Anwar v Mondello Farms Pty Ltd - [2015] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
ANWAR v MONDELLO FARMS PTY LTD
[2015] SASCFC 109
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
10 August 2015
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION - PRE-ACCIDENT CONDITION OF PLAINTIFF
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Appeal from a judgment of the District Court.
The appellant (plaintiff) sued for personal injury suffered in the course of his work as a process line stacker in a potato packing plant operated by the respondent (defendant). The appellant’s work involved removing 20 kilogram bags of washed potatoes from a conveyer belt and placing them manually on a pallet. The appellant’s hand became caught in a gap between the belt and a roller. It was trapped for a relatively short period of time. It could only be freed with the use of tools. The appellant suffered a debridement injury. The back of his hand was burned, removing the skin. On 5 May 2005 he underwent plastic surgery where a skin graft was performed.
The trial judge found this to be a painful but minor injury. He characterised it as non-life-threatening. The judge found that the circumstances by which the injury was caused were relatively benign as industrial accidents go. The appellant challenges these findings. The trial judge found that in the five months following the injury the appellant developed symptoms of stress and anxiety. The appellant suffered a psychotic episode in September 2005. Subsequently he was diagnosed as suffering from schizophrenia.
The judge found the respondent liable in negligence and breach of statutory duty for the appellant’s hand injury. There is no challenge on appeal to the judge’s finding on liability. The judge found the existence of a causal relationship between the appellant’s hand injury and the subsequent development of schizophrenia. He found the overwhelming part of the appellant’s disability arose from the fact he suffers from schizophrenia. The judge found that the respondent did not owe the appellant a duty to take care not to cause him mental harm pursuant to s 33 of the Civil Liability Act 1936 (SA). Accordingly the appellant was entitled to damages only in respect of the injury to his right hand. The judge nonetheless proceeded to assess damages if he was wrong in the application of s 33 and the respondent was liable to the appellant for his development of schizophrenia. The judge assessed damages on the basis that there was a high likelihood the appellant would have developed schizophrenia at some point in his life irrespective of the injury to his hand and, accordingly, the damages awarded to the appellant for future events were reduced by 30 per cent.
The appellant appeals on two grounds. First, that the judge erred in his construction and application of s 33 of the Civil Liability Act 1936 (SA) in finding that the respondent did not owe him a duty to take care not to cause him to develop schizophrenia. Secondly, that the judge erred in reducing, by as much as 30 per cent, the damages he would have awarded had he found in the appellant’s favour on ground 1. By a notice of cross contention the respondent submits first, that the judge should have found the accident did not cause the appellant to develop schizophrenia and secondly, should have found the appellant would have developed schizophrenia within 12 months of the accident or by his mid-20s irrespective of the accident. It submits that if the Court accepts the second ground of contention but not the first, damages for future losses should be reduced by up to 90 per cent.
Held per Stanley J (Kourakis CJ and Gray J agreeing):
1. But for the accident, the appellant would not have suffered schizophrenia when he did.
2. The judge’s reasoning was infected by his irrelevant focus on whether the appellant was a person of normal fortitude by reason of his susceptibility to developing schizophrenia. The question to be answered is not whether the appellant was a person of normal fortitude but whether a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.
3. The judge erred in concluding that a reasonable person in the defendant’s position would not have foreseen that a person of normal fortitude in the appellant’s position might suffer a psychiatric illness in consequence of the injury to his hand suffered in the accident. The respondent did owe a duty to the appellant to take care not to cause him mental harm.
Held per Stanley J (Kourakis CJ agreeing):
1. The reduction in damages for future loss by 30 per cent is manifestly inadequate. The judge should have discounted the appellant’s damages for future losses by 50 per cent.
2. Appeal allowed. The damages awarded to the appellant are to be increased by $1,313,827.87.
Held per Gray J (dissenting):
1. The weight of evidence supported a finding that the plaintiff would have developed schizophrenia irrespective of the hand injury. However, the evidence did not allow the Judge to fix a time at which the plaintiff would have developed schizophrenia “with some reasonable measure of precision”. Accordingly, it was appropriate for the Judge to make a reduction on a contingency basis.
2. A reduction of 30 per cent was open in circumstances where the evidence disclosed considerable uncertainty concerning the likelihood and timing of the plaintiff developing schizophrenia independent of his hand injury.
3. The Judge’s conclusions on damages should not be disturbed.
Civil Liability Act 1936 (SA) ss 33, 33(1), 33(3), 34(1), 34(1)(a), 34(3), 3(1), 53(3); Civil Liability Act 2002 (NSW) s 32(1); Wrongs Act 1958 (Vic) s 74; Civil Liability Act 2002 (Tas) s 34(1); Civil Law (Wrongs) Act 2002 (ACT) s 34(1); Civil Liability Act 2003 (Qld) ; Law Reform (Ipp Recommendations) Act 2004 (SA) ; Law Reform (Ipp Recommendations) Bill 2003 (SA) , referred to.
Fox v Percy (2003) 214 CLR 118; CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Anwar v Mondello Farms Pty Ltd [2014] SADC 105; March v E & MH Stramare (1991) 171 CLR 506; Strong v Woolworths Ltd & Anor (2012) 246 CLR 182; Adelaide Stevedoring v Forst (1940) 64 CLR 538; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534; Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor (2011) 244 CLR 144; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; Carr v Western Australia (2007) 232 CLR 138; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Tame v New South Wales (2002) 211 CLR 317; Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497; Rosenberg v Percival (2001) 205 CLR 434; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; New South Wales v Fahy (2007) 232 CLR 486; Wyong Shire Council v Shirt (1980) 146 CLR 40; Jaensch v Coffey (1984) 155 CLR 549; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Campbelltown City Council v Mackay (1989) 15 NSWLR 501; Watts v Rake (1960) 108 CLR 158; Jones v Schiffmann (1971) 124 CLR 303; Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601; King v Philcox [2015] HCA 19 at [42], (2015) 89 ALJR 582 at 594.; Purkess v Crittenden (1965) 114 CLR 164, considered.

ANWAR v MONDELLO FARMS PTY LTD
[2015] SASCFC 109
Full court: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: I agree with the orders proposed by Stanley J and, subject to the brief observations which follow, with his reasons.
First, I would reserve for future decisions the extent to which the phrases

“in the defendant’s position” and “in the plaintiff’s position” include all the characteristics mentioned in the reasons of Stanley J. I am inclined to think that there is not a substantial difference in result between s 33 of the Civil Liability Act 1936 (SA) (the Act) and its interstate analogues. As to defendants, very little should depend on the subjective characteristics of the alleged wrongdoer who is implicated in the circumstances which result in injury. As to the plaintiffs, I agree with Stanley J that s 33 of the Act poses the test of foreseeability by reference to a person of normal fortitude as a control mechanism and that s 33 of the Act requires the Court to make an objective evaluative judgment which limits the range of circumstances which will render a person liable for mental or consequential mental harm. The qualification I make is only that the phrase “in the plaintiff’s position” does not allow the Court to have regard to subjective personality traits which would undermine the normal fortitude standard.
The second observation I make is that there is a significant difference between pure mental harm and consequential harm over and above the statutory distinction made by the inclusion of an additional criterion for the latter by s 33(2)(b) of the Act. The difference arises out of the common human experience, which is also well known to courts in personal injury actions, that psychological and psychiatric conditions are not uncommon sequelae of physical injuries which require surgical intervention and/or interferes with working capacity or daily living activities.
Thirdly, and applying the observations I have made to this case, I would modify slightly the test posed by Stanley J at [105], and conclude that:
A commercial operator of a potato processing factory would foresee that failing to guard machinery when it is necessary to do so could cause both physical injury and consequential mental harm such as anxiety or depression to a factory worker who suffers an injury which requires surgery and which interferes with his or her working capacity or daily living activities.
GRAY J.
This is an appeal from a judgment of the District Court in respect of a personal injury claim.[1]
[1] Anwar v Mondello Farms Pty Ltd [2014] SADC 105.
Introduction
The plaintiff and appellant, Sayed Asif Anwar, is an Afghani refugee who arrived in Australia with his family in 2003.
In 2005, the plaintiff obtained employment as a process line stacker in a potato packing plant operated by the defendant and respondent, Mondello Farms Pty Ltd. The plaintiff’s duties consisted of removing 20 kilogram bags of potatoes from a conveyor belt and placing them on a pallet. About one week after he commenced employment with the defendant, the plaintiff’s hand became trapped in the conveyor belt for about 10 minutes. The plaintiff experienced severe pain during this time. A skin graft was required where the plaintiff’s hand had been burned. The plaintiff has not worked since the incident and has developed symptoms of stress and anxiety. He has also developed type two diabetes and schizophrenia.
The trial Judge found the defendant liable in negligence and breach of statutory duty. These findings were not challenged on the appeal. The Judge found that the plaintiff’s schizophrenia was caused by his hand injury and, further, that the plaintiff’s schizophrenia is the primary cause of his present inability to work. The Judge found that the defendant did not owe the plaintiff a duty of care under section 33 of the Civil Liability Act 1936 (SA). Accordingly, the Judge only awarded the plaintiff damages in respect of his physical injury. However, the Judge proceeded to assess damages in the event that a duty of care existed under section 33 in the sum of $1,679,415.77. In arriving at this figure, the Judge made a reduction of 30 per cent in respect of damages for schizophrenia and 50 per cent in respect of damages for diabetes as he considered that there was a high likelihood that the plaintiff would have developed both conditions independently of the injury to his hand.
The issues on this appeal are:
-whether the Judge erred in finding a causal link between the accident and the development of schizophrenia;
-whether the Judge erred in his construction and application of section 33 of the Civil Liability Act 1936 (SA); and
-whether the Judge erred in his assessment of damages.
I have had the benefit of reviewing the draft reasons of Stanley J and respectfully adopt his detailed summary of the facts and remarks about the general approach to be taken by a court on appeal.[2] I also adopt the reasons of Stanley J with respect to the first issue on the appeal.
Section 33 of the Civil Liability Act 1936 (SA)
[2] See Fox v Percy (2003) 214 CLR 118.
Section 33 of the Civil Liability Act provides:
Mental harm—duty of care
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
(2)     For the purposes of this section—
(a)     in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:
(i) whether or not the mental harm was suffered as the result of a sudden shock;
(ii) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(iii) the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(iv) whether or not there was a pre-existing relationship between the plaintiff and the defendant;
(b)     in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.
(3) This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.
The Judge correctly reasoned that the present case involves consequential, rather than pure, mental harm, as he had found that the plaintiff’s schizophrenia was a consequence of suffering bodily injury. The Judge, presumably by reference to subsection (3), considered that the defendant did not know and could not reasonably have known, that the plaintiff was a person of less than normal fortitude. This was not challenged on the appeal.
The Judge identified the circumstances of the case as follows:
As I have already observed, the injury was a minor one.
In my view the circumstances of the case must also include matters surrounding the incurring of the accident including the potential perceived danger that the accident would have engendered in a person of normal fortitude subject to the accident together with all surrounding factors and circumstances including the recovery process from the physical injury.
In this case the machinery which caused the accident was not of a frightening kind nor was this a case where the nature of the machinery and the mechanism of the injury was such that there was a danger of an overwhelmingly painful or traumatic or frightening incident to the perception of a person of normal fortitude.
The circumstances whereby the injury was caused were relatively benign as industrial accidents go and it is difficult to conceive of the potentiality for any more devastating injury in the circumstances of the accident or that a person of normal fortitude in the plaintiff’s position could have thought so.
The circumstances of the accident themselves do not point to a significant risk that a person might be injured in such devastating or frightening circumstances such as to cause psychiatric illness to a person of normal fortitude in the plaintiff’s position.
I have included in the “circumstances of the case” the fact that the hand of the plaintiff may have been trapped for a period of time although I doubt that he had fainted as he claimed and that healing of his physical injury was somewhat protracted.
The Judge described a reasonable person in the position of the defendant in the following terms:
Here the lay member of the community is in fact “a reasonable person in the defendant’s position”. No evidence has been led nor argument presented that the defendant had any special knowledge or any special expertise in this area, as for example by the employment of medical practitioners or psychiatrists etc.
...
I think I can take, however, the reasonable person in the defendant’s position to be one with a more than cursory understanding of the working of the machinery that ultimately caused the plaintiff’s injury and the work practices that the plaintiff was engaged upon at the time he suffered his accident. This was its business. There is no evidence, however, that the defendant was peculiarly knowledgeable in employing medical practitioners, psychiatrists etc and hence the issue of whether the defendant should have attributed any special knowledge does not arise.
[Footnote omitted.]
The Judge then turned to consider what a reasonable person in the position of the defendant would have foreseen:
A reasonable person in the defendant’s position should have realised that there was a risk that the plaintiff might suffer some pain and trauma to his hand in these circumstances. The reasonable person would have seen that the actual injury was a relatively simple and non life threatening injury to the hand and concluded that it was highly unlikely that there would be psychiatric sequelae for a person of normal fortitude.
It is difficult to see that one would envisage any hand injury caused in the manner here caused as being catastrophic to that hand. The actual injury confirms that to be the case.
The “less evidently shocking” the event the less likelihood that it would be foreseen that a person of normal fortitude would suffer mental illness. The injury in this case did not cause bleeding or gross deformity of the hand. It no doubt caused some pain but is unlikely to have caused excruciating pain. I doubt that the plaintiff collapsed or lost consciousness as he asserted.
The length of time over which the psychiatric illness developed (a period of some 5 months during which the plaintiff’s reaction to his injury was grossly exaggerated) is significant as is the fact that the weight of medical evidence suggests that the plaintiff, who I have found did develop a psychiatric illness arising from the accident, would not have developed it had he been a person of normal fortitude.
The Judge concluded:
I have already remarked that the plaintiff’s injury was a mild one and that it did not involve the fracture of a bone nor prolonged entrapment in a painful situation.
Further, the machinery itself was not of a frightening type nor was it a case where devastating injuries were a perceived potential outcome for a person of normal fortitude and the plaintiff had fortuitously been saved from such devastating physical injuries.
Further, I do not regard this as a case where the injuries were so devastating that the recovery was accompanied by inordinate pain or other sequelae like adverse reactions to drugs or treatment or anything similar.
This was an extreme reaction by an extremely vulnerable and predisposed individual.
I conclude that a reasonable person in the defendant’s position would not have foreseen that a person of normal fortitude in the plaintiff’s position might suffer a psychiatric illness in consequence of performing the task of taking bags of potatoes from the roller table and placing them on the pallet and receiving the hand injury that the plaintiff received in the course of so doing and having the recovery from the physical injury that the plaintiff had.
The plaintiff was not a person of normal fortitude and I so find.

On the appeal, the plaintiff submitted that the Judge erred in both his construction and application of section 33 of the Civil Liability Act. It was submitted that the Judge had improperly allowed his finding that the plaintiff was not of normal fortitude to influence his reasoning on the question of foreseeability. It was submitted that the Judge erred by concentrating his enquiry on whether the defendant should have foreseen the plaintiff’s schizophrenia, rather than foreseeing the development of a psychiatric illness of any kind. It was submitted that the Judge assessed foreseeability by reference to what actually took place, rather than undertake a prospective analysis. Finally, it was submitted that the Judge erred by finding that the development of a psychiatric illness was not reasonably foreseeable because it was highly unlikely. The defendant rejected each complaint.
In Mount Isa Mines Ltd v Pusey, Windeyer J expressed the characteristics of a reasonable person in the position of a defendant in the following terms:[3]
Foreseeability here predicates the foresight of a reasonable man. The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v. Young, "a reasonable hypothetical observer". He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot shew that the event was foreseeable. ...
[Footnotes omitted. Emphasis added.]
[3] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 397-8.
In the present case, a reasonable person in the position of the defendant is an operator of a potato processing plant employing unskilled migrant workers to use unguarded machinery with minimal training in circumstances where they cannot control the speed of the machinery. That person would understand the effect of stress on ordinary individuals in society and be aware of previous incidents at the plant.[4]
[4] Tame v NSW (2002) 211 CLR 317, [112].
A person of normal fortitude in the position of the plaintiff is an unskilled migrant worker with a poor grasp of the English language and minimal training who was carrying out his duties in a lawful manner. That person would respond to adversity and injury in the manner expected of a person with those characteristics and without peculiar vulnerability or susceptibility to psychiatric illness.[5]
[5] Tame v NSW (2002) 211 CLR 317, [16].
The circumstances of the case are that a number of unskilled migrants with poor English were operating unguarded machinery with minimal training. This machinery could trap, crush and burn limbs and joints. The plaintiff’s hand was trapped and burned in the course of performing his ordinary duties. He was in pain and helpless. He was only freed with the assistance of others using tools. Plastic surgery was required to repair his wound.
The test for reasonable foreseeability was articulated by Mason J in Wyong Shire Council v Shirt:[6]
... a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[Emphasis added.]
[6] Wyong Shire Council v Shirt (1980) 146 CLR 40, 48.
In my view, the Judge erred in finding that a reasonable person in the position of the defendant would not have foreseen that a person of normal fortitude in the position of the plaintiff might suffer mental harm in the circumstances of the case. The earlier extracted conclusions of the Judge on this topic are expressed in almost entirely retrospective terms with reference to what occurred. They also disclose that the Judge unduly confined his analysis of foreseeability to the question of probability and likelihood. Further, the Judge erred by incorporating his findings concerning whether the plaintiff was a person of normal fortitude into his reasoning with respect to foreseeability – the question of whether the plaintiff is a person of normal fortitude is a separate inquiry.
I respectfully adopt the characterisation of the injury proffered by Stanley J in his draft reasons, namely: a painful crush injury to the right hand resulting in debridement of the skin, and of sufficient severity to require plastic surgery. In my view, a reasonable person in the defendant’s position would understand that a person of normal fortitude in the plaintiff’s position would find the experience of being trapped in industrial machinery while in severe pain to be terrifying. A person in the plaintiff’s position might have readily understandable fears of suffering serious, life-long, debilitating and disfiguring injury which may render them unable to work and severely diminish their quality of life. While it may be unlikely, it is not farfetched or fanciful that a person of ordinary fortitude “might” experience a reaction beyond fear or terror, in particular anxiety or post-traumatic stress disorder, in those circumstances. Accordingly, the defendant owed the plaintiff a duty to take care not to cause him mental harm and the plaintiff is entitled to recover damages for his consequential mental harm.
Damages
The Judge summarised the expert evidence on the likelihood of the plaintiff developing schizophrenia independently of his injury as follows:
Dr H Hustig
I think that the cards were progressively stacking against him, and that something was going to happen. The way that he ended up utilising the substances precipitated it in this direction.
Well I think as I say, the hand injury was certainly a significant stress, but I think given his history I would be suspicious of something developing in terms of a major depressive episode in South Australia, if he were to continue to reside here.
Q     Even if he didn’t hurt his hand?
A     Even if he hadn’t have hurt his hand.
Dr Kutlaca
His opinion is that the plaintiff would have got schizophrenia in any event. He points out that most people get it in their late teens, early twenties and that the range is usually about 15 to 45 and that after that one is unlikely to get it.
Dr Kutlaca is of the view that the plaintiff would have developed schizophrenia irrespective of the subject work related incident.
Professor McFarlane
His opinion is expressed in his report,
... it is my view that Mr Anwar’s injury on 11 April 2005 was a seminal event in the onset of his schizophrenia at a later time. Clearly a range of other social and biological risk factors were in play. However, on the balance of probabilities it is my opinion that, if he had not had that injury and then gone on to develop a Post Traumatic Stress Disorder he would not suffer from schizophrenia at this time. In essence, his vulnerability to schizophrenia only became manifest because of this stress and its resultant neurobiological progression due to the onset of Post Traumatic Stress Disorder.
In evidence he reiterated that there was only a low probability that he would have got schizophrenia in any event from other factors.
Dr Raeside
He expresses the view that it is impossible to say whether he would have developed schizophrenia had the work injury not occurred.
He did say, however,
... it is my opinion that on the basis of reasonable probability the hand injury was a significant stressor that likely lead to the precipitation of Schizophrenia in a man who was probably vulnerable to the development of Schizophrenia anyway.
Dr Blakemore
Dr Blakemore’s view is expressed in his report of 21 May 2006 as follows,
It is not possible to say whether Mr Anwar would have become mentally ill if he had not had a hand injury at work. Clearly, from the very fact that he has become so ill, then he has had a propensity to do so, but whether some other factor would have precipitated this illness is just not clear.
Dr Cotton
His opinion is expressed as follows,
It is my view that his abuse of marijuana most likely constituted a major “triggering” factor in perhaps bringing forward the onset of his schizophrenic illness, from which illness most likely he would have suffered irrespective of whether he had the hand injury or not, this reflecting a consensus view of Dr Hustig, Dr Kutlaca and Dr Raeside.
He explained further,
With regard to Mr Anwar, it is my view that the prolonged nature and severity of his underlying schizophrenic illness and his propensity to repeatedly relapse when he ceases his medication indicates that he has a constitutional underlying disorder, which most likely was “triggered” by his choice to abuse marijuana, rather than there really being a cogent history of he having developed significant disabling symptoms of Post Traumatic Stress Disorder.
In answer to a question by myself Dr Cotton said,
Q     If I find something did trigger it, I might have to make a decision as to whether he would have got it anyway.
A     It is my view he would have. It is my view that he was already showing signs of it prior to the hand injury. It is my view he was well on the way to getting it when he had the hand injury and I think there is certain evidence in that direction.
He continued,
That’s what happens in this illness, they do have prodromal symptoms for 52 or more weeks prior to the onset of the illness.
[Footnotes omitted.]
The Judge concluded:
I think it is likely that the plaintiff would have suffered from schizophrenia at some stage in his life in any event had the hand injury not occurred.
This is based on the psychiatric evidence which supports this proposition and the fact that it only took a relatively minor event, namely the hand injury to cause it.
I am not in a position where I can find any specific time when the schizophrenia would have come upon the plaintiff in any event but I will make a substantial reduction in damages allowing for the high probability that schizophrenia would come upon the plaintiff during his lifetime in any event.
The Judge made the following findings about the plaintiff’s diabetes:
The plaintiff was diagnosed with type II diabetes in July 2009 and was commenced on insulin in 2011.
The defence case is that both parents of the plaintiff have type II diabetes and type II diabetes is a strongly genetically influenced disease. Accordingly, the onset of the diabetes is probably idiopathic and resulting from a genetic predisposition rather than the consequence of taking drugs for schizophrenia and that, in any event, as the schizophrenia is not work caused, if diabetes arose out of schizophrenia, it is not caused by the accident suffered by the plaintiff.
The fact that the plaintiff’s parents have type II diabetes indicates to me a significant likelihood that the plaintiff would have contracted it during his lifetime. I am impressed by the sudden onset of it in circumstances where none of the siblings have yet contracted it at a time which coincides with the weight gain probably caused by anti-schizophrenic drugs.
Dr Harding gave evidence that the sudden contraction of Type II diabetes by the plaintiff probably arose out of the accident in that his sudden weight gain caused by the taking of drugs for schizophrenia caused him to contract diabetes.
Either one or both his parents have Type II diabetes and it is highly likely that at some stage the plaintiff would have contracted diabetes in any event.
I note that Mrs Anwar, in her evidence, claimed that her husband did not have diabetes but Exhibit P19, page 141, the report of Dr Harding states that both parents have it. I prefer the evidence of Dr Harding on this topic.
Although there may be no clear evidence independent of the plaintiff that he gained weight suddenly, I accept that that was the position and the most likely explanation for the diabetes is the weight gain due to drugs for schizophrenia.
The mental condition of the plaintiff will mean that it is harder for him to control his diabetes because he is less likely to be diligent in his food habits and medication. If he reached the stage where he couldn’t be responsible for his own medication then a nurse visiting every day would be one solution. It would be better if his diabetes treatment and oversight could be done in conjunction with his depot medication.
On the balance of probabilities I find that the diabetes having arisen when it did, is a consequence of the drugs taken by the plaintiff to combat schizophrenia. Thus whether the diabetes was caused by the accident depends on whether the schizophrenia was caused by the accident.
I think it is likely that the plaintiff would have contracted diabetes in any event by about age 50 as both his parents did.
[Footnotes omitted. Emphasis added.]
On the appeal, both the plaintiff and the defendant submitted that the Judge erred in making a 30 per cent reduction for the probability that the plaintiff would have developed schizophrenia regardless of the defendant’s negligence. The plaintiff submitted that the defendant had not proved that the onset of schizophrenia was inevitable or when it might have occurred. It was further submitted that the Judge’s conclusion was contrary to the evidence and the Judge’s general preference for the evidence of Professor McFarlane and Dr Raeside. The defendant submitted that the Judge should have made a greater discount for the likelihood that the plaintiff would develop schizophrenia independently of the defendant’s negligence, particularly in circumstances where the Judge made a discount of 50 per cent to reflect the likelihood that the plaintiff would have developed diabetes.
In Purkess v Crittenden, a majority of the High Court, Barwick CJ, Kitto and Taylor JJ, with whom Windeyer J agreed, said:[7]
... It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. ...
[Emphasis added.]
[7] Purkess v Crittenden (1965) 114 CLR 164, 168.
The earlier extracted summary of the medical evidence discloses that all experts expressed an opinion either that the plaintiff would have developed schizophrenia irrespective of the hand injury or that the plaintiff was susceptible to developing schizophrenia. However, none of the experts identified a point in time by which they would have expected the plaintiff to have developed schizophrenia independent of the defendant’s negligence. Dr Kutlaka, who considered that the plaintiff would have developed schizophrenia in any event, was the only expert to offer an age range, and this range was expressed in broad and general terms. Dr Cotton, who also considered that the plaintiff would have developed schizophrenia in any event, was the only expert to consider that the plaintiff was showing symptoms prior to the injury. Dr Hustig and Professor McFarlane were more circumspect in their assessment of the likelihood that the plaintiff would develop schizophrenia – Dr Hustig expressed a “suspicion” that it would develop and Professor McFarlane assessed the probability as “low” – and did not proffer a timeframe for it to occur. Dr Raeside and Dr Blakemore were unwilling to opine that the plaintiff would necessarily have developed schizophrenia, though both accepted that he was susceptible to doing so.
In my view, the weight of evidence supported a finding that the plaintiff would have developed schizophrenia irrespective of the hand injury. However, the evidence did not allow the Judge to fix a time at which the plaintiff would have developed schizophrenia “with some reasonable measure of precision”. Accordingly, it was appropriate for the Judge to make a reduction on a contingency basis. A reduction of 30 per cent was open in circumstances where the evidence disclosed considerable uncertainty concerning the likelihood and timing of the plaintiff developing schizophrenia independent of his hand injury.
In my view, the Judge was correct to make a different reduction for the plaintiff developing schizophrenia and diabetes. The evidence supported a finding that the plaintiff would have developed diabetes independently of whether he developed schizophrenia. Accordingly, it was appropriate for the Judge to make a greater discount for diabetes than schizophrenia.
In my view, the Judge’s conclusions on damages should not be disturbed.
Conclusion
I would allow the appeal. I would overturn the Judge’s finding that no duty of care existed under section 33 of the Civil Liability Act. I would not disturb the Judge’s conclusions on damages or causation.
STANLEY J:
Introduction
This is an appeal from a judgment of the District Court. The appellant (plaintiff) sued for personal injury suffered in the course of his work as a process line stacker in a potato packing plant operated by the respondent (defendant). He was working at the respondent’s plant pursuant to a labour-hire agreement.
The appellant’s work involved removing 20 kilogram bags of washed potatoes from a conveyer belt and placing them manually on a pallet. The appellant sustained a compression injury to his right hand on 11 April 2005. He had been working at the plant for just over one week. At the time he was aged 21 years. He is an Afghani refugee who came to Australia with his family from Pakistan in August 2003. He has a poor command of English. In Pakistan he had worked selling carpets. In Australia he worked as a manual labourer in construction before obtaining work at the respondent’s plant.
The appellant’s hand became caught in a gap between the belt and a roller ("the accident"). The appellant’s hand was trapped for a relatively short period of time. A co‑worker, Mr Haliday, gave evidence that he thought it took up to 10 minutes to free the appellant’s hand. He described the appellant screaming in pain during this time saying “get me out, get me out”. The appellant’s hand could only be freed with the use of tools.
The appellant suffered a debridement injury. The back of his hand was burned, removing the skin. On 5 May 2005 he underwent plastic surgery where a skin graft was performed.
The trial judge found this to be a painful but minor injury. He characterised it as non-life-threatening. The judge found that the circumstances by which the injury was caused were relatively benign as industrial accidents go. The appellant challenges these findings.
The appellant has not worked since the accident. The trial judge found that in the five months following the injury the appellant developed symptoms of stress and anxiety. The appellant suffered a psychotic episode in September 2005. Subsequently he was diagnosed as suffering from schizophrenia.

The judge found the respondent liable in negligence and breach of statutory duty for the appellant’s hand injury. There is no challenge on appeal to the judge’s finding on liability. The judge found the existence of a causal relationship between the appellant’s hand injury and the subsequent development of schizophrenia. He found the overwhelming part of the appellant’s disability arose from the fact he suffers from schizophrenia.[8] The judge found that by reason of his schizophrenia the appellant has been unable to work and will not work again in the future.
[8] The judge also found the appellant suffers from Type II diabetes which was caused by the accident. That the diabetes is causally related to the schizophrenia is not in dispute on the appeal. Whether the respondent is liable for the damages attributable to the appellant's diabetes is contingent on the judge's finding that the appellant's schizophrenia is causally related to the accident. The appellant’s diabetes only sounds in damages if the appeal succeeds. Even then, the award forms only a small component of the overall assessment. It forms some unidentifiable part of the sum awarded for non-economic loss and $11,032 for future treatment.
The judge found that the respondent did not owe the appellant a duty to take care not to cause him mental harm pursuant to s 33 of the Civil Liability Act 1936 (SA) (the Act). Accordingly, the appellant was entitled to damages only in respect of the injury to his right hand. The judge assessed these damages in the sum of $18,042.30.
The judge nonetheless proceeded to assess damages if he was wrong in the application of s 33 of the Act and the respondent was liable to the appellant for his development of schizophrenia. The judge assessed damages in these circumstances in the sum of $1,679,415.77.
The judge assessed damages on the basis that there was a high likelihood the appellant would have developed schizophrenia at some point in his life irrespective of the injury to his hand and, accordingly, the damages awarded to the appellant for future events were reduced by 30 per cent. This amounted to the sum of $505,672.80.
The appellant appeals essentially on two grounds. First, that the judge erred in his construction and application of s 33 of the Act in finding that the respondent did not owe him a duty to take care not to cause him to develop schizophrenia. Secondly, that the judge erred in reducing, by as much as 30 per cent, the damages he would have awarded had he found in the appellant’s favour on ground 1, for the chance that the appellant would have suffered from schizophrenia in any event at some time in the future.
By a notice of cross contention the respondent submits, firstly, that the judge should have found the accident did not cause the appellant to develop schizophrenia and, secondly, should have found the appellant would have developed schizophrenia within 12 months of the accident or by his mid-20s irrespective of the accident. It submits that if the Court accepts the second ground of contention but not the first, damages for future losses should be reduced by up to 90 per cent.
Approach on appeal
The principles applicable to the exercise of this Court’s appellate function are definitively stated by the High Court in Fox v Percy.[9] Gleeson CJ, Gummow and Kirby JJ said that, while an appeal court should conduct a real review of the trial and the trial judge’s reasons, there was nevertheless a need for appellate respect for the advantages of trial judges. They said:[10]
[9] [2003] HCA 22, (2003) 214 CLR 118.
[10] [2003] HCA 22 at [25] – [29], (2003) 214 CLR 118 at 126 – 128.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.
…
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
(Citations omitted).
In CSR Ltd v Della Maddalena,[11] Kirby J explained the ratio of Fox v Percy. He said:[12]
In Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts. Like many other principles re‑expressed by this Court in recent years, the change was one founded in a close analysis of the statutory provisions governing the legal task in issue. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.
(Citations omitted).
[11] [2006] HCA 1, (2006) 80 ALJR 458.
[12] [2006] HCA 1 at [19], (2006) 80 ALJR 458 at 465.
Consistent with the performance of its statutory function the Full Court is obliged in hearing an appeal to evaluate the evidence heard by the judge whose judgment is under appeal and to decide whether findings made or conclusions reached are wrong. The discharge of that role is not necessarily fulfilled by concluding that a finding made by the judge was open on the evidence. That a finding of fact might be open on the evidence does not necessarily exclude the possibility that the finding is in error. Whether the finding is in error will depend on an evaluation of all the relevant evidence by the appeal court for the purpose of deciding whether the finding was correct or in error. In undertaking that exercise, the Court will bear in mind the disadvantage it is under relative to the judge in deciding whether any primary finding of fact under challenge is erroneous.
Issues on appeal
The appeal gives rise to the following issues:
Was the respondent’s breach of duty a cause of the appellant’s schizophrenia having regard to s 34 of the Act?
Was consequential mental harm reasonably foreseeable having regard to s 33 of the Act?
Did the judge err in reducing by 30 per cent the damages he would have awarded had he found the respondent liable for the appellant’s losses resulting from his development of schizophrenia?
The issues raised on appeal involve questions of law or inferences to be drawn from uncontested evidence. This Court is in as good a position as the judge to determine those issues. I have undertaken my own review of the evidence and formed my own view of those issues.
Was the respondent’s breach of duty a cause of the appellant’s schizophrenia having regard to section 34?
It is logical and convenient to commence with the first ground of the notice of contention. The judge found that the appellant’s schizophrenia resulted from the injury to his hand. The respondent submits the judge erred in doing so. This finding relied upon the intermediate finding that between the accident in April 2005 and the psychotic episode in September 2005 the appellant suffered a continuous period of mental and emotional turmoil which focussed on the accident. This finding is unchallenged.
The judge explained his reasons for finding a causal nexus between the onset of the appellant’s schizophrenia in September 2005 and the accident in April 2005 as follows:[13]
I arrive at this view from a combination of the following:
1.Rejection of the other bases put forward as being possible causes of the schizophrenia through lack of contemporaneity with the onset of the schizophrenia and lack of evidence supporting the bases being put forward as being the source of any significant stress.
2.An acceptance of what I regard as the majority psychiatric expert position on the topic (in particular the opinion of Professor MacFarlane and Dr Raeside) and a rejection of the contrary psychiatric evidence.
3.The contemporaneity of the trauma of the work injury and the onset of the illness.
4.The fact that there was a direct ongoing link between the work injury and ongoing pain perception, stress and distress all affecting the plaintiff’s mental health, culminating in the presentation with psychosis at the airport leading to the diagnosis of schizophrenia.
In my view the test of causation in s 34 of the Civil Liability Act is met. The negligence of the defendant which led to the hand being caught in the conveyor belt “was a necessary condition of the occurrence of the psychiatric harm” i.e. the schizophrenia occurring when it did. The work injury caused the schizophrenia to come on when it did.
[13] [2014] SADC 105 at [277] – [278].
Section 34(1) of the Act provides:
(1)A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
Section 34(3) concerns the determination of the scope of liability. It provides:
(3)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
Note—1. See Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89.
The respondent submits that the test for causation is the statutory test prescribed by s 34 of the Act, not the common law test. The statutory test imposed by s 34(1)(a) is the “but for” test. The respondent submits the judge should have found that the accident was not a “necessary condition” for the onset of the appellant’s schizophrenia because stress, whether acute or otherwise, played no role in the onset of the appellant’s schizophrenia in September 2005 and/or the appellant was in the prodrome of schizophrenia at the time of the accident and was therefore going to develop schizophrenia when he did irrespective of the accident.
While the judge found that virtually all psychiatrists called supported the general proposition that stress may be a cause or precipitating factor in the onset of schizophrenia, he expressed a general preference for the evidence of Dr Raeside and Professor McFarlane on this topic. The respondent submits that in making his finding, the judge overlooked the evidence of Dr Cotton.
Dr Cotton gave evidence that only an acute stress suffered can precipitate the onset of schizophrenia and this only happens in persons who would go on to develop schizophrenia in the future in any event. Dr Cotton considered that the non-specific general stress of the nature allegedly suffered by the appellant would not constitute the sort of stress required to precipitate the onset of schizophrenia. While the judge implicitly rejected Dr Cotton’s evidence on this topic, he gave no reasons for doing so. The respondent submits that this constitutes an error of law.
Professor McFarlane gave evidence that the appellant developed a post-traumatic stress disorder (PTSD) as a result of his hand injury and PTSD led to schizophrenia. He gave evidence that environmental stress has the capacity to introduce neurobiological shifts in the central nervous system. Stress modifies the reactivity of certain neuronal pathways and modifies information processing systems. This includes increased turnover of frontal lobe dopamine which is thought to play a significant role in the aetiology of schizophrenia.
Dr Raeside agreed that the appellant suffered a PTSD as a result of the accident. While he did not consider that the PTSD caused the schizophrenia, he was of the opinion that the stress of the accident and the subsequent events were sufficient, on the balance of probabilities, to precipitate schizophrenia in a man who was predisposed to develop schizophrenia such that he would eventually have developed it anyway.
The respondent submits the Court should prefer Dr Cotton’s view that there is no causal link proved on the evidence. He gave evidence that schizophrenia is not a reaction to stress. It is a prolonged neurobiological, neurophysiological degenerative disease of the brain. He considered that, at its highest, the weight of psychiatric opinion merely establishes an association between stress and the onset of schizophrenia. However, Dr Cotton did not consider that an association implies a causal relationship. Accordingly, the respondent contends the Court cannot be satisfied that but for the accident the appellant would have suffered an onset of schizophrenia when he did.
In addition, the respondent submits that the judge found that most people who develop schizophrenia go through a period known as the “prodrome”, which is a prelude to the onset of schizophrenia. The prodrome usually lasts 12 months prior to the onset of the first psychotic episode. During the prodrome a person exhibits certain signs or markers. One of these markers is odd behaviour. The respondent submits that the appellant was in the prodrome of schizophrenia when the accident occurred. It contends that in the months preceding the accident he exhibited odd behaviour consistent with being in the prodrome. The respondent submits that the court should have found that the appellant’s schizophrenia would have developed when it did irrespective of the accident.
I do not accept the respondent’s submissions.
The common law test of causation in the law of negligence as explained in March v E & MH Stramare Pty Ltd[14] is not applicable under the Act. The determination of whether a plaintiff’s loss was caused by the defendant’s negligence is to be decided by the statutory test in s 34(1)(a). That test is a statutory statement of the “but for” test of causation. The court must be satisfied that the plaintiff would not have suffered the particular harm but for the defendant’s negligence.[15] Accordingly, the judge had to be satisfied that but for the accident, the appellant would not have suffered schizophrenia when he did.
[14] [1991] HCA 12, (1991) 171 CLR 506 at 514.
[15] Strong v Woolworths Ltd & Anor [2012] HCA 5 at [18], (2012) 246 CLR 182 at 190.
The judge gave reasons for preferring the opinions of Professor McFarlane and Dr Raeside as to the aetiology of the appellant’s schizophrenia. He expressly rejected the contrary psychiatric evidence. While in this context the judge did not refer expressly to the evidence of Dr Cotton, he found that the bulk of the expert psychiatric evidence supported the proposition that the appellant would not have contracted schizophrenia when he did but for the accident. In my view, it is implicit in this part of his reasons that the judge recognised Dr Cotton’s opinion was contrary to “the bulk of the expert psychiatric evidence”. He refers to his evidence extensively elsewhere in his reasons. I do not accept that the judge overlooked Dr Cotton’s evidence. In my view it was open to the judge to make the finding he did. The finding was not only supported by the evidence of Professor McFarlane and Dr Raeside, but also found support in the evidence of Dr Blakemore and to a lesser extent in the evidence of Dr Hustig. Dr Blakemore gave evidence that the hand injury was sufficiently traumatic to be very emotionally disturbing, precipitating the schizophrenia. Dr Hustig, while considering that the appellant’s schizophrenia was triggered by his use of marijuana, accepted the hypothesis that stress may be a direct contributor to schizophrenia and the hand injury, given its traumatic nature, was a link in the causal chain contributing to the stress suffered by the appellant.
The judge considered a series of events alleged to constitute prodromal symptoms in the months preceding the accident, namely, a sudden desire to move from Devonport to Sydney; a request that his parents arrange his marriage to a Pakistani woman in Sydney when he was already engaged to a girl in Pakistan; and the appellant’s move from Sydney to Adelaide in early 2005. The judge undertook an analysis of the evidence in relation to each of these matters. He considered them alone and in combination and found that they did not constitute odd or irrational behaviour indicative of the existence of the prodrome. He considered there was nothing odd or irrational in the appellant wishing to move from Devonport to Sydney given his age, the absence of a resident Afghani population and the attraction of a big city like Sydney to a young man accustomed to living in a bigger city than Devonport. The judge was not prepared to find that the appellant had asked his parents to arrange a marriage in Sydney. In any event, he was not prepared to find that such a request, had it been made, was evidence of such odd behaviour to indicate that he was in the prodromal stages of schizophrenia. Given his cultural background, such a request would not be unusual in itself. Further, such a request, had it been made, where he was already engaged to a girl living in Pakistan, was not so odd or eccentric as to indicate the appellant was in the prodrome of schizophrenia. Affairs of the heart are unpredictable. They could be very unpredictable when the engaged couple live 11,000 kilometres apart. Finally, the judge considered that his decision to leave Sydney, where he was settled and had employment, to come to Adelaide to obtain a driver’s licence, in circumstances where he heard that this could occur more quickly in Adelaide than in Sydney, was not sufficiently strange or out of the ordinary as to be indicative of the appellant being in the prodrome. In my view, having considered the judge’s reasons, the finding that none of these incidents indicated the appellant was in the prodrome was not only open on the evidence, but is correct. No error has been demonstrated.

The judge was required to determine factual causation having regard to s 34 of the Act. He did so in reliance upon the principles in Adelaide Stevedoring v Forst[16] and Queen Elizabeth Hospital v Curtis.[17]In my view, the judge was correct to conclude that the accident was a necessary condition for the appellant suffering schizophrenia when he did. The state of the psychiatric evidence on causation referred to earlier and the unchallenged evidence which proved, as a matter of fact, the appellant’s continuing experience of pain and distress from the accident to the first psychotic episode establishes a temporal connection between the accident and the onset of schizophrenia. That temporal connection provides strong support for the inferential finding made by the judge on causation.
[16] [1940] HCA 45,(1940) 64 CLR 538 at 564.
[17] [2008] SASC 344 at [44], (2008) 102 SASR 534 at 548 – 549.
Having undertaken my own independent review of the evidence, I would not interfere with the judge’s findings and conclusion on the issue of causation. I am satisfied that but for the accident, the appellant would not have suffered schizophrenia when he did. I would dismiss ground 1 of the respondent’s notice of contention.
Was consequential mental harm reasonably foreseeable having regard to section 33?
I turn next to consider the first ground of the appellant’s appeal. The judge found that the respondent did not owe the appellant a duty to take care not to cause the appellant mental harm by reason of the operation of s 33 of the Act. The appellant submits the judge erred in doing so. Section 33 provides:
(1)A person (the defendant) does not owe a duty to another person (the plaintiff ) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a psychiatric illness.
(2)For the purposes of this section—
(a) in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:
(i)whether or not the mental harm was suffered as the result of a sudden shock;
(ii)whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;
(iii)the nature of the relationship between the plaintiff and any person killed, injured or put in peril;
(iv)whether or not there was a pre-existing relationship between the plaintiff and the defendant;
(b) in a case of consequential mental harm, the circumstances of the case include the nature of the bodily injury out of which the mental harm arose.
(3)This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude.
“Mental harm” is defined in s 3(1) of the Act to mean impairment of a person’s mental condition. “Pure mental harm” is defined to mean mental harm other than consequential mental harm. “Consequential mental harm” is defined to mean mental harm that is a consequence of bodily injury to the person suffering the mental harm.
In this context I should also refer to s 53(3) of the Act. It provides damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness. Recognised psychiatric illness is not defined.
The judge found that the appellant suffered consequential mental harm not pure mental harm.[18] The judge found that the appellant suffered mental harm, namely, schizophrenia, as a consequence of the injury to his right hand. He found the appellant would not have contracted schizophrenia when he did but for the accident.[19] The judge treated the appellant’s susceptibility to schizophrenia to mean that he was a person of less than normal fortitude.[20] He found that the respondent did not know, nor was it reasonably to have been expected to know of his susceptibility to schizophrenia.[21] He found the circumstances of the accident did not point to a significant risk that a person of normal fortitude in the appellant’s position would suffer psychiatric illness.[22] The judge found that a reasonable person in the respondent’s position, having a more than cursory understanding of the machinery involved in the appellant’s hand injury and his work practices, should have realised there was a risk that the appellant might suffer some pain and trauma to his hand as a result of the accident. However, the judge concluded that a reasonable person in the respondent’s position would have seen that the actual injury was a relatively simple and non-life-threatening injury and found that it was highly unlikely that there would be psychiatric sequelae for a person of normal fortitude.[23]
[18] [2014] SADC 105 at [296].
[19] [2014] SADC 105 at [276].
[20] [2014] SADC 105 at [322].
[21] [2014] SADC 105 at [304].
[22] [2014] SADC 105 at [313].
[23] [2014] SADC 105 at [326].
Accordingly, the judge concluded that a reasonable person in the respondent’s position would not have foreseen that a person of normal fortitude in the appellant’s position might suffer a psychiatric illness in the circumstances where he suffered a mild injury to his hand as a result of it being trapped between the conveyer belt and a roller.
Central to this ground of appeal is the proper construction of s 33.
The contemporary approach to statutory construction emphasises that legislation is to be construed in accordance with its text, context and purpose.[24] In Project Blue Sky Inc v Australian Broadcasting Authority[25] the High Court said:[26]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(Citations omitted).
[24] Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor [2011] HCA 32 per French CJ at [50], per Gummow, Hayne, Crennan and Bell JJ at [109], (2011) 244 CLR 144 per French CJ at 176 – 177, per Gummow, Hayne, Crennan and Bell JJ at 194; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16 at [47], (2013) 250 CLR 523 at 539 – 540.
[25] [1998] HCA 28, (1998) 194 CLR 355.
[26] [1998] HCA 28 at [69], (1998) 194 CLR 355 at 381.
This approach was subsequently reaffirmed by the High Court in Alcan (NT) v Commissioner of Territory Revenue[27] and Australian Education Union v Department of Education and Children’s Services.[28]In Alcan Hayne, Heydon, Crennan and Kiefel JJ said that:[29]
[T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[27] [2009] HCA 41; (2009) 239 CLR 27.
[28] [2012] HCA 3, (2012) 248 CLR 1.
[29] [2012] HCA 3 at [47], (2012) 248 CLR 1 at 46 – 47.
In the AEU case the Court said:[30]
The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.
[30] [2012] HCA 3 at [26], (2012) 248 CLR 1 at 13.
However, the general rule that a court is to construe legislation in a manner that promotes its purpose or object may be of little assistance where a statutory provision strikes a balance between competing interests and the problem is one of doubt about the extent to which the legislation pursues a purpose. In Carr v Western Australia[31] Gleeson CJ observed:[32]
… Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.
… Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
[31] [2007] HCA 47 at [5] – [6], (2007) 232 CLR 138.
[32] [2007] HCA 47, (2007) 232 CLR 138 at 143; See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [51], (2009) 239 CLR 27 at 47 – 48.
This is consistent with the position of the High Court in Cooper Brookes (Woollongong) Pty Ltd v Commissioner of Taxation:[33]
… [I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”, as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.
(Citations omitted).
[33] [1981] HCA 26, (1981) 147 CLR 297 at 305.
For the purpose of identifying such matters as the mischief legislation is intended to address recourse can be had to extrinsic materials such as the second reading speech and reports of executive commissions and committees.[34]
[34] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2, (1997) 187 CLR 384 at 408.
In King v Philcox[35] the High Court recently considered the terms of the Act. Unlike this case which concerns consequential mental harm, King v Philcox was a case of pure mental harm. In their joint judgment French CJ, Kiefel and Gageler JJ considered the terms of s 33. They said:[36]
The common law, as explained in Wicks v State Rail Authority (NSW), rejects propositions that “reasonable or ordinary fortitude”, “shocking event” or “directness of connection” are preconditions to liability additional to “the central question ... whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable". Section 33 does not adopt any of those criteria as additional conditions of liability save that the foreseeability of risk must relate to “a person of normal fortitude in the plaintiff's position”. The circumstances set out in s 33(2) are not necessary conditions of the existence of a duty of care. Rather they are to be treated as relevant to the assessment of that foreseeability of harm that is a necessary condition. The term “psychiatric illness” used in s 33(1) describes a subset of “mental harm”. A similar category is also found in s 53(2), which limits recovery of damages awarded for pure mental harm to cases of harm consisting of “a recognised psychiatric illness”.
[Citations omitted].
[35] [2015] HCA 19, (2015) 89 ALJR 582.
[36] [2015] HCA 19 at [13], (2015) 89 ALJR 582 at 587-588.
Nettle J in a separate judgment said s 33 defines or controls what otherwise would be a duty of care arising at common law but it does not positively identify when the duty arises. It provides that foreseeability is a necessary condition for a duty of care to arise.[37] He went on to observe that s 33 is to be understood against the background of the common law of negligence relating to psychological injury. Section 33 reflects and in part responds to the state of the law which had developed by the time of its enactment. He agreed with the reasoning in the joint judgment that the notion of “normal fortitude” was no longer a condition of liability but rather a consideration relevant to the centrally determinative issue of foreseeability. He went on to observe however that in contradistinction to the common law s 33 denies the existence of a duty of care unless it is foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a psychiatric illness.[38] The remaining member of the court, Keane J, did not consider s 33.
[37] [2015] HCA 19 at [75], (2015) 89 ALJR 582 at 599.
[38] [2015] HCA 19 at [76]-[77], (2015) 89 ALJR 582 at 599.
It is apparent that neither s 33 itself, nor any other provision of the Act, identifies positively when a duty of care to another person to take care not to cause mental harm to that other person should be found to exist. Section 33(1) is exclusionary. It provides that a duty is not to be found unless a condition is satisfied. The necessary, but not sufficient, condition for establishment of a duty of care, identified by s 33(1), is that a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness if reasonable care were not taken. Whether a duty of care of the relevant kind exists is ultimately a matter involving “a value judgment upon ascertained facts,”[39] applying the settled common law principles for establishing a duty of care as modified by s 33.
[39] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 399.
The determination of whether a reasonable person in the defendant’s position would have foreseen the risk of psychiatric illness to a person of normal fortitude must be made with regard to “the circumstances of the case”. Section 33(2)(a) is concerned with the case of pure mental harm. Section 33(2)(b) is concerned with the case of consequential mental harm. Section 33(2)(b) provides that the circumstances of the case for the purposes of s 33(1) includes the nature of the bodily injury out of which the psychiatric illness arose.
Section 33 must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by the High Court in Tame v New South Wales.[40]
[40] [2002] HCA 35, (2002) 211 CLR 317.
Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the crucial question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the Court in Tame rejected the contention that concepts of “reasonable or ordinary fortitude”, “shocking event” or “directness of connection” were additional preconditions to liability.
As the High Court concluded in Wicks v State Rail Authority (NSW),[41] addressing the equivalent legislation in New South Wales, namely, the Civil Liability Act 2002 (NSW), s 33 of the Act reflects, in part, the state of the common law identified in Tame. Consistent with what was decided in Tame, s 33 assumes that foreseeability is the central determinant of a duty of care. But contrary to what was decided in Tame, s 33 provides that a duty of care is not to be found unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.
[41] [2010] HCA 22, (2010) 84 ALJR 497.
A textual analysis of s 33(1) identifies four instructive features.
First, a plaintiff must in fact have suffered “mental harm” as defined, whether “pure mental harm” or “consequential mental harm”. This is a question of fact.
Second, the Court’s enquiry is to be undertaken from the viewpoint of a “reasonable person in the defendant’s position”. This is an objective test. However, it involves a specific rather than a generalised enquiry. The enquiry is to be undertaken by reference to the reasonable person in the defendant’s position. That is to say, the reasonable person possessed of the knowledge, experience, and capacity for care and foresight of, or to be expected of, the defendant.
Third, the focus of the Court’s enquiry is on whether it is reasonably foreseeable by that defendant that a person of normal fortitude in the plaintiff’s position would suffer a psychiatric illness in the circumstances of the case. This is an objective test to be applied by reference to both a person of normal fortitude in the plaintiff’s position and the circumstances of the case. Again, this involves a specific enquiry which focuses not on a hypothetical person of normal fortitude in a general sense, but a person of normal fortitude in the plaintiff’s position. The phrase “in the plaintiff’s position” in s 33(1) of the Act is not mere surplusage. It directs particular attention not just to a person of normal fortitude, but to that person in the plaintiff’s position. The enquiry focuses on a person with the particular background, education, experience, and, in some instances, physical characteristics of the plaintiff. In this last category might fall the plaintiff who has previously lost an eye or a limb. This construction is supported by a comparison with the equivalent provisions in other jurisdictions. In New South Wales, Western Australia, Victoria and Tasmania the statutory test directs attention to whether a defendant (or in Tasmania a person in the position of the defendant) ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.[42] The test in those States is not qualified by reference to a person of normal fortitude in the plaintiff’s position (emphasis added). The test in those States, unlike South Australia, does not require that regard be had in applying the normal fortitude test to characteristics personal to the plaintiff.
[42] Section 32(1) of the Civil Liability Act 2002 (NSW) provides:
A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 5S(1) of the Civil Liability Act 2002 (WA) provides:
A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 74 of the Wrongs Act 1958 (Vic) provides:
(1)A person (the plaintiff) is not entitled to recover damages from another person (the defendant ) for consequential mental harm unless—
(a) the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken; or
(b) the defendant knew, or ought to have known, that the plaintiff is a person of less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2)For the purposes of the application of this section, the circumstances of the case include the injury to the plaintiff out of which the mental harm arose.
Section 34(1) of the Civil Liability Act 2002 (Tas) provides:
(1)A person (“the defendant”) does not owe a duty to another person (“the plaintiff”) to take care not to cause the plaintiff mental harm unless a reasonable person in the position of the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 34(1) of the Civil Law (Wrongs) Act 2002 (ACT) is in the same terms as s 33(1) of the Act. There is no equivalent provision in the Civil Liability Act 2003 (Qld).

The respondent submits that the phrase “in the plaintiff’s position” merely directs the court to have regard to the general nature of the plaintiff’s position at the time he or she was injured i.e. what the plaintiff was doing at that time. That submission cannot be accepted. Such a construction would render the expression otiose. The work the respondent suggests is to be performed by the phrase is already performed by the phrase that immediately follows in s 33(1), namely, “in the circumstances of the case”.
What constitutes the circumstances of the case is not defined exhaustively, but includes the nature of the bodily injury suffered by the plaintiff out of which the psychiatric illness arose. The “nature of the bodily injury” refers to the kind of injury actually suffered by the plaintiff and the extent of damage resulting. Accordingly, this aspect of the statutory test is to be applied with hindsight. This is in contrast to the traditional common law approach requiring a prospective analysis.[43] In my view, the circumstances of the case also encompasses the particular circumstances by which the plaintiff’s physical injury occurred. That seems to me to be self-evident.
[43] Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434, Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [49], (2007) 234 CLR 330 at 347, New South Wales v Fahy [2007] HCA 20, (2007) 232 CLR 486 at [125].
Fourth, in the application of the statutory test for the relevant duty of care to exist, a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness. The use of the indefinite article is significant. The test does not require the reasonable person in the defendant’s position to have foreseen the specific psychiatric illness suffered but rather any psychiatric illness.
In this context it is important to recognise that the statutory test imposed by s 33 is still predicated upon the understanding of foreseeabilty enunciated in Wyong Shire Council v Shirt.[44] The requirement that a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness, will be satisfied if that prospect is not farfetched or fanciful.
[44] [1980] HCA 12(1980) 146 CLR 40 at 47.
The operation of s 33 of the Act narrows the circumstances in which a defendant is to be held liable for the infliction of consequential mental harm. As the judgment in Tame makes clear, prior to the enactment of s 33, a plaintiff could recover for mental harm which resulted from physical harm where it was reasonably foreseeable that the defendant’s negligence would expose the plaintiff to the risk of physical harm. A plaintiff did not have to establish that the defendant owed him or her a further and separate duty of care in respect of any psychiatric injury suffered as a sequalae of the plaintiff’s physical injury.[45] Section 33 of the Act now makes it harder for a plaintiff to recover damages for consequential mental harm. First, the statutory test enshrined in s 33 is now stricter than the test by which liability for pure mental harm, let alone consequential harm, was established at common law. Secondly, s 33 confines the existence of a duty of care not to cause mental harm to circumstances where a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness. It requires as a necessary, but not sufficient, condition for finding the existence of a duty of care that normal fortitude be considered as an aspect of reasonable foreseeability.
[45] Jaensch v Coffey [1984] HCA 52, (1984) 155 CLR 549 at 565; Sutherland Shire Council v Heyman [1985] HCA 41, (1985) 157 CLR 424 at 495; Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 511.
This construction does not render the “normal fortitude” test or s 33(3) nugatory. Neither does it give s 33 an artificially narrow operation.[46] Pursuant to s 33 normal fortitude is a control mechanism in the determination of whether a duty to take care not to cause a plaintiff mental harm exists. It controls whether it is reasonable to require a defendant to have in contemplation the risk of mental harm being suffered by a particular kind of plaintiff. It is not predicated on what Gleeson CJ referred to in Tame as the delusion that there is a “normal” person with whose emotional and psychological qualities those of any other person may readily be compared. Rather it is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require defendants to foresee the possibility of them suffering mental harm or to take care to avoid such harm. Such people might include those who, unknown to the defendant, are already psychologically disturbed.[47] Accordingly, s 33(1) ensures that a defendant is not rendered liable by reference to the most fragile psyche in the community because that would place an intolerable burden on “the autonomy of individuals” and “place an intolerable burden on social action and communication”.[48] However, the enquiry required by s 33 is not directed to whether the plaintiff is of normal fortitude. The enquiry is directed to whether it is foreseeable that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.
[46] King v Philcox [2015] HCA 19 at [42], (2015) 89 ALJR 582 at 594.
[47] Tame v NSW [2002] HCA 35 at [16], (2002) 211 CLR 317 at 333.
[48] Tame v NSW [2002] HCA 35 at [110], (2002) 211 CLR 317 at 357.
The work performed by s 33(3) differs from the work performed by s 33(1). Section 33(3) creates an exception to the limitation on liability enshrined in s 33(1). It is concerned with the position where the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude. In those circumstances, the liability of the defendant is to be decided by the settled common law test. Knowledge or imputed knowledge that the plaintiff is a person with a particularly fragile psyche is different from foreseeing that a person of normal fortitude with the particular background, education, experience, and, in some instances, physical characteristics of the plaintiff might, in the circumstances of the case, suffer a psychiatric illness.
This textual analysis is consistent with the context in which s 33 was enacted. Section 33 was introduced into the Act by the Law Reform (Ipp Recommendations) Act 2004 (SA).
The Ipp amendments post-dated the High Court’s decision in Tame. The Ipp Committee was established to report on comprehensive reforms to the law of negligence designed to reduce the cost of injury claims and thereby the costs of insurance. The Ipp Report addressed what was identified at the time as a crisis in the cost and availability of insurance. The decision in Tame was addressed in the Ipp Report. After considering the decision in Tame the authors relevantly made two recommendations. First, that legislatures enact provisions similar to s 33(1) and (2)(a) but confined in their application to claims for pure mental harm. Secondly, that legislatures enact provisions similar to s 33(1) and (2)(b) but confined in their application to awards of damages for economic loss resulting from consequential mental harm.
In the Second Reading Speech on the Law Reform (IPP Recommendations) Bill 2003 (SA) the Minister stated that what are now s 33 and s 53 of the Act arose from these recommendations from the Ipp Report. The Minister stated that, in effect, s 33 and s 53 for the most part restate the existing law with the exception that damages for economic loss for consequential mental harm would now only be recoverable if the mental harm amounted to a recognised psychiatric illness. This characterisation is incorrect. Section 33 does not for the most part restate the existing law. On the contrary, s 33 makes it harder for a plaintiff to recover damages for mental harm. This merely serves to demonstrate the caution which must be exercised when considering extrinsic materials such as Parliamentary debates and reports of executive commissions and committees in construing legislation. Nonetheless, it suggests that in construing s 33 the Court should adopt a construction that alters the pre-existing position no more than the language of the section requires.
The Ipp Committee’s recommendations were adopted to a greater or lesser degree by legislatures throughout the Commonwealth. It is clear from an analysis of comparable provisions, however, that the amendments enacted by various State and Territory legislatures were not uniform. Neither did the amending Act adopt precisely the terms of the recommendations. So much is clear with respect to s 33 of the Act. The South Australian Parliament did not adopt the recommendations in the form suggested by the authors of the Ipp Report. For example, Parliament did not limit s 33 to claims for pure mental harm. It applies to claims for both pure mental harm and consequential mental harm. This emphasises the importance of focussing on the particular text of the statutory test enshrined in s 33. That it was the intention of the Parliament to make it harder for a plaintiff to recover damages for mental harm cannot be doubted. So much is apparent from a consideration of the text and context of the legislation, but how this is achieved and, more importantly, the extent to which this intention is achieved, as Gleeson CJ says in Carr,[49] can only be found from an analysis of the text.
[49] Carr v Western Australia [2007] HCA 47 at [5] – [6], (2002) 232 CLR 138 at 143.
Adopting the construction of s 33 explained above I turn to a consideration of the judge’s findings. In my view, the judge erred in concluding that a reasonable person in the defendant's position would not have foreseen that a person of normal fortitude in the appellant’s position might suffer a psychiatric illness in consequence of the injury to his hand suffered in the accident.
The nature of the injury is in issue on the appeal. It was an injury which occurred in frightening circumstances leaving the appellant’s hand trapped in the machine for a significant although not lengthy period of time. No doubt the damage suffered to the appellant’s hand could have been worse. Nonetheless, the judge found this to be a painful injury[50] causing ongoing pain for a number of months. Yet the judge characterised the injury as “mild”[51] and “minor”.[52] Such characterisation is not particularly helpful. It involves a degree of subjectivity. For my part I would characterise the appellant’s injury as a painful crush injury to the right hand resulting in debridement of the skin, and of sufficient severity to require plastic surgery. While the judge’s characterisation of the nature of the injury is not irrelevant, on the contrary, s 33(2)(b) required the judge to have regard to the nature of the injury: that characterisation does not answer the question posed by the statutory test in s 33(1). In answering that question I consider the judge fell into error in finding that the appellant was not a person of normal fortitude. As I have said, the enquiry required by s 33 is not directed to whether the plaintiff is of normal fortitude. The enquiry is directed to whether it is foreseeable that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer psychiatric illness.
[50] [2014] SADC 105 at [339].
[51] [2014] SADC 105 at [330].
[52] [2014] SADC 105 at [309].
As McHugh J observed in Tame,[53] ordinary persons have a broad understanding of the effect of stress on ordinary individuals in the community. They know that even persons of normal fortitude are likely to suffer psychiatric illness from all sorts of stresses. I accept the appellant’s submission that a reasonable person in the defendant’s position, namely, the operator of a potato processing factory using unguarded machinery which it knows has the potential to do physical harm of varying levels of severity, engaging unskilled manual labourers from Afghanistan, would foresee the possibility that a young, unskilled manual labourer from Afghanistan of normal fortitude who suffers injury to his hand, of sufficient severity to require surgery, when trapped in unguarded machinery, might suffer a psychiatric illness, such as anxiety or depression. That is a conclusion capable of being inferred from common experience of the kind referred to by McHugh J in Tame.[54]
[53] Tame v New South Wales [2002] HCA 35 at [112], (2002) 211 CLR 317 at 358.
[54] [2002] 211 CLR 317 at [112] – [116], (2002) 211 CLR 317 at 358-359.
In my view, in concluding otherwise the judge fell into error. Contrary to the finding by the judge, I do not consider this is highly unlikely.[55] In any event, the question is not whether it is highly unlikely. For the purposes of the application of the statutory test of foreseeability in s 33 the question is whether the possibility is neither farfetched or fanciful. Even a possibility which is quite unlikely to occur may nevertheless be one that is not farfetched or fanciful.[56]
[55] [2014] SADC 105 at [326].
[56] Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40 at 47.
In my view, there is a risk that the judge’s reasoning was infected by his irrelevant focus on whether the appellant was a person of normal fortitude by reason of his susceptibility to developing schizophrenia. As I have noted, the question to be answered is not whether the appellant was a person of normal fortitude but whether a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness. Again, the question posed by the statutory test is not concerned with whether the reasonable person in the defendant’s position would have foreseen the risk of suffering schizophrenia in the circumstances of the case, but rather any psychiatric illness. I accept that a reasonable person in the respondent’s position would not have foreseen that a person of normal fortitude in the appellant’s position might, in the circumstances of the case, suffer schizophrenia. But that is irrelevant. The question is the foreseeability of suffering any psychiatric illness. The risk of such well-recognised psychiatric conditions as anxiety and depression being suffered as a result of relatively commonplace physical injuries sustained in traumatic circumstances is well understood in the community.
For these reasons, the respondent did owe a duty to the appellant to take care not to cause him mental harm. The appellant’s first ground of appeal must succeed. The appellant is entitled to an award of damages on the basis that the respondent is liable to him for the losses he suffered, suffers and will suffer by reason of schizophrenia and the resulting Type II diabetes.
Did the trial judge err in reducing by 30 per cent the damages he would have awarded had he found the respondent liable for the appellant’s losses resulting from his development of schizophrenia?
The judge assessed damages in the amount of $1,679,415.77 in the event he was wrong in the application of s 33 and the respondent was liable to the appellant for his development of schizophrenia and Type II diabetes.
The judge assessed damages on the basis there was a high likelihood the appellant would have developed schizophrenia at some point in his life irrespective of the injury to his hand.[57] This finding was based on the psychiatric evidence and the finding that it took a relatively minor event, namely, the hand injury, to cause it. The judge was unable to find any specific time when the schizophrenia would have come upon the appellant but for the hand injury other than to find it would probably have come on earlier rather than later.[58] The judge made what he described as a “substantial” reduction in damages for the high probability that the appellant would have suffered schizophrenia at some time during his life in any event.[59] On that basis, the judge reduced the damages he would have awarded for future events by 30 per cent.
[57] [2014] SADC 105 at [291] and [398].
[58] [2014] SADC 105 at [379].
[59] [2014] SADC 105 at [291] – [293].
Both parties submit that in doing so, he erred. They differ, however, as to the way in which he erred. The respondent submits that the reduction was manifestly inadequate having regard to contingencies and in accordance with the principle in Watts v Rake.[60]It submits that on the evidence, the judge should have found the appellant would have developed schizophrenia irrespective of the accident by September 2006 or, at the latest, within several years of the accident. It submits that the reduction should have been 90 per cent. The appellant submits the reduction was manifestly excessive. He submits that there was no proper basis for finding that the appellant would have developed schizophrenia within 12 months of the accident or at all. While the judge was entitled to make an allowance for contingencies, a reduction of no more than 10 to 15 per cent was appropriate.
[60] [1960] HCA 58, (1960) 108 CLR 158 at 160 and 165.
The principles applicable to an appellate court’s review of a damages award are well understood. In Jones v Schiffmann[61] McTiernan J cited with approval the speech by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd where his Lordship said:[62]
In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.
[61] [1971] HCA 52, (1971) 124 CLR 303 at 307.
[62] [1942] AC 601 at 617.
In my view, the weight of the psychiatric evidence supports the proposition that the appellant probably would have developed schizophrenia at some point irrespective of the accident. The psychiatrists Dr Cotton, Dr Kutlaca and Dr Raeside each supported this hypothesis.[63] Even Professor McFarlane thought that there was a low probability that schizophrenia would have developed anyway.[64] In addition Dr Hustig conceded the appellant may have developed schizophrenia in any event. The judge’s finding that it is likely the appellant would have suffered from schizophrenia at some stage in his life had the hand injury not occurred is supported by the expert evidence. The appellant’s challenge to this finding must fail.
[63] See T1937.2-6, T2005.26-32 (Dr Cotton); T1641.6-21 (Dr Kutlaca); T1839.7-23 (Dr Hustig); Exhibit P10 at p 121 and p 131 (AB Vol II at p 547 and p 557), T499.37 – T500.2 and T505.2-25 (Dr Raeside).
[64] T343, 378, 809-810.
On the other hand, I do not consider that the respondent has discharged the onus of proving that the appellant would have developed schizophrenia irrespective of the hand injury by September 2006 or, at the latest, within several years of that injury. In this regard the respondent relies heavily on the evidence of Dr Cotton. Dr Cotton’s opinion as to the early onset of schizophrenia irrespective of the accident is predicated on the proposition that the appellant was in the prodrome of schizophrenia prior to the accident. The judge rejected this proposition. For reasons explained earlier I consider he was correct to do so. Dr Kutlaca gave evidence that the onset of schizophrenia in males is usually between the ages of 15 and 45 and that a person is unlikely to experience the onset after age 45. Accordingly, I am satisfied that on the evidence the judge should have found that the appellant would have suffered schizophrenia in any event at the latest by age 45 and perhaps many years earlier.

In these circumstances, I consider that the reduction in damages for future loss by 30 per cent is manifestly inadequate. The trial judge found that, as a result of developing schizophrenia, the appellant would have developed Type II diabetes by about age 50, irrespective of the accident. On that basis the damages in respect of this condition were reduced by 50 per cent.[65] Yet the judge reduced the appellant’s damages because of the chance of him developing schizophrenia, irrespective of the accident, by only 30 per cent, notwithstanding the evidence that people who suffer schizophrenia would usually have done so before the age of 45 and the appellant was 30 years of age at the time of judgment.
[65] [2014] SADC 105 at [95] and [394].
In my view, the judge should have discounted the appellant’s damages for future losses by 50 per cent in accordance with the principle in Watts v Rake. In my view, the evidence does not justify any greater reduction for other contingencies. I consider the favourable and adverse contingencies weigh equally in the balance.
It follows that in allowing the appeal the notional award made by the judge of $1,679,415.77 must be reduced.
On the premise that the respondent is liable for the appellant’s schizophrenia and its consequences, the judge assessed damages for past loss in the sum of $574,825.42. He assessed damages for future loss in the sum of $1,503,057.50. Included in the damages award for the future is a sum of $11,032 for future diabetes treatment. This amount was fixed by the judge after reducing the award he would otherwise have made under that head by 50 per cent for the chance that the appellant would have contracted diabetes in any event.
Accordingly, excluding that figure of $11,032 from the assessment of damages for future loss produces a figure of $1,492,025.50. Fifty per cent of that figure is $746,012.75. Adding back in the award for future diabetic treatment produces a figure of $757,044.75. It follows that the appellant is entitled to an award of damages in the sum of $1,331,870.17. This is calculated as follows:

Past loss

$574,825.42

Future loss

$757,044.75

Total

$1,331,870.17

Conclusion

I would allow the appeal. I would increase the damages awarded to the appellant by $1,313,827.87. I would hear the parties as to costs.

Past loss	$574,825.42
Future loss	$757,044.75
Total	$1,331,870.17