(a) failing to monitor the plaintiff, particularly through the agency of Sergeant Jennings, and
(b) failing to instruct the plaintiff of the benefit of debriefing, psychological counselling and psychological treatment following the traumatic incident at Coolabah.
56 Absent those breaches of duty, his Honour found that there would have been "a significant chance" or "a real possibility" that he would have revealed the symptoms of stress which he experienced after the shooting incident.
57 It is not entirely clear, however, when that would have occurred. His Honour noted at [99] that, in his first judgment, he "did not consider that the plaintiff would have availed himself of the welfare facilities within the department at the time he was required to attend at Nimmitabel as a marksman as he had at that time decided to 'tough it out'": at [99]. He does not appear to have expressly departed from that finding in the second judgment and it may therefore be assumed that the plaintiff availing himself of welfare facilities would have occurred after 15 December 1998. On the other hand, at [126], in his final conclusions, his Honour stated:
"I consider that there was a significant chance that had the plaintiff been instructed as to the benefit of debriefing and/or early psychological counselling he would have informed the counsellor of the stress symptoms he was experiencing and a consequent possibility that he would not have been required to attend the siege at Nimmitabel. As I have stated previously the plaintiff was deterred from speaking openly about his problems as a result of what Inspector Ruming said to him at Coolabah."
58 To the extent that there is variation from the earlier finding at [99], it appears to have been based on the view that, in relation to choices to be made by the plaintiff, his Honour was not considering the issue on the balance of probabilities, but by reference to possibilities. As I would understand the law, as set out in Burton No. 1, the latter approach was erroneous.
59 Further, at [124] his Honour had stated:
"I consider that had the plaintiff been monitored properly there was a significant chance that the plaintiff would have been relieved of operational duties and would not have been required to attend the siege at Nimmitabel. It was the opinion of Professor [McFarlane] that had he been treated from the 1st January 1999 such treatment would have involved withdrawing the plaintiff from the tactical response unit and had that occurred there was a 60% chance of improvement."
60 For present purposes, it may be inferred that treatment was thought likely to have occurred from the beginning of 1999 on the basis that the plaintiff's acute stress symptoms would have been identified at a psychological debriefing in mid-December and subsequent monitoring over the next two weeks. It is of some importance that "stress debriefing" allows for revelation of symptoms and diagnosis of psychological difficulties. It is not an effective form of treatment in itself. Indeed, in a paper published by Professor McFarlane in 2003, he referred to a report of a further study which, he stated, "adds to the now substantial evidence that psychological debriefing has no value in prevention": McFarlane AC, "Debriefing: Care and Sympathy Are Not Enough", Medical Journal of Australia, 2003; 178 (11): 533-534.
61 As a result of an increasing irritability in early May 1999, the plaintiff "referred himself" to the police psychologist: see Report, Dr Murray Wright, 28 July 2000, p 3.5. The psychologist, Senior Sergeant Lette, made arrangements for him to receive psychological counselling from Mr Nick Cocco. Following five sessions of treatment, Mr Cocco reported on 5 July 1999 stating that the plaintiff required ongoing treatment for PTSD and requesting approval for additional sessions. In a report prepared in April 2003, Dr Lana Kossoff described his treatment with Mr Cocco in the following terms, on the basis that it had continued from 27 May 1999 until 8 February 2001 (p 5):
"He was treated with a combination of cognitive behaviour therapy, hypnosis and EMDR. He also had psychoeducational input regarding the nature and treatment of PTSD and supportive counselling regarding his adjustment to being off work. Mr Burton was placed on Zoloft (? dose) by his general practitioner which helped him to sleep but he ceased it after about one month as he states he 'hates medication' and spoke to his doctor about weaning off it. He has not tried any other medication."
62 It would appear that the relevant delay in commencing potentially effective treatment, on the plaintiff's case, was a little under six months. The question to be addressed in the medical evidence was, therefore, the likely consequence of such a delay (measured in terms of possible improved outcomes) and the chance of that occurring. As his Honour recognised, there was a lack of clear evidence as to the effect of delay in providing treatment for PTSD. There was evidence available in 1998 confirming the utility of a diagnosis of acute stress disorder as a precursor to chronic PTSD: see Harvey AG and Bryant RA, "The Relationship Between Acute Stress Disorder and Posttraumatic Stress Disorder: A 2-Year Prospective Evaluation", Journal of Consulting and Clinical Psychology (1999) Vol 67 (6), p 985-988. Professor McFarlane noted that the plaintiff had symptoms of acute stress immediately following the incident at Coolabah. He stated in the report of the joint experts:
"Acute stress disorders can be diagnosed as early as two days after the exposure to a traumatic event (Bryant and Harvey, Acute Stress Disorders: A Critical Review of the Diagnostic Issues, Clinical Psychological Review 1997, Vol 17 pp. 757 to 773). Bryant et al 1999 state that: 'A major use of this diagnosis (acute stress disorder) is that it can identify many individuals in the acute phase who will subsequently develop chronic post traumatic stress disorder (PTSD). For example, between 78% and 82% of motor accident survivors who satisfy the criteria for acute stress disorder suffer PTSD six months post trauma'."
63 There was a difference of view between Professor McFarlane and Professor Tennant as to whether very early symptoms were predictive of other disorders, but that does not appear to have affected the outcome. There was also a difference of view as to whether "compulsory debriefing" would have assisted or hindered: it was part of the acknowledged breach of duty that there was no psychological debriefing in the days following Coolabah.
64 There was general agreement as to the treatments which should have been offered between January and May 1999. In substance the treatments were not different from those noted above, which were provided by Mr Cocco from late May 1999.
65 Both Professor Tennant and Dr Brown indicated in answer to the question of the effect of delay, in the joint conference of experts, that the definitive study undertaken by the British Psychological Society and the Royal College of Psychiatrists in Britain, known as the National Institute for Clinical Excellence (NICE) Guidelines, published in 2005, found that only two studies addressed the issue of early intervention and both indicated that early intervention is no more effective than later intervention. The NICE Guidelines indicated there were no randomised control trials and the view was based upon "observational studies". It is clear, therefore, that Professor Tennant and Dr Brown believed that there was no quantifiable prospect that early intervention would have resulted in a better medical outcome. Dr Parmegiani was of the view that, in accordance with findings of the Cochrane Collaboration Study, first published in 1997, early intervention was likely to have a deleterious effect.
66 Of the two experts briefed by the plaintiff, Dr Wright remained imprecise, his relevant answer being in the following terms:
"Dr Wright believes that the intervention referred to in question 1 and the treatments referred to in question 2 would have improved the outcome if delivered early as opposed to late on the basis of the literature which outlines that intervention in anxiety and other co-morbid conditions delivered early in the course of an illness often will lead to a better outcome than the same treatments delivered late in the course of an illness."
67 The opinion of Dr Wright, as conveyed in the evidence at the second hearing, was not significantly different from that provided at the first trial, which had led to the conclusion set out by the Chief Justice and noted above.
68 Professor McFarlane was more precise in response to the relevant question, although his answer needed to be understood in context.
"To date, there is not an adequate literature in the form of properly conducted clinical trials that allocate people to early and late treatment in the weeks or months immediately following a traumatic event. The literature which exists, such as the Gillespie et al paper of the [Omagh] bombing, is about a clinically-based intervention where the people who presented early may have been very different from those who presented late for treatment."
69 On the basis of that material, which appears to be specific to PTSD, it would have been impossible to provide any numerical indication as to the effect of delay. However, Professor McFarlane continued:
"On the basis of the treatment trials generally showing that two-thirds of patients sustain a significant improvement would indicate a 66 per cent expectancy of an improved outcome. There is a further 14 per cent of improved outcome probable in Mr Burton's case if he had not been re-exposed to the incident at Nimmitabel. This is not addressed in the standard treatment literature, hence this question is answered both with reference to the published clinical literature and reference to knowledge of the etiology of post traumatic stress disorder and sound clinical practice."
70 There was some degree of elaboration available from Professor McFarlane's written report dated 22 May 2006. He expressed the view (at p 7) that "a conservative estimate is that [the plaintiff] was deprived of an 80% lost chance of a better medical outcome" which he said was based upon a "presumption" that he continued to suffer from PTSD despite having been given treatment at a later time, that he therefore fell into a group of individuals who were relatively treatment unresponsive, that the PTSD had been preceded by an acute stress disorder and:
"The delay in receiving treatment for his PTSD is also a further significant loss of chance of improvement."
71 Because the question related to the loss of chance of improvement due to the negligent delay, the last sentence casts doubt upon the percentage given earlier in the same paragraph.
72 In his written report, Professor McFarlane referred to the NICE Guidelines, noted the comparison of studies, but gave no indication that the outcomes were not supportive of his conclusion. However, in considering the question of treatment generally, he stated (at p 6):
"Against this background, it is reasonable to presume a conservative estimate is that approximately 80% of patients given an evidence-based treatment for posttraumatic stress disorder, there is a significant probability that the individual will benefit to a significant degree.
There is little systematic research also looking at the timing of the treatment. In general, it is very difficult to conduct treatment trials in the immediate aftermath of events given the problems of recruitment and the delayed seeking of treatment which is frequently observed."
73 Although the first sentence in this passage is difficult to understand, the suggestion appears to be that 80% of patients provided with an appropriate treatment will benefit. That is qualified by the following statement that there is little or no evidence as to the effect of timing. His conclusion at the joint conference of experts, referred to earlier, should presumably be understood as indicating a similar view in different language.
74 Professor McFarlane's figures, which were not sourced to any particular study and acknowledged as being based on no scientific evidence, were qualified in the course of cross-examination. Thus, he was asked about the percentages of persons diagnosed with PTSD who would recover wholly or in part. His response referred to a US study known as the "National Co-morbidity Study" which obtained a random selection of 8,500 people: Tcpt, 31/10/06, p 25. He said that the study "came to the conclusion that if you had a post-traumatic stress disorder you had a 60 per cent chance of it resolving, that's with or without treatment, but 40 per cent of people, once you've reached 72 months, continued to have the condition". He later clarified that answer noting that of the 60% who will recover anyway "if they had received treatment they would have suffered from the disorder for a briefer period of time": at p 26. They would also have a lower risk of subsequent disorder following treatment. He continued:
"I would not agree about the remaining 50 per cent because I would say that of that 50 per cent, in other words the one[s] who will still have the condition, with treatment two-thirds of them would have a very significant improvement."
75 It is apparent from this evidence that Professor McFarlane had already put the plaintiff into the particular category of those who did not recover fully, with or without treatment, because he remained symptomatic some six years after the event, a circumstance referred to in his report as a "presumption". Asked to support his conclusion he stated:
"What I rely upon to support that proposition is if you look at treatment trials, and again this is obviously a generalisation, that in most treatment trials you will have - two-thirds of people will have a significant improvement and one-third have minimal or no improvement."
76 Subsequently, Professor McFarlane was examined as to what he considered "reasonable treatment" in 1998. He emphasised that debriefing was not a treatment but an intervention. He noted that the incident at Nimmitabel may have exacerbated the symptoms the plaintiff was suffering, but emphasised that "the optimal intervention would have involved CBT probably several weeks later, and that would have been planned at the time. You wouldn't have done it right there and then": Tcpt, 30/10/06, p 71(50).
77 Professor McFarlane was taken to the statement in the NICE Guidelines to the following effect:
"Under current practice, given that the efficacy of CBT for PTSD was only established in the late 1990s, early interventions of this kind are a new development and have only recently been the subject or research."
78 He was then taken to passages in the NICE Guidelines which indicated, as noted above, that there was an absence of evidence in support of the greater effectiveness of early intervention. In response, he took the Court to page 87 of the Guidelines that said "when trauma-focused CBT is delivered between 1 and 6 months after the incident, there is evidence suggesting that it is effective for people at risk of developing chronic PTSD compared with the effect of being on a waiting list": Tcpt, 30/10/06, p 80. (The phrase "on a waiting list" referred to a control group.) He then proceeded to explain why the aggregation of data may have resulted in a more negative report of the studies taken as a whole.
79 However, taking this response at face value, it is clear that the comprehensive study prepared by NICE failed to identify any differential outcome resulting from treatment delivered "between 1 and 6 months after the incident". Yet that window would include the date on which Professor McFarlane considered that early intervention would have been appropriate (1 January 1999) and arguably the date when treatment did commence (27 May 1999). (Counsel for the plaintiff at trial treated this statement as relevant only to treatment undertaken wholly within the five month period: Tcpt, 12/12/06, p 280.)
80 Reading Professor McFarlane's evidence as whole, together with the documents upon which he placed reliance, it is clear that, in his opinion, and assuming that the plaintiff still had PTSD six years after the event, there was a 66% chance that treatment provided in January 1999 would have permitted an improvement in his condition. The chance of improvement would have increased, he concluded, to 80% if he had been removed from field operations prior to Nimmitabel. To place responsibility for the additional 14% at the feet of the State required a finding that his deployment to Nimmitabel was a consequence of the State's negligence; that matter will be considered further below.
81 Two things are apparent from Professor McFarlane's evidence at this point: first, he appears to have accepted that the plaintiff received appropriate treatment in May 1999 but expressed no view as to whether that had achieved an improvement over the likely outcome absent that treatment. Secondly, he made no comment as to the increase in improvement (if indeed that was what he was referring to in his evidence) by backdating the treatment by five months. Indeed, he appeared to accept that there was no scientific basis to express an opinion as to the effect of such a variation in the date of intervention.
82 This conclusion is consistent with the fact that Professor Tennant, Dr Brown and Dr Parmegiani were each unable to assess any chance of a better outcome from earlier intervention. Dr Wright thought there would be a better outcome, but was unable to put a percentage on the chance. This consistency is unsurprising since all five were reputable experts in the field and all recognised and relied upon the validity of the same underlying research.
83 It does not follow that the plaintiff failed to prove any chance of a better outcome resulting from psychological debriefing and monitoring, followed by earlier treatment. The fact that precise quantification is impossible and that the Court "must speculate to some extent" does not prevent the valuation of the chance: see Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 639-640 (Brennan and Dawson JJ) and at 643-644 (Deane, Gaudron and McHugh JJ).
84 Dr Wright, consistently with his earlier evidence, adhered to the view that earlier intervention would have decreased the duration and severity of the condition. Professor Tennant agreed that the plaintiff, by six months after the incident when he saw Mr Cocco, had clearly established PTSD warranting appropriate treatment: Tcpt, 06/11/06, p 177. The following question and answer are recorded:
"Q. You have expressed some opinions about whether or not there was any effect in the delay factor. … I think your answers were going to about a one month delay. I put this to you, that a one month delay compared with say a six month delay brings about a marked difference in the efficacy of effective psychological treatment in the case of the PTSD in terms of the duration and the severity?
A. Only in the duration of symptoms up until the point where treatment beings, but after that, no."
85 Professor Tennant was critical of reliance upon studies as to the effectiveness of early intervention in respect of psychoses (such as schizophrenia), as opposed to affective disorders, such as that suffered by the plaintiff.
86 The trial judge said that Professor Tennant agreed with the proposition that if the plaintiff were significantly symptomatic before being deployed at Nimmitabel, and had at that time been in the hands of a psychologist or psychiatrist, "he would not necessarily have gone on to develop a PTSD": at [78]. The Court was not taken to any evidence which supported that finding in terms. In cross-examination, Professor Tennant gave the following evidence (Tcpt, 06/11/06, pp 173 and 177):
"Q. … if he had been significantly symptomatic before Nimmitabel, it is the very kind of incident that you, the clinician, would want to keep him away from?
A. If there has been the likelihood of him being shot at absolutely. If he was significantly symptomatic prior to that incident, you would not have sent him back into the second siege, that it clear.
…
Q. So if it is the case that the plaintiff probably had acute stress disorder … that early CBT would have had the effect of either minimising PTSD from developing or minimising its duration of severity, would you agree with that proposition?
A. It would have alleviated the symptoms that pre-existed the institution of treatment, yes."
87 Dr Parmegiani stated in his report, prepared in June 2006 (at pp 4, 5):
"At present, prevention of PTSD involves watching persons who have experienced a traumatic event, for the first four weeks. Those who present with Acute Stress Disorder are then treated with cognitive behaviour therapy.
… Again, with the benefit of hindsight, a two-month delay probably increased the risk of an adverse medical outcome. There is however no accurate method of quantifying the loss of chance of a better medical outcome."
88 In cross-examination, he declined to stand by that statement, noting that during the experts' conference it had been pointed out that "after the first four weeks, where you can reduce the chance of a poor medical outcome by cognitive behaviour therapy, once the four weeks have expired and you qualify for post-traumatic stress disorder, … the timing of the treatment does not matter in terms of outcome": Tcpt, 02/11/06, p 58. He explained that the view expressed in the report had been based on extrapolating from a study of acute stress disorder to post-traumatic stress disorder. He declined to rely upon his own "clinical experience" as to the effects of delay, as being an unscientific approach.
89 Because the literature was inconclusive and the experts were at odds, his Honour noted at [119]:
"Professor [McFarlane] disagreed with the statement in [the NICE Guidelines] that evidence suggested that the chances that a PTSD sufferer would benefit from treatment do not decrease with time elapsed from the traumatic event. Both Professor [McFarlane] and Dr Wright were of the opinion that clinical experience would contra-indicate such a statement."
90 At least in relation to Professor McFarlane, the Court was not taken to any evidence to support that proposition. Whilst no doubt an intuitive response based on clinical experience would not be dismissed out of hand, the overwhelming thrust of Professor McFarlane's evidence was that science-based medicine supported his views. With respect to the NICE Guidelines, he noted that there was a potential for misunderstanding if particular conclusions were read out of context. The first critical statement was that at par 5.6.3 under the heading "Predictors of response to trauma-focused psychological treatment". The Guidelines read:
"A number of studies have investigated whether response to trauma-focused CBT can be predicted from patient or trauma characteristics. Overall, few predictors have been found. Some clinical important findings from these analyses were:
* The time that had passed since the trauma was not related to treatment effectiveness …."
91 The Guidelines recommended that trauma-focused psychological treatment should be offered to PTSD sufferers regardless of the time that had elapsed since the trauma; that the duration should normally be eight to 12 sessions, usually at least once a week: par 5.7. In considering early psychological interventions in randomised control trials, the Guidelines noted that there was "limited evidence suggesting a difference favouring trauma-focused CBT over waiting list (random effects) on reducing the severity of PTSD symptoms (clinician-rated measures) …": par 7.6.1.
92 As noted above, other findings appeared to support intervention. Thus, at par 7.7, the Guidelines noted:
"When trauma-focused CBT is delivered between 1 month and 6 months after the incident, there is evidence suggesting that it is effective for people at risk of developing chronic PTSD, compared with the effect of being on a waiting list, for PTSD diagnosis post-treatment and at 9-13 months' follow-up, as well as a number of other outcomes assessed post-treatment, which included self-report measures of PTSD severity, anxiety and quality of life and clinician assessed PTSD severity. However, the evidence is inconclusive for a number of outcomes assessed at 9-13 months' follow-up (self-report measures of PTSD severity, anxiety and quality of life) and the evidence suggests that there is no clinically important difference for clinician assessed PTSD severity at 9-13 months."
93 At par 7.10, the Guidelines set out an economic evaluation of early versus late delivery of psychological treatment. A summary at 7.10.4 stated:
"Assuming a remission is worth more than £2420, then cognitive-behavioural therapy at 12 weeks is the most cost-effective option. Achieving faster recoveries by treating early, however, may provide intangible benefits to those who suffer severe initial PTSD symptoms, particularly by preventing the conditions from becoming chronic. Future early versus late intervention studies should include a waiting list control in order to reduce the uncertainty associated with similar treatments …."
94 In relation to the last material, Professor McFarlane commented (Tcpt, 30/10/06, p 104-5):
"So what it's implying is that in fact if you provide earlier treatment in people who have got severe initial symptoms, you are in fact decreasing the risk of it becoming chronic, and I see it as somewhat at variance with some of the earlier matters raised."
95 Professor McFarlane also drew attention to par 7.11.2 in respect of early interventions for "acute PTSD". The Guidelines stated (at par 7.11.2.1):
"Trauma-focused cognitive-behavioural therapy should be offered to those with severe post-traumatic symptoms or with severe PTSD in the first month after the traumatic event. These treatments should normally be provided on an individual out-patient basis."
96 As Professor McFarlane noted, that recommendation "actually even sort of goes inside the normal limit of one month's duration of symptoms to attract the diagnosis of PTSD … implying that if there is a concern that that has already emerged in the first month, that treatment should be instigated": Tcpt, p 106. The Guidelines also stated that such early intervention might reduce the number of sessions from eight to 12 to about five: par 7.11.2.3.
97 In further support of a science-based approach, Professor McFarlane provided a paper which he said addressed "the issue of sensitisation and the increasing reactivity of neurobiological systems": Tcpt, p 111. That paper, by Davidson JRT et al, "Posttraumatic Stress Disorder: Acquisition, Recognition, Course, and Treatment" J Neuropsychiatry Clin Neurosci 16:2; 135-147 (2004), dealt with a prospective study suggesting that the "response of those patients who go on to develop PTSD becomes abnormal between 1 and 4 months after the trauma, suggesting that this is the critical period during which the central nervous system adapts its response to ambiguous stimuli (such as loud noises) and determines whether PTSD develops": p 137.
98 Professor McFarlane did refer to the importance of "consensus statements" available in the scientific literature, and it may be that reference to which his Honour referred in [119]. That is, however, something different from individual clinical experience, upon which Dr Wright appeared to based his views.
Findings
99 On the basis of this material, it is necessary to make findings as to the likelihood of a better outcome and the extent to which that outcome might have involved a reduction in the severity and duration of the symptoms. It is also necessary to consider how those conclusions would affect the assessment of damages.
100 As explained by Dr Wright, the first question to answer is the likelihood that the plaintiff would not have been deployed to Nimmitabel had he been appropriately debriefed and monitored after the incident at Coolabah. The answer to that question is not entirely one for medical opinion: it required consideration of whether the plaintiff would have revealed sufficient of his symptoms to allow a police psychologist to have decided that he should be placed on restricted duties or stood down. That matter should be assessed on the balance of probabilities. As indicated in the first judgment, the trial judge was not satisfied that the plaintiff would have allowed that to happen. There is no reason to interfere with that finding. It was based upon evidence that the plaintiff was anxious to achieve promotion, that the culture in the force was not conducive to doing otherwise than "toughing it out" and the plaintiff's hopes to continue in his position for the forthcoming Sydney Olympic Games.
101 The medical evidence supports the view that the provision of trauma-focused CBT early in 1999 had the potential to reduce the intensity and duration of the plaintiff's condition. However, whether therapy would have commenced within two weeks of the critical incident is quite uncertain. That step would have required a decision to treat for PTSD within one month, at a time when the clinical symptoms could not be satisfied. There was little evidence supporting the possibility of such a step being taken in early January 1999. A greater possibility was that, given appropriate debriefing and monitoring, which did not themselves constitute effective treatment, CBT would have been more likely to commence in late January 1999, some six weeks after the incident. If that had occurred, there would, in effect, have been an improvement of four months in the commencement date.
102 There was some material supporting the view that chronic PTSD may have an identifiable neurobiological explanation, suggesting not merely pre-incident susceptibility, but changes occurring between one and four months after the trauma: see reference above to Davidson et al. The fact that such evidence was not available to the profession in Australia in 1999 may mean that there would have been less urgency in commencing treatment, but it is, nevertheless, relevant to the present assessment of the likelihood of variation in result.
103 Weight should be given to the acceptance in the NICE Guidelines, based on the study by Gillespie and others (concerning treatment of patients affected by a car bomb which exploded in the centre of Omagh, Northern Ireland, in August 1998) that the effectiveness of treatment was not dependent upon time that had passed since the trauma. Further, the finding that trauma-focused CBT delivered between one and six months after the incident was effective for people at risk of developing chronic PTSD, a group which must include the plaintiff, gave little guidance as to the effectiveness of treatment commencing one month after the incident, as compared with treatment commencing five or six months after the incident. Nor can any clear distinction be drawn between the cost effectiveness of treatment "at 12 weeks" and treatment commencing at five months.
104 Accepting that treatment has, to an extent, been valuable to the plaintiff, the evidence provides no basis for concluding that there was any real possibility that earlier commencement of the treatment would have permitted him to continue in the police force. There was some evidence that a continuation of his condition was in part due to his refusal to continue with prescribed medication (Zoloft). There is no support for a view that earlier treatment would have affected his attitude in respect of such medication.
105 Any attempt to assess a better outcome should be undertaken by reference to the consequences for both general damages and impact on earning capacity. The basis for any such assessment was hardly touched on in submissions and there is little assistance to be gained from the material before the Court.
106 Despite receiving treatment from late May 1999, the plaintiff left the police force in November of that year and was unemployed until February 2002 when he commenced work with Qantas as a baggage handler. Loss of earning capacity was agreed between the parties and no finding was made by his Honour in his first judgment, except to assess general damages at $90,000: see agreed schedule of damages handed up on 22/10/04 - Tcpt, p 1. That amount was not attributed to any particular period and it is not known what proportion, if any, might have been attributable to the period from January to May 1999, when the plaintiff was without the benefit of medical assistance. In the circumstances, the best that this Court can do is to work with the global figures and assume that any improvement in the severity or duration of the PTSD would be directly reflected in the damages as assessed or agreed. There is no basis on which to take any different course.
107 Difficulties of assessment of loss arose in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 499. The defendant, in obtaining a significant financial benefit by building to the boundary of its land, was required to erect its scaffolding in a manner which encroached on the airspace of its neighbour. The expense which the defendant would have incurred in seeking to achieve the result by alternative means was less than half the sum demanded by the plaintiff for the period when the scaffolding was in place: at 507-508. Hodgson J stated at 508B:
"It is impossible to be certain which course Chia would have taken, if it had refrained from trespassing: Chia's own unlawful act in trespassing, plus the absence of any of Chia's decision-makers from the witness box, have made such a decision highly problematic. I think in these circumstances, the Court is justified in taking the course taken in Armory v Delamirie (1722) 1 Stra 505; 93 ER 664, and resolving the question of value against the party whose action have made an accurate determination so problematic."
108 That approach was approved by this Court in Houghton v Immer (No. 155) Pty Ltd (1997) 44 NSWLR 46 at 59, Handley JA (Mason P and Beazley JA agreeing) stating that the Court should "assess the compensation in a robust manner, relying on the presumption against wrongdoers, the onus of proof, and resolving doubtful questions against the party 'whose actions have made an accurate determination so problematic'." The appropriateness of drawing inferences in favour of a plaintiff in such circumstances was approved in Murphy v Overton Investments (above) at [74].
109 Because of the uncertain aetiology of the condition, combined with the absence of any clear medical evidence as to the effects of the four month delay in providing psychological treatment, the chance of some better outcome is highly speculative. Because Mr Cocco's intervention appears to have been of some assistance, it may be assumed that earlier intervention would have provided alleviation of the symptoms for a longer period. However, there is little chance that a chronic condition would have been avoided.
110 While any degree of precision must be misleading taken out of context, it is necessary to place figures on these factors. Accordingly, I would assess the long-term and short-term effects of providing early psychological treatment in January 1999 as possibly diminishing the severity of the condition by a figure somewhere between 20% and 60%. The evidence only allows the "better outcome" to be realistically identified as a range. The chance of a short-term improvement only, providing the bottom of the range, may be as high as 80%, but the chance of any long-term improvement (at the top end of the range) might realistically be as low as 20%. These figures would give a value to the loss of a chance as between 12% and 16%. However, there is no reason to suppose that the range is linear or that it can realistically be defined with such precision. Although the onus is on the plaintiff to identify the value of the lost chance, in accordance with the authorities referred to above, it is reasonable to err on the side of generosity, to avoid the negligent defendant obtaining too great a benefit of the doubt from uncertainty as to the causes and treatment of psychiatric conditions. Taking these factors into account, I would assess the value of the lost chance at 20%.
111 Accordingly, the judgment of the District Court should be set aside and in lieu thereof judgment should be entered in the sum of $80,000, such judgment to have effect from 7 June 2007.
Costs of appeal
112 The primary contention of the State was that the plaintiff had failed to establish anything greater than a minimal amount by way of damages. The State has not been entirely successful in that contention, but has had substantial success. Subject to further argument it would seem appropriate that the respondent should pay 75% of the Appellant's costs of the appeal.
Costs below
113 At the first trial, the State was ordered to pay the plaintiff's costs from the date of an offer of compromise (26 September 2002) on a solicitor/client basis. That order was set aside by this Court on the first appeal. When the matter came back before his Honour following judgment on the remittal hearing, his Honour repeated the order that the defendant pay the plaintiff's costs of the first trial, on a solicitor/client basis from 26 September 2002 and pay the costs of the remitted matter on a party/party basis.
114 Both of those orders were challenged in the notice of appeal, the State seeking an order that the plaintiff pay its costs "caused by or related to the plaintiff's failure at the first trial to adduce evidence sufficient to establish his claim for damages". Although no specific order was sought in respect of the costs of the remittal hearing, the order made by the trial judge was sought to be set aside and judgment was sought in favour of the defendant. It would have followed that the plaintiff would have been required to pay the defendant's costs of the remittal hearing.
115 In its written submissions, the State sought an opportunity to file further written submissions as to the appropriate costs order, in the event that this Court substituted a lesser sum for that awarded by the trial judge. The State did make submissions with respect to its challenge to the order as to the costs of the first trial, in the event that it was unsuccessful in interfering with the findings as to damages made on remitter. It sought costs in respect of the first trial on the basis that the plaintiff had failed to establish his case as originally presented. He had neither pleaded a case based on a loss of a chance, nor called appropriate evidence in support of such a case. Accordingly, it was submitted, he would have failed on the question of liability, because he failed to establish, on the balance of probabilities, that he had suffered an injury as a result of the negligence of the State.
116 There is substance in the submission that the trial judge did not deal with the arguments presented by the State in this respect, in simply remaking the original order. However, it is not possible for this Court to make any order as to the costs of the first trial as it does not know the details of the offer of compromise on which the order for costs was based. Accordingly, it is necessary to permit the parties an opportunity to put on further submissions with respect to the costs of the respective hearings in the District Court.
117 In addition, the judgment below in respect of costs, following the remittal hearing, indicated that a further offer had been made following the first appeal. As that material may affect the appropriate order to be made in respect of the costs of this appeal, the parties should also have leave to address the appropriate order as to costs in this Court.
Conclusions
118 I would propose the following orders: