STATE OF NEW SOUTH WALES v SHEPHERD STATE OF NEW SOUTH WALES v McDONALD... [2003] NSWCA 396 | Case summary

1 MASON P: Three expedited appeals have been heard concurrently. Each respondent was a serving police officer who was involved in a violent confrontation with armed offenders who were robbing the Hilton Hotel on 22 July 1991. 2 The respondent McDonald was shot in the arm. Each respondent sought damages for psychiatric injuries stemming from the incident based upon the negligent design and implementation of the operational plan for coping with the incident of which the police had an advanced tip-off. The State's liability was established by the decision of this Court, differently constituted, in McDonald, Wilson and Shepherd v The state of New South Wales [2001] NSWCA 303. Stein JA's reasons provide fuller details of the background facts. 3 Each claim was remitted to the District Court for assessment of damages. There were concurrent hearings before Sidis DCJ. The oral evidence included that of each plaintiff (who was cross-examined extensively) and cross-examination on some of the psychiatric reports relied upon. The main issues addressed in the evidence were the claims by each officer that he suffered prolonged and permanent psychiatric illness in consequence of the incident at the Hilton Hotel and the ascertainment of economic loss. 4 Three reserved judgments were published by the learned trial judge on 11 April 2003. The proceedings were stood over for the purpose of addressing outstanding issues relating to income loss, interest, costs and the entry of final judgment. Formal orders in the three matters were made at various dates over the ensuing month. 5 Each of the main judgments is a model of clarity. Her Honour identified the issues, listed the evidentiary material and set out the factual circumstances of the incident affecting each man. The evidence as to injuries and disabilities was then set out in some detail together with corroborating evidence from family members and associates. Her Honour then examined the medical evidence. Each respondent was seen by several psychiatrists, some being treating doctors, others being engaged for medico-legal purposes. The evidence as to economic loss was then recounted. The judge then addressed the issues, making findings that included findings based upon the reliability of the evidence of the several plaintiffs. 6 Very substantial damages were awarded in each case based on findings that each man suffered severe and lasting psychiatric impairment that contributed to his loss of career and caused major disruption to his family situation, general well-being and employability. 7 Given the sums of money involved, the clarity of the trial judge's careful reasons in each matter and the involvement of the Crown, one might have expected that care would have been taken in the preparation of the grounds of appeal, the appeal books, the written and oral submissions presented to this Court. Regrettably the Court has received perfunctory assistance from the appellant's side of the record. 8 The red appeal books are wastefully duplicative. The other appeal books are confusingly indexed and material relevant to one of the respondents is to be found divided between his and his former colleague's Blue Books. The written and oral submissions make no attempt to grapple with the well-known difficulties facing an appellant who seeks to attack credibility-based findings of fact (see generally Fox v Percy (2003) 197 ALR 201). The several notices of appeal formulate a cluster of challenges to the respective findings on psychiatric injury and its causation. 9 In the McDonald appeal the grounds are: 1. Her Honour failed to decide the issues of causation. 2. Her Honour erred in finding that the respondent had a continuing psychological impairment caused by the incident on 22 July 1991. 3. Her Honour erred in finding that any psychological impairment was solely caused by the incident on 22 July 1991. 4. Her Honour erred in failing to properly analyse the evidence which was inconsistent with the respondent's psychiatric case. 10 We were informed that ground (4) should be read as stating or including a complaint about absence of exposure of reasons. 11 The points developed in this and the other appeals in the flaccid attack on the causation findings included the need for caution in dealing with psychiatric claims and police witnesses; the delayed onset of the symptoms or the seeking of treatment; the fact that each officer continued his police career for a time before it was interrupted by other events whose linkage with the Hilton Hotel incident was problematical; (in McDonald's case) the blow to his testimonial credibility indicated by his conviction, gaoling and dismissal from the Police Service for conspiracy to pervert the course of justice and perjury; the presence of family events that arguably at least represented psychiatric stressors in their own right as distinct from partial sequelae of the incident and the illness. 12 The appellant submitted that the conclusion that psychiatric injury stemmed from the Hilton Hotel incident was either unsupported by the evidence or contradicted by particular matters relied upon in the written submissions. Alternatively, it was submitted that the judge should have adverted to the "inconsistent" matters in her reasons or given them greater weight. 13 The submissions that the judge failed to decide the issue of causation or that she erred in the manner of doing so or that she failed to set out her reasons cannot be accepted. In every case, the allegedly omitted material was noted and weighed in the reasons. 14 In McDonald's case an unknown person recorded in clinical notes a fortnight after the incident that the respondent "Was seen by a psychologist. Says has been in the job for a long time and is not overly concerned by the incident." This evidence was not overlooked by the trial judge because it is recorded in her account of the medical evidence (See par 4.2). Likewise the 1993 comment of Dr Khan that the respondent was making a fine recovery "superficially at least". 15 It was not until 1995 that Mr McDonald was referred to Dr Strum for psychiatric assessment and treatment. This treatment continued until 1997 and it spanned a second shooting incident at Kareela in April 1996 that was recorded in her Honour's reasons together with Mr McDonald's evidence as to its immediate consequences. Mr McDonald said that the following day he completely cracked up. He believed that he had walked onto the balcony with the wish that he be killed. He felt that he was having a nervous breakdown. 16 Mr McDonald took sick leave and remained on sick leave until February 1998 when he was discharged from the Police Service on medical grounds on a diagnosis of post-traumatic stress disorder. Dr Strum had recommended approval of this application. Of present relevance is his evidence, tested in cross-examination, that the real cause of the reaction to the Kareela incident was the shock, upset and feeling of betrayal that surrounded the whole of the earlier incident at the Hilton Hotel. 17 Dr Strum's evidence was carefully analysed by the trial judge at pars 4.4 to 4.5 of her reasons in the McDonald matter and it amply supported her Honour's conclusions. Dr Strum's evidence did not stand alone. There was also evidence from Drs Desland, O'Sullivan and Klug (see pars 4.7 to 4.11). 18 Mr McDonald was examined by two psychiatrists on behalf of the State. One was Dr Moore whose report was not tendered and whose absence not explained. The other was Dr Hike who found no psychiatric disorder. Mr McDonald was also seen by Dr Lewin, who thought that the respondent's symptoms would resolve with time. However, Dr Lewin had not received Dr Strum's report, as her Honour observed at par 4.9. 19 Judge Sidis found:

20 These and other findings show that her Honour did advert to and did weigh carefully the various matters said to have been overlooked or not properly taken into account. Of course her Honour was aware of the background of the plaintiffs as police officers and their (arguably) continuing capacity to pull wool over the eyes of a tribunal of fact. 21 Her Honour's findings were well open and the appellant has not demonstrated any error or basis for error in the conclusions. The learned judge was fully aware of Mr McDonald's former occupation and his conviction for offences of dishonesty. It was still well open for her to have accepted the evidence in light of the overwhelming weight of supporting medical opinion. 22 The reasons were amply exposed in the judgment. The causation psychiatric injury grounds of appeal therefore fail. Ground five in the McDonald appeal which relates to assessment of general damages fails in consequence. 23 It is convenient to turn at this stage to the related challenges in the Wilson and Shepherd appeals. The grounds were formulated differently having regard to the particular facts and findings, but the nub of the attack was the same, namely that it was not open to the judge to accept the several respondents in light of particular "inconsistencies" in their case (see appellant's written submissions at pars 28 (Wilson) and 33 (Shepherd)). 24 In each instance the matters said to have been ignored were discussed in the reasons. In Wilson's case the independent back injury and the continuing entrepreneurial flair that was not overreached by his psychiatric injuries were matters actually taken into account in reduction of the economic loss component of damages. This hardly suggests that the judge forgot about the matters or overlooked them. Nor is there any basis for the submission that greater weight should have been given to the so-called inconsistencies. 25 As with Mr McDonald, for the other two respondents there was a clear predominance of expert opinion supporting the judge's conclusions as to causal relationship and continuing impact and there is no basis for the submission that factors such as delay were overlooked. 26 Since the appellant approached the second and third matters rather globally I should do so likewise. In the Wilson judgment, see in particular pars 3.8, 3.10, 4, 5.3 to 5.7, 5.10. The conclusion at par 6.2 is one that was clearly open on the evidence and not otherwise shown to be erroneous. As regards to respondent Shepherd, see her Honour's reasons at pars 3.6 to 3.7, 3.12, 4, 6.2, 8.2 to 8.3 (which specifically relate to the events of August 1991 and 1993 that the appellant claims were overlooked). These appeals also fail as regards the attacks on the conclusions relating to psychiatric injury and causation and the consequential ground of appeal relating to general damages. 27 In each appeal there are challenges to the awards of economic loss. The written submissions contain attacks, some of which were abandoned in argument or wholly unsupported by reference to the calculations or factual material upon which they were presumably based in the first place (see appellant's written submissions pars 30 to 31 and 34). 28 During the hearing of the appeal attempt was made to rely upon a recently-prepared document emanating from a forensic accountant that recalculated and recast the economic loss claims, as the appellant would have them viewed (apparently) on the assumption that its psychiatric injury grounds of appeal failed. This tender was rejected for reasons already given that can speak for themselves. I content myself with adding it was most regrettable that public money should have been wasted in such an obviously fruitless procurement. 29 What remains of the economic loss challenges? Like much else with the appellant's submissions in this Court it's difficult to know. 30 There are hints that the trial judge erred in taking as the benchmark in Mr McDonald's case the pay due to an uninjured honest police officer whereas McDonald had lost his police career due to his criminal conduct, whatever its causal derivation. However, the submission does not do justice to her Honour's reasoning (see in particular par 8.3). The suggestion that the respondent McDonald suffered no loss of earning capacity and that her Honour's finding to that effect at par 8.6 is erroneous is quite untenable in light of the evidence, including senior counsel's own cross-examination at Black 296 D. 31 If and to the extent that there remains a complaint that the levels of residual earning capacity as found by the trial judge were too low in percentage or monetary terms I content myself with saying that we have not been taken to any material to indicate appealable error. 32 Each appeal should therefore be dismissed. Costs should be awarded against the appellant on the indemnity basis having regard to the hopelessness of the appeals. 33 The appeals were expedited having regard to the medical circumstances of the respondents. The Court is left wondering why the appeals were brought at all if they were to be prosecuted in the manner that has occurred. We are at a loss in knowing whether this was the product of instructions to appeal in the teeth of sound legal advice to the contrary or whether the manner in which the appeal has been prosecuted was indicative of some serious lack of diligence on the part of those in whose hands its carriage had been placed. Perhaps it was a combination of both reasons, perhaps there were other explanations. 34 Either way, because of concern about the matter, we direct the appellant's instructing solicitor - who I observe is not present in court at the moment - to bring the remarks in these reasons when finally published to the attention of Mr I V Knight, Crown Solicitor, in the hope that he will at least inquire to see what went wrong. 35 TOBIAS JA: I agree but would add this in relation to the inordinate delay that seems to have occurred in this matter. A statement of claim in each matter was filed on 7 May 1996, that is some seven and a half years ago. For some reason an order transferring the proceedings to the District Court was not made for a further seventeen months on 9 October 1997. It then took apparently the plaintiff's solicitors a further eight months to file particulars under Part 12 Rule 4A and then it took the Crown a further four months to 21 October 1998 to file grounds of defence. 36 The matter was listed for hearing commencing on 30 November 1999 which continued through until 8 March 2000. Her Honour Judge Gibb gave a prompt judgment on 14 April 2000. It then took until 12 June 2001 for Judge Gibb's decision to be appealed to this Court which gave a prompt judgment on 11 September 2001. 37 It has taken then from that date until now for this matter to be resolved. It seems to me with great respect that the respondents have not been well served certainly by the system and some explanation should be forthcoming as to why all these delays have occurred. No wonder they are suffering the psychiatric injuries referred to in the evidence. 38 CRIPPS AJA: I agree with the reasons and the orders proposed by the President. 39 MASON P: In each case the appeal is dismissed with costs on the indemnity basis. ***********

STATE OF NEW SOUTH WALES v SHEPHERD STATE OF NEW SOUTH WALES v McDONALD STATE OF NEW SOUTH WALES v WILSON

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