Rees v Lumen Christi Primary School [2011] VSCA 361

2 The statement of claim was far from being a model of the draftsman's art. Moreover, it did not altogether coincide with the appellant's case as presented at trial. But no point was made about that, either at the trial or before this Court.

3 In substance, the appellant alleged that - (1) between March and July 2003 the respondent breached the duty of care which it owed her as an employee integration aide, and that such breach was a cause of her suffering a major depressive disorder with anxiety; and (2), on 13 June 2003, the respondent breached the duty of care which it owed her, and that such breach was a cause of her suffering physical injury, (essentially to her right shoulder) and consequential psychiatric injury (that is, the injury previously described).

4 The overall burden of the appellant's case, not for the moment discriminating between the causes of action, was that in the first half of 2003, working as an integration aide in a combined years 2 to 3 class at the school, she was repeatedly exposed to grossly difficult and aggressive behaviour by a student. The exposure was both personal and secondary. In the latter connection, she alleged that the student periodically attacked other students, and caused other disruption.

5 Then, the appellant's claim went on, on 13 June the student assaulted another student and she, the appellant, had to physically restrain the child. The restraint involved a real struggle between them.

6 The appellant further asserted that, in the period of resumed work which began after she had recovered from the immediate effects of injury on 13 June and which ended on about 25 July 2003, she was not supported, but was rather made an object of blame - mainly by the school principal.

7 The appellant claimed that - (1) she suffered psychiatric injury by reason of the serious problems which she encountered in the classroom in the period up to 13 June 2003; (2) that she suffered physical injury on that date and consequential psychiatric injury, and (3), that she suffered psychiatric injury by reason of her treatment, mainly by the school principal, subsequent to 13 June 2003. She last worked, I add, on about 25 July that year.

8 Respecting the alleged psychiatric injury, multiple - or perhaps alternative - causes were thus alleged. One cause implicated was the physical injury sustained on 13 June 2003. In that connection, it was conceded by counsel for the respondent below that 'the only question of foreseeability would be ... whether it was reasonably foreseeable that [the appellant] was at risk of suffering physical injury'.

9 The appellant's case in negligence was multifaceted. It included allegations the substance of which was that - (1) the behaviour of the errant child was not properly controlled; (2) no assessment was made of the risks created by the child's misbehaviour; (3) there was no system for controlling the child; (4) insofar as there was any system, it was not properly implemented; (5) one of the classroom teachers responsible for maintaining order was not up to the task; (6) the appellant herself was not instructed how she should cope with the child's misbehaviour; (7) complaints which she claimed she made about the child's behaviour and the inability of a particular teacher to control the child were not acted upon; (8) subsequent to the incident on 13 June 2003, she was not supported but was wrongly made an object of blame.

10 The appellant claimed that she had been incapacitated by psychiatric injury from 2003 up to the time of trial in June 2010. She claimed also that the disability of her shoulder persisted to an extent.

11 The case was tried by a judge and jury over a 13day period in June 2010. It was not in debate that the appellant had restrained the offending child on 13 June 2003. Nor was it in issue that she had developed a major psychiatric illness - although its continuing effect was in dispute. In substance, also, it was common ground that the appellant had suffered a right shoulder injury on 13 June 2003. What was mainly in dispute at trial - I refer to the summary provided to this Court - were these issues:

(a) foreseeability by the employer, through its servants and agents, of the risk of the appellant suffering a recognisable psychiatric injury, between March 2003 and July 2003, arising out of the appellant's interaction with the pupil;

(b) whether any physical injury caused to the appellant on 13 June 2003, arising out of her restraining the pupil, was itself:

(i) caused by the respondent's negligence or breach of duty, in particular:

(A) whether the respondent school had failed to put in place proper procedures to control and manage the pupil, including providing competent staff to control the classroom;

(B) whether the respondent school had unreasonably failed to react to the appellant's pre-13 June 2003 concerns as expressed to Fr. Linehan (a priest with overall control of the primary school) and to Mr John Richards, the deputy principal;

(C) whether the respondent school had unreasonably failed to react to the vice-principal's observation that the appellant was 'unravelling' (T 739 & 773).

(ii) a cause of psychiatric injury;

(c) whether negligently caused psychiatric injury to the appellant arising out of paragraph (a) or (b) above, or both, resulted in the appellant suffering pecuniary loss.

12 Relevantly, the following questions were put to the jury for its consideration -

Question [1] 'Was there negligence on the part of the defendant between March 2003 and the end of July 2003 which was a cause of psychiatric injury to the plaintiff?'

Question [2] 'Was there negligence on the part of the defendant which was a cause of injury to the plaintiff on 13 June 2003?'

Question [4] 'In what sum do you assess damages for (a) pain and suffering and loss of enjoyment of life; and (b) economic loss, past and future, for loss of earnings and earning capacity?'

13 The jury answered Question 1 'no', Question 2 'yes', Question 4(a) '$46,500' and Question 4(b) 'zero'. Three other questions did not require answers.

14 The effect of the jury's answers was that by operation of provisions of the Accident Compensation Act 1985, judgment was entered for the respondent, with costs.

15 Now the appellant appeals, relying upon the following grounds:

1. His Honour Justice Robson did not clearly and fairly sum up the Plaintiff's case to the Jury in that his Honour -

(a) failed to give an accurate summary of the issues in the trial;

(b) failed to give any or any adequate summary of the evidence supporting the case of the Plaintiff;

(c) failed to give any or any adequate summary of the Plaintiff's case;

(d) in particular, failed to instruct the Jury that the Vice-Principal's admission that following a shoulder injury to the Appellant in June 2003, he noticed that the Appellant became increasingly emotionally disturbed and was unravelling;

(e) in particular, failed to instruct the Jury as to how the shoulder injury suffered by the Appellant in June 2003 could be causally related to the major depressive disorder in accordance with the principles of March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, and in accordance with the evidence.

1. His Honour failed to properly direct the Jury as to the duty of care owed by the Respondent to the Appellant, especially when the Jury specifically asked for a reduction on this matter.
2. The learned trial Judge erred in excluding the evidence of Dr Tronc as to the responses open to the Respondent to foreseeable risk of injury, at the time of injury to the Appellant.

16 In argument, attention was mainly directed to ground 1. Although the ground raised a number of issues, the submissions of counsel for the appellant particularly focused upon the fact that the jury had answered Question 2 'yes'. Counsel argued that it was evident inferentially - this was not put in issue by the respondent - that the jury had allowed no damages for the appellant's psychiatric injury.

17 Against this background, counsel submitted that the judge's charge had both misdirected and failed to direct the jury with respect to his client's case that her psychiatric injury was a consequence of the physical injury sustained on 13 June 2003. He first took the Court to evidence which, he submitted, permitted the jury to conclude that there was such a connection.

18 Dr Neil Phillips was the appellant's long-time general practitioner. He gave this evidence:

I have been Margaret's treating GP since September 2000. On June 14, 2003 [she] attended in a very distressed state. She had taken a job as a teacher's aide/integration aide some months earlier. In this role a problem had developed at the school (Lumen Christi primary school) with a child in her class. This child had been displaying increasingly violent behaviour towards the other children in the class and towards the teacher and to Margaret. There were episodes of hair pulling and of children being jabbed with pencils. On this occasion Margaret had had to restrain the child and had suffered kicks, punches and scratches as a result. On examination at the time there were bruises on her lower legs consistent with the description of the injury. Margaret was teary and having trouble sleeping, and I prescribed her some sleeping medication, which was Temazepam tablets. I next saw Margaret on 20 June 2003 because of various muscular aches and pains, and in particular pain in her right shoulder, which was as a result of having to restrain the child mentioned above_._ She was seen again on July 1, 2003 and the problems at the school were on-going. Margaret felt there was little or no support coming from senior management at the school, and that she was very much on her own trying to deal with the on-going violence. At this time Margaret had recommenced some antidepressant medication called Serzone, which she had been on in 2001 for a bout of depression.

All right. In any event, you restarted her now - this is on 1 July 2003? --- Yes. And what is Serzone? You said it's an antidepressant medication? --- It's an antidepressant medication. And what were her symptoms, what was the diagnosis and symptoms at that stage? --- In 2003? Yes? --- Yes - - -1 July? --- Yes, the teariness, the difficulty sleeping, feelings of sadness.

All right, thank you. Now, the next report that you prepared is 7 February 2008? --- That's correct. Would you mind reading that, please? --- 'Thank you for your letter requesting an update report on Mrs Margaret Rees. I am writing this report as a follow-on from my initial report dated 13 February 2006. Ms Rees continues to suffer from a major psychological trauma as the result of the accumulated incidents that took place during the year 2003.

Ms Rees remains in a fragile psychological state as a result of her original injury and relatively small things can still trigger a strong response in her. She particularly experiences flashbacks to the original incident.' Just pause there, doctor. The original incident being the first time that she saw you? --- The 2003.

All right. Now, doctor_, in terms of seeing her on 14 June of 2003, and at that time she was teary, having troubles sleeping and you prescribed the medication of Temazepam tablets, that time that you saw her, how does that fit into the overall presentation that we see from that time onwards? --- Entirely consistent with the incident. Did she ever in your view recover the position that she was in immediately prior to that assault on 13 June 2003? --- No, I don't believe she has._[1]

19 Counsel referred also to these passages in the crossexamination of Dr Phillips:

And am I correct in saying that in the period of 2003, in her attendances upon you, the first occasion on which she mentions any problem to do with the school in 2003 is in fact the 14 June? --- That's correct. And from 14 June - so the first complaint to you, and as you understand it, you were her treating general practitioner at the time? --- That's correct. And we have heard that that was the case from the witness too. And do you also understand that by 25 July she had stopped work? --- Yes. And has never worked since? --- That's correct. So that in a period of something in the order of six weeks? --- Yes. She has gone to what you would describe as enjoying her work to not being able to work again? --- That's correct. And as you understood it, it was an incident where she was restraining an 8 year old child? --- That was the initial incident, correct.

I'm sorry, doctor, just excuse me one moment. Doctor, could it be, and I am referring now to your report of once again July 2005, that's the one that I have handed you, and it's Exhibit D4: 'In summary' - last paragraph - 'Margaret has had a lot of stress in her life and this incident at Lumen Christi school is the last event that has triggered a prolonged and significant illness of anxiety and depression'? - That's correct.[2]

20 Counsel referred also to a report dated 21 July 2005 of which Dr Phillips was the author. The substance of that report is contained in the passages which I have cited.

21 Counsel next relied upon the evidence of the specialist psychiatrist, Dr Epstein. That witness's evidenceinchief was given by reading a report into evidence. He was then crossexamined. Counsel made the point that Dr Epstein was not crossexamined about his evidence that there was a causal link between the physical injury and the psychiatric injury. In support of the proposition that the witness had given evidence addressing that question, counsel referred to this evidence:

The injury occurred on Friday 13 June 2003. Kodie, by then a large 8 year old child, had been displaying increasingly violent behaviour towards everyone around her.

After this incident, she was left alone and no one spoke to her or asked her whether she was all right. She was apprehensive about having restrained the child, and possibly over-stepping her duties. But felt she had not had any other choice. She continued working until the early afternoon when she had to go home and rest. She had neck and shoulder pain with bruising of both shins, and had difficulty sleeping. She had also begun to experience some soreness in both eyes.

The following day, on 14 June 2003, she felt too unwell to go to school, and went to see Dr Neil Phillips, her general practitioner. She complained of pain in her neck and her right shoulder, as well as bruises to her lower legs. She said she was tearful and having trouble sleeping. She was prescribed Temazepam, a sleeping tablet.

I formed an opinion_. Margaret Rees appears to have developed a form of stress breakdown in the context of concerns over a number of issues including dealing with a violent student, her perception of lack of support from teachers and the school principal, concerns about possible legal repercussions of her attempts to restrain this child together with physical injuries as a result of that attempted restraint._

All these factors together appeared to have led to her becoming increasingly distressed, and it was in that context that she stopped work and subsequently her capacity for coping appears to have become severely damaged.[3]

22 Then counsel took us to the judge's charge. It was given in a form which I have never seen before. Although I have no shadow of doubt that his Honour was attempting to assist the jury, in my respectful opinion that form should not be repeated. It may well have been a reason why, as I consider occurred, things went off the rails.

23 In short, the judge commenced his charge by describing, incompletely, the relevant principles relating to the law of negligence. He referred to foreseeability of 'recognised psychiatric injury' but did not really tell the jury what that term meant. He appeared to describe causation, along with foreseeability of psychiatric injury and reasonable response, as requiring objective assessment. He then dealt with Question 1, and revisited duty and breach in that connection. Then he came to Question 2. I will mention some of what he said in that connection a little later.

24 Having, by that stage, said nothing about, inter alia, the functions of judge, counsel and jury, unanimity of verdict, different paths of reasoning, onus of proof, what constitutes the evidence, demeanour, consideration of all the evidence, inferential reasoning, failure to call witnesses, or causation (the lastmentioned with one exception, referred to at [28] and [29] below), his Honour embarked on a recitation of the evidence. The evidence of witnesses, mainly of the appellant and the school principal, was effectively recapitulated, from beginning to end, not related to the issues for determination.

25 That was as far as his Honour got with the charge that day.

26 Exception was taken by appellant's counsel. It focused upon his Honour's directions with respect to duty and breach. But counsel did make mention of Alford v Magee.[4] The form of the charge thus far invited such a reference.

27 I must go back to some of what the judge said in respect of Question 2, upon which counsel for the appellant relied:

I now deal with the second question, that is, whether there was negligence on the part of the defendant which was a cause of injury to the plaintiff on 13 June 2003. You must apply the three questions I have told you of, that is: was the risk of physical injury to Mrs Rees reasonably foreseeable through her carrying out her duties in the classroom? If so, what would a reasonable person do by way of response to that risk?

Now, the plaintiff contends that the risk of injury to someone in the classroom was evident from the incidents that had been happening such as the jabbing with the pencils and the paperclips, the bending of fingers, the tantrum on the desk. The plaintiff claims the risk of injury to Mrs Rees was reasonably foreseeable, and the particulars of negligence include that the school did not properly supervise and control Kodie's aberrant behaviour. And also the school had not trained Mrs Rees how to discipline Kodie.

You may also think that some of the other particulars that I have referred to are also relevant to the issue of the physical injury on 13 June.

Now, a particular issue arises under this claim that I need to talk to you about. [Counsel for the plaintiff] said that the injury to Mrs Rees' shoulder in itself caused and precipitated almost an immediate psychiatric reaction. He said that the physical injury was one of the causes of the psychiatric injury, and he said that the physical injury is a second pathway to the major depressive disorder. Now, there is one thing I should tell you about that, that the defendant strongly disputes the causal link.

So you will have to consider whether or not on the evidence the physical injury was a cause of the major depressive disorder, or whether the major depressive disorder was entirely caused by Mrs Rees' response to the restraining incident, the school's subsequent response to her concerns, and the response to other concerns about Kodie and the circumstances in the classroom.

Now, you will recall that Mrs Rees says that she was most anxious after the restraining incident whether or not she had done the wrong thing. And Mrs McNamee agreed that when Mrs Rees telephoned her on the Sunday evening she was seeking assurance that in the circumstances she had done the right thing. If you find that Mrs Rees' anxiety was caused by a concern whether or not she had done the right thing, then in that particular instance the physical injury has not been a cause of the psychiatric injury; rather, the cause has been Mrs Rees' anxiety about whether she did the right thing, which had nothing to do with her being physically injured. It was all about her restraining Kodie.

Now, the plaintiff points to the evidence of Dr Epstein, and in his report he said that 'I formed an opinion', that is after hearing her history. He said 'Margaret Rees appears to have developed a form of stress breakdown in the context of concerns over a number of issues including dealing with a violent student, her perception of lack of support from teachers and the school principal, concerns about possible legal repercussions of her attempts to restrain this child, together with physical injuries as a result of that attempted restraint.'

Now, at that point it is not clear whether he is saying she experienced stress and physical injuries, or he is saying that the physical injuries caused the stress.

Then [Dr Epstein] goes on to say 'All these factors together appeared to have led to her becoming increasingly stressed, and it was in that context that she stopped work and subsequently her capacity for coping appears to have been severely damaged.' In that paragraph he appears to be suggesting that the physical injury was also a cause of the stress. But as far as I can recall, that was the limit of his evidence, and there was no further evidence on the issue, which is a very important issue so far as the defendant is concerned, and so far as the plaintiff is concerned.

It is said that Dr Phillips also supports the view that the physical injury was a cause of the psychiatric injury, and he was informed about the sore shoulder I think on the second visit, as far as I can recall and reading the evidence. He does not give an opinion whether what he called the major psychological trauma, whether a cause of it was the physical injury or not. So it is a matter for you, the jury. You may be entirely persuaded by what Mr Epstein says, you are entitled to reject it if you wish. You may accept what Mrs Rees says, you may not accept it. But it is a significant issue in the case whether or not the physical injury was a cause of the psychiatric injury, because it is accepted that if the school was negligent in respect of the shoulder injury and the shoulder injury was a cause of the psychiatric injury, then the damages that you would award would include damages which flow from the psychiatric injury as well as the shoulder injury. That is why I spent a little time on it because it is such a significant issue.[5]

28 Counsel submitted that - (1) the judge had directed the jury, inter alia, that the respondent strongly disputed there being a causal link between physical injury and psychiatric injury in the absence of relevant crossexamination of Dr Epstein, in the face of Dr Phillips' evidence, and in the context that the respondent had, by its admission, failed to call two psychiatrists who had examined the appellant on its behalf; (2) the third passage cited above, dealing with causation, was a misdirection; (3) the judge had misdirected the jury when telling it that there was no evidence to confirm Dr Epstein's opinion as to there being a connection between physical and psychiatric injury; and (4), that the judge had misdirected the jury that Dr Phillips had not given an opinion whether a cause of the major psychological trauma which he diagnosed was related to the physical injury.

29 Counsel submitted also that if the jury concluded that the appellant had sustained a psychiatric injury in consequence of concern whether the incident of restraining the child (in which incident the appellant had suffered physical injury), then it was for the jury to decide whether the psychiatric injury was a consequence of the physical injury. It was not for the judge to give a direction that those circumstances could not make out a relevant link.

30 It is to be noted that the judge referred to the question whether the shoulder injury was a cause of the psychiatric injury being a significant issue. That stands, as will be seen, in contradistinction to the submission made for the respondent today.

31 Counsel for the appellant then took the Court to the judge's direction as to causation, which was given on the next day of the trial. His Honour said this:

I should say something about causation. Assuming that you find the plaintiff has established that there was a negligent act or omission on the part of the defendant, or negligent acts or omissions, it could be either or both, you must also be satisfied that it was a cause of the injury sustained by the plaintiff. In this case the plaintiff alleged the school failed - I will only mention some of the things - to train or give instructions to Mrs Rees on how to deal with a child like Kodie. The plaintiff said the school failed to put in place proper procedures to control Kodie. The plaintiff says that the school failed to provide competent staff to control the classroom. The plaintiff says that the school failed to respond to the expressions by Ms Rees to Father Linehan that she was taking her concerns going home, that is they failed to properly respond to her concerns. And that they failed to properly respond to the changes in her demeanor that indicated she was needing support.

Now, I do not purport to list all the acts of alleged negligence, I went through those yesterday, relied on. Then you have to find whether those acts in combination, or some or other of them, if you find that they were made out and they did constitute negligence, you have to find that they were a cause of the injury she has suffered.

I remind you at all times that the plaintiff bears the burden of proof. You will need to scrutinise all the evidence to be satisfied that as a matter of common sense that it is more probable than not that her injuries were caused by the defendant's negligence. You will see from Questions 1 and 2 that breach of duty need only be a cause, it does not have to be the only cause.

32 Counsel submitted, in terms, that the direction almost entirely focused upon causation in the context of what I have called Question 1.

33 Counsel for the appellant took exception at the trial to the causation directions respecting what I have called Question 2:

The second point, Your Honour, is this. In terms of the causation point with respect to the shoulder injury and the depressive disorder, there being a causal link there, in our respectful submission your Honour ought to give some direction along the lines of March v. Stramare, that as a matter of common sense it's a matter for them whether the physical injury was a cause, it only has to be a cause, if, as the jury has been told, that fear for losing her job or fear that she'd done the right thing, that also may be a cause, but that doesn't as a matter of common sense necessarily break the chain of causation from the other cause. And it's open to them as a matter of common sense to say in any event that that's causally related to the physical harm, and that the shock of it can mean that as a matter of common sense it's causally related to the guilt or the fear.

Now, these are important considerations, Your Honour, and we would seek a further direction about how the psychiatric reaction can be causally related to the shoulder. They don't have to accept it, but they have got evidence of the trauma of the event itself, they have got evidence of seeing the doctor and having Temazepam prescribed before the conversation with the principal ...

Now, this is an important part of the case for the plaintiff because it's all these aspects of evidence are capable of going to the fact in issue. And we submit to your Honour that the judge should point that out. It's not just a matter of leaving it up in the air and saying 'You might think it's the guilt that is the sole cause.' They have got to be told as a matter of common sense along the lines of March v. Stramare that it can be a cause, and even independent of the guilt, and it can also be causally related to the guilt in the way that we have described. And you have got the other temporal matters that that starts the unravelling. There's some evidence that that's the beginning of the unravelling.

So this is another example, Your Honour, how the evidence gets related back to the facts in issue. And it's only fair, we submit, that it should be pointed out to the jury that here is some evidence that supports what we are alleging. We are alleging that following the shoulder injury there is contemporaneous evidence that she was starting to unravel from that time, and that is corroborative of it being causally related, that is, the major depressive disorder being causally related to that shoulder injury. And that as a matter of common sense, any feeling of guilt about having done the wrong thing, which of course we say stems back to a failure to give proper training anyway, can still be causally related in a common sense way to the physical injury because of the severity of it - 'I have got to go', she is completely shaken up by it. It's more than just a cuddle of Kodie. The evidence is quite dramatic about what happened.

34 Trial counsel for the respondent, counsel for the appellant submitted in this Court, had resisted any redirection on the causation issue by false reliance on Koehler v Cerebos (Australia)Ltd,[6] a case addressing breach. Counsel made the point also that counsel for the respondent below had submitted, contrary to the true position, that there was 'no specific evidence that one incident could result in this psychiatric injury'.

35 Counsel for the respondent submitted in this Court that there was evidence that the appellant's psychiatric injury could be attributed to any one or more of a multiplicity of circumstances unrelated to the incident and injury of 13 June 2003. Little had been made at trial for the appellant, he submitted, of any relationship between physical and psychiatric injury. The emphasis had rather been upon circumstances antedating and postdating the incident, albeit that the latter took place in the context that the incident and physical injury had occurred.

36 Counsel then submitted that the judge's obligation to charge the jury was framed by the way in which the appellant's counsel had formulated his client's case at trial. He referred to Law v Pinkerton & Anor,[7] and to Pravidur v Scental Pacific Pty Ltd.[8]

37 Counsel argued that the evidence of Dr Phillips, to which I have referred, did not support a conclusion that the witness had connected the appellant's psychiatric condition with the physical injury. Rather, counsel submitted, the doctor had connected the psychiatric injury with 'the incident' - although he agreed with Mandie JA that 'the incident' included the child's attack, the restraint and the physical injury.

38 Counsel took us to the address of counsel for the appellant in an attempt to make good his submission that the judge's directions coincided with the way that the case had been put. He pointed out that most of counsel's address had focused upon what may be called the Question 1 cause of action. He referred to these passages in counsel's address:

Now, the shoulder, the shoulder is a separate cause of action because it's caused physical injury, caused physical harm to her shoulder, and it in itself, that physical harm caused and precipitated almost an immediate psychiatric reaction because she went - remember she went to the doctor straight away the next day, and she's already on the Temazepam, and it builds up and builds up, and it was never - she's never recovered. So even though it sounds strange, once - they should have foreseen that the shoulder injury would occur in terms of restraining Kodie at the time without any training or any concern for her welfare. It was not a safe system to protect her from physical injury. And the psychiatric reaction is - the shoulder injury is one of the causes of it. It's a cause. Dr Epstein says that. No attempt to cross-examine him out of it. So it's a second pathway to the major depressive disorder. But we don't get two lots for it, I am not suggesting that for a moment.

The depressive disorder has overtaken [the shoulder injury]. This would be why Dr Phillips doesn't record on his certificates her shoulder problem. 'But there doesn't appear to me to be any other evidence of an incident that could have caused the problem. I have to rely on her as a witness and I am prepared to do so.'

But if for some reason we had lost on Question 1, we would then bring in the psychological sequelae from the shoulder. We'd say it is a cause of the major depressive disorder is the shoulder, because it started straight away from that time. That's what the doctors say, that the very next day she starts on the Temazepam, and she has never recovered, never got back to where she was prior to 13 June. But don't double up, that's all I am saying. We don't want two lots of it.

39 Counsel further submitted that the appellant's counsel had relied at trial upon Dr Epstein's opinion, but not that of Dr Phillips, in the present connection.

40 With respect to the charge, and in addition to the passages which I have already cited, counsel for the respondent referred to the following. It was said by the judge in the context of noting the final address of trial counsel for the appellant:

He dealt with damages which I will cover later. I have already mentioned this to you, he said the physical injury to the shoulder caused or precipitated almost immediate psychiatric reaction, and as you know he went on to argue that the shoulder injury was a cause of her major depressive disorder.

41 Counsel submitted that in that passage, the judge faithfully replicated the argument for the appellant at trial.

42 I am not in doubt that ground 1 is established. It is only necessary to deal with the focussed argument, and not with the broader complaints. The appellant's case at trial, in opening, in evidence, and in closing address, was, inter alia, that on 13 June 2003, by reason of the respondent's negligence, she suffered physical injury, a consequence of which was her serious psychiatric injury.[9] The evidence of Dr Epstein and Dr Phillips to which I have referred gave support for there being a direct connection between the physical and psychiatric injury. The submission of counsel for the respondent which sought to distinguish between contribution by 'the incident' and the physical injury was not supported, in my view, by the evidence of either medical witness. At the very least, it was a question for the jury whether a connection between physical and psychiatric injury was established.

43 It follows, in my opinion, that the judge misdirected the jury when speaking, as he did, about the effect of Dr Phillips' evidence. That highlights, in my opinion, another problem with his Honour's charge. Rather than telling the jury what evidence the particular witnesses had given, he substituted his conclusion as to the effect of that evidence. True it is that he said that it was for the jury to make up its own mind - but that was about Dr Epstein's opinion, not the evidence of Dr Phillips.

44 Further, in my opinion, the judge misdirected the jury when telling it, as he did, that there was no evidence, save for that given by Dr Epstein, as to there being a presently relevant relationship.

45 I consider also that the submission for the respondent that the appellant's case in the present connection was, in effect, flimsy and scarcely advanced does not withstand scrutiny. Uncontradicted evidence given by Dr Epstein, and evidence which told in favour of there being a relevant connection given by Dr Phillips, supported a case to that effect which was both opened and advanced in final address.

46 Again, I do not agree with the argument advanced for the respondent today that counsel for the appellant, by his exceptions to the judge's charge upon causation, asked his Honour to put a case not advanced. Counsel had left the connection between physical and psychiatric injury broadly. Concerning Question 2, his Honour failed to address that case when specifically directing the jury as to causation. True it is that he had mentioned that case the preceding day. But then, as I have concluded, he misdirected the jury; and instructed it, in effect, that one way of looking at the evidence was unavailable. In taking exception, counsel for the appellant addressed both of those matters.

47 I will say something shortly about ground 3, although it is not, in my view, dispositive of the appeal.

48 The judge ruled that evidence proposed to be given by a witness, Dr Tronc, an expert in educational administration, ought not be received. The matter proceeded in an odd way.

49 The proposed witness had provided three reports. I described them, in the course of argument, as a melange, and I adhere to that description. They did not clearly state the assumptions upon which the witness's opinion was founded and the opinion itself travelled into areas which counsel for the appellant conceded at trial were impermissible.

50 At trial, counsel for the appellant eschewed reliance upon the reports but instead indicated a desire to call the proposed witness to address three specific questions. He did not clearly indicate to the judge upon what factual basis he would

51 In the circumstances, it is hardly surprising that the judge ruled against the witness giving evidence. That is not to say, however, that the witness could not have given relevant evidence. My provisional view is that he could well have done so. But that is a matter for future debate.

52 I consider that the proper course is that the appeal be allowed and that a retrial be ordered on all issues. Counsel for the respondent accepted that this ought be the outcome in the event that the appeal was allowed. Counsel for the appellant was at first inclined to demur, but in the end I understood him not to oppose that course of action.

53 I would, then, allow the appeal and direct there be a retrial.

54 I agree with Ashley JA. I would add only this: in my opinion, with respect, the learned trial judge preempted the role of the jury in his analysis of the evidence relating to the issue whether the shoulder injury was one of the causes of the psychiatric injury. In particular, I refer to what his Honour said at transcript 10371038. I agree that there should be a new trial.

55 I agree with the learned presiding judge and with the further observations of Mandie JA.

2. The judgment and orders made below are set aside.

3. Direct that the proceeding be retried on all issues.

4. The costs of the trial are to abide the outcome of the retrial.

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

[1] My emphasis in each of these cited passages.

[4] [1952] HCA 3; (1952) 85 CLR 437.

[6] (2005) 222 CLR 44.

[7] [2002] VSCA 20, [4], [11], [13], [15], [16]-[19], (Charles JA).

[8] [2010] VSCA 144, [89]-[90] (Redlich JA and Habersberger AJA).

[9] In opening, counsel for the appellant said this: '... and she has also suffered a shoulder injury as a consequence of an assault by one of the children on her in June of 2003. The assault in itself caused some physical injury, not too bad, but contributed to her psychological breakdown that she had in that year, and she hasn't worked since 2003 as a result of these injuries that she suffered'.