Arnold v Midwest Radio Ltd

[1999] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B12 of 1999

B e t w e e n -

MARILYN ABIGAIL ARNOLD

Applicant

and

MIDWEST RADIO LTD

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 2.00 PM

Copyright in the High Court of Australia

MR P.R. DUTNEY,QC:   If it please the Court, I appear with my learned friend, MR C.A. WHITE, for the applicant. (instructed by Carswell & Company).

MR J.S. DOUGLAS, QC:   If it please the Court, I appear with my learned friend, MR P.V. AMBROSE, for the respondent. (instructed by Quinlan Miller Treston)

GUMMOW J:   Thank you.

MR DUTNEY:   Your Honours, the principle established by the decision of the majority in the Court of Appeal in this case, as taken from page 59 of the application book, is that, in an action for damages for personal injury caused by negligence or breach of duty, where that personal injury is wholly psychiatric in nature and is alleged to result from a series of events over a period of time rather than from a single incident, it is necessary for the plaintiff to adduce acceptable expert evidence that the combined effect of each of the events proven to have occurred in breach of that duty, in that combination, did cause and could foreseeably have caused, the injury suffered to a person of normal fortitude.

The additional feature which, in our submission this case introduces, is to render necessary the expression of an expert opinion on the precise question in issue in the case rather than leaving that as a matter to be decided on the basis of all of the evidence by the trial judge.  There is, in our submission, a basis neither in law nor logic for imposing on victims of psychiatric injury a different burden from the obligation imposed on victims of physical injury and the decision of the Court of Appeal is plainly wrong.  If uncorrected, the decision has the effect that it will prevent all or most plaintiffs, seeking damages for psychiatric injury as a result of a series of actionable events in the workplace, from succeeding in their action, because until such time as it is known precisely which of the alleged events in the series are established, the psychiatrist is unable to express an opinion in the required form, and this requires, in effect, each and every permutation and combination of events that might ultimately be found to be expressed as a separate opinion by the expert psychiatrist.

In this particular case, it was established by evidence from Dr Green in particular, but also from Dr Alcorn, that exposure to prolonged unremitting anxiety, in situations which are threatening and unpredictable, is likely to cause psychiatric injury and that it is foreseeable to an employer that this is so.  In our submission, if it is incumbent upon an employer to assess the situation in his workplace, without the guidance of a psychiatrist and devise and enforce a system which prevents his employees being exposed to such stresses, then it must follow that the trial judge is capable of deciding the same issues, without the necessary guidance of psychiatric evidence and, in fact, in this particular case, that is precisely what the trial judge did at page 27 of the appeal book, when, after referring to the evidence of the psychiatrist, he says, at the top of the page:

I am inclined to think that even in the absence of such evidence the Court would be entitled to conclude that a person might develop some psychological or psychiatric harm in such circumstances.  However the evidence of the two psychiatrists makes this abundantly clear.

Claims of this type, that is claims for pure psychiatric injury, arising from a series of workplace stresses, in our submission, are becoming increasingly prevalent in the courts.  Evidence of that can be seen in the changes to the workers’ compensation legislation, which introduced restrictive definitions of “injury” to include only some aspects of psychiatric injury and cases such as this one and Gallagher, to which your Honours were referred, represents the tip of an iceberg of cases moving through the courts.  So, in our submission, the ramifications of this decision are quite far reaching and unless something is done to correct it, it will result in considerable disadvantage to otherwise deserving plaintiffs.

In our submission, the decision of the majority in the Court of Appeal blurs the clear distinction between the role of the expert medical witness and the trial judge and appears to move away from the clear distinction expressed by this Court in Ramsay v Watson 108 CLR 642, where, at page 645, the members of the Court said:

That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case.  A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment.  But it is for the jury to weigh and determine the probabilities.  In doing so they may be assisted by the medical evidence.  But they are not simply to transfer their task to the witnesses.

In our submission, the proper approach to a case of this sort is evidenced by the dissenting judgment of his Honour Mr Justice Muir, rather than by the judgment of the majority and for these reasons, in addition to the matters outlined in our summary of argument, we submit that this is an appropriate case for special leave and an appropriate vehicle in which the point should be tested.  Those are our submissions.

GUMMOW J:   Yes, thank you.  Yes, Mr Douglas.

MR DOUGLAS:   If the Court pleases.  Over a period of about 12 weeks the applicant suffered anxiety, apprehension and uncertainty at her workplace.  These conditions were brought about by conduct of her manager, a Mr Williams.  Some of the conduct complained of was found to be tortious behaviour of the respondent.  There were other acts she complained of that his Honour the trial judge found were reasonable management decisions, such as peer criticism in staff meetings, the restriction of long distance telephone calls and the removal of her car allowance.  There was further conduct that could not be attributed to the respondent.  She suffered stress because of Mr Williams’ inquiry about the possibility of engaging someone to kill the man called Nicol, but that was not the fault of the respondent.

In those circumstances, all the applicant proved was that there were, at least, two competing causes for her illness.  She did not prove that the tortious conduct caused the illness.

GUMMOW J:   Can I just try and find myself the direction you are going, Mr Douglas.

MR DOUGLAS:   Yes, your Honour.

GUMMOW J:   Is it along the lines that whatever might be said about some of the propositions in the majority judgments, this case as a whole is one in which there was a correct result?  A result in your favour, in other words.

MR DOUGLAS:   Yes, that is so.

GUMMOW J:   Now why is that?

MR DOUGLAS:   There are some other things I want to say to develop that and to explain why ‑ ‑ ‑

GUMMOW J:   Yes, please do.

MR DOUGLAS:   - - -it is an inappropriate vehicle to grant special leave and why there is no reason to overturn what is a correct decision.  We submit that the Court of Appeal was right to determine that the plaintiff failed to prove that the anxiety disorder she developed was caused or contributed to by the tortious acts found.  The Court of Appeal did not find that, for a plaintiff to succeed, it is necessary for a court to find a precise combination of causative incidents that would have caused psychiatric harm.  It did find that it was necessary for a plaintiff to prove that wrongful acts caused the psychiatric harm.  That is, in our submission, it is insufficient to prove, as the plaintiff did here, that a combination of tortious and of non-tortious acts could cause psychiatric harm in a person of normal fortitude.  This is the answer to any contention of the plaintiff that it is impractical to expect the plaintiff to prove that the precise combination of tortious acts, found by the trial judge to exist, and only those acts, caused the plaintiff’s injury.

CALLINAN J:   There is nothing unique about that situation, Mr Douglas, is there ‑ ‑ ‑

MR DOUGLAS:   No, I was about to develop that, your Honour.

CALLINAN J:   - - -that there may be a number of competing causes, but the plaintiff has to prove the tortious ones were the cause.

MR DOUGLAS:   That is so, and I was about to develop just that line of argument, if your Honour pleases.  What the plaintiff has to prove is that an individual event, or a combination of individual events, caused the injury complained of, and that those events were performed by the defendant negligently in breach of a duty of care it owed to the plaintiff.  That is what any such plaintiff must prove.  It is just as significant a factual issue in, for example, a case where the tort complained of is exposure of the plaintiff to a dangerous substance, like asbestos, over a period of time by a number of defendants.  These are questions of proof and may be difficult questions of proof, but they raise no novel legal issues.

The legal principles are well known, relevantly, and at the risk of stating the obvious, they include the following:  firstly, a plaintiff must establish that his or her injuries are caused or materially contributed to by the defendant’s wrongful conduct; secondly, proof of default by the defendant, followed by injury of the plaintiff, is insufficient to establish causation; thirdly, if the defendants negligence cannot be causally linked to the particular risk, the plaintiff must bear the loss; fourthly, a causal connection is established, if it appears that the plaintiff would not have sustained his or her injuries had the defendant not been negligent; fifthly, the impossibility of excluding a factor as a cause of injury does not establish that factor as the cause of that injury; sixthly, a plaintiff must show more than that it is possible that injury was caused by the defendant; seventhly - and I am giving an example of a case now, where there may be more than one defendant – if there are one or more defendants, they may be liable if each has been shown to have negligently exposed the plaintiff to a risk of contracting a fatal disease.  It will be sufficient to establish liability against each, if there are several acts caused or contributed materially to the injury.  It is useful to consider the approach here against a case where there are multiple defendants, because here there are multiple alleged contributing events to the injury complained of.

The eighth point we wish to make is that a material increase in the risk of injury by a defendant is not legally equated with the material contribution to the injury by the defendant.  In some circumstances, if it were proved that the defendant did materially increase the risk of injuring the plaintiff, then the court might infer causation; that is, that the defendant’s negligence materially contributed to the injury, but where, as here, there are other likely causes of the injury, there is no occasion to make such an inference.  Put another way, it is insufficient for a plaintiff to prove that the tortious acts of another materially contributed to the risk of injury.  A plaintiff must also prove that the defendant’s tortious acts materially contributed to the injury itself.

We would say finally on, I suppose, the legal issues, in cases of alleged psychiatric injury, the courts have always taken the view that the causal link, between the conduct complained of and the damage allegedly suffered, must be clearly established.

Could we go on then to say that, whereas here the conduct said by the applicant’s psychiatrist to have caused the problem has occurred over a number of months, some of it has been found by the trial judge not to have occurred, other conduct has been found not to be attributable to the respondent, that it becomes especially important that the evidence linking the applicant’s condition to the respondent’s tortious conduct is clear, the issue of causation and negligence in cases where the risk of damage is created by a number of different incidents or a number of different defendants, may be difficult of solution.  This is so particularly where the medical or scientific evidence cannot exclude the possibility that the cause of the damage is attributable only to one or some of the relevant incidents.

If the incidents that caused the damage or injury cannot be identified and characterised as tortious conduct, then the plaintiff fails and, in our submission, the Court of Appeal was justified in concluding, at pages 54 to 55 and 59 to 60 of the application book, that the evidence was too fragile here to support a finding that the conduct caused the harm.  As a result, the applicant failed to establish that her condition was caused by the respondent’s tortious conduct.  That is a factual issue.  It does not require a close or a novel examination of the law of negligence.  Accordingly, there is no special leave point.

GUMMOW J:   Yes, thank you, Mr Douglas.

MR DOUGLAS:   Thank you, your Honour.

GUMMOW J:   Anything in reply.

MR DUTNEY:   Only one thing, if your Honours please.  At page 70 of the appeal book in the judgment of the dissenting judge ‑ ‑ ‑

GUMMOW J:   Page 70?

MR DUTNEY:   Yes.  After his Honour sets out from the transcript the passages of general evidence from Dr Green, we would submit that the arguments advanced by our learned friend really take away from his Honour the trial judge the independent right to determine whether the conduct, in the events that he found occurred, fell within that description.  That is, in our submission, quintessentially a trial judge’s role, and there was no basis, apart from the principle which we espoused, or which is espoused by the majority judgment, why the decision would otherwise have been upset and, for that reason, it makes it a suitable vehicle to have the point ventilated.

GUMMOW J:     Yes, thank you.

We would not wish to be taken necessarily to endorse all that was said by the majority of the Queensland Court of Appeal with respect to what is required of expert evidence in cases of alleged psychiatric illness or disturbance.  Nevertheless, having regard to the case as a whole, we are not persuaded that there are sufficient prospects of success on an appeal to warrant the grant of special leave.  Accordingly, special leave is refused with costs.

AT 2.16 PM THE MATTER WAS CONCLUDED