not clearly established, "mood disturbance" before 1993 is so unrelated to the plaintiff's proved mental condition before 1993 as to invalidate Dr Parmegiani's conclusions. Again, cross-examination could have assisted in establishing both what Dr Parmegiani meant and how far the issue was crucial in his reasoning. In any event, the extent of the respondent's mental difficulties before 1993 is unclear. The trial judge found that just before the fall, the respondent's was "an already fragile psyche", though "up until that time he had managed to keep the problems to himself". Earlier the trial judge said: "There … is evidence, although I do not propose to go into it in detail, which in my view establishes suicidal thoughts predating Kangaroo Rock even though it was from history given by the plaintiff. It has to be acknowledged that given the very nature of he plaintiff's psychiatric diagnosis, some reservation has to be placed on the various accounts which he has given of his personal history. But he has told at least some of the treating and examining doctors that his thoughts of suicide go back a very substantial period of time to his school years, as early as thirteen years of age, and certainly no later than 1988, that is a period of time well before the incident at Kangaroo Rock in which he was injured and which is the subject of these proceedings. The evidence also indicates that for that time, that is up to the time of the incident at Kangaroo Rock, the plaintiff managed to keep his suicidal thoughts and other depressive feelings to himself. Nonetheless such thoughts did occur to him prior to 1993, when he was already exhibiting, from his own recollection, signs of depressive illness. On the other hand, the evidence also fails to establish any occasion on which the plaintiff manifested that underlying condition to anyone else, and it was only after 20 February 1993 that the first signs of a depressive condition began to emerge."

The more obscure the pre 1993 position, the less vulnerable is Dr Parmegiani's report to criticism based on a supposed failure to take account of it. 38 The respondent did not criticise Dr Dent's report for ignorance of the respondent's pre 1993 mental condition (since he referred to it at least four times), but did say he was largely not conscious of, and did not explain how his diagnoses fitted with, the plaintiff's lack of symptoms from 1994 to 1998. He did refer to the plaintiff's work as picture framer, barman and gardener. He did refer to statements by Mrs Skene suggestive of recovery after 1994 and statements by the respondent suggestive of an increase in problems in 1998: Dr Dent saw the respondent on 24 September 1998 and spoke to his mother on 15 October 1998. For reasons which are similar to those applying in relation to Dr Parmegiani, it must be concluded that the appellant has failed to invalidate Dr Dent's opinion to an extent which would deprive the trial judge's conclusions of adequate support. 39 There is another reason for not accepting the appellant's contention that the opinions of Drs Parmegiani and Dent were invalidated by a failure to explain the supposedly good years between 1994 and 1998. Medical evidence to which the respondent drew attention at the trial in the form of a medical dictionary stated that episodes of major depressive disorder "may occur in clusters or singly, separated by several years of normality". 40 However, the appellant riposted that this showed that the 1998 condition could not be causally related to the 1993 accident. On the theory underlying this riposte, the respondent had an episode or episodes of major depressive disorder before 1993. Several years of normality ensued, and then another episode or episodes began in 1998. In its highest form this theory is vulnerable because it leaves out of account the episode or episodes in 1993-1994. However, counsel for the appellant said: "In the 12 months after the accident we would concede that his psyche was such that the fall resulted in the manifestation of his illness that was otherwise not observable." 41 Even in its qualified form, the theory was wanting in expert support. Drs Parmegiani and Dent did not support it. Nor did Dr Dyball, since the appellant conceded that he was not informed of any pre 1993 illness and said that the respondent's manic depressive disorder did not occur until 1997 or 1998. Indeed, counsel for the appellant also conceded that Dr Dyball "probably was not aware of the extent of the manifestation of the problem in the 12 months following the fall." 42 Another difficulty in this theory, also conceded by the appellant, is that though there was evidence that the respondent suffered from depression before 1993, it was far from clear that he suffered from bipolar disorder or major depressive disorder. Dr Dent's view was that before 1993 there was depression; the stress of the fall caused that to develop into major depressive disorder and bipolar disorder. The trial judge's conclusion corresponded with that view. It has not been shown that he was wrong to arrive at it. 43 So far as the appellant advanced criticism of the trial judge for not adopting Dr Ladd's view that it was most unlikely that the respondent's "Bipolar Mood Disorder" was related to the accident, it should be rejected. One sentence in a hurried note recording a request for clinical notes and a decision to send them is scarcely a reasoned expert opinion. There is nothing to suggest that Dr Ladd pondered the problem at any length on the occasion he made the note. What he took into account is unclear. What his reasoning was is unknown. The suggestion that the respondent's failure to call Dr Ladd as a witness enables inferences to be drawn the more strongly against the respondent overlooks the fact that Dr Ladd, an independent professional, was as available to the appellant as to the respondent, and the fact that both sides tendered quantities of expert evidence which, if properly presented and tested, ought to have been sufficient to permit the issue to be decided. 44 Towards the end the appellant's argument to this Court took the form of an address, as if to a trier of primary fact at a trial, inviting the Court to conduct a new trial of the matter and reach its own conclusions. It did this particularly by reading the key parts of Ms Martin's report. This technique did not by itself demonstrate appellable error in the trial judge. The reading was interrupted by repetitions of criticisms made earlier by the appellant of Drs Parmegiani and Dent. Their deployment in this way do not render them more persuasive than when they were made earlier. 45 The appellant conceded that the respondent had a pre-existing underlying condition and conceded that just after the accident it manifested itself in an observable way. The appellant did not, however, demonstrate that the trial judge had erred in failing to hold that that manifestation had ceased. 46 Counsel for the respondent levelled another attack on the appellant's submissions. He said that they relied on too sharp a dichotomy between the period of symptoms in 1993-1994 and a period without symptoms in 1994-1998. He pointed to some evidence supporting the view that events moved more gradually and that the edges between bad times and good were more blurred. While there was some force in the contention, it does cut across the trial judge's findings, and the evidence pointed to comes from a period of which there was very little evidence. In all the circumstances no ground has been made out for disturbing any of the trial judge's findings. 47 The appellant's criticisms of the trial judge's invocation of Purkiss v Crittenden against the appellant fails. To the extent that the appellant relied on the pre-existing condition of the respondent, it did not call evidence accepted by the trial judge establishing precisely what that condition was and what its future effects were likely to be. The trial judge has not been shown to be wrong in not accepting those parts of the appellant's evidence which he did not accept. 48 The parties gave the trial judge a troubling decision to make on less than satisfactory materials in circumstances of inevitable difficulty. He has not been shown to have failed to execute that task satisfactorily.

The appellant is to pay the respondent's costs of the appeal. 50 SANTOW JA: I agree with Heydon JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (1)