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: