C v CSIRO

[2000] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 2000

B e t w e e n -

“C”

Applicant

and

CSIRO

First Respondent

DR JOHN WOODFORDE

Second Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 11.48 AM

Copyright in the High Court of Australia

SON OF “C”:   I am seeking the permission of the honourable Court to present oral submission for my mother.

GLEESON CJ:   Yes, you have that permission.

SON OF “C”:   Thank you.

MR P.W. TAYLOR, SC:   May it please the Court, I appear with my learned friend, MR G.M. ELLIOTT, for the first respondent, CSIRO.  (instructed by the Australian Government Solicitor)

MR I.G. HARRISON, SC:   May it please the Court, I appear for the second respondent.  (instructed by David Brown Solicitor, c/- United Medical Protection)

GLEESON CJ:   Yes, go ahead.

SON OF “C”:   My mother is seeking to supplement summaries of argument with oral submission and she has in writing and as in the application book, page 62, 25, she is asking the honourable Court for consideration of evidence presented today, apart from the decided in the index.

In relation to the issue of limitation period, my mother is asking the honourable Court for leave to appeal against the CSIRO with joinder Dr Woodforde under postponement of limitation period of ground of unsound mind. My mother was under disability of severe anxiety disorder as mental illness and now already, then she suffered trauma‑induced cognitive impairment with brain impairment considered by his Honour Justice Barr as apparent brain damage when she was – for her to institute the proceedings for negligence. She is fulfilling the requirements of section 52 of the Limitation Act 1969, subsection (1)(d) of the section, which she quotes:

the running of the limitation period is suspended for the duration of the disability ‑

In relation to the unsound mind, my mother would wish to quote words of Lord Denning from the case Kirby v Leather (1965) 2 QB 367 at 383:

So here it seems to me in this statute a person is “of unsound mind” when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do.

She would wish the honourable Court to accept what his Honour Justice Mayo said in the case Pointon v Walkley (1951) SASR 121:

The important aspects of “soundness” that may be wanting are not only defects of memory, but deficiency in the faculty of reasoning…..inability to communicate correctly thoughts to another or the like.

Fulfilment of the requirements is documented by Western Area Psychological Services in their opinion dated 10 December 1999.  In the same case, on the same page, his Honour Justice Mayo said:

It may be accepted that the phrase “of unsound mind” in the sub‑section is sufficiently comprehensive to include any person who by defect of reasoning powers is unable to understand the matters involved, and in his own mind necessary to decide whether he will or will not institute litigation, and who is unable to give directions accordingly.

Following evidence to the case, and it is the judgment of his Honour Justice Barr and opinion of Western Area Psychological Services dated 10 December 1999, my mother is asking the honourable Court to consider that she has been having problems with reasoning powers and without learning step by step and being directed and my mother is still unable to conclude and decide in most matters on time and the extent of time is sometimes very long.

My mother does not suffer mental condition any longer but she can rely on presenting of the case in writing only.  I am asking the honourable Court to consider that my mother was unable to give directions when it was time to institute the proceedings for damages.  Answering to what Master Harrison wrote in application book 22, 5, my mother did not understand the matters involved and I wish to confirm that she quoted on page 62, 10‑15 of the application book that:

“brain craves information and when it cannot come by the data honestly, it does the best it can….”

The information comes from Time magazine, 31 July 1995.  It was presented to the Supreme Court.  This agrees with the new research on Nardil from Canada, that Nardil causes down regulation of receptors, causing learning difficulties and memory problem in task dependent manner.  I am presenting it to the Court and I am asking for attention to page 1 and 7.

My mother is also fulfilling requirements to extension of limitation period with the details in the annexure.  Master Malpass in application book 9, 5, wrote that:

In the circumstances of this case, the plaintiff must satisfy the threshold requirements found in both (a) and (b) of subsection (1) of section 60I.  In my view, neither of these requirements have been satisfied.

Up to 1999 my mother did not know that she suffered traumatic induced cognitive impairment with bran impairment.  This year, on ground of judgment of his Honour Justice Barr, she finished establishing the nature of her injury.  This year she became aware that she suffered also physical injury to her brain frontal lobes.  As presented in the supplementary summary of argument this year, she found, from TV – Dr Phelps – confirmed also on Internet, about the connection of such injury with personality changes and also this year she has found about the extent of her injury like it was presented to his Honour Justice Barr, and that it is apparent brain damage.

She insisted before his Honour Justice James on small strokes, because of the ischaemic changes in the white matter of her brain as in the report from MRI scan by radiologist, Dr Ho.  They were acknowledged by a neurologist, Dr Walker, in his letter dated 15 April 1998.

The research from Canada does not give any answer on mechanism, how Nardil causes memory problems, learning difficulties and down regulation of receptors, but on ground of the ischaemic changes and evidence of personality changes that she has suffered, she would like to ask the honourable Court still to consider the strong suggestion that due to Nardil she suffered a number of small strokes.  The changes on her brain, considered as pathological, put attention his Honour Justice Sperling, application book 27, line 40 to 45, and his Honour Justice James in application book, page 31, line 30 to 35.

As she is satisfying the requirements of section 60F and 60I, I am asking the honourable Court for application of section 60G with cause of action that accrued, or would have accrued, on or before 1 September 1990 by operation of clause 4 of Schedule 5.  She is relying here on Limitation Act 1969, and what she found in Dedousis v The Water Board (1994) 181 CLR 171.

She is using section 60F and this section “provided procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of” in her case “nature, extent or cause of the” in her case “impairment” considered as apparent brain damage at the relevant time.  This procedure is available for causes of action accruing on or after 1 September 1990 and also by the operation of Schedule 5 for causes of action that accrued before that date.

Section 60G empowered a court to extend the application limitation period if it decided that it was just and reasonable to do so.  She is asking the honourable Court for such consideration.  Section 60I provided that the Court might not make an order under section 60G unless satisfied that “(a) the plaintiff (i) did not know that personal injury had been suffered” ‑ and she did not know ‑ and “(ii) was unaware of the nature or extent of the personal injury suffered”.  This applies to her.  She knew about some extent, but not like his Honour Justice Barr wrote that it is “apparent brain damage”.  Subsection (iii) “was unaware of the connection between the personal injury and the defendant’s act or omission at the expiration of the relevant limitation period”.  This also applies to her case.

The application is made within three years after the plaintiff became aware of all three matters listed in paragraph (a)(i) to (iii).  Clause 4, Schedule 5 provided that section 60G applied to causes of action that accrued before 1 September 1990.  Subclause (4) empowered the court to make an order under section 60G on an application made within the period of three years referred to section 60I.

She believed that she fulfilled all the requirements in evidence which I am asking the honourable Court to take under consideration and, in particular, the assessment of Western Area Psychological Services, the judgment of his Honour Justice Barr, evidence that she did not point on before the Court of Appeal, but was presented before the Supreme Court and her summaries of argument, which I will quote in the further part of her submissions.  Details in the attached annexure.

The judgment of Master Harrison, which helps in establishing negligence of Dr Woodforde, was for her disadvantage in similar way like was judgment of his Honour Justice James because before the officers of the Supreme Court there was not yet then evidence of her brain impairment as by Western Area Psychological Services, and brain damage as by his Honour Justice Barr.

Apart from discretion allowing her ‑ the CSIRO to be held responsible for her brain damage, his Honour Justice James put attention to what is very significant to decisions in the case, because his Honour Justice James wrote:

Further, she relies upon MIM’s references to contra‑indications for Nardil and the references made by Dr Jungfer to those contra‑indications to support the proposition that a potential for Nardil to cause cerebrovascular accidents has been known since 1985.  From that and bearing in mind what she contends her condition to have been at the time at which the prescription occurred, that is suffering from headaches and blood pressure problems –

The judge refers to an opinion of doctor of medicine, Dr Jungfer, and references in MIMS Annual 1985, as a strict references and they are:  “Nardil should not be administered to any patient.  A patient with hypertension or significant history of headaches”.  As she wrote her supplementary summary of argument, there is attached evidence that Dr Woodforde prescribed her Nardil on 4 July 1986 for panic disorder and not anxiety disorder.  I would like to quote the following authority:  Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital at 889 said:

The “prudent patient” test calls for medical evidence.  The materiality of the risk is a question for the court to decide upon all evidence.  Many factors call for consideration.  The two critically important factors are the degree of probability of the risk materialising and the seriousness of possible injury, if it does.  Medical evidence will be necessary so that the court may asses the degree of probability and the seriousness of possible injury.

The degree of probability of the risk materialising and not remoteness following medical evidence of Dr Jungfer and MIMS Annual 1985, as in judgment of his Honour Justice James, was extremely high, and as possible injury related to a brain, the second factor required by Lord Scarman could not be fulfilled any better.  I am asking the honourable Court for consideration that on the above “prudent patient” case, she would have had to disclose the risk of cerebrovascular accident and the risk of possible brain damage before she was prescribed Nardil.  As presented in the application book on page 84, line 10, this did not take place.

The Court of Appeal was in possession of evidence of organic cerebral impairment in the medical report of Dr Roberts, who is a psychiatrist, so she understands that there was some ground to treat the evidence as not sufficient.  Her injury of cognitive impairment did not allow her to be on time with the assessment of Western Area Psychological Services dated 9 August 1989 to the Court of Appeal.  She is presenting the assessment to the honourable Court.  On pages 2 and 17, it confirms diagnosis of organic cerebral impairment.

This year also his Honour Justice Barr expressed in his judgment that she suffers apparent brain damage.  I appreciate that the Court of Appeal put attention to the fact that she was prescribed Nardil while suffering high blood pressure, but the court did not put any attention to the paramount fact that in the case that the drug was prescribed to her 14 months after anxiety disorder was diagnosed, and not for anxiety disorder but for its complications, and when she suffered, also, hormone disorder.

The condition cannot be placed, even in third stage of nervous breakdown as in “Understanding stress breakdown” by Dr Wilkie.  I am asking the honourable Court to consider that the Court of Appeal was wrong by not joining Dr Woodforde to the case.  As in the opinion letter of the late Professor Shearman to Dr Westerink, dated 7 May 1987, hormone disorder was not only due to anxiety but also due to distress what is an acute suffering and following any dictionary “distress” means to cause anxiety and to stress to someone.

Her anxiety grew during negligent treatment by Dr Woodforde because had not even basic Freudian psychotherapy what confirms first medical report of Dr Woodforde where nothing can be found what has happened at the CSIRO, and 14 months after anxiety disorder was diagnosed, and when still nothing was sorted out from the CSIRO, and her condition deteriorated to hormone disorder, when she was prescribed Nardil, and when Dr Woodforde knew that she was self-medicating with alcohol because she could not cope.

Nardil, which was prescribed to her while she was already suffering headaches and high blood pressure, brought to non‑surgical chemical lobotomy confirmed by his Honour Justice Barr as apparent brain damage.  In the matter I would wish the honourable Court to see the opinion of Dr Breggin as in “Medication of the Mind” by S.K. Veggeberg, and the medical report of Dr Bogan that still, in 1997, my mother suffered significant frontal lobe deficit.  I would wish the Court to see affidavit of myself, sworn 24 June 1996, that she is having serious problems with tasks of everyday life.

After treatment by Dr Woodforde, her psychological state was very bad.  This confirms the referral of Dr Ralling to Dr Westerink dated 4 April 1987, which reports her suicidal, homicidal thoughts – page 1 – and consciousness problems – page 2 – to a degree of differential diagnosis of Gansers Syndrome – page 4.  Also Dr Lianos described her condition as serious.  In Sidaway v Board of Governors of the Bethlem Royal Hospital, Lord Templeman, at 903 to 904, section H to A, said:

A doctor offers a patient diagnosis, advice and treatment.  The objectives, sometimes conflicting, sometimes unattainable, of the doctor’s services are the prolongation of life, the restoration of the patient to full physical and mental health and the alleviation of pain.  Where there are dangers that treatment may produce results, direct or indirect, which are harmful to the patient, those dangers must be

weighed by the doctor before he recommends the treatment.  The patient is entitled to consider and reject the recommended treatment and for that purpose to understand the doctor’s advice and the possibility of harm resulting from the treatment.

Dr Woodforde did not weigh any dangers because, also against indications in MIMS Annual 1985, he prescribed her Nardil without trying any other antidepressants.  Also she believes that he did not weigh any dangers if he decided not to hospitalise her, if he prescribed her Nardil 14 months from diagnosis of anxiety disorder when she was suffering complex third stage of breakdown with chronic gastritis, irritable bowel syndrome, ulcer and, in addition, hormone disorder.

While on an increased dose of Nardil with the end of July, started her not adequately functioning and specific headache pain in the top of her head.  She stopped to function adequately because at 3.10 am she wrote a phonogram to Dr Woodforde dated 31 July 1986, asking the psychiatrist for referral.  She was in pain.  Dr Woodforde did not stop, nor change the medication.

In 1986, also started her slow, slurred speech, documented by Westmead Hospital.  Dr Woodforde knew about it because she started to present with strange speech during consultations, like she presented during settlement of index, and the doctor has done nothing.  While on an increased dose of Nardil, she suffered amnesia and was in a state with attention drawn to conscious, unconscious state, what documented ambulance service on 17 October 1986.

About her amnesia, Western Area Psychological Services wrote in their assessment dated 9 August 1999 on page 5.  She had no cognitive state examination in hospital, but following testimony of Ms Russel, as in the transcript to N90/200, before the Administrative Appeals Tribunal, page 132 to 134, she did not recognise her as a neighbour and a friend.  She was not aware of it, but Dr Woodforde has done nothing and did not stop or change the medication she was on.  As presented already, following referral of Dr Rallings to Dr Westerink dated ‑ ‑ ‑

GLEESON CJ:   Yes, thank you.  Your time is up, thank you.  We do not need to hear you, Mr Taylor or Mr Harrison.

The Court is of the view that there is no reason to doubt the correctness of the decision of the Court of Appeal in this matter.  The application is dismissed with costs.  We will adjourn to reconstitute.

AT 12.10 PM THE MATTER WAS CONCLUDED