Anwar v Mondello Farms Pty Ltd - [2014] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ANWAR v MONDELLO FARMS PTY LTD
[2014] SADC 105
Judgment of His Honour Judge Cuthbertson
13 June 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION
DUTY OF CARE - FORESEEABILITY OF DAMAGE
Plaintiff's hand caught in conveyor belt at work. Mental harm namely schizophrenia to plaintiff diagnosed.
HELD: Schizophrenia suffered by the plaintiff was a consequence of the work injury. No duty on defendant not to cause mental harm as no 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.
DAMAGES - PERSONAL INJURY - Compensable injury to dorsum of right hand - pain for several months - skin graft - slight residual pain. Judgment for plaintiff for $18042.30.
Civil Liability Act 1936 s 31, s 32, s 33, s 34, s 52, s 58; Workers Rehabilitation and Compensation Act 1986 s 54, referred to.
CSR Limited v Clysdale [2003] NSWCA 339; Mawaz Khan v The Queen [1967] 1 AC 454; R v Chin (1985) 157 CLR 671; R v Tonkin & Montgomery [1975] QR 1; Ramsy v Watson (1961) 108 CLR 642; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534; Purkess v Crittenden (1965) 114 CLR 164; Tame v New South Wales & Annetts and Anor & Australian Stations Pty Ltd (2002) 211 CLR 317; Rosniak v Government Insurance Office (1997) 41 NSWLR 608; Fox v Wood (1981) 148 CLR 438; Collins v Stratford (No 1) [2007] SADC 80; Manning v State of NSW [2005] NSWSC 958, considered.

ANWAR v MONDELLO FARMS PTY LTD
[2014] SADC 105
Introduction

The plaintiff is a refugee from Afghanistan.
He grew up in Kabul in relatively fortunate circumstances where his father, a medical practitioner, worked as the head of a hospital and his mother worked as a nurse. The regime in power was sympathetic to the occupying Russian forces. When the Taliban came to power his father found himself without a job and without accommodation, having been regarded as associated with the previous regime.[1]
[1] T716-717 – Dr Anwar & T1314 – Mrs Anwar.
The family found it necessary to move to Pakistan where they remained for some six years.[2] During this time the plaintiff obtained work in a carpet shop and eventually worked his way up to be the manager of that shop.[3]
[2] T67, T717, T719 & T1319.
[3] T61 – 64 & T1315.
The family were eventually accepted as refugees to Australia and they moved initially to Devonport in Tasmania. From there the plaintiff moved to Sydney and thence to Adelaide.
In Adelaide the plaintiff obtained work in the defendant’s potato washing and packing business at Virginia. He worked there for approximately seven days before he became involved in an accident which has led to this claim.[4]
[4] Ex D16 & D19.
The potato processing activities occur in one large shed. Potatoes are brought in on a daily basis by semi-trailer to one end of the shed where the potatoes undergo a washing process. From there they are transported via a large conveyor to the other end of the shed. The large conveyor which transports the potatoes to the other end of the shed also acts as an automatic sorter, sorting the potatoes into different sizes. After being sized the potatoes are conveyed to a machine which packs them in either 20 kg bags or cardboard cartons.[5]
[5] T87, T93, T102 & T103.
The task of the plaintiff had been to remove 20 kg bags of washed potatoes which came along a conveyor belt from the point where the bags were filled with potatoes and to place them manually on a pallet which, when loaded, was periodically removed by a forklift.[6] The conveyor belt is about 20 inches wide and about 10 feet long and is virtually horizontal.[7]
[6] T90.
[7] Ex D27.
The bags of potatoes, on their sides, proceed along the conveyor belt and at the end of the conveyor belt are deposited onto a long narrow table comprising a series of rollers where they remain until manually picked up and placed on the pallet. At the end of the conveyor belt the belt turns downward and returns back upon itself underneath, i.e. it is a continuous belt.[8] Between the end of the belt and the table of rollers there is of necessity a gap.
[8] T1766-1769 & Ex D27.
On one occasion while the plaintiff was performing this repetitive task his hand got caught between the gap at the end of the conveyor belt and the table of rollers. The turning of the conveyor belt at its end, in a downward direction, pulled the plaintiff’s hand into the gap where it became stuck causing injury.[9]
[9] T119 & Ex P2 (marked by the plaintiff).
The principal matters in dispute are questions of liability and in particular whether schizophrenia, which has unfortunately developed in the plaintiff, was caused by the relatively minor hand injury which the plaintiff suffered as a result of his hand being stuck in the gap or whether schizophrenia was already in process prior to the accident and would have inevitably developed anyway or whether it developed as a result of usage of cannabis or idiopathically and had nothing to do with the accident.
Liability – Breach of duty
The standard of care for negligence is set out in s 31 of the Civil Liability Act 1936:

31—Standard of care
1 For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
In my view the plaintiff has succeeded in establishing negligence against the defendant. The risk of a hand being caught between the end of a conveyor belt and the roller table has been well known in the industry. The risk was well known to the defendant.[10]
[10] Ex P1, p 91.
The problem was easily rectified by ensuring the gap between the end of the conveyor and the roller table was either too small to admit a finger or hand or, in the alternative, was large enough so that a finger or hand would not get jammed in the gap.[11] In fact the problem was easily dealt with by the defendant after the incident by the making of a small alteration.[12]
[11] T103, T878 & T1786.
[12] T104 & T1786, see View Notes.
The task being performed by the plaintiff was a simple one but it was also a monotonous one. It is well known within industry that the repetitive performance of monotonous tasks can lead to slight carelessness which can result in an injury: CSR Limited v Clydesdale.[13]
[13] [2003] NSWCA 339.
This was not a case of wilful disobedience to instructions. In my view it was foreseeable and indeed obvious that in the course of monotonously and continually picking up bags of potatoes of 20 kg that the plaintiff’s hand might stray into a gap between the conveyor belt and the roller table whereupon there was also a risk that the revolving belt would, by friction between it and the hand, cause the hand to be dragged further into the gap and jam there. The defendant itself explicitly recognised this danger.[14]
[14] T1565-1566, Ex D16 & D17.
The plaintiff’s actual employer was Agresolve, a company whose business is to supply labour in the agricultural sector, but no proceedings for negligence can be issued against Agresolve pursuant to s 54 of the Workers Rehabilitation and Compensation Act. The proceedings are against Mondello, the operator of the potato processing plant.
The defendant is entitled, however, to call in aid any warnings given by Agresolve and directions as to how the employment should be undertaken which were given by them to the plaintiff.
In determining the question of whether the defendant should have done anything to alleviate the risk of injury I must have regard to the provisions of s 32 of the Civil Liability Act.
Section 32 reads as follows:
32—Precautions against risk

1      A person is not negligent in failing to take precautions against a risk of harm          unless—
(a)     the risk was foreseeable (that is, it is a risk of which the person knew                 or ought to have known); and
(b)     the risk was not insignificant; and
(c)     in the circumstances, a reasonable person in the person's position   would have taken those precautions.
2      In determining whether a reasonable person would have taken precautions            against a risk of harm, the court is to consider the following (amongst other               relevant things):
(a)     the probability that the harm would occur if precautions were not   taken;
(b)     the likely seriousness of the harm;
(c)     the burden of taking precautions to avoid the risk of harm;
(d)     the social utility of the activity that creates the risk of harm.
The work induction
Mr Papageorgio from Agresolve gave evidence asserting that a full induction was given in relation to the plaintiff which included reading or ensuring he read the induction booklet.[15] He emphasises that the plaintiff was warned not to place extremities in machinery.[16] When asked by the cross examiner whether he has a recollection of giving certain induction advice Mr Papageorgio resorted to the assertion that he was confident that he would have done so.[17]
[15] Ex D17. T858-860.
[16] T871.
[17] T866-868 & T871.
In my view the probabilities are that an induction took place in a perfunctory manner given the difficulties with language from which the plaintiff suffered.[18] He may well have told the plaintiff not to put his hand in machinery.[19] Whether he did so or not in my view is irrelevant because the plaintiff did not put his hand deliberately in machinery. The plaintiff did not wilfully disobey a command or act in a stupid or derelict manner.
[18] Report of Dr H Hustig, 1 May 2012, Ex P14, p 20.
[19] T871.
The plaintiff asserts that he did not receive any induction or advice about safety etc.[20] The probabilities are that the truth lies somewhere in between. The plaintiff may not have remembered or taken in or understood part of the instruction he was given because of language difficulties. Agresolve, through Mr Papageorgio, is unlikely to have given a thorough briefing due to the language difficulties. However, in my view, nothing turns on the adequacy or otherwise of the induction process provided to the plaintiff by Agresolve.
[20] T483.
I have serious doubts as to whether the plaintiff, given his abilities in English, would have read the Occupational Health Safety and Welfare Induction Booklet.[21] It is possible he may have skimmed through it. It is possible that a friend or acquaintance, who spoke better English, may have summarised it to him but I doubt whether it was read in full. As I have said I do not think anything turns on this for reasons which I will elaborate on.
[21] Ex D17.
Mr Howden gave evidence that he conducted an induction of the plaintiff in accordance with the induction sheet signed by the plaintiff.[22] He claims he instructed the plaintiff not to put his hand in the gap between the conveyor and the roller table.[23] To this end he says employees were instructed to stand at the end of the roller table to collect the bag of potatoes and not on the side.[24]
[22] T1572 & Ex D18.
[23] T1566 & T1567.
[24] T1566.
His recollection is that a short roller table was used to facilitate that because he agrees that the long roller tables were such that one would not expect a bag of potatoes to roll to the end of one.[25] He says that these longer roller tables were used for cartons of potatoes which no doubt, having a flat bottom surface, would roll more easily than would bags of potatoes.[26]
[25] T1568.
[26] T1568.
Howden has no specific recollection of the plaintiff[27] and his evidence on induction is, in reality, based on his general practice.
[27] T1572-1573.
I have no reason to doubt that he did conduct an induction in relation to the plaintiff. I do have some doubts that the plaintiff would have understood everything given his degree of competence with the English language.
Howden informs me that the employees were told to stand at the end of the table so as to avoid the danger of the gap.[28] The plaintiff claims, and I accept his evidence, that during the time he did the job he stood at the side.[29] It would be far easier to stand at the side. It would be easier to take the bags when they are presented to the stacker sideways than end on as would be the case if one stood at the end of the table. It would be easier to use the momentum of the bag to pick it up from the side and turn to one’s left so as to place the bag on the pallet.
[28] T1566.
[29] T614.
I accept that the plaintiff did this during the time he was there and that no-one criticised him. If this was a prohibited practice it would have been perfectly apparent to anyone who walked past that he was adopting this prohibited practice. Whether the plaintiff was instructed to stand at the end or not, the fact is that he stood at the side[30] and did so over a lengthy period i.e. 7 days and was never queried about it.[31] I do not think it was wilful disobedience by the plaintiff in standing at the side which, especially with a repetitive process, would have been easier.
[30] T83 & T614.
[31] T84.
Moreover Halliday, who was the machine operator with the plaintiff on the day of the accident, states that the stacker could either pick the bag up from the end or from the side.[32] He too recalls that the employees were instructed to stand at the end of the table.[33] Halliday recalls that employees were told to stand at the end because it was dangerous to stand at the side because of the gap where one could get one’s hand caught.[34]
[32] T1768.
[33] T1769.
[34] T1770.
I find as follows:
1       The risk of the plaintiff’s hand getting caught between the conveyor belt and the roller table was foreseeable in the sense that it was a risk that the defendant both knew of and ought to have known of and was a risk that the ordinary person would be aware of.
2       The risk was not insignificant in that, given repetitive tasks being performed all day, there was always a distinct possibility it would happen.
3       A reasonable person in the defendant’s position would have taken precautions by closing or guarding the gap or increasing the gap so that it was too big for a human hand to be caught in it.
4       In my view the probability that the harm would occur if precautions were not taken was significant. The hand is a delicate and important part of the human body and due to the movement of the conveyer belt, likely to be subject to trauma if caught in the gap.
5       The harm may well have caused significant discomfort and pain to the hand of the person who got it caught and it did in this case.
6       The burden of taking precautions to avoid the risk was slight in the sense that a relatively inexpensive modification could have been made to avoid the risk of harm.
7       The social utility of the activity (the preparation of potatoes for sale for food) was significant but is counterbalanced by the aforementioned matters.
Accordingly the accident was caused by the negligence of the defendant.
I do not find any contributory negligence by the plaintiff who was simply performing his allocated task.
WITNESS CREDIBILITY
Credibility of the plaintiff
1. Plaintiff’s alleged misleading conduct in relation to the extent of his hand disability
Dr Begg’s opinion that there is no significant disability of an organic nature in the hand of the plaintiff[35] is much influenced by his observations that in non-test situations the plaintiff did not appear to have restrictions in his hand and in test situations he appeared to feign restrictions (e.g. in his shoulder) which theoretically should not have been affected in any way by an injury to his hand. [36]
[35] T1497, T1502-1503; Ex D44.
[36] T1500-T1501, T1520-T1521.
He further relies on the results of the grip test conducted by Dr Brown which suggest a result not consistent with merely a weaker grip in the right hand, thereby implying a deliberate attempt to mislead.[37]
[37] T1507.
He also relies on a finding that there is no wasting of the right forearm as might be expected if it was unused.[38]
[38] T1506.
In certain circumstances a deliberate attempt to obtain an inaccurate result of a medical test by a person tested might lead to an inference that the person is misleading out of a consciousness that he does not truly suffer the disability he claims. This is analogous to the well known principle in the criminal law that a lie or certain other conduct may evince a consciousness of guilt by an accused person.
On the balance of probabilities I find that the plaintiff has deliberately tried to influence the results of testing so as to make it appear that he has a worse disability than he actually has. Whether or not I can draw the inference that the plaintiff is malingering, however, must depend on my assessment of his mental state. That requires a consideration of the issues of schizophrenia. I conclude that the disability that the plaintiff asserts from his hand injury is grossly exaggerated but that the exaggeration is a consequence of his mental injury and not out of a desire to malinger. It does not, therefore, impact to any great extent in my assessment of his credibility, although it is a matter of which I must take account in considering his accuracy.
2. The plaintiff’s denial of having requested an arranged marriage to a Pakistani girl in 2004
It would appear that sometime prior to the work accident the plaintiff met a Pakistani girl at a park in Sydney. He played soccer and volleyball with her.[39]
[39] T251.
Dr Kutlaca gave evidence that one of the plaintiff’s parents had told him that Mrs Anwar had met the girl’s parents to discuss the possibility of marriage.[40]
[40] Ex D14, p 45 & T617.
The relevance of the evidence is that the plaintiff was engaged at the relevant time to a girl in Pakistan. It is said that the promise to marry is a solemn commitment in Afghani culture[41] and that if the plaintiff were to have asked his parents to arrange a marriage to this Pakistani girl he met in the park it would constitute odd behaviour which, coupled with other evidence of odd behaviour would be indicative that at that time the plaintiff was in the prodrome of schizophrenia.
[41] T1612, T1488 & T2124.
This was before the work accident and hence would tend to suggest that the plaintiff was already in the process of contracting schizophrenia, the advent of which could therefore not be blamed upon the work accident.
The plaintiff denies any significant interest in this girl[42] and in particular that he ever requested his parents to arrange a marriage for him.[43]
[42] T251 & T252.
[43] T251 & T252.
I have no doubt that something was said on the topic to Dr Kutlaca.[44] It is also likely that the plaintiff had some sort of interest in this girl.
[44] T1601 & Ex D14 at p 45.
Because of the potential for error on subtle points, having regard to the involvement of an interpreter and the interpretation of what was said by the note taker to elicit the response, I am not prepared to rely on it alone as significantly damaging the credibility of the plaintiff. I will take it into account, however, as one of a number of matters to inform me on the credibility of the plaintiff and to remind me he does not always have an accurate recollection of historical events.
3. The plaintiff’s document “Personal Particulars for Character Assessment” - Exhibit D26

This was a document required by Australian immigration authorities.
As at 20 January 2003 when he signed this form the plaintiff asserted in it that he was working at Sabzimandai. This is a large fruit and vegetable market.[45]
[45] T599.
In examination in chief the plaintiff said he worked as the manager of a carpet shop for the 3 years preceding his arrival in Australia in August 2003.[46]
[46] T64.
I note that this is the same “mistake” that Dr Anwar made when he filled out his “Application for a Permanent Visa on Refugee or Humanitarian Grounds”.[47]
[47] Ex D33.
The plaintiff’s reason for the mistake is as follows:
That for a period of 30 or 40 days before he signed the form in January 2003, he had a break from managing the carpet shop and started working at the fruit and vegetable market because he wanted to show the job to his brother as his brother did not know how to do the job in the fruit and vegetable market.[48] The answer is disingenuous
[48] T600-T604.
The fact that they both made the same “mistake” suggests to me that it was not a mistake at all.[49] I think the family had decided to mislead the Australian government by suggesting that the plaintiff had a less impressive and less well earning job than he really did have so as to benefit their application for humanitarian visas.
[49] See Mawaz Khan v The Queen [1967] 1 AC 454, R v Chin (1985) 157 CLR 671.
4. Lies about reason for moving from Devonport
The plaintiff claimed in evidence that he moved to Sydney from Devonport because Devonport was a small place and he was used to living in bigger cities.[50]
[50] T68.
The plaintiff’s brother, Yousef, and Mrs Anwar both gave evidence that he left Devonport because an older Afghani Iranian widow was obsessed with him.[51]
[51] T1244 & T1329.
I do not regard this as a lie by the plaintiff. The plaintiff may well have wanted to leave Devonport for Sydney because Sydney is a bigger place and was the home of many more of his fellow countrymen. It may well have been an omission but I am not prepared to find it was a deliberate omission with intent to mislead. There seems no motive to make such a lie.
Summary
I will scrutinise the evidence of the plaintiff with care as I think he is capable of misleading when he thinks it is to his own advantage.
Credibility of Dr S Anwar
The defence also attack the evidence of Dr Anwar in relation to his credibility.
It is said that he provided inaccurate information to the Australian government in his “Application for a Permanent Visa on Refugee or Humanitarian Grounds”[52] insofar as it states that the plaintiff was working since 1997 at a fruit and vegetable market selling vegetables when he well knew the plaintiff was the manager of a carpet shop and had been for some time.[53]
[52] Ex D33.
[53] T721 – Dr Anwar & T1315 – Mrs Anwar.
I do not accept Dr Anwar’s explanation for that inconsistency.[54] I think it likely that it was the same lie made by the plaintiff and that they made it in conjunction with each other so as to make it appear to the Australian government that the family was more in need of humanitarian assistance than it really was.[55]
[54] T790-791 & T889.
[55] See Mawaz Khan v The Queen [1967] 1 AC 454.
I also note that the application speaks of a fear of persecution by the Taliban but no such claim was made in Court.[56]
[56] Ex D33.
It is entirely understandable that a person seeking refugee status would want to put his application forward in the best light possible. To that extent it may be that Dr Anwar withheld the information from the Australian authorities that his son was at the time working in a carpet business. To that extent it causes me to scrutinise the evidence of Dr Anwar with particular care.
On the other hand the difficulty for the defendant is that the discrediting of a witness who asserts one thing does not prove the opposite. There is ample corroboration for what Dr Anwar claims as to his observations of his son, the plaintiff, and as to the extent of any military activity in Kabul that might have affected the plaintiff.[57]
[57] T49, T433, T595 & T596 - Plaintiff’s evidence.
On the other side there is no evidence at all which positively proves that the plaintiff was indeed subject to the stress of military conflict in Afghanistan.
Further, it is suggested that there was a deliberate failure to update the application by advising the authorities that the plaintiff had become engaged.[58] The form specifically requires that information in relation to this topic is information that should be updated.[59] I found the answers of Dr Anwar to be unsatisfactory on this matter.[60] I think he probably did deliberately exclude the relevant information and that he did so with a view to enhancing the family’s application for migration.
[58] T1067.
[59] Ex D33.
[60] T1067-1068.
For these reasons I will scrutinise carefully the evidence of Dr Anwar, being aware of the fact that he is prepared to be less than frank in official documents to assist what he perceives as his and his family’s interest.
The difficulty for the defendant, however, is that the fact that I might view his evidence with concern does not mean that in relation to relevant facts upon which he makes assertions in favour of the plaintiff I am entitled to find to the contrary.
Indeed, most of his evidence is corroborated by other witnesses. His evidence as to the circumstances in Kabul prior to the family leaving is corroborated by the plaintiff,[61] his mother[62] and brother[63] and there is no evidence to the contrary.
[61] T433.
[62] T1310-1311.
[63] T1234-1236.
Plaintiff’s brother Yousaf
He appears to have reasonable insight and to be more capable than his present job in car detailing suggests.
He confirms, and I accept, that the plaintiff was an unremarkable child in his growing up and that there were no signs of any prodrome of schizophrenia.[64]
[64] T1236.
He confirms that he heard bombs but never saw any of the wars in Afghanistan first hand although unlike the plaintiff, he suggests that at times they were placed in the basement presumably for protection.[65]
[65] T1234.
He also confirms the odd behaviour of the plaintiff after the incident at the Adelaide airport whereupon he was diagnosed with schizophrenia.[66]I accept his evidence.
CAUSATION
[66] T1256-1259.
What injuries were caused to the plaintiff?
Essentially, the plaintiff claims that the accident caused him three injuries as follows:
1 An injury to his right hand. This is a relatively minor injury.
Dr Nitchingam - Virginia Medical Clinic X-Rays Note [67]
The X-Rays did not detect a fracture.
Dr Gaetjens - Regency Medical Clinic[68]
That the Plaintiff could move all his fingers.
[67] Ex P54, p 304 & Ex D74.
[68] Ex P55, p 308A.
Dr Christine Brown, Occupational Physician[69]
There was no swelling in the right hand. There was mild colour asymmetry, right hand being pink compared to the left. Sweating in the right hand was normal. Nail development was normal.
Dr D Kutlaca, Psychiatrist[70]
A portion of the dorsum underwent skin grafting. He outlined pain extended to the shoulder tip, also with use. He did not sustain a fracture, which suggested a relatively minor crush and the shearing of skin, a ‘friction’ burn according to Dr Cooter.
2 Type II diabetes. This is presently uncontrolled.
[69] Ex P10. p 5, Report of Dr Christine Brown, 7 July 2011.
[70] Ex D14, p 48.
It was suggested that this arose through weight gain following the accident.[71] The weight gain was caused by a combination of inability to do any physical work and the drugs taken for schizophrenia.[72] This injury will weigh more heavily on the plaintiff due to his schizophrenia which will prevent him from being able to assiduously perform the necessary steps to control it.
3 Schizophrenia.
[71] T176 & T667.
[72] T667, T1029-1030.
This is highly significant as virtually all the plaintiff’s disabilities stem from this injury.
1. The hand injury
There is a divergence in evidence as to whether the work injury to the hand has caused lasting significant impairment.
On the one hand Dr Brown asserts that there is a significant impairment due to ongoing pain.[73] Dr Begg, on the other hand, asserts that there is no ongoing physical injury.[74]
[73] T1187.
[74] T1507.
The plaintiff himself asserts that there is ongoing physical injury and claims that the pain causes him to have an inability to do any work of any significant kind.[75]
[75] T131 & T135-136.
It is difficult to deal with the question of the extent of the physical injury without dealing with the alleged underlying mental condition which is diagnosed as schizophrenia as they are inextricably interwoven.
Dr C Brown
Dr Brown is of the view that there is an organic injury namely a lesion to the ulna nerve and that this causes pain.[76] She agrees that the results of the dynamometer test indicate that the plaintiff was not trying in relation to the testing with the right hand.[77] She does not attribute any significance to the fact that Dr Begg did not see any signs of right arm wasting nor the fact that there is no such evidence after some 5 years of not using the right arm.[78] The disability is pain in the right hand.[79]
[76] T1163.
[77] T1194.
[78] T1181.
[79] T1187.
I have some difficulty in seeing how the pain in the right hand could be so severe as to be debilitating in the absence of a psychiatric injury but Dr Brown’s response is that it is a question of how the nerve signals act on the brain and that there is probably an organic reaction causing the pain even though most people do not get pain for a similar degree of tissue disruption injury.[80]
[80] T1196 & T1197.
Dr Begg
Dr Begg is of the view that there are no signs of any significant injury to the hand.[81] The lack of any wasting of the right forearm is indicative that the forearm is being used inconsistently with the way the plaintiff carried it during Dr Begg’s examination of him.[82] Insofar as he placed reliance on the lack of any complaint about the hand when under psychiatric admissions in hospital, upon having it pointed out to him that the psychiatric notes indicate that the plaintiff was indeed making such a complaint, he agrees that this support for his opinion is no longer sustainable.[83]
[81] Ex D44.
[82] T1499, T1500 & T1501.
[83] T1548.
His observations of the plaintiff putting his clothes on and his range of movements of the shoulder thus demonstrated are indicative of deliberate misleading of the examiner as to the extent of his pain and / or movement restrictions.[84]
[84] T1500-1502.
My concern is that if the plaintiff is trying to mislead by feigning restrictions to his shoulder, then it should have been obvious to him and would be obvious to any rational human being that such a claimed restriction would not readily support the case of an injured hand.
It follows that if the plaintiff is not genuine in that he is feigning such an injury, then because it is so obviously not in keeping with his claimed injury it would tend to indicate the presence of some sort of a mental problem.
On balance I am of the view that the plaintiff does genuinely perceive himself to have symptoms of pain and disability in his right hand. In my view given the limited extent of any physical injury the pain should not be there and I attribute the presence of some pain syndrome to his mental condition and in particular his schizophrenia.
Thus the extent to which it is to sound in damages will depend upon whether I find the schizophrenia to be a compensable consequence of the injury to the hand.
2. Diabetes
The plaintiff was diagnosed with type II diabetes in July 2009 and was commenced on insulin in 2011.[85]
[85] Ex P10, Report of Dr P Harding.
The defence case is that both parents of the plaintiff have type II diabetes and type II diabetes is a strongly genetically influenced disease.[86] 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.
[86] T206 & T1025.
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.[87] I am impressed by the sudden onset of it in circumstances where none of the siblings have yet contracted it[88] at a time which coincides with the weight gain probably caused by anti-schizophrenic drugs.
[87] T206 & T1493.
[88] T1358 & T1493.
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.[89]
[89] T1018 & T1029.
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.[90]
[90] T1025.
I note that Mrs Anwar, in her evidence, claimed that her husband did not have diabetes[91] but Exhibit P19, page 141, the report of Dr Harding[92] states that both parents have it. I prefer the evidence of Dr Harding on this topic.
[91] T1357.
[92] Ex P19, p 141.
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.[93]
[93] Ex P10, p 141, Dr Harding’s Report, 25 August 2011. T667, T1027-1028 & T1918.
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.[94] 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.
[94] T1037.
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.[95]
[95] T1357, Ex P10 at p 141.
3. Schizophrenia
Schizophrenia is a highly debilitating mental condition. The overwhelming part of the plaintiff’s disability arises from the fact that he suffers from schizophrenia.[96]
[96] Ex P10 & D14, Professor McFarlane, Dr Raeside & Dr Blackmore.
Schizophrenia can arise without any apparent cause.[97] It is suggested schizophrenia can sometimes also arise as a result of severe mental trauma or ingestion and abuse of cannabis.[98]
[97] Ex P10 & D14.
[98] Ex D14, Report of Dr Allan Cotton – 4 March 2013. Ex D14, Report of Dr David Kutlaca – p 50 & p 56. Ex D14, Report of Dr Harry Hustig, p 24 & T1832-1835.
The plaintiff asserts that the schizophrenia, being diagnosed as it was some 5 months after the work injury, must have arisen out of the work injury.
Not surprisingly, the defendant seeks to show that other causes were more likely to be the cause of the onset of schizophrenia and it points in particular to trauma suffered by the plaintiff as a child in growing up in Kabul due to the close proximity of the war, trauma as an illegally present but tolerated family in Pakistan whence the family had moved and use of cannabis as possibly causes of the schizophrenia. These mechanisms are more likely than the work accident to have caused the schizophrenia. Alternatively, say the defence, it may just have arisen without any known or apparent cause. In any event the plaintiff has not proved its onset was caused by the accident.
According to medical science, persons suffering from schizophrenia frequently have a period of time before diagnosis during which they go through a stage where the schizophrenia is developing. This period is called the prodrome of schizophrenia.[99] There are certain markers of it, especially oddness in behaviour. It is often only recognised by the patient’s associates in retrospect after diagnosis with schizophrenia.[100]
[99] Ex D13.
[100] Ex D13.
It is therefore not surprising that the defendant should seek to demonstrate that the plaintiff was in the prodrome of schizophrenia prior to the work accident thus arguing that the process was underway before the accident and could not be a consequence of the accident.
In addition, while it is recognised that the contraction of schizophrenia may be influenced by hereditary matters,[101] there is no history of schizophrenia in the family of the plaintiff.[102]
[101] T315-316, Professor A McFarlane; T899, Dr C Raeside.
[102] T419.
The meaning of causation
One of the difficulties in assessing the evidence of medical practitioners as to the cause of schizophrenia is that they do not necessarily apply the legal test of causation.
The relevant principle is set out in s 34 of the Civil Liability Act 1936:
34—General principles
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).
2      Where, however, a person (the plaintiff) has been negligently exposed to             a similar risk of harm by a number of different persons (the defendants)         and it is not possible to assign responsibility for causing the harm to any         one or more of them—
(a)    the court may continue to apply the principle under which responsibility may be assigned to the defendants for causing the harm;       but
(b)    the court should consider the position of each defendant individually      and state the reasons for bringing the defendant within the scope of      liability.
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.
Can stress be a cause of schizophrenia?
The following psychiatrists were called to give evidence relevant to this issue:
·       Professor A McFarlane
·       Dr C W J Raeside
·       Mr W Blakemore
·       Dr D D Kutlaca
·       Dr H H Hustig
·
Dr Alan Cotton
While expressing themselves in slightly different terms and while in some cases subject to caveats, my view is that virtually all psychiatrists called support the general proposition that stress may be a cause or precipitating factor in the onset of schizophrenia.[103]
[103] Professor A McFarlane (Ex P10, report of Professor A McFarlane, 15 August 2007, p 25). Dr C Raeside (Ex P10, report of Dr C Raeside, 25 August 2008, pages 121 & 122). Dr W Blakemore (T1127-1128). Dr A Cotton (T1926 – 1927, 1943-1944, Dr D Kutlaca (Ex D14, p 56). Dr H Hustig (Ex D14, p 25).
I therefore commence a consideration of this matter with the understanding that medical science is firmly of the view that certain mental stresses are capable of producing or precipitating the mental condition known as schizophrenia.[104]
[104] Dr D Kutlaca (Ex D14, report 28 July 2009, p 56). Dr H Hustig (Ex D14, report 1 May 2012, p 24 & 25).
I Stress of civil war in Afghanistan
One possible stress raised by the defence is the possibility that the warfare in Afghanistan in Kabul may have caused stress to the plaintiff during his childhood.
The difficulty with this proposition is that the plaintiff himself denied any such stress.[105] He was at an age[106] where he was too young to appreciate the significance of the fighting and he claims that the fighting was nowhere near where he was living and that he did not see or experience it in any direct fashion.[107]
[105] T434 & T446.
[106] T591 & T593.
[107] T207, T713 & T2030.

To this extent he was supported by his brother[108], father[109] and mother.[110]
[108] T1234.
[109] T713.
[110] T1311.
Appreciating that the defence is at a disadvantage in obtaining evidence as to what happened in Kabul a number of years ago, still the evidence is all the one way.
Whatever doubts I may have about the witnesses for the plaintiff, in particular the plaintiff’s father, the fact is that the witnesses all assert that there was no direct conflict that the plaintiff was subjected to.
The closest any witness comes to suggesting conflict affecting the plaintiff is the evidence of the plaintiff’s brother that from time-to-time they were placed in the basement for safety when bombing came too close.[111] Nevertheless, he too dismisses the assertion of any fear stating that the times they were placed in the basement were times of excitement and fun for the plaintiff and his young friends.[112]
[111] T1234.
[112] T1234.
The defendant has tendered a video recording[113] of Kabul streets showing extensive damage. Paradoxically the only way the defendant can establish any relevance in time and place of this video is through the evidence of Dr Anwar. Whilst he identifies the video as being of Kabul during the relevant period that the family lived there, he places the location of the damage a considerable distance away from where the family lived. Moreover there is no evidence that any particular damage portrayed occurred during a time when the family of the plaintiff were living in Kabul.
[113] Ex D32.
There is some evidence that some destruction did occur within 2 km of where the plaintiff lived.[114]
[114] T710, T776, T772, T776-778 & Ex P40.
The evidence of Dr Anwar, which remains unchallenged, is that the video showing destroyed buildings generally displayed an area of Kabul where the administration of the country took place.[115] It was not an area representative of the surrounds of Quasaba, where the plaintiff’s family lived.[116]
[115] Ex D32 & T780-786.
[116] T1078, T1079.
I am unwilling to find on the basis of the video and the evidence of Dr Anwar that the bombing of Kabul and the damage to Kabul as depicted on the video would necessarily have created any degree of mental stress in the plaintiff who was aged approximately 10 years at the relevant time and denies any such stress.
The plaintiff himself deposed to not having been hurt or having suffered nightmares, sleeping problems or requiring medical attention.[117] He claims to have had no symptoms of anxiety or depression or mental trauma.[118]
What did the psychiatrists say about the stress of life in Kabul as a cause of the schizophrenia?
[117] T50.
[118] T719.
Professor McFarlane
He discounts the stress of life in Kabul as being a cause of the schizophrenia.[119]
[119] Ex P10, p 26.
Dr C Raeside
He regards the issue of migration in a more general sense as having played a significant role in the plaintiff’s mental illness.[120]
[120] Ex P10, p 132.
As to the issue of life in Kabul he expresses the opinion that the more serious the trauma the more relevant it might be to postulate it as an explanation for him becoming schizophrenic.[121]
[121] T924-925.
He does not say, however, that stress in Kabul excludes the casual relationship between the accident and the development of schizophrenia which he strongly asserts.
Dr A Cotton
Dr Cotton does not appear to attribute any significance to the childhood in Kabul.[122]
[122] T1971-1972.
Dr Kutlaca
He does not appear to make any link between the childhood history in Kabul and the onset of schizophrenia in Adelaide.[123]
[123] Ex D14, p 56.
Dr H Hustig
He too does not appear to make any direct link between the childhood history in Kabul and the onset of schizophrenia.[124]
[124] Ex D14, p 24. T1852-1853.
Dr Blakemore
He does not think that the childhood in Kabul has predisposed the plaintiff to develop schizophrenia.[125]
[125] T1114.
Conclusion
I accept the evidence of the plaintiff and his family, unchallenged as it is, that there was no stress of any moment caused by the bombing in Kabul, at least to the plaintiff. He was at an age where it is likely he lived in blissful ignorance of the passions and religious and political views leading the contending parties to kill or injure their fellow humans. Furthermore, even if this period did cause the plaintiff mental stress, it does not exclude the argument that the stress of the accident was also a factor in the plaintiff contracting schizophrenia when he did.
I conclude by finding that there was no significant stress on the plaintiff during his childhood in Kabul that excludes the accident as being the cause of the plaintiff’s schizophrenia nor does any medical expert assert to the contrary.
II Stress as a result of harassment by Pakistani authorities
The defence has explored the possibility of stress on the family and in particular the plaintiff during the time the family were in exile in Pakistan as being a possible explanation for his schizophrenia.
Again, I accept that the defence is at a disadvantage in adducing evidence on this topic but nevertheless, again, the evidence is all the one way. None of the family talks of any particular stresses caused by the harassment by Pakistani authorities.
It is true that the situation in Pakistan must have been unpleasant for the family. They had not found satisfactory work and education.[126] Afghani people were being arrested.[127] On one occasion Dr Anwar was questioned by police and forced to pay a bribe.[128] The plaintiff’s brother was also arrested but released on the payment of a bribe.[129]
[126] T721 & T1318.
[127] T66.
[128] T721.
[129] T66, T722 & T1326.
There is no question, however, of threats to life or limb or torture or anything similar by the Pakistani authorities directed to the plaintiff or his family.
I am driven to the conclusion that no significant stress has been established which applied to the plaintiff during the time the family was in Pakistan.
Further, there is a significant period of time between when the family was in Pakistan and the development of schizophrenia. The expertise on the topic, with the exception of Dr Cotton, does not suggest that such a time interval would prevent stress from being a factor in the development of schizophrenia but logically it tends to suggest any relationship is more tenuous.
The plaintiff claims that none of this activity caused particular stress on him. The defence say he is not to be believed. But that does not mean the opposite of what he says is proved. There is simply no evidence of stress to the plaintiff in Pakistan. In the absence of any admission the defence must establish that the proved events caused him severe mental stress. In my view they have failed to establish that.
What did the psychiatrists say about the stress of life in Pakistan as a possible cause of schizophrenia?
Professor A McFarlane, T803-804
Professor McFarlane suggested that the experience in Pakistan is a relevant trauma experience for him to develop PTSD after the accident, but not schizophrenia.
QHowever they were both beaten on a number of occasions when they were unable to pay bribes to Pakistani officials and eventually their father lodged an application to be classified as refugees.
AYes.
QCan I build in also to some evidence that has been given in court and that is that Mr Anwar's brother was in fact arrested in Pakistan and detained on one occasion -
AYes.
QAccording to the evidence. So is it significant, can I suggest it is significant, that the dreams that he related - the nightmares that he related to Dr Raeside appear to be anchored into experiences he has had as a young man when he was in Pakistan, that is, something bad happening to his brother. So in other words, they appeared to be anchored in historical fact or some sort or other.
AAs I said in my previous answer, it is relevant and as I said in my previous evidence, his trauma exposures are important to him developing PTSD after the accident in question. So I think these are relevant matters. I mean, I also note how he often wakes feeling pain in his arm and hand which tells you something about that dream state and often people don't remember their dreams but will have some recollections in the aftermath of the waking state that also give you some hint as to the content of the dream. So I think that full paragraph highlights how Mr Anwar, as one would have anticipated, is a man who has had a number of prior significant trauma exposures above and beyond the accident, but the accident is also part of what occurs in his dreams.
QIsn't it telling though that the other matter that he relates is rockets coming to kill people.
AYes, that's relevant.
T814-T816
QNow if the history is right that he gave to Dr Raeside, that he's having nightmares and predominantly those nightmares are anchored in traumatic life experiences he had back in Pakistan and Afghanistan, then can I suggest that that of itself could be - a case could be made for the fact that that history, albeit that on a couple of times he dreamt about the hand injury, but predominantly didn't, can I suggest that that would indicate that sleep disturbance was a prodromal symptom, not a symptom of post-traumatic stress disorder in the period leading up to his psychotic period.
ASleep disturbance is extremely common and its predictive ability for schizophrenia would be very low. So it might have been a prodrome for other disorders. You have to remember most disorders don't suddenly emerge one day out of nothing. So prodrome is a concept which is equally relevant to post-traumatic stress disorder, to depressive disorders, to other anxiety disorders, so I think sleep disorder is a symptom that identifies significant risk of psychiatric disorder generally, but not necessarily schizophrenia.
QAcknowledging that a lot of people have sleep disturbance and might have nightmares, a lot of people don't have them about rockets coming to kill people or their brother, something bad happening to their brother, which is actually anchored in reality of their past life, do they.
ANo, as I said before I think - this is an issue which I very clearly had in mind with Mr Anwar, was to really ascertain whether he did have post-traumatic stress disorder from his experience either in Afghanistan or in Pakistan. So I think your question is very appropriate. But on the basis of the information that I had before me it appeared that whilst he may have had some consequences and some risk acquired because of those exposures, it seems that the accident was the critical issue in leading to the onset of his disorder.
Dr Craig Raeside
Dr Raeside’s evidence is that the experience in Pakistan coupled with the early childhood experience in Kabul is a relevant trauma experience for him to develop PTSD, but not schizophrenia.[130]
[130] T937-T942.
Dr Blakemore
Dr Blakemore did not deal with the question of the prodrome of schizophrenia with Mr Anwar when he initially assessed him.[131]
[131] T1118-T1119.
Dr Alan Cotton
Not mentioned in the evidence
Dr H Hustig
Dr Hustig is of the view that the plaintiff did not have PTSD. His understanding was that the plaintiff did not see any physical trauma at that time in Afghanistan or Pakistan therefore the childhood experiences are of little relevance.[132]
[132] T1851-T1853.
Dr D Kutlaca
Dr Kutlaca agreed with the cross-examination that if the hand injury was what traumatised the plaintiff, one would expect the plaintiff to have the dreams about the hand injury, not the early childhood experience in Pakistan which might therefore be a source of traumatisation.[133]
[133] T1646-T1649.
Conclusion
I would conclude that there is little support amongst the psychiatric experts that trauma of events in Pakistan could be regarded as a cause of the plaintiff’s schizophrenia, so as to exclude the likelihood of the work accident as being a cause. I also am of the view that the evidence does not establish any significant stress either in Pakistan or in Kabul that was likely to have caused or precipitated the schizophrenia the plaintiff undoubtedly suffers from.
III Cannabis Consumption
One possible cause of schizophrenia and psychosis is the use of cannabis.
Initially when interviewed by Professor McFarlane the plaintiff denied any use of cannabis.[134] In evidence, however, he conceded that he did use cannabis albeit his admission of use of cannabis was to a very limited extent.[135]
[134] Ex P10 at p 22.
[135] T148-149.
The defendant seeks to make much of the plaintiff’s admissions of cannabis consumption. I have already commented on issues of the credibility of the plaintiff. I scrutinise his evidence with care before acting upon it because of some concerns I have about his truthfulness and accuracy.
The plaintiff reported when initially diagnosed to the hospital authorities that he used illicit drugs occasionally.[136] It is significant that the plaintiff says he never smoked cannabis before suffering the injury to his hand.[137] There is no direct evidence to the contrary.
[136] Ex P7, p 1559.
[137] T151, T429.
The plaintiff admits to consuming cannabis in August 2005.[138] He claims only to have smoked 3 cigarettes by replacing the tobacco in ordinary cigarettes with cannabis.[139] I am sceptical about that answer; I think he probably smoked more than that. Cumberland Hospital notes indicate that he told the staff there that, as at September / October 2005, he had smoked a cone of marijuana a day for the previous 5 months.[140] That evidence is consistent with Dr Cotton’s evidence that he told Dr Cotton in March 2010 that he started smoking several weeks after the accident to help him get to sleep.[141]
[138] T148.
[139] T149.
[140] Ex P6, p 585.
[141] Ex D14, p 6.
The defendant also relies on an admission to Dr Hustig that both before and after the injury to his hand the plaintiff had associated with a certain group of Muslims who engaged in drug induced behaviour.[142]
[142] T1801-1803.
Taking those admissions at their highest, it shows no more than a consumption of cannabis after the accident up until the diagnosis of schizophrenia some 5 months later of a cone per day. There is no history obtained of any cannabis consumption prior to the accident.
The defendant seeks to argue that the plaintiff had a propensity to consume cannabis by his own admission, and that given that propensity, I should infer consumption of cannabis prior to the work injury over a period of time.
The difficulty with that argument is that the plaintiff has advanced a rational reason for starting cannabis consumption when he did (i.e. to aid sleep after the onset of pain from the accident).[143] Further, the admitted consumption is not high and there are no other indicia apart from the admissions to support a propensity to take cannabis other than for the duration and in the quantities admitted to by the plaintiff.
[143] T1854.
I am prepared to find, therefore, that for a short time after the accident up until the diagnosis of schizophrenia the plaintiff was consuming cannabis at the rate of about one cone per day. It follows that any psychiatric opinion as to the role of cannabis consumption in the development of the plaintiff’s schizophrenia can only be relevant insofar as it assumes a consumption of approximately a cone per day for 4 to 5 months prior to admission to hospital and diagnosis in September 2005.
It is extremely important to ensure that factually accurate material is being used by experts especially in respect of the ascertainment of opinions on claims for psychiatric injuries where the injury is not readily capable of confirmation in the same way as a physical condition which is discernible by objective tests.[144]
[144] See R v Tonkin & Montgomery [1975] QR 1, Ramsay v Watson (1961) 108 CLR 642.
On the question of whether cannabis consumption was the cause of the plaintiff’s schizophrenia the witnesses line up as follows:
Professor A McFarlane
He correctly noted the history given that cannabis consumption commenced for a period following the accident when the plaintiff commenced to use cannabis to self medicate for his post traumatic stress.[145]
[145] Ex P10, p 26.
In evidence, he pointed out that while cannabis might be a triggering impact in the onset of schizophrenia it requires “really significant usage over a relatively prolonged period of time ... the higher the dose the greater probability that it is going to trigger schizophrenia”.[146]
[146] T365.
He pointed out that there are thousands of people all around the country that use marijuana but do not contract schizophrenia.[147]
[147] T365.
He concludes cannabis consumption was not a cause of the plaintiff’s schizophrenia.
Dr C Raeside
Dr Raeside’s view on the effect of cannabis use in the development of schizophrenia is set out in his following answer,
That cannabis can cause an acute drug induced psychotic state similar to amphetamines and the evidence is less strong. That has changed a bit in recent years because the cannabis on the street is more potent and it has other chemical added to it which may also cause an effect and I think there is evidence that cannabis can cause an acute psychotic episode to last for a few days, possibly a few weeks, but that’s different in schizophrenia. The question is can cannabis cause schizophrenia? Again, that is still a controversial thing. I think the best research evidence at this point is that if it does, it is a relatively low contribution compared to other things. Figures that are used are sort of 10 to 15 percent of people who go on to develop schizophrenia may not have had it if they hadn’t used marijuana. If it’s implicated, it suggests heavy use and early onset. So, early onset meaning late primary school, early high school and then ongoing heavy use is something considered like a bag a day. Most people I see where it becomes an issue smoke an ounce a week which is quite heavy use, maybe 20, 25 joints a day. Then they develop this condition which may be indistinguishable from schizophrenia.[148]
[148] T502, T503.
I regard Dr Raeside as among the most qualified in this area due to his extensive involvement in the criminal justice system where he sees patients whose lives are affected by cannabis use “on a daily basis”.[149]
[149] T503.
He rejects the proposition that cannabis consumption was a cause of the plaintiff’s schizophrenia.[150]
[150] T502.
Dr W Blakemore
He considers that marijuana used “to a significant extent” may be an important factor in the development of schizophrenia.[151]
[151] Ex P10, p 15.
In evidence it was apparent he was envisaging a much heavier use than a cone smoked on a daily basis as being the sort of usage he had in mind in order to consider the possibility of cannabis being a factor in the contraction of schizophrenia by the plaintiff.[152]
[152] T996-T997.
Dr A Cotton
His view is that,
Mr Anwar suffers from schizophrenia, the onset of which perhaps being brought forward by his abuse of marijuana, a behavioural choice he made in the 2 or 3 months prior to the onset thereof, ...[153]
[153] Ex D14, p 14.
He reiterated,
... 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 already being a cogent history of he having developed significant disabling symptoms of Post Traumatic Stress Disorder.[154]
[154] Ex D14, p 14.
I do not accept this opinion of Dr Cotton. It is given without having ascertained any history of consumption of cannabis prior to the contraction of the schizophrenia and without any consideration of the amount of consumption.
Dr D Kutlaca
In Dr Kutlaca’s first report of 21 October 2008 he refers to the history of the plaintiff’s use of marijuana and points out “that some smokers of marijuana develop schizophrenia or a like illness”.[155]
[155] Ex D14, p 49.

In his later report of 28 July 2009 Dr Kutlaca opines,
I consider that Mr Anwar’s use of marijuana, as outlined by him in the independent assessment of 21/10/08 was more likely to have caused or precipitated his schizophrenia illness than the subject incident of 11/04/05.
This opinion is against the expression of a view “that the cause of schizophrenia is unknown”.[156]
[156] Ex D14, p 51. Dr D Kutlaca’s Report, 21 October 2008.
That opinion itself seems somewhat inconsistent with the opinion expressed that,
The onset of schizophrenia may be linked to stressful life events, although these are not the cause.[157]
[157] Report of Dr David Kutlaca 21/07/2009 Exhibit D14 at pg 56.
It is difficult to see that if the onset of schizophrenia may be linked to stressful life events why those stressful life events may not be the cause of the onset of schizophrenia at the time that it occurs. It seems to me that it matters not whether he says that the stressful events caused the schizophrenia or precipitated the schizophrenia. If it merely precipitated the schizophrenia and there is a difference then it can be said to have caused it to occur or appear when it did.
Further, I note that Dr Kutlaca received a history from the plaintiff that he had not used marijuana prior to his first psychiatric admission.[158] Yet, having obtained this history he opined that the plaintiff’s use of cannabis “caused or precipitated his schizophrenic illness”.
[158] Ex D14, p 45.
Dr Kutlaca speaks of a category of individuals who develop schizophrenia after marijuana consumption.[159] He is of the view that while previous research indicated a large amount was required, quite small amounts are now found to be able to cause it.[160] The proposition seems to be at odds with his suggestion that there is no known cause of schizophrenia.
[159] T1682.
[160] T1683.
The fact that a small amount might be the cause or associated with schizophrenia seems to be counter intuitive and I prefer the views of Professor McFarlane but especially Dr Raeside that a large amount of cannabis use is required if cannabis is to be the cause or the precipitating factor for schizophrenia.[161]
[161] T501 & T502.
Further, Dr Kutlaca expressed a particular view as to the effect of cannabis on the plaintiff,
I consider that Mr Anwar’s use of marijuana, as outlined by him in the independent assessment of 21.10.08, was more likely to have caused or precipitated his schizophrenic illness, than the subject incident of 11.04.05.[162]
[162] Ex D14, p 56 also T1685.
On cross examination Dr Kutlaca agreed that in order to make the assertion as to the effect of cannabis one would need to know the potency of the marijuana, the extent of the use and the extent to which the accident led to stress.[163]
[163] T1687.
Conclusion
The overwhelming weight of evidence supports the proposition that the usage of cannabis by the plaintiff was not sufficient and not at a relevant time so as to be the cause of the plaintiff’s schizophrenia. I agree with that evidence.
Those who hold another opinion are clearly basing it on an incorrect history of usage of cannabis and failing to take into account the limited usage of cannabis as established by the evidence.
The Prodrome of Schizophrenia
According to medical science in the area of psychiatry, persons who have schizophrenia frequently are found to have had a period of time before diagnosis during which they go through a stage when schizophrenia is developing in them. This period is called the prodrome of schizophrenia.[164] There are certain markers of it including oddness in behaviour which is often only recognised by those who associate with the person diagnosed as schizophrenic and usually in retrospect.[165]
[164] Ex D13.
[165] Ex D13.
As an important issue in this case is whether the plaintiff’s schizophrenia was contracted as a result of the work accident, it is important if the defendant can demonstrate that the plaintiff was in the prodrome of schizophrenia prior to the work accident. If that were so it would demonstrate that schizophrenia was impending in the plaintiff before the work accident and the work accident was probably not the cause of it, or, if the work accident did provoke some manifestation of schizophrenia at the time the plaintiff was diagnosed, then it would tend to establish that the schizophrenia would probably have come upon the plaintiff very soon thereafter in any event. Hence damages could only relate to the accelerated period of schizophrenia suffered by the plaintiff.
The following events are nominated by the defendant as indications that the plaintiff was in the prodrome of schizophrenia:
1       A sudden desire to move from Devonport to Sydney.
2       A request to his parents to arrange a marriage with the Pakistani girl in the park.
3       The precipitate move from Sydney to Adelaide.
1. A desire to move from Devonport to Sydney
When the plaintiff and his family first came to Australia immigration authorities had them sent to Devonport in Tasmania. The plaintiff did not stay long before moving to Sydney.[166]
[166] T67 & T1328.
After staying in Devonport for about 6 months[167] he moved to Sydney giving the explanation that Devonport was a small place and he was used to living in bigger cities.[168]
[167] T69.
[168] T68.
This was a different explanation to that given by the plaintiff’s brother, Yousaf, who gave evidence that his move was due to the plaintiff being the object of affections from an older widow named Saedhe.[169] Mrs Anwar supported this by giving evidence that she spoke to an immigration officer who organised a ticket for the plaintiff to travel to Sydney to avoid this woman.[170]
[169] T1244.
[170] T1329.
I do not see it as at all odd that a young man of the plaintiff’s age with little English would prefer to move from Devonport, a small coastal city in Tasmania with no resident Afghani population of any note, to a large metropolis like Sydney with an existing Afghani community.
That would not be odd behaviour in the least in my view nor would it be odd behaviour if the fact of the matter was that the move to Sydney was purely to avoid the attentions of an older widowed and obsessed suitor.
Notwithstanding the fact that the move to Sydney required leaving his established family, given his age, his growing independence and the availability of an Afghani community in Sydney to meet his social needs, the move was not at all surprising. I do not see it as being an indication of the presence of the prodrome of schizophrenia. Nor do I see it as evidence of misleading by the plaintiff as there is no apparent reason for him to lie and secondly both reasons for leaving could well be true.
2. Request to Parents to Arrange Marriage
In order to make good the assertion that the plaintiff was already in the prodrome of schizophrenia at the time of his work accident, the defendant seizes upon a note recorded in the Royal Adelaide Hospital notes and apparently made by one of the parents of the plaintiff that his behaviour had been odd prior to the work injury in so far as he had contacted his parents and requested that they arrange a marriage for him at the time he was already engaged to a young lady in Pakistan.[171]
[171] T394.
It seems to me that when the psychiatrists are talking about odd behaviour they are referring to socially abnormal behaviour in the context of the society in which the person operates.
There is a preliminary factual issue to be determined. Both parents deny that the defendant got in touch with them and asked them to arrange a marriage.[172]
[172] T1012-1013, T1332 & T1384.
The assertion however appears in a hospital note which is a business record and available to me as to the truth of what it contains, notwithstanding that it is hearsay.[173] I cannot ignore however, that the interview in which the information was allegedly obtained was conducted via an interpreter.[174]
[173] S 45A(1)(b) of the Evidence Act 1929 (SA).
[174] T1614-1616.
There is no doubt that at some stage a marriage was arranged for the plaintiff. He married his first cousin in Afghanistan sometime after the work accident.[175]
[175] T188, T189 & T231.
In the face of the denials of the parents and in the light of the complication arising via the use of an interpreter and the room that exists for some error or misunderstanding especially in the light of the fact that it is known that at some stage there was indeed an arranged marriage, I am not prepared on the balance of probability to find that there was a request for an arranged marriage in Sydney by the plaintiff to his parents prior to the work injury, although the topic was probably raised, as it is in the hospital notes. It may have been expressed as a forlorn hope or with expressions of exaggeration. I am not confident that the note accurately expresses the plaintiff’s intent if he did make that request.
Even if he did, however, I would not regard that alone as evidence of odd behaviour so as to indicate that at that time the plaintiff was in the prodromal stage of schizophrenia. In the first place arranged marriages are quite common in Afghanistan and, although the plaintiff was living in Australia at the time, he operated within a milieu of an Afghani social situation such that to seek an arranged marriage would not be eccentric or out of character behaviour.
Nor do I think the fact that it is alleged to have occurred at a time when the plaintiff was engaged to a girl in Pakistan[176] is of great consequence. Many people in our society (and I assume Afghani society too) get engaged or marry one person and then conduct a liaison or marry another person notwithstanding their marriage vows. There may be many reasons for that. People who are married have affairs. While we may regard it as immoral conduct that does not make it odd or eccentric conduct so as to indicate the person was in the prodrome of schizophrenia.
[176] T68, T999-1000, T1319.
The precipitate move from Sydney to Adelaide
The plaintiff moved to Sydney probably in late 2003.[177]
[177] Ex D20, Occupational Health & Safety Induction Certificate.
The plaintiff found accommodation in Sydney with a person called Hazrat.[178] He joined the Auburn RSL and used to visit there twice a week.[179] He studied English[180] and he soon obtained work on a construction site[181] where he worked 2 to 3 days a week.[182] Dr Anwar came to Sydney to check on the plaintiff’s circumstances.[183] The whole family decided then to move to Sydney no doubt as a consequence of the reports on the place from Dr Anwar.
[178] T241.
[179] T249.
[180] T71.
[181] T70.
[182] T70.
[183] T724 & T1003.
The plaintiff says that on one occasion while visiting a shop where he could transfer money to Afghanistan he met a man named Farid. Farid said he was from Adelaide. [184] Farid apparently reported to the plaintiff that Adelaide was “a good place” with “good people”.[185] Farid invited the plaintiff to stay with him if he came to Adelaide[186] and they exchanged telephone numbers.[187]
[184] T277.
[185] T280.
[186] T280.
[187] T282.
In December 2004 the plaintiff undertook a week long security guard course in Sydney[188] at the conclusion of which he was told that he required a driver’s licence in order to work as a security guard.[189]
[188] Ex D5, T71.
[189] T72.
The plaintiff decided to come to Adelaide in early 2005.[190] He borrowed $2,000 from the Afghani community and came to Adelaide.[191] He said he came to Adelaide because he wanted to see Adelaide[192] and because he had heard that one could get a driver’s licence more quickly in Adelaide than in Sydney.[193]
[190] T73.
[191] T73.
[192] T285.
[193] T285 & T644.
It is suggested by the defence that the precipitate move from Sydney where he had settled and had a job without making any enquiries about whether obtaining a driver’s licence would be a quicker procedure than in Sydney was odd or unusual behaviour indicative of him being in the prodrome.
I have considered this matter. I think the plaintiff probably came to Adelaide because he had been offered a place to stay and told good things about the city. No doubt it was an added attraction to get his driver’s licence more quickly. I do not regard what happened as being sufficiently strange or out of the ordinary that I could regard it as indicative that he was in the prodrome.
Dr Anwar, a medical practitioner who was cognisant with the concept of the prodrome of schizophrenia noted none of the recognised signs of it. I bear in mind that his evidence may be self serving.
I have looked at these things in combination and not in isolation. In the circumstances I do not find these activities to constitute odd or irrational behaviour indicative of the prodrome and no psychiatrist has positively asserted that the plaintiff was.
Is there a pattern of behaviour following the work injury up until diagnosis with schizophrenia demonstrating continuing stress and mental problems?
The thesis that the stress of the work injury caused the schizophrenia is stronger if it is demonstrated that there were a continuing range of mental conditions or issues that arose after the work injury, that were not present before it and that continued up until the time of diagnosis of schizophrenia and that were related to the work injury.
Dr Agarwal observes that before the airport episode the plaintiff was beginning to have psychological difficulties and that he was becoming psychotic.[194] This supports the temporal relation between the work injury and the psychiatric sequelae and has a tendency to reinforce the work preoccupation of the plaintiff at the time thus supporting the thesis that the work accident precipitated the schizophrenia.
[194] T701.
The following matters tend to demonstrate that continuity:
1       Continued rumination about the accident.
2       Inability to attend the workplace when the injury had healed.
3       Continued stress.
4       Difficulty sleeping due to rumination.
5       Readmission to hospital after return to workplace and having hand photographed in the position it was in when the accident occurred.
The various psychiatrists deal with these issues as follows:
Professor A McFarlane
He placed considerable reliance on the history between the accident and the diagnosis,
He indicated that the accident repeatedly plays on his mind, both in terms of its actual occurrence and its consequence on his life. He found it difficult to identify specific triggers. He has distressing and intrusive memories of this accident and demonstrates a marked pattern of psychological and physiological distress upon exposure to reminders but it does not appear that he has full blown flashbacks. He has experience dreams and nightmares related to this incident. This was particularly noted when he returned to his place of employment when it was proposed that he should return to work after his injury.
He has significant behavioural avoidance, being unable to attend the place of work once the injury had healed. He also initially tried to shut out the thoughts and feelings of the accident but found that this was generally unsuccessful. He demonstrated a pattern of psychogenic amnesia. He is markedly emotionally numbed and lost interest in activities that were previously important to him. He has a sense of detachment and lack of involvement in his relationships and also has a feeling of being emotionally numbed. He has demonstrated significant avoidance behaviours in response to his injury which extended to him becoming phobic of driving after having driven back to the place of employment following his attempt to return to work.[195]
[195] Ex P10, p 24 & p 25.
In Professor McFarlane’s opinion this reaction to the incident constituted a PTSD. In my view it is not important whether one can designate it as PTSD. What is important is that it demonstrates a continuity of extended sequelae of the accident leading right up to the time of diagnosis of schizophrenia. As it is put by Professor McFarlane,
In my view Mr Anwar first developed a Post Traumatic Stress Disorder and then developed a schizophrenic illness.[196]
[196] Ex P10, p 28.
Dr C Raeside
Dr Raeside said,
... for practical purposes I believe that Mr Anwar experienced significant stress shortly prior to the precipitation of his first episode of schizophrenia. The most significant factors were his immigration and the hand injury with subsequent loss of employment and his depressive symptoms. Therefore, it is my opinion that on the basis of reasonable probability the hand injury was a significant stressor that likely led to the precipitation of Schizophrenia in a man who was probably vulnerable to the development of Schizophrenia anyway.[197]
[197] Ex P10, p 131.
It is true that Dr Raeside in the next sentence said,
I would not be prepared to say that the stress of the hand injury “caused” the development of Schizophrenia.[198]
[198] Ex P10, p 131.
But, in my view, the previous passage I have quoted asserts the causative relationship at least as it is understood in law.
Dr W Blakemore
He said in his report dated 21 May 2006 that,
The rationale for making a direct link between Mr Anwar’s hand injury and the development of schizophrenia was Mr Anwar’s own history of having become mentally unwell while being very stressed about his hand.
He does believe that the hand injury somehow “triggered” or brought on the onset of schizophrenia in 2005 together with other causes.
T1091-T1094
QIn your opinion, were it not for the plaintiff's right hand injury, would he have likely developed schizophrenia in September 2005 in any event?
AI really doubt it.
HIS HONOUR
QWhat is the basis for saying that.
AMy impression was that the right hand injury was something quite traumatic to him, sufficiently traumatic to be very emotionally disturbing and likely, for whatever reason, precipitated a very serious illness rather than something more transient.
Thus he is asserting a causative relationship.
Dr H Hustig
Dr Hustig recognises too that there was a period of some stress between the accident and the development of schizophrenia,
I will not go into details over the nature of the injury; however Mr Anwar describes considerable issues of pain and attempted to address these with minor analgesia, particularly several lots of Panadol. He states that he had marked difficulty in sleeping and for 4 to 5 nights was unable to sleep at which point he began to consume marijuana.[199]
[199] Ex D14, p 21.
He concludes,
... While stress may be a direct contributor to his psychiatric condition, I believe it is more likely to be an indirect contributor through his utilisation of marijuana and the subsequent impact of this agent upon his mental state rather than the trauma per say [sic].[200]
[200] Ex D14, p 25.
While I am of the view that stress between the accident and the development of schizophrenia was a direct contributor to the plaintiff’s ultimate psychiatric condition developing when it did, I do not accept the evidence of Dr Hustig that this was through the medium of utilisation of marijuana. As I have indicated, I do not think the evidence about use of marijuana demonstrates sufficient usage to be a factor in the development of the schizophrenia.
Dr D Kutlaca
Dr Kutlaca said,
There does not appear to have been any significant mental illness in the interim period and indeed, it appears that the claimant had enjoyed a recovery to the stage where one (1) week before he was detained at the Adelaide airport, he was on the verge of commencing a graduated return to work. A meeting at that time involving the claimant, his general practitioner and rehabilitation consultant had resolved in a case conference for him to attend a worksite assessment with a view to a graduated return to work – presumably a decision which would not have been arrived at if there was any suggestion of a claimant then presenting with a serious mental illness.[201]
[201] Ex D14, p 85.

Hayne J made an important point,[263]
[277] If, then, a plaintiff alleges that psychiatric injury was suffered immediately upon the happening of a particular shocking event, the conclusion that the defendant breached a duty to take reasonable care not to cause psychiatric injury to a person of reasonable or ordinary fortitude may well be open. By contrast, the less evidently shocking the event caused by the defendant’s negligence, and the longer the intervening chain of causation linking the event and the onset of psychiatric injury, the harder it will be for the plaintiff to establish that the defendant’s breach of a duty to take reasonable care to avoid psychiatric injury to a person of reasonable or ordinary fortitude was a cause of the injury for which the plaintiff seeks damages. Even if it is established, by expert evidence, that the defendant’s negligent act was a cause of the plaintiff’s injury, the longer and the less obvious that this chain of causation is, the harder it is for the plaintiff to show that the duty which was breached was a duty to take reasonable care to avoid acts or omissions which could reasonably be foreseen to be likely to injure a person of reasonable or ordinary fortitude.
[278] To adopt, and adapt, what I said in Modbury Triangle [312], asking whether the damage suffered by the plaintiff in such a case, caused, as it was, by a want of care of the defendant, resulted from the breach of a duty to act with reasonable care to avoid psychiatric injury to a person of reasonable or ordinary fortitude is more likely to require a negative answer the longer and the less obvious the claim of causation.
[279] This is not to deny the operation, in the realm of psychiatric injury, of a rule analogous to the ‘‘egg-shell’’ skull principle. If the defendant was in breach of a duty to take reasonable care not to cause psychiatric injury to a person of reasonable or ordinary fortitude, the defendant must take the victim as found and will be responsible for all the consequences for the plaintiff that follow from the defendant’s breach.
[263] See Tame v New South Wales & Annetts and Anor & Australian Stations Pty Ltd, [277].
His Honour emphasised that we are not here dealing with the foresight of a psychiatrist bur rather of the reasonable person in the defendant’s position. His Honour said,
[331] ... It is one thing for a psychiatrist to know and understand that events of the kind which occurred here, ... were capable of causing a psychiatric injury to either a vulnerable or a phlegmatic person. It is an entirely different thing to attribute that knowledge, indeed even a suspicion of it, to a police officer carrying out a duty of completing a standard form of report ....
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.
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.
CONCLUSION
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.
It follows that the plaintiff is entitled to compensation only for the immediate damage to the hand and not for the diabetes which arose from taking of drugs to deal with his schizophrenia and nor for the schizophrenia itself.
The hand injury includes the pain and suffering for the immediate consequence of the hand injury and the non psychiatric pain and suffering which arose as a consequence of the hand injury and lasted for several months.

ASSESSMENT OF DAMAGES
I am required to determine the extent of seriousness of the injury by assigning a numerical value on a scale of 0 – 60.[264]
[264] s 52(2)(a) of Civil Liability Act 1936.
The plaintiff suffered a painful injury to his right hand. He continued to suffer pain for a number of months before the injury became subsumed in mental illness leading to schizophrenia. As a direct consequence of the accident and ensuing injury, the plaintiff was required to undergo plastic surgery necessitating further pain and inconvenience.
I am satisfied the plaintiff’s ability to lead a normal life was significantly impaired by the injury for a period of at least 7 days.
In all the circumstances I assign the numeral 5 on the scale.
I am required to arrive at a figure for non economic loss by multiplying that figure in compliance with s 52(2)(d) of the Civil Liability Act by 1150, the accident having occurred on 11 April, 2005.
Scale Value x 1150[265] x [CPI(Sep 2004)[266] ÷ CPI(Sep 2002)[267]] = Total[268]

5 x 1150 x (80.9 ÷ 77.1) = $6,033
[265] s 52(2)(d) and s 52(2)(c) of Civil Liability Act 1936.
[266] Australian Taxation Office Consumer Price Index Rates.
[267] Australian Taxation Office Consumer Price Index Rates.
[268] s 52(2)(d) of Civil Liability Act 1936.
Past economic loss
I would award damages for past economic loss being the loss of 10 weeks wages. The plaintiff was earning $694 per week net. I would allow 10 weeks at $694 = $6,940.
Loss of superannuation
$6,940 x 9% = $624.60
Future economic loss
I would not allow any award for future economic loss as the only significant disability is due to a mental illness in respect for which I have already held there was no duty of care.
Special damages
Special damages are agreed between the parties at $4,444.70.
Summary
Non-economic loss            $ 6,033.00


Economic loss                   $ 6,940.00
       Loss of Superannuation      $    624.60


Special damages        $   4,444.70
            $18,042.30
Assessment of damages on assumption plaintiff’s mental illness is compensable
Assuming I am wrong and that the defendant is legally responsible for all injuries including psychiatric injuries to the plaintiff then I would assess damages as follows:
Pain and suffering
In fixing a figure for pain and suffering I note that schizophrenia is a devastating illness. The plaintiff has certain insight into his problems and reflects upon his future which is likely to be bleak.
He has a significantly reduced life expectancy due to a combination of effects of his schizophrenia and diabetes which his schizophrenia will make him less able to control.
He has suffered a loss of society with his friends and has impaired relationships with his family and has been unable to maintain relationships with a partner leading to children or a fulfilled family life of his own.
He is required to take medications. He has put on a large amount of weight as a consequence and has developed diabetes.
He is unlikely to have a successful and satisfying life.
I would assess general damage as 38 points as provided by s 52 of the Civil Liability Act.
[$69,000 + (38 – 30) x $4,600] x [80.9 ÷ 77.1] = $111,014 general damages
PAST LOSSES
Past loss of earnings
Although the family had ambitions having come from Afghanistan where the plaintiff’s father held a respected position as a medical practitioner, none of the offspring in Australia appear to have been able to reach that high level, although it is difficult to assess the degree to which that may be attributed to language and cultural difficulties.
The plaintiff himself commenced his working life in Australia performing manual duties. All of his family appear to have been capable of obtaining and holding jobs. The plaintiff obtained and held jobs in Australia, notwithstanding language difficulties up until the time of his accident.
The accident occurred on 11 April 2005.
At that stage the plaintiff was earning $694 net. He worked 61.5 hours per week to obtain that figure.
It is not clear to me whether the plaintiff would have been able to work those extended hours up until the present or whether he would have wanted to do so.
A midpoint Average Weekly Earnings in South Australia between 2005 and the present is approximately $900 per week.
I will work on a figure of $700 per week. It is reasonable to use Average Weekly Earnings as a starting point.[269] However this figure is significantly influenced by a small number of very high income earners and I do not think the plaintiff would ever have fallen into that category.
[269] See Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 627
From the time of accident to delivery of judgment is a period of approximately 9 years.
That equates to be a figure of $327,600 ($700 x 52 x 9). I would allow for past economic loss for contingencies that he would change jobs and have periods of unemployment. I doubt he would have worked for 61 hours per week for that entire period. I would allow $200,000 for past economic loss.
Past superannuation
I would allow 9% of $200,000 i.e. $18,000.
Fox v Wood[270] expenses
[270] See Fox v Wood (1981) 148 CLR 438
As I have assessed damages for past economic loss on the basis that the plaintiff would have earned less than he has received for workers compensation it follows that on the basis of this assessment the plaintiff would be required to pay back all of his damages received as past economic loss to Workcover. It follows that there is no need to add any amount for taxation.
Interest
As the plaintiff has received income from Workcover payments he is not entitled to anything for interest for past economic loss.
Past gratuitous services
Due to the plaintiff’s schizophrenia he has a limited ability to care for himself. He lives with his parents. The family supervises his medications for schizophrenia and diabetes.[271] His mother attends to his finances.[272] The family attend to his needs by doing his washing, organising his appointments, cleaning and general cooking.[273]
[271] T204, T215 & T745.
[272] T207 & T208.
[273] T208, T209 & T210.
In my view it is reasonable that they perform these tasks for the plaintiff given the state of his schizophrenia.
I would allow 9 years between accident and judgment.
The parents are allowable relatives under s 58 of the Civil Liability Act.
If the services were not provided gratuitously by the parents it would have been necessary to engage another person to provide the services for remuneration.[274]
[274] s 58(3)(b) of Civil Liability Act 1936.
In my view a reasonable allowance is for 2.5 hours per day for services provided by the plaintiff’s parents. The current commercial cost of obtaining services for cooking and cleaning are approximately $32 per hour.[275] I would allow $25 per hour over the whole period for 17.5 hours a week.
$25 x 17.5 hrs x 52 x 9= $204,750
[275] Ex P10, report of Edwina Shannon.
Interest on past gratuitous services
Interest at 6% x ($204,750 ÷ 2) = $6,142.
$204,750 x 6% x 9 (years) x 0.5 = $55,282.50
Wilson v McLeay expenses
The plaintiff’s parents flew from Sydney to visit him when he was in Glenside. His brother-in-law came and took him back to Sydney for his admission to Cumberland Hospital. There have been various expenses incurred in visiting the plaintiff in hospital.
I would allow $8,000.
Past medical expenses
These are agreed at $26,919.42.[276]
FUTURE LOSSES
[276] Ex P84 (this is on the assumption that there is liability for schizophrenia).
Future loss of earning capacity
In my view the medical evidence establishes that due to the plaintiff’s mental injuries he is totally incapacitated for work. The psychiatric evidence of this is virtually unanimous.[277]
[277] Professor McFarlane, Ex P10, p 33 & T300. Dr Raeside, T499, Ex P10, p 122 & 123. Dr Blakemore, Ex P10, p 14. Dr Christine Brown, Ex P10, p 2. Dr Allen Cotton, Ex D14, p 9.
It is my view that the plaintiff would in his working life have become unable to work due to the onset of severe diabetes and schizophrenia without the accident. I am unable to say, however, with any precision when that would be other than to say it would probably come on earlier rather than later.
I would start to calculate future losses at the earning rate of $700 per week. The multiplier to age 65 is $852.50[278] and the base amount is therefore $596,750.[279]
[278] Harold Luntz, Assessment of Damages for Personal Injury & Death (Butterworths, 4th Ed, 2002), Table 3B.
[279] Date of birth 19.08.83 [T706].
Future loss of superannuation
The appropriate rate is 11 percent. Thus I will allow a figure of $65,642.50.
Future care
It is clear to me that the plaintiff will not be able to live on his own given the state of his schizophrenia. I would allow $705 per week under the model proposed by Ms Shaunee Fox of Sorrento Care Limited.[280] Using the whole of life multiplier for reduced life expectancy (919.30) a figure of $648,106 is arrived at.
[280] Ex D82.
Future medical expenses
I agree with the plaintiff’s submission that it is best for the plaintiff to have the services of a regular GP and psychiatrist.[281] I would allow for psychiatric attendance every two months at $300.[282] I would also allow one long GP visit per month at $90.30.[283]
[281] See Dr Kutlaca, Ex D14, p 71. Dr Raeside, T516. Dr Blakemore, Ex P41.
[282] Dr Raeside, T520.
[283] Dr Agarwal, T678-T782.
I will allow $56 per week x 919.30 = $51,480. I will also allow $3,500 for pain treatment.
Future medication
The plaintiff requires Seroquel at a monthly prescribing fee of $36.10.[284]
[284] Ex P85, Annexure C.
The plaintiff also requires Respirodon twice monthly at $36.10 per month.
The above amounts to a weekly cost of $18 and the whole of life cost using the multiplier (919.30) is therefore $16,547.
Hospital attendances
The plaintiff will require further hospitalisation of say one week per year. The daily cost of hospitalisation is $730.[285] This converts to an annual weekly cost of $98 which is rounded off at $90,000. In my view it is appropriate to allow for hospitalisation at private rates.[286]
[285] Ex P71.
[286] See Collins v Stratford (No 1) [2007] SADC 80.
Diabetes treatment
There should be a twice yearly review by an endocrinologist at a cost of $350.[287]
[287] Ex P39.
There should be attendances to a diabetes educator at an annual cost of approximately $260.[288]
[288] Ex P39 & T1021.
The plaintiff requires reviews by an optometrist at a cost of approximately $125.[289]
[289] Ex P39 & T1022.
There are also two costs of insulin and diabetes related drugs of about $9.20 per week.
There should be an allowance of $24 per week for amounts related to diabetes.
I have already said that there is a significant chance of developing diabetes later in life.[290] The Purkess v Crittenden deduction should be higher than for the contraction of schizophrenia. I would reduce the amounts awarded for diabetes related costs by 50% having regard to the probability that the plaintiff would have contracted diabetes in any event.
[290] See paragraph 95.
Travel and holidays
It is unlikely the plaintiff will be able to drive his own car and he will use public transport and taxis. He is likely to need the assistance of an attendant if he has holidays in the future. I would allow $20,000.
Summary
Past
Past pain & suffering  $111,014.00
Past economic loss  $200,000.00
Past superannuation  $ 18,000.00
Past gratuitous services  $204,750.00
Interest on past gratuitous services                $    6,142.00
Wilson v McLeay expenses   $    8,000.00
Past medical expenses  $ 26,919.42
$574,825.42
Future
Future loss of earning capacity  $   596,750.00
Future loss of superannuation  $     65,642.50
Future care  $   648,106.00
Future medical expenses  $     51,480.00
Future pain treatment  $      3,500.00
Future medication  $     16,547.00
Future hospital attendances                   $     90,000.00
Future diabetes treatment  $     22,063[291] x 50% = $11,032
Travel & holidays  $     20,000.00
$1,503,057.50
[291] See Plaintiff's final submissions p 89, footnote 513.
Subventions
The evidence is vague as to what, if any, assistance the plaintiff will receive in his lifetime from government assistance of varying kinds. For that reason and for the reasons set out in Manning v State of NSW,[292] I do not propose to make any reductions in the award for government subventions.
[292] [2005] NSWSC 958 judgment of Hoeben J.
Reduction for Purkess v Crittenden principle
I have already expressed the view that the plaintiff would, in all likelihood, have contracted schizophrenia in any event.[293] It is well to note that the task is not to evaluate the chance of a trauma befalling the plaintiff. While the evidence demonstrates that a relatively minor trauma may be capable of triggering schizophrenia in the plaintiff, the evidence also demonstrates that there may not be the need for a trauma to precipitate the schizophrenia.[294] Indeed the onset of the illness may be been precipitated by something totally unperceived in the plaintiff’s development.
[293] See para 291.
[294] Ex D14, p 25, Report of Dr Harry Hustig. Ex D14, p 15, Report of Dr Alan Cotton, T1930.
I have found that the illness coming on when it did was precipitated by the trauma of the work injury. There is a high likelihood it would have come on in the plaintiff’s lifetime in any event.
I would reduce all awards of damages for future events to have regard to that high likelihood by 30%.
$1,503,057.50


- $    11,032.00    (subject to 50% reduction for diabetic treatment)
                 $1,492,025.50


- $ 505,672.80   (30%)


$1,044,417.85


+ $     11,032.00 (add back in future diabetic treatment)


$1,055,449.85

If the causing of the schizophrenia were in circumstances where the defendant owed a duty of care to the plaintiff not to cause him mental harm there would be judgment for the plaintiff for,
$1,055,449.85

$ 574,825.42
$1,679,415.77
Result
In the circumstances there will be judgment for the plaintiff for,
$13,597.60


$ 4,444.70     (special damages)


$18,042.30
Having heard argument and received submissions on the question of costs based on a draft judgment forwarded to the parties, I will give further consideration to the question of costs.