The issue of prejudice
33 Although causes of action at common law were not litigated they were established by the findings and supported by the evidence. This Court can properly allow the necessary amendments if the appellants relevantly would not be prejudiced.
34 When the question of prejudice was raised during the leave application counsel for the claimants, who had appeared at the trial, said that he had conducted it on the basis that the claims were under the statute. He had cross-examined both sisters to obtain concessions about traumatic events connected with their brother's injuries which were not within the statute. He referred in particular to the knock on the door between 2 am and 3 am when Ms Thomas received news of her brother's injuries and hospitalisation (red 59).
35 Senior counsel appearing for the opponents on the leave application was not in a position to address on the issue of prejudice because she had not been able to obtain and read the transcript (red 64).
36 Mr Hislop relied on the cross-examination of Mrs Welling at black 126-7 but this only repeated and emphasised evidence she had given in chief at 88-9. In the case of Ms Thomas he relied on her cross-examination at 157 but again this only repeated and emphasised her evidence in chief at 140. In each case there is no appreciable difference between the evidence in chief and that given in cross-examination and in this respect the appellants failed to establish any relevant prejudice.
37 Mr Campbell relied on this evidence in chief which, he submitted, would have been inadmissible if the only claims being litigated were under the statute. In his submission the defendants' failure to object to this evidence and their cross-examination on these topics showed that both parties were proceeding on the basis that common law claims were being litigated.
38 In my judgment these submissions must fail because the evidence was relevant to the statutory causes of action as part of the history leading up to the brother's death and as part of the sisters' cases on causation.
39 No other basis for a claim of prejudice was advanced during the leave application but Mr Hislop relied on the defendants' decision to call Professor Bryant and refrain from cross-examining the sisters' doctors (T 15).
40 There was a further submission that the medical evidence accepted by the trial judge did not establish that the death of their brother in their presence had caused or materially contributed to any recognised psychiatric illness they suffered.
41 The medical evidence in Mrs Welling's case was given by Drs Mikula, Iyer, Bardon and Morse. Dr Mikula, her general practitioner said (28/10/00, 1/178) that she was suffering from an unresolved grief reaction associated with anxiety and depression. He did not say that the death of her brother in hospital was itself causative. Dr Iyer, her first treating psychiatrist, to whom she was referred by Dr Mikula, said (29/4/99, 1/180):
"She … reveals features of Unresolved Grief Reaction with depressive symptoms. In addition to antidepressant medications she was keen to receive counselling for her grief."
42 Dr Iyer did not state that the death of her brother in hospital was itself causative. Dr Bardon, another treating psychiatrist, said (17/4/01, 1/183) that Mrs Welling had described a complicated bereavement since the death of her brother. Subsequent investigations about the circumstances of his death had created uncertainty and increased the stress, and she had "a depressed affect and was tearful throughout the interview". He did not state that the death of her brother in hospital was itself causative.
43 Dr Morse, a psychiatrist retained by her solicitors, provided a long report dated 13/7/2001. His statement of her history, as far as relevant, was as follows (1/184-5):
"She got a phone call earlier the following morning that he had been found hanging in his cell at Silverwater and that he had been transferred to Westmead Hospital she called her mother and father and they all went to Westmead Hospital. She said that the memory of receiving that phone call and the memory of calling her parents was the worst thing that had ever happened to her. The memory is still very very vivid and she gets upset and distressed when she thinks about it and talks about it … she said that she saw Bradley in intensive care in Westmead Hospital, he was in a coma and she described the distress and upset of seeing him there. She spoke of this distress being intensified by the continual presence of prison officers … The doctors told her that they were going to turn off the machine. She said that she would not agree to this, but when they explained what this would mean she agreed to it and she hugged her brother until he died. She was distressed when she left the intensive care room … She said her memory of what happened 'plays over and over in her mind, like a nightmare'. She was very angry and distressed at what she regarded as a cover up … She was distressed to hear that he had slashed his wrists prior to the hanging, was put in a special cell for safety and was then taken out of that cell … She describes the terrible memory of being contacted by a friend of Bradley's and the desperate feeling of trying to (do) something to help her brother during the day or two before she found out he was in Westmead Hospital. She keeps on going around and around in her mind 'I could have done more', 'I let him down'. She says 'I did try', but she still has great sense of guilt."
44 She was seeing a counsellor every week (186). Dr Morse's opinion, so far as relevant, was as follows (189):
"Mrs Welling relates the sad and distressing loss of her brother, Bradley, with his death under the circumstances described above. It was devastating for her to lose her brother, with whom she had a very close relationship … it's not only the loss of her brother, but the circumstances in which this occurred was a very devastating experience. She went for nearly two days trying to get help to him, being confused and worried about what was the right thing to do and not being able to contact him. This is a dreadful experience. To find out after all this that he had hung himself was devastating to her, made worse by a sense of guilt and feeling that she had failed him.
The sense of distress is also increased by the feeling that something has been covered up, that the correct care had not been given to her brother, that there had been some neglect and that people had lied about it. Again the presence of the prison officers at her brother's bedside … further increased her sense of distress and anger … I feel that she is suffering from an adjustment disorder with markedly depressed mood … I see her as being profoundly affected by her depressed state."
45 In his final report (22/7/2002, 1/191) Dr Morse commented on the report from Professor Bryant and said "I see the devastating effect of the death of her brother as the most important cause of her depressed state". See also 190L. He did not state that the actual death of her brother, which Mrs Welling witnessed, was itself causative.
46 The medical evidence in Ms Thomas' case was given by Dr Visvalingam, Mr Shine a drug counsellor, and Dr Morse. Dr Visvalingam (3/7/00, 1/204) said that since her brother's death Ms Thomas was suffering from depression, feelings of anxiety, grief and guilt and he said that she "suffering from acute grief and feelings of guilt due to her brother's death". Dr Morse recorded the following relevant history (11/9/01, 1/209-10):
"… a few days before his death he came to her place as he had done many times before and asked could he stay. She told him that someone was coming over, he was upset about this and he appealed to her and when she was adamant he said he would steal a car and kill himself. She was tearful and distressed when talking about it. The day after his death early in the morning his ex-fiancée knocked at the door and told her that her brother had hanged himself in gaol (Ms Thomas' own evidence was that this happened between 2am and 3am) … She is devastated by his death and feels guilty and to blame. She knows this is not rational but that's the feeling she has with a continued feeling of distress and upset … She is very angry at the gaol authorities. She said he had cut his wrists and they knew this and he was under observation for a period but then they let him not be under observation. He was taken from a safe cell where he was for a reason she said. She felt there has been neglect. She feels there has been a cover up by authorities."
47 His opinion was as follows (212-3):
"she described quite serious on-going major depressive state (sic), despair and quite marked distress associated with the death of her brother and the circumstances, with very strong feelings of guilt and responsibility for his death and although she knows rationally this is not her fault, emotionally it is understandable she has those feelings. The closeness to her brother, the events just prior to his death when she felt she had rejected him and the unclear circumstances of his time in gaol and what she and other family members regard as a cover up are the causes of the psychobiological change which is a major depressive illness … I see the death of her brother and the attendant traumatic circumstances as the cause of her currently depressed state."
48 Mr Shine whose diagnosis of post traumatic stress disorder was not accepted by Dr Morse, Professor Bryant or the trial judge said (16/5/01, 1/206, 208) that Ms Thomas appeared to carry an enormous amount of personal blame and guilt regarding her brother's death and the way in which the news was conveyed to her still caused her emotional pain.
49 None of these witnesses stated that the death of the brother in hospital which Ms Thomas witnessed was itself causative.
50 It was therefore argued that there was no evidence that any event which fell within s 4(1)(b) ("where such person was killed … within the sight or hearing of such member of the family") itself caused the mental problems suffered by the sisters. The Court would have to consider not only the "killing" itself but its immediate context. This would include the family's decision to consent to the withdrawal of life support and the switching off of the machine or machines.
51 This is not a matter where the Court can act without expert evidence and find, as a matter of commonsense, that the brother's death in its context without more caused these mental problems.
52 In these circumstances counsel for the defendants at the trial acted rationally in not requiring the sisters' doctors for cross-examination and in not questioning Professor Bryant on the causation issue under the statute. However that in itself does not establish relevant prejudice. This will depend on whether counsel for the defendants would have acted differently if he had known that causes of action at common law were being relied on.
53 These were not large claims and, as the Court well knows, defendants rarely require a plaintiff's medical experts to attend for cross-examination. This is not just for reasons of expense. The oral evidence of such witnesses may turn out to be more damaging than their reports. The position could be otherwise if evidence was available, for example from the records of general practitioners, which undermined the opinions of the experts, that could be put to them in cross-examination. It was not suggested that the appellants had such evidence.
54 In the normal course questions of prejudice such as this arise during the trial, and are decided by the trial judge. He or she is far better able to determine where the merits lie in such matters than any appellate court. In many cases the trial judge is also in a position to cure any prejudice by imposing terms such as an adjournment, the re-opening of the evidence, the calling or re-calling of witnesses, and costs. None of these options are available to this Court.
55 We do not know what the defendants' legal advisers would have done if the trial judge, having considered their claim of prejudice, dealt with it by offering them an adjournment to enable the relevant medical experts, or some of them, to be called for cross-examination. We do know that alleged prejudice on this ground was not raised during the leave application by counsel who had appeared for the defendants at the trial.
56 The ultimate responsibility for this unfortunate position lies with the sisters' legal advisers who did not seek an immediate ruling from the trial judge on the scope of the pleadings or apply for amendments. Nevertheless the appellants must still persuade this Court that they would suffer relevant prejudice if the respondents were now permitted to amend. Before deciding this question this Court should decide whether the evidence supported causes of action under the statute, and whether there was evidence that Mrs Welling suffered from a recognised psychiatric illness.