Dorsett v Janeska
[2005] WASCA 215
•16 NOVEMBER 2005
RICHARD WARREN DORSETT as Administrator of the Estate of ANDREW WARREN DORSETT (DEC) -v- JANESKA [2005] WASCA 215
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 215 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:94/2004 | 18 AUGUST 2005 | |
| Coram: | WHEELER JA MCLURE JA MILLER AJA | 16/11/05 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | RICHARD WARREN DORSETT as Administrator of the Estate of ANDREW WARREN DORSETT (DEC) JOHN JANESKA |
Catchwords: | Tort Personal injuries Assessment of damages Causation Drug addiction and antisocial behaviour Turns on own facts |
Legislation: | Nil |
Case References: | Bennett v Minister of Community Welfare (1992) 176 CLR 408 Chappel v Hart (1998) 195 CLR 232 Fox v Percy (2003) 214 CLR 118 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Purkess v Crittenden (1965) 114 CLR 164 QBE Insurance Ltd v Switzerland Insurance Workers' Compensation (NSW) Ltd (1996) 70 ALJR 281 State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 Yates v Jones (1990) Aust Torts Reports 81-009 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Havenaar v Havenaar [1982] 1 NSWLR 626 March v E & M H Stramere Pty Ltd & Anor (1991) 171 CLR 506 Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487 Watts v Rake (1960) 108 CLR 158 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RICHARD WARREN DORSETT as Administrator of the Estate of ANDREW WARREN DORSETT (DEC) -v- JANESKA [2005] WASCA 215 CORAM : WHEELER JA
- MCLURE JA
MILLER AJA
- Appellant
AND
JOHN JANESKA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : WILLIAMS DCJ
Citation : DORSETT -v- JANESKA [2004] WADC 128
File No : CIV 3395 of 2002
(Page 2)
Catchwords:
Tort - Personal injuries - Assessment of damages - Causation - Drug addiction and antisocial behaviour - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr P R Momber
Solicitors:
Appellant : Friedman Lurie Singh & D'Angelo
Respondent : Peter Momber
Case(s) referred to in judgment(s):
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Fox v Percy (2003) 214 CLR 118
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Purkess v Crittenden (1965) 114 CLR 164
QBE Insurance Ltd v Switzerland Insurance Workers' Compensation (NSW) Ltd (1996) 70 ALJR 281
State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303
Yates v Jones (1990) Aust Torts Reports 81-009
(Page 3)
Case(s) also cited:
Commonwealth of Australia v McLean (1996) 41 NSWLR 389
Havenaar v Havenaar [1982] 1 NSWLR 626
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
Telstra Corporation Ltd v Smith (1998) Aust Torts Reports 81-487
Watts v Rake (1960) 108 CLR 158
(Page 4)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with those reasons and have nothing to add.
2 MCLURE JA: This is an appeal from an assessment of damages for personal injuries suffered by Mr Andrew Dorsett ("the plaintiff") arising out of a motor vehicle accident on 15 November 1997 ("accident"). Liability was admitted. The plaintiff was a 21-year-old university student at the time of the accident. The trial was conducted in the period 22 - 26 March 2004. Reasons were delivered and judgment entered on 25 June 2004. The plaintiff was awarded the sum of $79,100.
3 The plaintiff died on 6 December 2004. The appeal is now pursued on behalf of his estate. The appeal is from the award for past and future loss of earning capacity and the failure to award any amount for future medical expenses.
Background and Findings
4 The plaintiff was riding a motorcycle at the time of the accident. Physical injuries caused by the accident resulted in the removal of the plaintiff's spleen and the partial removal of his left kidney. He also fractured the left L1 and L2 transverse processes in his back and fractured his wrist which was placed in a splint. In addition, he suffered multiple minor injuries, lacerations and abrasions. He spent about 12 days in hospital but was subsequently readmitted for a few days because of an ischaemic finger resulting from a fibreglass splinter from the wrist splint.
5 In early January 1998 the plaintiff suffered urinary and genital symptoms resulting from a stent in his kidney associated with the kidney surgery.
6 On 13 February 1998 the plaintiff suffered an epileptic seizure. He had no prior history of epileptic symptoms.
7 There was evidence that the plaintiff used illicit drugs before and after the accident. For example, there was evidence that as at May 1998, the plaintiff had an eight-year history of "recreational" drug use, including intravenous amphetamines, cocaine, heroin and daily cannabis use. His post-accident drug use included cannabis and amphetamines. Notwithstanding the plaintiff's patently disingenuous denials of the nature and extent of his drug use, the trial Judge found that the plaintiff had been taking illicit drugs both before and after the accident. Further, after the
(Page 5)
accident the plaintiff was also taking a prescribed medication called MS Contin (slow-release morphine) for alleged back pain.
8 The plaintiff was convicted of a number of criminal offences after the accident. In February 1998 the plaintiff wrote a letter containing a death threat to the mother of his child. The plaintiff was charged and convicted for this conduct and released on an intensive supervision order.
9 Thereafter there were a series of drug-related convictions in the Court of Petty Sessions as follows:
19 April 2000 - Possession of a quantity of drugs with the intention to sell or supply;
19 April 2000 - Possession of a smoking implement;
19 April 2000 - Cultivating a prohibited plant;
12 July 2000 - Possession of a prohibited drug;
12 July 2000 - Possession of a smoking implement.
10 On 4 December 2000 the plaintiff appeared in the District Court for breaching the intensive supervision order and received a term of imprisonment of 15 months suspended for 15 months.
11 On 23 August 2001 the plaintiff was convicted in the District Court of assault occasioning bodily harm, aggravated burglary and intent to cause grievous bodily harm. The total sentence for those offences was 13 years but the sentences were made concurrent and the head sentence was 5 years and 6 months' imprisonment. It seems the offences were committed in April 2000.
12 The plaintiff had no record of convictions for offences committed before the accident. He left school in 1992 when he was in year 11 and worked at various jobs until October 1996. He obtained mature age entry to Murdoch University and commenced studying psychology in 1997. He worked part-time for his father while studying.
13 The trial Judge found that the plaintiff was not a credible witness. He also found, in effect, that the information provided by the plaintiff to medical practitioners for diagnostic and treatment purposes was unreliable. These adverse findings are amply supported by the evidence. They are not challenged by the appellant.
(Page 6)
14 The plaintiff claimed in his pleading that as a result of the accident he suffered serious head injuries with a sequelae of epilepsy, depression, stress and psychological trauma.
15 Building on the credibility findings, the trial Judge found that the plaintiff (1) did not suffer an accident-caused head or brain injury; (2) had generalised epilepsy that he was born with; (3) had recovered from the physical injuries to his lumbar spine (back) and wrist; (4) had a permanent sexual disability of 25 per cent; (5) suffered some accident-caused stress and psychological trauma; (6) suffered significant depression after the accident but that had substantially settled by late 1998; (7) by the end of 1998 the plaintiff had largely recovered from his accident-related disabilities and thereafter his earning capacity was unaffected by accident-caused disabilities. Any ongoing psychiatric or psychological conditions were said to be a result of the plaintiff's chosen lifestyle of antisocial conduct.
16 Based in part on video surveillance films of the plaintiff in September 1998, the trial Judge found that the plaintiff's back injuries had resolved by the end of 1998. However, the plaintiff was still taking pain medication for his back at the time of trial. Further, the trial Judge found that the plaintiff had been taking a large number of medications without proper medical cause.
17 Both at trial and in the appeal, the appellant sought to establish a causal connection between the accident and the plaintiff's post-accident antisocial (criminal) behaviour. The appellant relies on five grounds of appeal. Parts of grounds 2 and 5 are not pursued. The first three grounds of appeal substantially overlap. The grounds pursued in the appeal are as follows:
"1. The learned trial Judge failed to consider either properly or at all the issue of causation insofar as it related to the [plaintiff's] accident caused disabilities. Had the matter been properly considered by him, the trial Judge would have found that the accident produced a significant psychological change in the [plaintiff] such as to result in:
(a) the [plaintiff's] altered personality;
(b) the onset of antisocial personality behaviour;
(c) the criminal consequences of that behaviour;
(Page 7)
- (d) the [plaintiff's] genuine belief as to his physical incapacity;
(e) the [plaintiff's] addiction to prescription medication.
- Had the trial Judge properly determined that issue then the [plaintiff] would have been compensated on the basis that the accident caused his psychological disability resulting in him suffering significant … loss of earnings and earning capacity as a consequence thereof.
- 2. (b) [The trial Judge] was wrong in determining the case on the basis of use of illicit substances when there was no evidence at all that any pre-accident use had in any way adversely affected his ability to work or study or had any impact on his amenity of life. In this regard the trial Judge again failed to address the critical issue of causation and his Honour failed to distinguish between the use of those substances as compared to addiction to same;
(c) The trial Judge failed to consider either properly or at all the evidence of the [plaintiff's] pre-accident good character including evidence that was not challenged by cross-examination in that regard.
3. The learned trial Judge was wrong in fact and in law in failing to consider either properly or at all the evidence in respect of character changes arising from the accident (and the impact thereof upon his demeanour and presentation) when there was evidence of:
(a) his pre-accident good character including unchallenged evidence;
(b) the probable impact of the accident from Dr Silbert (whose evidence the trial Judge accepted in full) that the trauma of the accident per se was sufficient to bring about personality changes even without brain injury. Such changes being similar to those observed in the [plaintiff];
(Page 8)
- (c) evidence of almost immediate post-accident depression, anxiety and psychiatric symptomology including personality change.
- 4. The learned trial Judge was wrong in failing to find that the accident was a cause of the [plaintiff's] onset of epilepsy as the evidence of Dr Silbert was that although the [plaintiff] had a latent disposition to epilepsy it may never have developed in his lifetime but for the trauma of the accident and treatment for his injuries.
5. Further and alternatively, even on the findings made by [the trial Judge], the award of damages under all heads is too low and so far outside a sound discretionary range and in particular:
(a) …
(b) the failure of his Honour to award any amount for future medical expenses is wrong in that:
(i) the uncontradicted evidence of Dr Adams, which was accepted by the trial Judge, was that the [plaintiff] had suffered permanent sexual disability and would require future medication, including Viagra, and future psychological treatment for same;
(ii) the evidence was that the [plaintiff's] loss of spleen could cause him to be at a risk of pneumococcal or meningococcal infection which would require him to be treated with antibiotics;
(c) the awards for past loss of earnings and future loss of earning capacity are too low given the severity of his injuries."
(Page 9)
Grounds 1, 2 and 3
19 A number of the grounds complain that the trial Judge failed to consider certain matters. A court has a duty to consider issues clearly raised in the proceedings: QBE Insurance Ltd v Switzerland Insurance Workers' Compensation (NSW) Ltd (1996) 70 ALJR 281 at [20] and [24]. Whether or not a breach of the duty gives rise to appealable error depends on the circumstances. None of the matters listed in subpars (a) to (e) of ground 1 were pleaded. The appellant primarily relied on his written closing submissions in support of his contention that the issues were ventilated at trial. The written submissions are to the effect that the evidence demonstrated a post-accident change in personality and character resulting from a brain injury or trauma caused by the accident; the plaintiff's lifestyle and working ability was compromised by impaired cognitive functioning due to the consumption of significant amounts of prescribed medication; and the plaintiff was entitled to lost earnings for the period in which he was in prison, including on remand. The respondent conceded that these matters were litigated.
20 The appellant variously refers to "psychological change", "personality change" and "character change" in the grounds of appeal. The terms seem to be used interchangeably. They are certainly used without identifying whether there are any, and if so what, differences between them. It appears that psychological change (and disability) is intended to refer to the plaintiff's post-accident depression and anxiety. As emerges from the trial transcript, the trial Judge regards these as psychiatric disabilities. Personality and character changes are apparently used interchangeably to refer to changes said to be demonstrated by the plaintiff's post-accident antisocial (criminal) behaviour. At no stage did the plaintiff (or the appellant) clearly identify the nature of the alleged personality changes or how they related, if at all, to the plaintiff's post-accident depression and anxiety. However, it is clear from the cross-examination of experts by the plaintiff's counsel that the primary thrust of the plaintiff's case at trial was that the alleged antisocial conduct-related personality change was symptomatic of a brain or head injury or an "unidentified" psychiatric condition. It was only after Dr Silbert (a neurologist called by the respondent) gave evidence that the plaintiff contended that the personality change was attributable to accident-caused "trauma".
21 The trial Judge deals with the plaintiff's antisocial behaviour in the course of considering the plaintiff's pleaded claims that he suffered depression, stress and psychological trauma, which he described as the
(Page 10)
- hub of the plaintiff's case. The trial Judge referred to the evidence of the expert psychologists and psychiatrists called by the parties. The plaintiff called, inter alia, a clinical psychologist, Ms L Coxon, and a psychiatrist, Dr Shannon. Ms Coxon conducted neuropsychological tests of the plaintiff in February and March 2003, some five years after the accident. She concluded that the plaintiff had a significant impairment in information-processing ability due to brain disruption caused by the accident. The trial Judge did not accept Ms Coxon's findings because they were based on inaccurate information from the plaintiff. Ms Coxon acknowledged that mind-altering drugs of an illicit nature were capable of producing the same impairments that she concluded the plaintiff suffered from. Dr Shannon also diagnosed the plaintiff as having cognitive dysfunction which he attributed to an accident-caused head injury.
22 The trial Judge preferred the evidence of Ms Vidovich, a neuro-psychologist, and Dr P McCarthy, a psychiatrist, both called by the respondent. Ms Vidovich saw the plaintiff for the first time in February 2004. The trial Judge described Ms Vidovich's evidence as follows:
"Ms Vidovich's conclusions were that given features of his test taking behaviour and aspects of his test performances the validity of his current neuro-psychological profile was highly questionable. The observed abnormalities across a number of his test results were unlikely to accurately reflect his cognitive capacity and were not commensurate with an organic pattern of brain damage. In addition the pattern of his test results does not make neurological sense in relation to a closed head injury. Firstly, if his cognitive difficulties were the product of a head injury they should not worsen over time as noted in the discrepancy between his current test results and those documented by Ms Coxon in 2003. Secondly … if the results obtained at the time of the assessment with Ms Coxon some six years post his accident were due to brain injury his cognitive symptoms would have been most marked immediately following the accident, which does not appear to be the case.
Ms Vidovich was of the view that the abnormal performances within his current neuro-psychological profile would be most unlikely to be the direct result of his accident. There was also insufficient evidence to suggest that at the time of the accident he sustained a closed head injury likely to result in any organic based persisting cognitive difficulty."
(Page 11)
23 Dr McCarthy saw the plaintiff on 24 February 2004. He concluded that the plaintiff was not being frank during his interview and that he offered misleading and contradictory information. Further, it was Dr McCarthy's opinion that the plaintiff was cognitively fit to attend university and had no degree of permanent psychiatric disability, either of a psychiatric or neuro-psychiatric nature that may reasonably be attributed to the accident.
24 The trial Judge concluded as follows:
"It is quite apparent throughout the medical reports that the plaintiff has built up his story about being unconscious for a number days following the motor vehicle accident and the fact that he has suffered a serious head injury. The evidence in that respect is quite to the contrary. This aspect was fully explored by Dr Silbert, the neurologist, whose evidence I accept in full.
I accept that the plaintiff suffered significant depression after the motor vehicle accident but it is quite apparent from the report of Mr Falkner, the psychologist, that that had substantially settled by late 1998.
Thereafter any depression suffered by the plaintiff, if at all, has not been caused by the motor vehicle accident but by the lifestyle chosen to be led by the plaintiff by way of his anti-social behaviour, which has resulted in the criminal convictions that he has received. In my view no connection has been established between the plaintiff's lifestyle and his criminal convictions following the motor vehicle accident with any head injuries suffered by the plaintiff.
I accepted the motor vehicle accident has caused some stress and some psychological trauma. However, I do not accept that he has suffered a brain injury as a result of the motor vehicle accident.
The allegations in this respect were multifocused. Although it was asserted during the trial that the plaintiff had suffered a brain injury of some kind as a result of his accident, it is pertinent to note that is not even pleaded."
25 Turning to the trial Judge's calculation of loss of earning capacity. He referred to the relevant evidence. During the year 1997 the plaintiff was earning $100 per week working for his father and was on Austudy.
(Page 12)
26 During the first semester of 1997 he passed two units, withdrew from a third and failed the fourth. The accident happened towards the end of the second semester. During the first semester of 1998 he enrolled in three units and withdrew early. In the first semester of 1999 he enrolled in three units, passed two and withdrew in the third. Thereafter he variously passed, withdrew or failed down to 2003. At the time of trial the plaintiff was not studying but still intended to do a psychology degree. The trial Judge described the plaintiff as a fairly ordinary student both before and after the accident.
27 Having found that the plaintiff had recovered from his injuries towards the end of 1998, the trial Judge continued:
"In my view if I allow the plaintiff past loss of earnings for a period of 12 months following his motor vehicle accident there is no other evidence of any loss of earning capacity. The plaintiff has been quite capable of getting on with his life including study at university thereafter.
In my view the plaintiff should be entitled to a lump sum for the 1998 year including loss of part-time earnings of approximately $100 per week, loss of the chance to have graduated as a psychologist earlier than he might otherwise have, if at all, and any loss of superannuation that might involve. For those amounts I award the plaintiff a lump sum of $30,000."
28 There is no challenge to the trial Judge's finding that the plaintiff did not suffer an accident-caused head or brain injury. The appellant relies on the evidence of Dr Silbert in support of the proposition that accident-caused trauma resulted in a personality change.
29 Dr Silbert was called by the respondent to give evidence about the cause of the plaintiff's epilepsy. In cross-examination he was asked about the link between personality change and head or brain injury. Counsel's questioning provides the only insight into what he meant by personality change. Dr Silbert was asked:
"If you have got an impact at 50 to 60 kilometres an hour straight on the head, you have got amnesia and then on the evidence that the court has heard and is before the court, we have significant personality changes; a person who's working, studying, been out of trouble till he's 21 and within two months starts essentially being extremely anti-social. Again, change of personality is a recognised result of brain damage?"
(Page 13)
30 Thus, the plaintiff relied on his post-accident antisocial criminal conduct as evidencing "personality changes" said to be symptomatic of a brain injury. Dr Silbert responded that he did not review the plaintiff regarding the neuropsychological aspects because the plaintiff did not wish to return to see him to discuss it further. He was then asked to comment in general terms on the assertion that there is a link between personality changes and brain injuries. Dr Silbert did not accept that there was necessarily such a link; whether there was depended on the particular circumstances. Counsel pursued the matter further:
"All right. Isn't it the case that if there are personality changes within a very short time of a traumatic incident such as this involving the head, as in this case, there was a very real possibility that he suffered some form of brain injury?---Not at all. The implications of having an operation, spending time in ICU, having a ruptured spleen, your left renal laceration, your pancreatic contusion, a fractured wrist … bilateral knee abrasions, bruised chest, fractured left L2 transverse process. He had an operation which takes out your spleen. You have a big retroperitoneal haematoma. You have a stent put in your ureter. I mean, that's an enormous amount of trauma and that in itself will change a person. It doesn't mean it's necessarily brain trauma."
31 The plaintiff's counsel then asked Mr Silbert about the content of a report in evidence by Dr Febbo, a psychiatrist who saw the plaintiff in prison. Dr Febbo's report is not in the appeal book. Dr Febbo appears to have been speculating about the causes of the plaintiff's offending. Dr Silbert draws counsel's attention to what Dr Febbo said under question 6 as follows:
"It may be that there are pre-existing personality factors and I note there was a degree of instability even prior to the motor vehicle accident. There was significant pre-existing substance abuse. There are social factors - including the estrangement from his daughter that have been associated with significant stress. Aspects of Mr Dorsett's medication regime, benzodiazepines, may well be associated with disinhibition and have a negative impact on his mental state and behaviour. There are many variables that would be far more likely to be contributing to his behaviour patterns than a closed head injury."
(Page 14)
32 Dr Silbert was again asked about the cause of the personality changes:
"Is it your evidence then if he has these personality changes, it is equally conceivable that the cause of those are the multiplicity of injuries he suffered and the sequelae of those, that is his spleen and all that sort of stuff?---I think the trauma of the medical and surgical process superimposed upon his pre-existing personality that Dr Febbo refers to will certainly alter a person and cause their pre-existing personality traits to become more obvious and we commonly see that in patients when they're in hospitals, families of patients when they're in hospital and there's traumatic experiences, they behaviour very differently, very strangely."
33 Dr Silbert was asked to assume that there had been personality changes. He was not in a position to assess the accuracy of the assumption. His evidence goes no further than that the type of trauma to which the plaintiff was exposed was capable of changing a person's personality or causing a person to reveal their pre-existing personality. Dr Silbert was not asked whether the change was permanent or temporary.
34 The essence of the appellant's claims in grounds 1 to 3 is that if the trial Judge had taken into account the matters referred to therein, he should have found that the plaintiff was still suffering from accident-caused disabilities at the time of trial which significantly impaired his earning capacity.
35 More particularly, the appellant's case (as I understand it) is that the accident changed the plaintiff from a "normal" young man who was studying, working part-time, had no criminal convictions and who used illicit drugs but was not shown to be addicted or dependent, to the man who gave evidence in the witness box: a man who engaged in antisocial behaviour resulting in criminal convictions, who was addicted to prescribed medications that impaired his cognitive functioning and who could not be believed on his oath. According to the appellant, the changes (variously described as character, personality or psychological) after the accident were such as to require the trial Judge to draw an inference that the behaviour was caused by an injury or trauma which was in turn caused by the accident. In that context, the appellant relied on Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303 at 310 and the principle in Purkess v Crittenden (1965) 114 CLR 164 at 168 which provides that where a plaintiff has made out a prima facie case that the incapacity
(Page 15)
- complained of resulted from the defendant's negligence, the onus of adducing evidence that the incapacity is wholly or partly the result of some pre-existing condition, or would in any event have resulted from a pre-existing condition, rests upon the defendant.
36 It is apparent that the appellant is indirectly challenging the central factual findings made by the trial Judge. Those findings are, firstly, that the accident-caused physical injuries and the plaintiff's depression, stress and psychological trauma had ceased by late 1998. The plaintiff was awarded damages for loss of earning capacity for this period without reduction for the time spent in remand in relation to the plaintiff's criminal conviction in 1998. There was no claim that the 1998 conviction adversely affected his employment prospects.
37 The corollary to the first finding is the trial Judge's conclusion that any ongoing psychiatric or psychological condition after the end of 1998 was as a result of the plaintiff's chosen (voluntary) lifestyle and antisocial behaviour. This involves an express rejection of any causal link between the accident and the plaintiff's antisocial conduct after the end of 1998.
38 In order to succeed, the appellant must establish that these findings were not reasonably open on the evidence. Further, as the findings are largely based on the trial Judge's assessment of the plaintiff in the witness box, they can only be disturbed by an appellate court where they are inconsistent with facts incontrovertibly established by the evidence or are otherwise glaringly impossible: Fox v Percy (2003) 214 CLR 118.
39 Returning to the appellant's contentions. Aspects of the factual substratum on which grounds 1 to 3 depend are not borne out by the reasons or the evidence. Firstly, the trial Judge did not determine the case on the basis of the plaintiff's use of illicit drugs as alleged in ground 2. The central finding that the accident-caused disabilities had largely resolved and did not impair the plaintiff's earning capacity after the end of 1998 was based on the evidence of Dr Falkner, the video surveillance evidence and the plaintiff's lack of credibility and reliability as an historian. The finding is not directly or indirectly based on the plaintiff's pre and post-accident illicit drug use. Indeed, the trial Judge made no finding that there was any relevant change in the nature or extent of the plaintiff's illicit drug use after the accident. Further, it was not part of the plaintiff's case that he became addicted to illegal drugs as a result of the accident.
(Page 16)
40 Secondly, the plaintiff's addiction to prescription medication was not accident related. The appellant does not condescend to particulars of the medications to which the plaintiff was addicted. I assume it was to the pain-killers. The trial Judge's unchallenged finding is that there was no medical justification for the continued prescription and use of pain-killers, including MS Contin (or other medication) after the end of 1998. There is no suggestion the plaintiff was addicted to prescription medications by the end of 1998. Indeed, the evidence on which the trial Judge relied for his finding that the plaintiff had recovered by 1998 is to the contrary. Further, the evidence of the plaintiff's general practitioner, Dr Caddy, was that he first prescribed the plaintiff slow-release morphine in 2000.
41 Thirdly, the assertion as to the plaintiff's alleged "genuine belief" as to his physical incapacity is inconsistent with the trial Judge's finding concerning the plaintiff's credibility and reliability and the acceptance of Dr McCarthy's evidence. Further, the appellant does not identify any medical or other relevant evidence to support such a finding. It, together with any associated cognitive dysfunction, can be put to one side.
42 That leaves only the plaintiff's antisocial behaviour. Based on the questioning of Dr Silbert, the antisocial behaviour must relate to the plaintiff's post-accident criminal conduct. That is the factual context in which the plaintiff's contention on causation is to be determined.
43 The principle in Purkess v Crittenden has no relevance or application unless and until the evidence establishes a prima facie case of factual causation. The first question is whether the plaintiff established that, but for the accident, the plaintiff would not have engaged in antisocial criminal conduct. As a matter of fact, we are only concerned with the offences committed after the end of 1998.
44 Causation in fact is to be determined not according to scientific or philosophical theories of causation but by common sense principles. Thus, if a wrongful act results in an increased risk of injury or harm to the plaintiff of the type in question and that risk eventuates, the defendant's conduct will be held to have caused or materially contributed to the injury: Chappel v Hart (1998) 195 CLR 232 at 244, per McHugh J; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420 - 421, per Gaudron J.
45 In my view a comparison of the plaintiff's behaviour before and after the accident does not, as a matter of common sense, require or justify an inference that the accident caused his antisocial behaviour. In particular,
(Page 17)
- there is no proper basis to conclude that the respondent's negligent act increased the risk of antisocial criminal conduct. That is so, notwithstanding Dr Silbert's general evidence that trauma could cause personality changes. On the plaintiff's case, the antisocial behaviour and associated personality change are equivalents. The result on factual causation may have been different if the plaintiff had proven that he suffered a psychiatric or psychological injury of a nature that carried with it an increased risk of the harm that eventuated: Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6.
46 However, even if the plaintiff had established factual causation to the extent that damages were sought for economic loss arising from imprisonment, there are other impediments to establishing causation. Such damages are not, in my view, reasonably foreseeable and are too remote: State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500; Yates v Jones (1990) Aust Torts Reports 81-009. Further, there are public policy considerations that prevent a finding of tortious legal responsibility for damage resulting from the commission of a criminal offence for which a plaintiff has been punished by the criminal law: Wiegold at 514.
47 I turn now to the challenge to the trial Judge's finding that the plaintiff's depression or other psychological conditions had resolved by the end of 1998. There are insuperable difficulties in the way of that challenge. Firstly, the trial Judge found that the plaintiff was an unreliable historian which justified the rejection of the expert medical evidence that the plaintiff was continuing to suffer accident-related depression and anxiety after 1998. Secondly, the trial Judge accepted the evidence of Dr McCarthy that the plaintiff was not suffering from any accident-related mental condition after 1998. Thirdly, the finding is supported by the evidence of Dr Falkner and the video surveillance in September 1998. Fourthly, the medical evidence was that illicit drugs of the nature taken by the plaintiff after the accident could themselves cause depression, anxiety and psychotic effects. In these circumstances, the trial Judge's finding is not inconsistent with the facts incontrovertibly established by the evidence or glaringly impossible. For these reasons I would dismiss grounds of appeal 1 to 3.
Ground 4 - Epilepsy
48 The appellant contends the trial Judge erred in concluding that the plaintiff's epilepsy was not caused by the accident. He relies on the evidence of Dr Silbert. Dr Silbert identified certain factors that increased
(Page 18)
- the risk of epileptic symptoms. They include sleep deprivation, excessive alcohol consumption, certain types of illegal drugs (such as amphetamines, cocaine and cannabis) and some legal medications such as amitriptyline, an antidepressant. According to Dr Silbert, seizures can be avoided by prescribing alternative medications that do not have a pro-convulsive effect.
49 Shortly after the accident, the plaintiff was prescribed amitriptyline for his depression. On the night of his first seizure in February 1998, he had taken his prescribed dose of amitriptyline (50 mg's) but awoke later in the night and took a further 75 mg's against medical advice. According to the plaintiff, he suffered epileptic seizures approximately every six months.
50 Thus, on the evidence, the plaintiff was born with epilepsy but the risk of it becoming symptomatic was increased by, inter alia, the prescribed medication for depression. Those facts are prima facie sufficient to establish factual causation. That the plaintiff took more than the prescribed dose of amitriptyline against medical advice and was taking illicit drugs, in particular amphetamines and cannabis, after the accident arguably breaks the chain of causation. However, it is unnecessary to determine that question. The trial Judge found that the plaintiff's depression and other injuries had substantially settled by the end of 1998, at which time there was no need for further prescribed medication. With the cessation of the relevant medication, there was no connection between the accident and any increased risk of epileptic symptoms. Further, we were not referred to evidence that the plaintiff's epilepsy diminished his earning capacity or was productive of any financial loss. I would dismiss the ground.
Medical Expenses
51 The appellant contends the trial Judge erred in failing to award any damages in relation to the plaintiff's permanent sexual disability. Counsel for the appellant advised the Court that the only relevant period for which damages can now be awarded is the period between judgment and the plaintiff's death in December 2004. The claim is confined to the cost of Viagra.
52 Dr Stephen Adams, a specialist in sexual dysfunction, was called by the plaintiff. His evidence was unchallenged and thus accepted by the trial Judge. In his reasons, the trial Judge said:
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- "In a report dated 16 June 2003 Dr Adams reported that he believed that the plaintiff had suffered a permanent sexual disability relating to his accident of 25 per cent. …
Dr Adams was not cross-examined at all in relation to his evidence and I accept this assessment of the plaintiff's disability."
53 However, this finding needs to be linked with other findings made by the trial Judge. He found that the plaintiff was taking a large number of medications after the end of 1998 when, on his findings, there was nothing wrong with him. Further, when dealing with the plaintiff's schedule for future medical expenses which indicated that the plaintiff took 25 tablets a day at a weekly cost of $464.08, the trial Judge said:
"On my findings in relation to his medical evidence the plaintiff requires none of these tablets and I allow nothing in respect to this part of the claim."
54 Prima facie, it is difficult to reconcile all of the findings. The answer is in the oral evidence given by Dr Adams at trial. Dr Adams gave evidence as to the causes of the plaintiff's sexual problems. He identified the causes as the plaintiff's depression, his post-traumatic stress disorder and the significant amount of psychotropic and analgesic medication which the plaintiff was taking at the time. There is no finding that the plaintiff suffered post-traumatic stress disorder. Further, although the accident-caused disabilities had ended in late 1998, the plaintiff continued taking prescribed medication (and illicit drugs).
55 On my reading of the reasons in the context of the evidence, the trial Judge accepted that after 1998 the plaintiff was suffering from sexual dysfunction but that it was not attributable to the accident. In those circumstances, the trial Judge was correct in refusing to make any allowance for Viagra.
56 The appellant also contends that an allowance should have been made for antibiotics in view of the risk of infection arising from the appellant's loss of his spleen. Dr Paul Zilko gave evidence that there was a slight risk of infection which can usually be treated with adequate antibiotics. Based on the plaintiff's schedule of future medical expenses, he appeared to be claiming for a daily tablet of penicillin at a weekly cost of $3.15. There was no evidence to support that claim. The antibiotics would only be required if and when the slight risk of infection eventuated.
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In my view, the trial Judge did not err in failing to make an award in relation to antibiotics.
57 The final challenge relates to the award of past and future loss of earning capacity accepting the findings made by the trial Judge. The appellant does not identify precisely, or at all, why, if the trial Judge's findings are undisturbed, the award is said to be inadequate. I see no error in the approach taken by the trial Judge. Of its nature, the assessment involves a value judgment. I am not persuaded the amount awarded is outside the sound discretionary range. I would dismiss ground 5.
58 For these reasons, I would dismiss the appeal.
59 MILLER AJA: I have had the opportunity of reading in draft the reasons for judgment of McLure JA. I agree with those reasons and agree that the appeal should be dismissed. There is nothing I wish to add.
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