Damages:
867 At the trial I indicated that even were I to conclude that the plaintiff should not succeed, I would endeavour to assess damages. Such assessment involves not merely very real speculation, but also consideration of many imponderables.
868 I have, despite my views on all aspects of liability, despite my findings of fact made in respect of liability and on liability evidence, and despite my view that any assessment is highly speculative, nevertheless sought to perform a contingent assessment, in case I am in error in any of these views. I do so only upon a hypothesis (and not otherwise) that I am in error in finding no duty, no breach, no causation and that the claim is not too speculative.
869 Thus, what I have written on the subject of damages, must not be understood or read, as suggesting any inconsistency with any of my findings of fact on the issue of the liability, or suggesting error in respect of my findings of fact on the issue of liability. Next, my assessment of damages involves hypothesising and making assumptions, inconsistent with what I have found on the liability issue. The assessment too, and on the further assumption that any assessment is not highly speculative. What I have said is said so as to avoid any misinterpretation of my reasons for performing any assessment exercise.
870 I have not been confronted with an assessment task of this nature before. It involves a somewhat novel claim for damages, extending back in some respects on the plaintiff's claim to the commencement of her life in 1942 and continuing thereafter, and still continuing into the future. The task of performing any "contingent" assessment at all, because of the issues, is a formidable, indeed extremely difficult one.
871 Next, any assessment in this case as I have indicated, is really largely speculative and provides some practical confirmation for what the majority of the New Zealand Court of Appeal said in Prince at 277:
"Causation, including weighing the respective influences of nurture and nature in shaping the child and affecting his or her life's prospects and quantification of any loss are likely to be highly speculative if indeed justiciable ." [my emphasis]
872 The nature of the claim, its size and its magnitude are reflected in the following passages with Ms Adamson for the plaintiff (at T 757):
" HIS HONOUR: The plaintiff's case is I got a borderline personality disorder and everything that has occurred to me ranging from substance abuse, to Methedrine, getting caught up with Roslyn Norton's cult in Kings Cross, all the bad people I met, prostitution, illegitimacy, everything that has occurred in her life is related to that and if she had never developed that borderline personality disorder life would have been different, she would have been a totally different person. She would have been a normal person who would have achieved the potential she achieved later on in life. To quote Ms Adamson's words the other day, she would have found her prince and life would have been different. That is the proposition, I think I have fairly put it.
ADAMSON: You have your Honour."
873 Even had liability been established the plaintiff's case in these terms is rejected. It involves a speculative proposition. Indeed, one may go further and suggest that it is not merely a proposition that is essentially speculative in terms of the evidence, but one which is likely in terms of human experience to be also considered as speculative. Be that as it may, it is also a proposition that does not reflect the uncertainties of life itself or matters of chance and possibilities of the type discussed in Malec v J. C. Hutton Pty Limited (1990) 169 CLR 638. Next, the proposition as formulated in no way reflects even questions of loss or opportunity. The "ifs" of the plaintiff's life also involve many imponderables.
874 Next, on the issue of damages as well, the opinions and views of experts are to be considered in the same way as their views on liability. Their views may or may not be helpful, or may be undermined by inadequacy of facts to support them. Their views may also be based upon speculation, the individual expert's own inference of fact, and personal views of the credibility of the plaintiff. Their opinions may even go beyond what may legitimately be said to be their expert opinion: see HG; Ahmedi; Public Trustee v The Commonwealth.
875 Causation in damages involves issues of fact for the court to determine. They are not merely issues for the "experts" and involve matters for close consideration, analysis and decision by the court.
876 I have already indicated my inability to accept the experts' views on liability, and some of those reasons for so concluding apply as well, to the matter of "contingent" damages.
877 The plaintiff's proposition as referred to, namely that without negligence she would have been a "totally different person", is not one I accept. There is no warrant for concluding she would have been a different person or gone through life differently, or that life's experiences would, even in terms of chance or opportunity, have been significantly different.
878 In any event the proposition ignores perhaps the very issue namely, assuming that a Borderline Personality Disorder and/or some other psychiatric disorder was caused by default of the AWB, of what was its consequences for the plaintiff in terms of harm, loss and damage.
879 The matter of speculation as to damages is further emphasised because of a difficulty in determining for compensation purposes, a commencement date for assessment and the extent to which, if at all, harm arose before 1951, and thus may have occurred even at different times.
880 That said, I turn to the hypothetical or contingent assessment issues.
881 At common law a plaintiff who has been injured by the negligence of the defendant should be awarded such sum of money as will, as nearly as possible, put them in the same position as if they had not sustained the injuries: Todorovic v Waller (1981) 150 CLR 402 at 412. In a case based on negligence it is necessary to consider what damage the injured party has sustained due to negligence.
882 In Target Holdings Ltd supra, Lord Browne Wilkinson said (at 432):
"At common law there are two principles fundamental to the awards of damages. First, that the defendant's wrongful act must cause the damage complained of. Second, that the plaintiff is to be put in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. … Under both systems (equity as in common law) liability is fault-based: the defendant is only liable for the consequences of the legal wrong done. He is not responsible for damage not caused by his wrong …".
883 In the instant case the matter of any assessment is further complicated by the fact that the Borderline Personality condition is not said to be the product of a particular episode or identifiable event occurring at a particular time in the period 1942 to 1960 whilst the plaintiff was under the Board's control. The situation is quite unlike that of a single identifiable event, followed by injury, whether physical and psychological, or by even psychological or psychiatric injury alone. Here the plaintiff in one sense is asserting negligent conduct by neglect (omission) during her upbringing over a long period of time (1942 to 1960) with perhaps, further or alternatively a cumulative effect said to have been capable of being remedied or reversible at different ages by remedial actions. The complication may be particularly illustrated by the evidence of Dr Lal. On the matter of cause, Dr Lal rather suggested that a "contributory factor" to the ultimately diagnosed Borderline Personality Disorder (or its equivalent in nomenclature) back in 1962, was the "contribution" made by each separation. In this case there was the transfer by the mother of the child to the Board's control. Next there was a further transfer after a period of four and a half years at Bomaderry which broke the relationship or attachment and bonding or interaction with Sister Saville. There was a further interruption again to the plaintiff's relationship with Miss Atkinson at Lutanda when Miss Atkinson retired. As I understand Dr Lal's evidence these transfers and interruptions were also capable of contributing to a Borderline Personality Disorder. On the plaintiff's own case it is said that these interruptions or any of them are said to be attributable to any negligence or lack of good faith on the part of the defendant AWB.
884 An issue perhaps also arises as to whether an assessment may rather involve, in part, damages for an increased effect on a condition arising from an alleged default: cf State Rail Authority of New South Wales v Howell (NSWCA 19 December 1996, unreported). Another complication arises from the fact that the plaintiff according to Dr Waters, as at 1997. no longer suffered from Borderline Personality Disorder. He considered she had shed the criteria according to DSM-IVTM but that as at March/April 1999 a "new" condition of psychosis had arrived, not hitherto seen in the "already complex psychiatric history". There can be little doubt of the complexity of the plaintiff's psychiatric history, a matter giving rise to further problems in any "contingent" assessment.
885 In this difficult case, if damages are to be awarded, they should at most be confined to a period 1962 to 1997 and not otherwise. Any assessment is complicated further because the plaintiff has formulated the claim without real discrimination in terms of the various causes of the plaintiff's ill health. All are the subject of claim.
886 The contingent assessment involves difficult causation issues, even putting to one side an issue of foreseeability: see Kavanagh v Akhtar (1998) 45 NSWLR 588. The test of reasonable foresight is not in itself a test of causation. It marks the limits beyond which a wrong doer will not be held responsible for damages responsible from his/her wrongful act. In State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 Samuels JA (at 517) discussed the test of reasonable foreseeability as a test for remoteness of damage: see also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.
887 Further, the plaintiff's case as put, is that she has no "real responsibility" for any of the matters the subject of the claim for damages including alcoholism, drug addiction, criminal offences, (and other matters) and that someone else is to blame for these, in this case, the defendants. Ms Adamson, submitted that what the defendants' breach of duty had caused was, in effect to convert the plaintiff "from something she would not have been into a person totally different who would not have been confronted with life's problems". She said at 620:
"[Exactly], for example she may have married and had three children but the first would not have been conceived in the course of prostitution. The second would not have been conceived from sexual encounters at the Fraser Hospital, North Ryde".
888 This submission, which should be rejected. It also further highlights the difficulties in the path of the plaintiff's case on damages. This last submission raises not only issues of causation (and remoteness), but perhaps as well aspects of policy of the type for example, envisaged in CES & Anor v Superclinics (1995) 38 NSWLR 47 (a case concerning loss of chance and whether public policy precluded the recovery of damages). In that case there were significant hypothetical situations to be considered as well.
889 It is also convenient to refer to Mr Hutley's submissions (at T 601-605) where he argued the plaintiff had received none of life's benefits. This he said included her free University education and welfare support in the 1980'-1990's, her marriage, and her three children. He submitted that the plaintiff was in effect to be compensated for all "life's detriments" without identifying them, or discriminating between them. It was in effect, enough to merely prove a Borderline Personality Disorder and on its proof the defendants become liable in the way submitted. The following exchange took place (at 602-603):
" HIS HONOUR: … I want to find out the ambit of your claim. You say the ambit of this claim is that the defendant is responsible for every detriment that has occurred to this [plaintiff] in the course of her life.
HUTLEY: Subject to that, life's detriments, that she would have had other than detriments of any child and there can be risks of that and this".
890 These excluded detriments I should note were not identified. The "that and this" was also not identified.
891 Mr Hutley submitted at the same page, that the plaintiff should be compensated, for example, because at one stage she became a prostitute, because she became a drug addict, and an alcoholic, as well as because of her attempts to commit suicide, her admissions to hospital in 1962-1965, and her sexual interests. The AWB, he alleged, created "her tragic life" and the Board should pay for all of the "incidents" of tragedy. I reject these submissions in terms so argued. Putting to one side the matter of admissions to Hospital, I do not accept in terms of causation (assuming negligence to have been found) that on the evidence, such matters have been proved to have been caused by the defendants' alleged default (and there was no default). I would here observe that even if her life had been "different" she would still have been exposed to life's problems and misfortunes. Indeed, it has not been proved to my satisfaction that her life would have been different. It is highly speculative to suggest otherwise. It is essentially speculative to even really suggest that even some of life's experiences or happenings would not have occurred if she had been a "different person". Next, in respect of her one marriage to Mr "K", whilst it is not suggested that the act of marriage was to be "attributed" to the defendants, because during the marriage the plaintiff had a Borderline Personality Disorder, the "tragic situation" it was submitted was "likely to contribute to a mistaken relationship". Mr Hutley accepted (perhaps not surprisingly) that no one "could tell" whether falling pregnant was a consequence of the Borderline Personality Disorder (T 605). I find it was not. I find it was not caused by it. The plaintiff on this matter, as on very many matters has not proved the defendants should be held in some way responsible in damages, even had liability been established.
892 The plaintiff in effect submits that as a consequence of her Borderline Personality Disorder, many of the her "problems", indeed if not all, are causatively related to her disorder and therefore compensable. This proposition if advanced in such terms, is one that I do not accept in terms of causation.
893 The plaintiff claims that the diagnosis of Borderline Personality Disorder is not in dispute back in 1962-1965. That is not accepted by the defendants. The defendants stated that the only matter it conceded is that Dr Waters made a retrospective diagnosis of Borderline Personality Disorder in 1991, and that Dr Ellard said that he "did not dispute the diagnosis made by Dr Waters", who also had said that by 1998, the plaintiff had ceased to satisfy the diagnostic criteria (T 615).
894 In further submission the plaintiff's counsel stated that it was not being suggested that she behaved as a "100 per cent automaton". Nor could she be in my view merely because of the possessing of an alleged Borderline Personality Disorder. It would also ignore common sense to suggest otherwise. The plaintiff also relies upon the various historical happenings to prove that under the diagnostic criteria for Borderline Personality Disorder (DSM-III or DSM-IVTM) that the plaintiff had Borderline Personality Disorder. This in some respects, reflects some post hoc reasoning. She submitted there is a diagnosis of Borderline Personality Disorder therefore those historical happenings are characteristics of the disorder and without more are to be compensated. This proposition I reject. For example, the plaintiff submitted (at T 617) that because substance abuse disorder (a description and explanation for drug abuse and/or alcohol abuse) is one of the "characteristics" of the Borderline Personality Disorder, that such was occasioned by the defendants, and therefore it is to be compensated without further inquiry, in accordance with principles of causation and foreseeability of damage. Mr Hutley (at T 810) put the case that drug addiction is an acknowledged symptom or sequelae of this condition. I reject the proposition.
895 Whilst on one view it might be thought that junior counsel for the plaintiff was putting the case for damages on an "all or nothing basis", Mr Hutley ultimately accepted that a possible approach to the assessment of damages was to evaluate the loss of opportunity "to evaluate the chance that life would have taken a different turn" (at T808). This I consider is the more correct approach, even had the plaintiff been entitled to recover any damages and is reflected in my hypothetical assessment. If I be wrong that any assessment is also highly speculative, I would conclude in all the circumstances that there was but a relatively small chance of the plaintiff's life taking "a different turn". Mr Hutley argued (at T 809) that "our case as pleaded is that all these things were caused by the [Borderline Personality Disorder]". I reject that submission.
896 Mr Hutley (at 810) correctly accepted and acknowledged that children coming from the most loving devoted homes with the best of parents and who do not develop psychological or psychiatric conditions commit crimes and become drug addicts "without having a Borderline Personality Disorder". That said, his proposition was that one would discount damages by reference to the chance that drug addiction "was not associated". In my view drug abuse or substance abuse disorder has not been proved to have been caused by any default of the defendants. He also accepted that if I was against him in inferring that every misfortune arose from the default of the defendants or that where there were doubts, then one would apply Malec supra, and that it would be open to me to assess and conclude that the "plaintiff had a good chance of a good life". I reject this submission in the terms asserted. His ultimate proposition (perhaps a change from that initially advanced by Ms Adamson) thus appears to accept that I can look at each "misfortune" not only in terms of "causation", but also in the context of issues of chance raised in Malec, and that a finding of a Borderline Personality Disorder per se does not mean everything is to be compensated.
897 The nature and extent of the plaintiff's claim is set forth in the plaintiff's Actuaries Report (exhibit "L") of 17 April 1999. The claim is for the sum of 1.9 million to $2.5 million plus general damages. In addition there are claims for interest on general damages and claims for exemplary and aggravatory damages. The report assumes birth on 13 September 1942 and future life expectation of 26.4 years. It assumes that the AWB's negligence caused a Borderline Personality Disorder, and also a substance abuse disorder compromising her working life earning capacity from 1960 to date. The report advanced by the plaintiff's Actuary, contains the calculations of loss made on the basis of two "scenarios":
" Scenario A Scenario B
Past Loss of Income $563,081 $364,300
Interest on Past Loss of Income $638,214 $462,256
Future Loss of Income $366,310 $195,170
Loss of Employer Financed Super. $66,441 $30,529
Past Care $340,090 $340,090
Past Medication $12,287 $12,287
Future Care $342,061 $342,061
Future Medical Services $20,449 $20,449
Future Medication $7,038 $7,038
Cost of Fund Management $150,138 $114,559
$2,506,109 $1,888,739".
898 To these heads are to be added general damages and interest. As I have said there is claimed exemplary and aggravatory damages. On any view the claim as formulated is for very significant and large damages to be awarded.
899 It is important to remember that a further question was later raised for consideration of the Actuary in a Fax from the plaintiff's solicitors. In a further report of 19 April 1999 the Actuaries reported that assuming Ms Williams' life expectancy was reduced by five to ten years the figures for Scenario A and B would need to be adjusted as follows:
" Scenario A Scenario B
Future Care $295,978 $242,556
Future Medical Services $19,264 $17,890
Future Medication $6,090 $4,991
Cost of Fund Management $130,628 $82,514".
900 The plaintiff's two scenarios referred to, reflect different potential levels of income. Scenario A assumes a promotional path from August 1960 to 31 July 1974 as a Nurse's Aide; from August 1964 to 3 November 1985 as a Registered Nurse; Generals from 4 November 1985 to 12 September 1992 as a Nurse Educator (with Diploma) under Public Hospital Nurses' State Award and since 13 September 1982 as a Co-ordinator, Aboriginal Health Service and caring to age of 65. Scenario B assumes earnings of average weekly earnings for a female in accordance with Bureau of Statistics figures.
901 Next, in respect of earnings, an assumption is made that the plaintiff would have taken two years leave from the workforce commencing three months prior to birth of each of three children who were born on 4 September 1963; 13 June 1967 and 7 August 1973 respectively.
902 In an actuarial report 30 April 1999 (exhibit 11) tendered on behalf of the defendant, Mr McLeay, Chartered Accountant challenged the plaintiff's actuarial report. He said that the potential earnings were overstated, there were incorrect calculations of the applicable marginal taxation. No consideration had been given for absences of work. The calculation of superannuation was wrong. No allowance had been made for repayment of social security. He commented that the plaintiff rarely stayed at a place of employment for any long period. He noted the plaintiff's first child was born in 1963, that the plaintiff never completed nursing training and worked as a nurse's aide intermittently. Later two other children were born. He also rejected the two scenarios advanced in the plaintiff's actuarial report. He also noted that the plaintiff had received extensive social service payments throughout most of her life including Abstudy benefits (which appears to be factually correct). No allowance had been made for academic courses undertaken or whether she would have undertaken courses to be a nurse. Calculations under scenario B assumed full time employment but overlooked demands of motherhood in the 1960s and 1970s availability for the workforce. Indeed, his conclusion was that it would be extremely difficult for any expert to state with reasonable certainty the potential earnings for the plaintiff from 1960 to date. As to this matter I would here observe that I agree, despite Dr Waters, the plaintiff's expert psychiatrist, attempting to do so in a report prepared just prior to trial and tendered in the plaintiff's case. Apart from Dr Waters lack of qualifications to express views on economic matters, "retrospectively" to 1960 (although he did not see the plaintiff until 1991) or otherwise, the evidence does not support Dr Waters' attempt to do so. I regard Dr Waters' views as being unqualified and unhelpful on this point as well: see HG.
903 I would add that in my view merely to have the Borderline Personality Disorder without proof of more, does not prove incapacity or its measure in the past or at all.
904 There are claims, inter alia, for loss of earnings. Interest on loss of income is also claimed prior to 1 July 1972 at a rate of 5% and since 1 July 1972 at Supreme Court rates.
905 In respect of past value of care, the claim is made on a commercial rate basis, for a partial period. The current commercial rate is $17 per hour. Past care is claimed on the basis of three hours per day, five days a week apart from periods of hospitalisation from 25 March 1962 to 31 December 1984, six hours per week from 1 January 1993 to 30 June 1997; and from 1 July 1997 at four hours per day five days a week apart from periods of hospitalisation. The claim for past care is again "retrospectively" supported in terms by Dr Waters, (in a recent report prepared in 1999). Apart from the fact that there is a paucity of evidence of actual care being provided during past periods, claims for care were still made on the basis of Dr Waters' report. On the matter of care generally, I also find Dr Waters' views unhelpful. The matter of care, or its reasonableness, cannot be merely resolved by expert medical witnesses (none of whom in fact treated the plaintiff) but are matters too, calling for close scrutiny and decision by the Court.
906 Future care is calculated on the basis of four hours per day five days per week from 19 April 1999 at $17 per hour for 26.4 years.
907 As regards the cost of medication this is calculated upon the basis of a monthly visit to a general practitioner for the remainder of her life at $40 per visit, forty counselling sessions over the next two years at $150 per session. For past medication from 1963 to date including Mogadon, Fortral, and Rohypnol, a claim is made together with a claim for interest. Proof of need (due to default causing injury), causation, of reasonableness, of actual expenditure or liability to pay in the past, has by no means been established. Relevant proof is somewhat vague.
908 Fund management costs are claimed on the basis of either scenario A or scenario B supra.
909 If the plaintiff's case is accepted on negligence and breach, (and it has been rejected) then the damage on the plaintiff's case first occurred between 1942 and 1960. The plaintiff's case is that childhood manifestations of an attachment disorder manifest themselves before the age of five or six (in this case I find they did not). That said, the Borderline Personality Disorder it is claimed cannot be diagnosed before the age of eighteen (T 749). I have found that it was not present in 1960 as suggested by Dr Waters (ie it would have been present by "adolescence"). I have already found neither it or any other psychiatric disorder was present (nor had manifested itself in or prior to 1960).
910 The matter is further complicated by not merely "a complex psychiatric history", with suggested "recovery" from the alleged borderline personality disorder in 1996-1997 (albeit since then her health has deteriorated) but also the fact that since March of this year the plaintiff has been suffering from a new psychiatric condition described essentially as one of "psychotic reaction", a "new condition" not previously seen in the plaintiff over her already "complex psychiatric history" (Dr Waters 8 April 1999). Dr Waters (at T 125) accepted the possibility of genetic predisposition to psychosis. It is not suggested that such a psychosis in terms is an incident of the Borderline Personality Disorder, which had ceased to meet the DSM-IVTM criteria according to Dr Waters in 1997, or thereabouts. In his report of that date Dr Waters said:
"She manifests a psychotic reaction, principally to the stress of the upcoming court case, but contributory factors include substantial recent weight loss and possibly also cannabis use".
911 The cause of the very substantial weight loss and its consequences have not been the subject of acceptable medical evidence in terms of explanation or cause. The cannabis use I do not accept as being caused by any alleged negligence of the defendants or further that the plaintiff has discharged the onus in showing it was. Further, the subject of alcoholism (and its cause and consequences) raises another matter. The plaintiff is a recovered alcoholic. Her mother was an alcoholic and a very heavy user of alcohol during most of her life. Dr Waters when asked whether alcoholism could be part hereditary said (at T 124) that this was a controversial subject, and that there "is evidence" that there is an inherited component to alcoholism but in a fairly complex way. In 1989 there was a diagnosis of the plaintiff's mother by a psychiatrist, the diagnosis being of schizophrenia and probable alcoholic hallucinosis (a psychosis-biological condition). I conclude, indeed, I find on the evidence, that the plaintiff's own alcoholism particularly during a ten year child rearing period was not caused by any default (even if found) of the defendants. It is not responsible to pay damages for it. Nor has the plaintiff discharged the onus in establishing that it was.
912 In report dealing with whether proceedings should be heard (as they were, and there was no application for an adjournment), Dr Waters considered that the plaintiff "remained extremely vulnerable to further breakdowns whenever the case is heard such are the pressures which it induces in her". In his report of 20 April 1999, Dr Waters referred to the plaintiff's condition as "being in a state of active psychosis associated with paranoid ideation". As I understand the evidence a psychosis is different to a personality disorder.
913 The case has been heard, presumably the stress of "the upcoming court case" no longer exists as a factor. That said, the unresolved question of the substantial weight loss remains. There are also the significant physical factors present complicating the case as well.
914 The report from the Illawarra Aboriginal Medical Service ("the IAMS") reveals that the plaintiff had attended the IAMS since October 1986. She had a history of hysterectomy, migraine, drug abuse, psychiatric illness, asthma and anxiety attacks. No cause for weight loss had been identified in that report. There were complaints of back pain to that Service.
915 Thus, there are considerable problems and difficulties in computing "damages" in a case such as the present where events commenced in 1942 and the case is heard in 1999. Indeed, the matter is further complicated by the fact that the damages claim is not for physical injury arising from an identifiable specific happening in terms of time. The claim for damages (and equitable compensation) is for psychiatric and psychological damage, the alleged consequence of a general course of conduct or an accumulation of conduct occurring between 1942 and 1960 and allegedly continuing thereafter. It is not divided into different periods (see my reasons on liability) This is not a case where psychiatric illness has supervened on physical injuries: cf: Kavanagh v Ahktar supra. The case particularly involves a claim for psychiatric injury per se and for ill health, in all its physical and psychological respects. That said, Kavanagh's case (applying Nader v Urban Transit Authority (1985) 2 NSWLR 501) is of relevance as I have earlier indicated.
916 In my view, the mere statement that a person has a Borderline Personality Disorder of itself tells the Court very little. It does not inform the court whether on particular occasions acts, conduct or behaviour are to be necessarily attributed to it, nor does it prove such behaviour is not the consequence of voluntary or rational decisions. The expression "disorder" (at least in terms of explanation of particular conduct or behaviour) of a case may not always be the subject of close scientifically rigorous analysis even by the experts. Care should be taken that the focus of the trial not shift so as to become preoccupied within the mere existence of a condition rather than analysing and considering its effects and consequences. Causation is a question of fact for the Court as a matter of common sense. A diagnosis, for example, or classification of Borderline Personality Disorder is an early step in an assessment of damages, care still should be taken that a mere disorder diagnosis, or diagnostic label be not misused or misunderstood or used as an explanation without more, for all happening events misfortunes or other occurrences in life of the person with such a an alleged disorder.
917 As I have said, the presence of Borderline Personality Disorder (like any other disorder) is not a reason, a basis or excuse for blaming everything that occurs upon it, for example, criminal conduct or criminal activity the result of rational and voluntary decisions of a person to participate in it: see Wiegold at 516-517 or for denying individual responsibility for one's behaviour and conduct. Nor does it deny a need to examine a happening or event to determine whether it was voluntary, an act of individual responsibility, or was the product of an alleged Borderline Personality Disorder then existing, or is to be considered to be due to some other explanation or cause. Individual responsibility has not been "wholly" abolished by the law of torts: see Wiegold at 516-517. The mere presence of a disorder does not of itself provide excuses, or non excuses, for actions or inaction. Individual responsibilities for actions and behaviour, and personal acceptance of such is not excused or denied, nor is the responsibility or voluntariness of ones actions, including actions or omissions in the criminal law to be denied. As to the causal relationship between the mere presence of a mental disorder and the commission of a criminal offence (here the plaintiff committed offences in the earlier first half of the 1960's) cf R v Engert (1995) 84 A Crim R 67 where there was no causal relationship between the presence of a disorder and the commission of the offence). In the criminal law as to voluntariness see R v Falconer (1990) 171 CLR 30 and Wiegold supra. As to causation in the criminal law and its "purpose": Royall v The Queen (1991) 172 CLR 378. As to causation in the civil law of negligence: March v E. M. Stramare Pty Ltd supra. Further, causation is not simply a factual question but a normative one, with questions of policy and value judgment entering into consideration: Wiegold at 511.
918 I have very carefully read (and re-read) the evidence, including the considerable volume of material touching upon the plaintiff's admissions to hospital between 1962 and 1965. I have carefully considered other material not considered by the other experts. I have had regard to my lack of satisfaction as to the reliability and credibility of the plaintiff on significant matters and my findings of fact including those on liability which I do not qualify or resile from. In the relevant contemporaneous medical notes are recorded diagnoses and in my view accurate diagnoses reflecting in my view the then current psychiatric nomenclature in place in the field of psychiatry and the then existing criteria for diagnostic purposes. Those notes also reveal matters not the subject a sufficient detail consideration and attention in the medical reports, or which in my view have indeed, in some ways been given inadequate consideration in all the circumstances.
919 Next, as I have sought to indicate, mere classification of itself, of a disorder is not, determinant of its impact, or effect, on the level of functioning of the person suffering from it at any time or any place, or indeed, a necessary guide to an individual's responsibility or degree of control over his or her conduct, behaviour or actions on particular occasions. On the issue of causation I may have regard to the lay evidence - what is said by way of admissions by the plaintiff to others and to all the evidence as well, in determining what are the damage consequences flowing from a particular psychiatric classification, which unless critically and carefully considered and analysed, may of itself create a some what erroneous or even distorted view of a case, and provide false unreliable inaccurate or unhelpful accounts or explanations of past or present events, as well as an unreliable guide to the future.
920 It is for me as a matter of commonsense in terms of causation, (and if necessary foreseeability) to determine when, where and under what circumstances any impairment, disability incapacity or loss or damage, has been caused by breach of duty (had such been found). As I have said, mere proof of the "disorder" is the beginning, but not the end of the matter.
921 Th experts called on behalf of the plaintiff have in some ways approached the matter of scientific causation by proffering an authoritative sounding explanation, that is a Borderline Personality Disorder, as substantially the explanation for the events of the plaintiff's life with in effect nothing counting against this proposition. Nor has there been an attempt, or adequate attempt by the experts to fully explore the plaintiff's behaviour history and conduct in its several respects. It has been rather assumed that the explanation in all its respects is to be found in the claimed Borderline Personality Disorder and that is enough.
922 With great respect to the experts who seek to provide by reference to a psychiatric disorder, explanations for events, past and present and for future happenings, the role of the Court on the matter of causation is a different one. I have touched upon its role earlier. That said, there is no harm in repeating my remarks. Questions of causation are answered in the legal framework in which they occur. Here the framework is in the law of negligence in the civil law. There is also the need to start any legal inquiry as to causation from an understanding of the scope of the duty found to be breached. Where negligence is in issue causation is essentially a question of fact to be answered by reference to commonsense and experience (of the tribunal of fact) and one which considerations of policy and value judgment necessarily occur: see March v E. M. Stramare Pty Ltd supra; Chappel v Hart supra; Kavanagh v Akhtar supra. In the civil area as the cases make clear, the purpose of finding causation in civil negligence is to attribute responsibility in a civil action. As I have already mentioned, reasonable foresight is not itself a test of causation. It marks the limits beyond which a wrong doer will not be held responsible for damage resulting from his or her wrongful act.
923 Next, it is to be remembered that causation is not necessarily negated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence or default: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 13; Akhtar supra. That said the voluntary and deliberate conduct by the plaintiff is not to be ignored either in terms of her actions or behaviour. Mitigation of damage principles may also have a role to play. So do matters not only of chance: but also of personal predisposition and vulnerability: cf Wilson v Peisley (1975) 50 ALJR 207.
924 In Wiegold supra, a case involving an issue of a defendant's liability to pay damages for personal injury, where it was claimed that some of the damages were affected by criminal conduct on the part of the plaintiff, Samuels JA (with whom Handley JA agreed) discussed the conceptual distinction between reasonable foreseeability as a test for both remoteness of damage and causation, citing Chapman v Hearse (1961) 106 CLR 112. Samuels JA said at 511:
"Causation is not simply a factual question; it is also a normative one. This proposition clearly emerges from the decision of the High Court in March v E. & M. H. Stramare Pty Limited . Hence it follows that the issue whether the appellant's negligence was a cause of the respondents criminal conduct is to be determined not simply by reference to factual considerations but to considerations of policy."
925 His Honour (at 515) concluded in that case that it was an error to hold that the appellant's negligence caused the respondent to turn to crime, and that it was strictly not necessary to express a firm view upon the issue of remoteness of damage. Further, in discussing the matter of reasonable foreseeability, he was nevertheless of the view that the consequences of the criminal conviction were not in the event reasonably foreseeable. That said (at 517) his Honour concluded that the defendant should not be held responsible for the losses the plaintiff sustained as a result of "a rational and voluntary decision to engage in criminal activity … that the losses … fall outside the limits for which the wrong doer should be held liable".
926 These remarks and observations are in point in the instant case particularly in respect of the criminal offences (including imprisonment for one) in the 1960's and their effect on damages. Earlier in Barnes v Hay (1988) 12 NSWLR 337 (a case preceding March's case) the Court of Appeal was also called upon to consider the issues of foreseeability and remoteness and further the issue of causation in the context of an assessment of damages. An issue also arose whether part of the loss was caused by the defendant's negligence. At 352, Mahoney JA noted that a real difficulty in the law of causation was in the formulation of the verbal principle, the "formula". That said Hope and Priestley JJA (at 339) considered that where some principle of causation applied, its resolution still required the exercise of "judgment with different judges arriving at different results". This latter approach is consistent with the view that causation is a question of fact and very much for the trial judge.
927 So far I have been speaking of common law causation and not causation in equity: see O'Halloran supra (a case particularly involving the trustee fiduciary duty type of case or one analogous in the circumstances to such). With respect to Equity, Principles of causation, remoteness and foreseeability as well as "novus actus" may well be different: O'Halloran; Makaronis supra. As I earlier said, I am relieved from dealing with the matter of equitable compensation by the plaintiff's concession that "Equity would follow the law in quantifying equitable compensation by the same measures as are used in the assessment of common law damages"" For this reason in my assessment of damages I forbear from looking at and considering the matter of equitable compensation separately.
928 Mr Barry (for the defendants) also submitted that when it came to determining causation in relation to the plaintiff's alcoholism and drug dependence, even more difficult questions arise. First, he submitted that drug taking is a criminal offence and the policy of the law is that there should also be no compensation for the commission of criminal offences: see Wiegold supra. The same proposition he submitted applied to the plaintiff's claim based in part upon her conviction and imprisonment for offences including for the serious offence of bestiality. Mr Barry argued that on the issue of alcoholism there was evidence that the plaintiff's mother too was an alcoholic, (throughout her life or a large part thereof and that the report of Dr Heiner in 1989). He argued that the plaintiff's own alcoholism was somehow caused by "her" personality disorder was not established. He further submitted:
"[The plaintiff] may have been that way in any event. She may have been that way if she had gone to the Cootamundra Girl's Home at the age of 12. She may have been worse off if she had gone to Cootamundra Girl's Home because other girls may have identified her as being "white" and singled her out for prejudicial treatment as well".
929 Dr Waters also gave some evidence on this matter well (at T 135). That said the plaintiff did not reunite with her mother until 1973, and the mother had no role in her upbringing.
930 Mr Barry also submitted that matters such as drug addiction were not compensable even if caused by the defendants' conduct. I consider that on the facts of this case such drug addiction has not been proved on the facts or established as having been caused in any event by default or of the defendant. He also further submitted that in any event some damage to the plaintiff's psychological health was, in any event, likely because of abandonment of the plaintiff by her mother and disrupted nurturing of her earlier years for reasons beyond the control of the Board. There would have been, it is submitted, some interruption in nurturing irrespective of default. There is substance in these submissions which I accept.
931 In reply, the plaintiff has submitted that no factor was identified by the defendant which was "causally unrelated to the plaintiff's Borderline Personality Disorder" (including also that the plaintiff was depressed because her son was in gaol). I reject this submission in the terms stated.
932 As to the matter of the criminal offences, legal questions aside, as a purely factual matter I am entitled to look to what appears to be the circumstances surrounding the commission of an offence: see Wiegold at p 512. Indeed, looking at the actual factual context in which the plaintiff's offence(s) in the 1960's (including that of attempted bestiality followed by imprisonment) took place such, I conclude that they were not causatively the responsibility in law, or in fact of the AWB. I reiterate that causation is as much a normative question as it is a factual one. I find the reasons of Samuels JA in Chapman v Hearse supra, of assistance, informative and applicable when it comes to dealing with the offences to which pleas of guilty were entered. In the present case it has been shown that there were pleas of guilty and sentencing by courts of law. The plaintiff was found by a court to have voluntarily committed the acts. In the circumstances it would, on the facts as well, be unrealistic or contrary to common sense to find that the defendant caused the plaintiff to engage in criminal conduct. In any event such has not been proved by the plaintiff.
933 Next, I am not prepared to find that the (illegal or otherwise) abuse of drugs and the claimed substance abuse disorder (however, it be described) was caused by any alleged negligence of the defendants. Further or alternatively, it has not been established that it has been. The alcohol abuse claim as I have said is subject to the same findings. The defendant is not responsible for it (even if negligent). The plaintiff has also not discharged the relevant onus.
934 In this case it will be necessary to look at a number of other matters in their factual context setting to determine whether the defendant is to be made liable for all or any problems and misfortunes asserted by the plaintiff.
935 Mr Hutley further advanced the plaintiff's case as follows. The question to be determined was whether the plaintiff's mental illness and its "consequences" was foreseeable as to make the defendant liable for it. He submitted that even in respect of drug or alcohol abuse there was no reason in law, policy or otherwise excluding drug or alcohol abuse from the ambit of such consequences even where abuse included illegal activities. I have rejected this submission, for reasons given.
936 The plaintiff's case also is that she suffered attachment disorder and Borderline Personality Disorder as a result of the AWB's negligence, that the plaintiff had abused substances since her late adolescence as a result of Borderline Personality Disorder. I reject this submission. Mr Hutley submitted that although the plaintiff no longer meets the diagnostic criteria for Borderline Personality Disorder, she continues to abuse substances. Mr Hutley submitted that Borderline Personality Disorder and the associated substance abuse had compromised the plaintiff's life in all respects, including an inability to form relationships, to earn a living and to look after herself. I reject these submissions in the terms stated.
937 Further to the extent that it is asserted that substance abuse is caused by a Borderline Personality Disorder, I do not have to accept his experts' views in this case. Further the factual foundation for such opinions have not been established.
938 I also have regard to the plaintiff's behaviour and company kept and criminal activities in 1960-1962, a period of some turbulent behaviour in her life, not in my view due to any alleged default of the defendant. Reference in the plaintiff's affidavit evidence as to early involvement with drugs and alcohol is significantly limited. As regards her conduct in the period 1960-1962 she was not forthcoming as to details when questioned by Dr Waters. Notwithstanding this, when the period 1960-1962 is looked at, on all the evidence available including the plaintiff's own limited affidavit evidence, the matter of substance abuse and the commencement of alcohol abuse may be better understood in context.
939 Another matter that I should mention in this most difficult task of assessment relates to further heads of damage. It is impossible to assess damages for pain and suffering and loss of amenities of life by any process of arithmetical calculation.
940 I now turn to consider the specific heads of damages.