Dr Angus MacKinnon v Bluescope Steel Limited (Formerly known as BHP Steel (AIS) Pty Ltd) and Dalmau & Associates Pty Ltd - Cross Defendants - Draft One Communications Pty Ltd and McKenzie & Associates Pty Ltd - [2007] NSWSC 774

No judgment structure available for this case.

CITATION: Dr Angus MacKinnon v Bluescope Steel Limited (Formerly known as BHP Steel (AIS) Pty Ltd) and Dalmau & Associates Pty Ltd - Cross Defendants - Draft One Communications Pty Ltd and McKenzie & Associates Pty Ltd [2007] NSWSC 774
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 22,23,24,25,26,29,30,31 May 2006
1,2,5,6,7,8,9,13,14,15,16,19,20,22,23,26,27,28,29,30 June 2006
3,4,5,6,7,10,11,12,13,14 July 2006
18,21,22,23,24,25,28,29,30, August 2006
1,11,12,13,14,15,18,19,20,21,22,25,26,27,28,29 September 2006
3,4,5,6,9,10,11,12,13,16,17,18,19,20,23,24,25,26,27,30,31 October 2006
1,2,3,6,7 November 2006
16,17,18,19,20 April 2007

JUDGMENT DATE :
20 July 2007

JUDGMENT OF: Patten AJ at 1

DECISION: See paragraph 478

LEGISLATION CITED: Accident Compensation Act 1985 (Vic)

CASES CITED: Tame v State of NSW; Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348
Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845
Hatton v Sutherland [2002] 2 All ER 1
Wiki v Atlantis Relocations (NSW) Pty Ltd (2003) NSWSC 481.
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSW LR 307)
Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070
Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 53
T.C. by his Tutor Sabatino v State of NSW [2001] NSWCA 380
Jones v Dunkel (1959) 101 CLR 298

PARTIES:
Dr Angus MacKinnon - Plaintiff
Bluescope Steel Limited - First Defendant
Dalmau & Associates Pty Ltd - Second Defendant
Draft One Communications Pty Ltd - Cross Defendant
McKenzie & Associates - Cross Defendant

FILE NUMBER(S): SC 20429 of 1999

COUNSEL: Mr G Miller QC (until 13 June 2006), Mr H Marshall SC (from 26 June 2006) with Ms L McFee and Ms E Beilby (from 13 June 2006) - Plaintiff
Mr M Joseph SC with Ms V Heath - First Defendant
Second Defendant - No Appearance.
Mr P Blacket SC - Draft One Communications Pty Ltd
Mr A Colefax SC with Mr P Gow - McKenzie & Associates Pty Ltd

SOLICITORS: Keddies Litigation Lawyers - Plaintiff
Sparke Helmore - First Defendant
Second Defendant - Not Applicable
Henry Davis York - Draft One Communications Pty Ltd
Hunt & Hunt - Mc Kenzie & Associates Pty Ltd

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

20 July 2007

No: 20429 of 1999

Dr Angus MacKinnon v Bluescope Steel Limited (Formely known as BHP Steel (AIS) Pty Ltd
and
Dalmau & Associates Pty Ltd
JUDGMENT:

TABLE OF CONTENTS.

Paragraph
1. Introduction 1
2. Pleadings 6
3. Scope of issues raised 8
4. Damages for psychiatric injury 10
5. Uncontentious matters 23
6. Reliability of the Plaintiff’s evidence 65
7. Childhood 70
8. Schooling 88
9. Tertiary education 92
10. Friends and relationships 99
11. General health 102
12. Career in occupational health 104
13. Wife’s illness 120
14. Insurance 128
15. Employment with BHP 133
16. Presentation to family prior to September 1996 242
17. Attendance at Leadership Course 248
18. Breach of BHP’s duty of care? 264

19. The Leadership Course 277
20. Terminate participation? 388
21. Duromine 397
22. Plaintiff’s mental illness 413
23. Causation 454
24. Workers Compensation payments 460
25. Failure to call witnesses 465
26. Damages 476
27. Costs 477
28. Orders 478

INTRODUCTION:

1 This is a sad case; it concerns a medical practitioner who, at the height of his career nearly eleven years ago, exhibited florid symptoms of mental illness. He has since been unable to pursue his profession and that situation seems unlikely to change.

2 At the time, he was employed by the First Defendant, then called BHP Steel (AIS) Pty Ltd but now called Bluescope Steel Limited. For convenience, I will hereafter refer to the company as BHP and where relevant this will encompass its associated companies. For some years he received payments under the Workers Compensation Act but in this action sues BHP for damages at common law, claiming breaches of its duty of care towards him. He also sues as Second Defendant, Dalmau & Associates Pty Ltd, which did not appear when the matter was called on for hearing and has taken no further part in the litigation. In final submissions counsel for the Plaintiff indicated that he no longer seeks any relief against the Second Defendant.

3 At the hearing, which commenced on 22 May last year, the Plaintiff was represented by Mr G Miller QC with Ms L McFee and (from 13 June) Ms E Beilby. On 13 June it was announced that Mr Miller’s instructions had been withdrawn. Subsequently, on 26 June, Mr H Marshall SC announced that he appeared as senior counsel for the Plaintiff.

4 Throughout the hearing, BHP was represented by Mr M Joseph SC with Ms V Heath. Two cross defendants, were joined as such by BHP. Draft One Communications Pty Ltd, for whom Mr P. Blacket SC appeared, and McKenzie & Associates Pty Ltd for whom Mr A Colefax SC and Mr P. Gow appeared.

5 The hearing occupied some 89 days of evidence and there were in all 196 exhibits. Subsequently, counsel provided many hundreds of pages of written submissions which were supplemented by oral submissions in the week commencing 16 April 2007. I reserved judgment shortly before 4pm on Friday 20 April.

PLEADINGS:

6 In order to put the evidence at trial in context, it is desirable I think to reproduce such parts of the Statement of Claim as are necessary to indicate the many issues raised:

“3. At all material times, the Plaintiff was employed by the first defendant as and from 26 June 1995 as an occupational physician within the Occupational Health and Safety Division, Area One at its Flat Products Division Port Kembla in the State of NSW.

4. In the course of his employment, the Plaintiff’s job description extended from clinical to also include treatment and rehabilitation.

5. At all material times, the Plaintiff was supervised by Dr Darling (an employee of the First Defendant at its Port Kembla Plant).

6. At all material times, the First Defendant employed Dr Rod Harmon as Manager of Occupational Health and Safety and Risk at its Port Kembla Plant.

7. At all material times, the First Defendant employed Neil Harvey a psychologist at its Port Kembla Plant.

8. At all material times the Second Defendant was engaged in the business of conducting encounter group courses, otherwise known as leadership courses with the employees of various corporations paid for by the employers.

9. On or about 1996 (sic) the First and Second Defendants entered into a contract or arrangement to conduct “the BHP Steel leadership course”, (hereafter referred to as the “the course”) commencing on 8.00am on Friday, 27 September and concluding at 3.30 pm on 4 October 1996 at the Lancemore Hill conference Centre, Kilmore-Lansfield Road, Kilmore Victoria.

10. On or about September 1996 the Plaintiff was directed by the First Defendant to attend the BHP Steel Leadership course.

11. The First Defendant by its servants and agents represented to the Plaintiff, prior to such course, that:

(a) “All good employees who BHP are seriously investing in will go on this course”

(a) “This will be a really good course for you because the company really wants to develop you personally and this is a sign of their interest in you”.

(b) “One participant left the course in a foetal position. It is a life changing event”.

12. At all material times, the First Defendant owed the Plaintiff a non-delegable duty of care as his employer to prescribe, maintain, and otherwise enforce a safe system of work. In particular, a safe system whereby:

(a) The Plaintiff was only required to participate in appropriate training and courses, which participation would not expose the Plaintiff to a foreseeable risk of injury:

(b) The Plaintiff was permitted to perform his work prior to and after September 1996 in circumstances that would not expose the Plaintiff to a foreseeable risk of injury.

(c) The Plaintiff would be provided with and/or arrangements made for immediate medical assistance in the event of a foreseeable risk of injury.

13. ………………………………………...

14. It was the First and Second Defendants duty to the Plaintiff to ensure that each:

(a) Would take all reasonable precautions for the health, safety and welfare of the Plaintiff while he was engaged in his work.

(b) Would not expose the Plaintiff to a risk of damage or injury of which the First Defendant knew or ought to have known.

(c) Would provide and maintain a suitable and safe working environment to enable the Plaintiff to carry out his work in safety.

(d) Would take all reasonable measures to ensure that the place where the Plaintiff carried out his work was suitable and safe.

(e) Would provide and maintain a proper and safe system of work.

15…………………………………………..

17. In addition, the Plaintiff during the period of his attendance at the course was exposed to significant emotional stress, for which the First Defendant failed to provide immediate medical assistance and continued to fail to provide medical assistance on the Plaintiff ‘s return to Sydney, as a result of which he sustained severe psychiatric injury and disability and has suffered and continues to suffer injury, loss and damage.

18. The said injury, loss and damage was a result of breach of duty and negligence of the First and Second Defendant.

19. The said substantial loss and damage was due to the negligence of the Defendants either jointly and/or severally.

20. Particulars of Negligence of the First Defendant:

(i) The First Defendant breached its obligations by its servant Dr Darling in:

a) Constant and repetitious foul language directed at the Plaintiff and other employees.

b) Constant and repetitious aggressive, abusive, derogatory and/or sarcastic language directed at the Plaintiff and other employees.

c) Constant and repetitious aggressive, intimidating and humiliating conduct by Dr Darling towards the Plaintiff and other employees.

d) Constant and repetitious emotional abuse of the Plaintiff and other employees.

e) Knowingly falsely repetitious emotional abuse of the Plaintiff and other employees.

f) Obstructing the Plaintiff in the performance of his duty by:

(i) Not allowing him to put his phone on “do not disturb” (DNB) during consultations.

(ii) Not allowing him to diagnosed (sic) patients in an inadequate (sic) length of time.

(iii) Refusing to assist, advise or make decisions when requested to by the Plaintiff.

(iv) Refusing, when requested, to advise the Plaintiff of his job description, to enable him to negotiate his workload.

(v) Baselessly criticising the advice given by the Plaintiff in relation to clinical concerns.

(vi) Requiring the Plaintiff to answer the telephone frequently during consultations.

(vii) Requiring the Plaintiff to liaise with supervisors during consultations.

(viii) Requiring the Plaintiff to see an excessive number of patients per day.

(ix) Requiring the Plaintiff to see every patient as a first practitioner, regardless of the patient’s wishes.

(x) Requiring the Plaintiff’s clinical practice to overlap with Work Cover assessments

(xi) Confiscating and dismissing clinical practice reports prepared by the Plaintiff.

g) Maintaining an insensitive attitude to the Plaintiff’s distress with regard to his wife’s past medical condition of cancer.

h) Generally creating an air of tension and frustration at the First Defendant’s workplace.

i) Initiating and/or exacerbating trouble between the Plaintiff and other staff members.

j) Falsely accusing the Plaintiff of being responsible for the death of an employee.

k) Conducting staff meeting at which the said Dr Darling would behave in a fashion referred to in paragraphs (a),(b),(c),(d) and (e).

l) Failing to detect during the said course that the Plaintiff suffered psychological symptoms (“psychotic disorder”).

m) Manifestly failing to supervise the Plaintiff during the said course so that he was afforded a reasonable opportunity to interrupt his participation in the said course and seek immediate medical treatment.

o) The First Defendant breached its obligations by its servant Dr Rod Harmon in:

(i) Failing to act upon the Plaintiff’s complaint of work overload.

(ii) Despite showing visible signs of distress and/or verbalising such complaints, failing to provide appropriate assistance to deal with the situation enunciated by Dr Darling directly and/or manage the stress levels associated with the workload and/or environment generally.

(iii) Failing to detect during the said course that the Plaintiff suffered a psychotic disorder.

(iv) Failing to monitor during the said course that the Plaintiff suffered a psychotic disorder.

(v) Manifestly failing to supervise the Plaintiff during the said course so that he was afforded a reasonable opportunity to interrupt his participation in the said course and seek immediate medical treatment.

(vi) Failing to evaluate the nature of the course and/or failing to advise the Plaintiff of potential danger to psychological health associated with the course.

(vii) Failing to provide the Plaintiff with immediate medical assistance at the course on his return to Sydney, and/or failing to assess and recommend medical assistance.

(viii) Failing to ensure that the Plaintiff, on his return to work was not exposed, in any circumstances, to the direction, control or supervision of Dr Darling, when the First Defendant was aware of the stress imposed on the Plaintiff by the relationship with Dr Darling.

(p) The First Defendant breached its obligations by its servant Neil Harvey in:

(i) Failing to detect that the Plaintiff suffered a psychotic disorder.

(ii) Failing to monitor the Plaintiff ‘s psychotic disorder.

(iii) Manifestly failing to supervise the Plaintiff during the said course so that he was afforded a reasonable opportunity to interrupt his participation in the said course and seek immediate medical treatment.

(iv) Failing to recommend immediate medical assistance to the Plaintiff on his return to Sydney.

(q) Failing to have in place a collaborative framework between the employees to deal with situations within which the Plaintiff was placed.

(r) Failing to supervise or properly supervise the Plaintiff and other employees.

(s) Failing to properly address, if at all, the complaints made by the Plaintiff.

(t) Failing to detect and/or assess the working condition which the Plaintiff was subjected to.

(u) Failing to provide an adequate system of follow-up, or at all, as to the Plaintiff ‘s emotional well-being.

(v) Failing to liaise adequately, or at all, with the Second Defendant.

(w) Failing to have in place a collaborative framework between the First and Second Defendant to deal with situations within which the Plaintiff was placed.

(x) Permitting a conflict of interest to arise in relation to the Plaintiff‘s WorkCover claim by assigning the Plaintiff’s colleagues as the officers in charge of the claim.

(y) Failing to undertake reasonable steps to ensure that attendance on the course by the Plaintiff would not cause him psychological symptoms or psychiatric injury.

(z) Permitting and encouraging a situation whereby the Plaintiff was coerced into participating in the course.

(aa) Failing to direct the Plaintiff to attend counselling or psychological or psychiatric care.

(bb) Failing to advise the Plaintiff to attend counselling or psychological or psychiatric care.

(cc) Failing to provide immediate counselling or psychological or psychiatric care, when the Plaintiff returned to Sydney.

(dd) Failing to take any reasonable steps to ensure that the First Defendant undertook adequate screening procedures to ensure that the Plaintiff was suitable to undergo the course and that he was not exposed to the risk of psychological symptoms or psychiatric injury.

(ee) Permitting other members of staff, in particular, the Plaintiff’s supervisor Dr Darling, to attend upon the course with the Plaintiff when the First Defendant knew or ought to have known that there was a significant conflict between the Plaintiff and Dr Darling such that participation by both men in the same group would expose the Plaintiff to a risk of psychological symptoms or psychiatric injury.

(ff) Permitting Dr Darling and other members of staff who the Plaintiff knew to attend the same encounter group/leadership course with the Plaintiff when the First Defendant knew or ought to have known that the participants at the course should not know the identity of other participants to avoid the probability of emotional distress or trauma being sustained and causing psychological symptoms or psychiatric injury.

(gg) Failing to provide to the course independent medical practitioners to observe and supervise the Plaintiff and other participants to detect emotional trauma or medical unsuitability at an early stage so as to terminate attendance at the course before the Plaintiff suffered psychological symptoms or psychiatric injury.

(hh) Failing to consider and act upon literature available at the time disclosing the negative effects of encounter groups on persons such as the Plaintiff including the risk to participants or psychological symptoms or psychiatric injury.

(ii) Failing to qualify an independent expert, such as a psychiatrist, to provide a medical opinion as to the likelihood of the risk of psychiatric or psychological injury to participants in a leadership course, such as the one conducted by the Second Defendant and a medical clearance being issued by such a doctor regarding the Plaintiff.

(jj) Failing to monitor during the said course the Plaintiff’s psychiatric condition.

(kk) Failing to supervise during the said course the Plaintiff such that he ought to have reasonably left the course and sought immediate medical treatment.

(ll) Permitting the Plaintiff to attend an encounter group or leadership course using method of didactic presentation, self disclosure, testimonials, confessions, outpourings, gestalt guided imager, psycho drama and hypnotic techniques such that the Second Defendant knew or ought to have known that such techniques could result in participants such as the Plaintiff sustaining psychological symptoms or psychiatric injury.

(mm) Failing to sufficiently or adequately warn the Plaintiff that by attending the course, he was exposed to a risk of psychological symptoms or psychiatric injury such that the Plaintiff did not have an adequate opportunity to properly determine whether he should attend the leadership course or at all.

(nn) Permitting the raising of issues during the course which the Plaintiff specifically requested not be raised including, but not limited to, the Plaintiff’s wife having previously suffered from breast cancer or the Plaintiff’s ongoing conflict with Dr Chris Darling.

(oo) Failing to provide the Plaintiff with any documentation adequately explaining the risks to him of participating in the course and, in particular, a pre induction interview whereby he was appraised of group goals, behavioural expectations, including a video tape of a sample group, and provided with advice that he could at any time choose to leave the course at any time and for whatever reason, and in particular the risk of psychological symptoms or psychiatric injury.

(pp) Failing to take steps to ensure that the Plaintiff was removed from the course when it became clear that the Plaintiff was suffering from psychological symptoms, such that the First Defendant ought to have intervened and removed the Plaintiff from the said course. During the said course the Plaintiff was suffering from and otherwise exhibited or displayed:

(i) hallucinations;

(ii) persecutory nightmares;

(iii) completing daily an emotional graph which was prominently displayed on a notice board that he was markedly depressed;

(iv) completing a Meyers Briggs Type Inventory Form providing a self assessment as “a flagellant”.

(v) Participating in a psychodrama called a “group sculpture” whereby the Plaintiff was deeply distressed and “began weeping”.

(vi) Paranoia

(vii) Confusion;

(vii) Dissociation;

(ix) Severe anxiety;

(x) Unresponsive;

(xi) Vague and unsure;

(xii) Pale and shaky;

(xiii) Sleep deprivation.

(qq) Failed to vet, check, or scrutinise the validity of the “leadership course”, its dangers or the mental, emotional and psychological well being and capacity of its employees and the Plaintiff to attend such course.

(rr) Failed to ensure that the Second Defendant and/or those persons or entities who were charged with the running or facilitation of the course had the necessary qualification, experience, training and requisite skill to undertake the course and identify persons such as the Plaintiff who may develop a psychiatric condition, such to require their immediate cessation from the course, and to seek immediate medical treatment.

(ss) Failed to use or implement alternative measures, which the First Defendant ought reasonably have been aware of, such as courses which had in place:

(i) Trained and qualified medical practitioners.

(ii) Practitioners with proven clinical experience.

(iii) Practitioners with proper necessary education, qualification and experience to deal with any emotional crisis, or psychological or psychiatric symptoms exhibited or displayed by course participants.

(v) Provide appropriate and trained medical treatment and advice.

(tt) Failed to ensure that the Plaintiff on his return to Sydney was:

(i) Accompanied

(ii) Provided with immediate medical assistance and

(iii) Provided with continuing assessment of his psychological health.

……………………………………………..

23. Particulars of Injury

(b) Acute psychotic depression;

(c) Acute anxiety;

(d) Extreme changes in mood;

(e) Auditory hallucinations;

(f) Passivity phenomena;

(g) Catatonic psychiatric reactions including, but not limited to the adopting or postures;

(h) Asyndesis;

(i) Delusions;

(j) Disorganised speech;

(k) Grossly disorganised or catatonic behaviour;

(l) Panic attacks;

(m) Diurnal mood variation;

(n) Suicidal ideation;

(m) (sic) Chronic major depressive disorder.

7 BHP denied breach of duty and negligence. It also pleaded, inter alia, contributory negligence, voluntary acceptance of risk, failure to mitigate damages, and a statutory defence based on the Accident Compensation Act 1985 (Vic)

SCOPE OF ISSUES RAISED:

8 As it seems to me, the pleadings and the evidence raised matters for consideration which included:

· The childhood of the Plaintiff.

· The schooling of the Plaintiff

· The university education of the Plaintiff.

· The Plaintiff’s friends and relationships.

· The career of the Plaintiff in the medical profession prior to joining BHP

· The impact upon the Plaintiff of his wife contracting breast cancer.

· The Plaintiff’s employment by BHP.

· The Plaintiff’s presentation in the months prior to September 1996.

· The Plaintiff’s relationship with Dr Christopher Darling.

· The Plaintiff’s consumption of the drug Duromine.

· The mental state of the Plaintiff prior to attending a leadership course from 27 September 1996 to 4 October 1996 (the Leadership Course).

· The circumstances surrounding the Plaintiff’s attendance at the Leadership Course and whether those circumstances involved a breach of BHP’s duty of care.

· The events of the leadership course involving the Plaintiff.

· Whether there was a breach of BHP’s duty of care to the Plaintiff during the Leadership Course.

· The course of the Plaintiff’s mental Illness from October 1996 to date.

· The lex causae of any cause of action.

9 Upon the above matters there was much conflicting evidence, including sharp differences of opinion between highly qualified psychiatrists as to the nature and cause of the Plaintiff‘s illness. In the result, however, there was virtually no evidence to support most of the allegations of breach of duty against BHP and, reflecting, I think, the reality of the situation, much of the Plaintiff’s case as pleaded and particularised was abandoned in final submissions. It was, of course, entirely proper for that to be done, but such wholesale abandonment suggests to me that what remains should be examined, rather more critically than might otherwise be the case. Breach of duty was ultimately confined, as I understand it, to:

(1) the failure by BHP to recognise that by September 1996, the Plaintiff had, at least, the prodrome of mental illness.

(2) that his attendance at the Leadership Course would expose him to significant risk of further psychological or psychiatric damage.

(3) that in breach of BHP’s duty of care, he was encouraged and permitted to attend the course.

(4) that during the course there was such a discernable deterioration in his mental health that BHP should immediately have terminated his participation in it.

DAMAGES FOR PSYCHIATRIC INJURY:

10 Under this heading I propose to indicate the legal principles which, in my view, are applicable to the substantial issues raised in this case.

11 It is clear law that a claim for damages for psychiatric injury alone is not a separate tort, but merely the classification of the damages sought in an action based on the tort of negligence. For such an action to succeed there must be established a duty of care owed by the defendant to the plaintiff, a breach of that duty and damages of a kind recognised by the law causatively connected to the breach and suffered by the plaintiff.

12 The common law where only psychiatric injury is claimed is informed by the comparatively recent decisions of the High Court in Tame v State of NSW and Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 and Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845

13 That BHP as the Plaintiff’s employer owed a duty to him is not open to question. Nor is the fact that, whilst in BHP‘s employment and attending a course established by it or held under its auspices, he displayed florid symptoms of a serious psychiatric illness.

14 The content of BHP’s duty was to provide a workplace and system of work as safe as reasonable care and skill could make it. As a corollary, it had an obligation to take reasonable care for the health, including mental health, and safety of the Plaintiff.

15 In the course of her judgment in Tame, Gaudron J, with whose observations a majority of the Court agreed, said in relation to the touchstone element of foreseeability (omitting references to authority):

Chester

Jaensch v Coffey

16 On the subject of “normal fortitude” Gummow and Kirby JJ said:

Tame

Pusey

200 Analysis by the courts may assist in assessing the reasonable foreseeability of the relevant risk. The criterion is one of reasonable foreseeability. Liability is imposed for consequences which the defendant, judged by the standard of the reasonable person, ought to have foreseen. Of course, this can sometimes lead to sharply divided views in assessing the evidence. The application of that criterion by this Court in Bunyan v Jordan and Chester v Waverley Corporation led in each case to a denial of recovery for "nervous shock". The result in Chester , looked at today, perhaps shows that the determination of what ought reasonably to have been foreseen may differ from one age to the next. However, because the criterion is an objective one, what is postulated is a general (and contemporary) standard of susceptibility. It is in that context that references in judgments of this Court to hypothetical "ordinary" or "reasonable" standards of susceptibility to psychiatric harm are to be understood.

Wyong Shire Council v Shirt

reasonably

17 Hayne J discussed the ambit of the duty owed by an employer to avoid psychiatric injury to an employee in these terms:

“281 Where there is a relationship between plaintiff and defendant, such as that of employee and employer, and psychiatric injury is suffered in consequence of that relationship, it may readily be concluded that the relationship is such that the duties of care owed one to the other include a duty to take reasonable care to avoid inflicting psychiatric injury. Exactly the same considerations of the control that an employer has over the place and system of work which require finding that an employer owes a duty of care with respect to physical injury support a conclusion that a duty is owed to take reasonable care about the place and system of work so as to avoid psychiatric injury.

282 Cases where there is a relationship between the parties, like that of employee and employer, may, therefore, be thought to present separate questions about the application of a test of reasonable or ordinary fortitude. Even in such cases, I tend to the view that the test of reasonable or ordinary fortitude should still be applied at least in the absence of the employer having particular knowledge of the employee's vulnerability. No doubt, the employee's safety is in the hands of the employer. And it is because the employee's safety is in the employer's hands that the employer's duty is to take reasonable care to avoid exposing employees to unnecessary risks of injury.

283 In any particular case, there may be real and lively debate about whether an employer ought reasonably to have been aware of the particular fragility of an employee, but, assuming that there is no reason for the employer to have been aware of that fact, there seems much force in the view that the employer's duty is then to be stated as a duty to take reasonable care to avoid psychiatric injury to an employee of reasonable or ordinary fortitude. It is, however, not necessary to decide that issue in these cases.”

18 A majority of the court in Tame were of the opinion that the “normal fortitude” of the plaintiff is not of itself a precondition of liability although McHugh, Hayne and Callinan JJ considered that the concept of reasonable or ordinary fortitude should be preserved. However, even on the majority view, the concept of “reasonable fortitude” is a relevant consideration in the context of determining whether the risk to the Plaintiff was reasonably foreseeable and not far-fetched or fanciful.

19 Although neither Annetts nor Tame, apart from the quoted remarks of Hayne J quoted, expressly considered the duty of an employer to its employee in relation to the infliction of psychiatric harm, Koehler did so. Its factual matrix bears some similarity to the present case, in that the plaintiff claimed to have been overworked and to have suffered psychiatric illness as a consequence. Although she complained to her employer, no steps were taken to ease her work load and this, as found by the trial judge, constituted the defendant’s breach of duty towards her, and led to an award of damages.

20 The Full Court of the Supreme Court of Western Australia upheld an appeal concluding that the employer could not reasonably have foreseen that the plaintiff was exposed to risk of psychiatric injury as a consequence of her duties at work.

21 The plaintiff’s appeal to the High Court was dismissed. In the course of their joint judgment McHugh, Gummow, Hayne and Heydon JJ said (omitting citations of authority).

“33

Tame v New South Wales; Annetts v Australian Stations Pty Ltd

34 It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.

35 The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton , the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.

36 Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.

originally

Barber v Somerset County Council

…………………………………………..

41 The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant's psychiatric health. “

22 There is another case which I think merits reference, namely Hatton v Sutherland [2002] 2 All ER 1, which was approved by the High Court in Zoehler. Hale LJ in a judgment to which the other members of the court (Brooke and Kay LLJ) “contributed”, made some observations pertinent to the issues in this case. Inter alia, in relation to differences from other work related harm, she said:

[12]

pressures

stressful

harm

……………………………..

[15]

[22]
There are, therefore, no special control mechanisms applying to claims for psychiatric (or physical) injury or illness arising from the stress of doing the work which the employee is required to do. But these claims do require particular care in determination, because they give rise to some difficult issues of foreseeability and causation and, we would add, identifying a relevant breach of duty. As Simon Brown LJ pithily put it in Garrett 's case:
[2002] 2 All ER 1 at 13
'Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe some at least of their problems to the strains and stresses of their work situation: be it simply overworking, the tensions of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown which the claimant's employers ought reasonably to have foreseen and which they ought properly to have averted, there can be no liability .' (See [2001] All ER ( D) 202 (Mar) at [63]; my emphasis.)

………………………….

[27]

signs from the employee himself

Walker

[28]

UNCONTENTIOUS MATTERS:

23 This section contains an overview of that part of the case mostly taken from the Plaintiff’s evidence in chief, which is uncontroversial. I will deal with controversial issues under particular headings.

24 The Plaintiff was in the witness box for some 13 days of which for 10 days he was under cross-examination. Following the 3rd day of cross-examination, he apparently exhibited acute symptoms of mental illness which required hospitalisation. He returned to court after an absence of about 3 weeks, and completed his evidence.

25 He was born on 9 August 1961 and presently lives with his wife, Nantia (Nandy) and their two young children with his wife’s parents at Clovelly.

26 He is the second oldest of five siblings having three brothers and one sister. The eldest is his brother, Duncan, who was born in August 1960 and with whom the Plaintiff has always been very close. His sister Fiona was born in October 1963, his brother Ian in January 1965 and the youngest, Lachlan, in November 1967.

27 The family has strong connections to the medical profession. His father, William, who migrated to Australia from England in 1964 was a medical practitioner in general practice and, aged 81, still practises medicine as a locum. Sheila, his mother, is a registered nurse not now in the workforce. His paternal grandfather and his father’s brother, Angus, were medical practitioners as is his brother Duncan. His cousin, Angus, about whom there was a good deal of evidence because of the state of his mental health, was a medical practitioner, but is no longer entitled to practice.

28 His primary school education and first year of high school were at Pittwater House Grammar School but in 1974 he transferred to Sydney Church of England Grammar School (Shore) where he completed his secondary education. At Shore, he played cricket and football, swam and participated in surf lifesaving. With the encouragement of his family, he also played the bagpipes in the Manly Warringah Pipe Band and participated in Scottish dancing.

29 In the Higher School Certificate, which he sat for in 1978, he matriculated but his mark was well short of the mark required for enrolment in a faculty of medicine in Australia, that being his chosen profession. As a consequence, he repeated his final year at school and this time improved his mark quite considerably but again it was insufficient for admission to a local medical faculty.

30 However, at very considerable expense to his father, he gained admission to the College of Surgeons in Dublin where he earned degrees which enabled him to practice medicine in NSW. He graduated from the College in June 1986 and returned to Australia.

31 In Australia he first took up a six-month internship at Townsville General Hospital where he worked in casualty for 2 months, in a psychiatric ward for 2 months, and in outpatients for 2 months. Although he was obliged to work long hours his health remained satisfactory notwithstanding that the climate was not conducive to his very fair skin.

32 For 2 years from January 1987 he worked first as an intern and then as a resident medical officer at the Royal North Shore Hospital (RNSH) in Sydney. During this period he lived in a flat with his brother, Ian, at Cammeray. While at RNSH, he studied with a view to becoming a surgeon but failed the examination. His explanation for this failure was that he did not realise until days before the examination that it would encompass the study of physiology. He enjoyed his time at RNSH although it involved hard work.

33 In May 1988, while at RNSH, he became registered as a medical practitioner in NSW and he has remained registered ever since, although, effectively he is not presently entitled to practice.

34 His next appointment was for a short period as a medical officer at the Menopause Clinic, Ryde Women’s Hospital. Then he was appointed to Mona Vale District Hospital for about 3 months and, for a shorter period, to the Hasting District Hospital. His intention at the time was to obtain as much experience in the various aspects of medicine as he could before moving to a rural location.

35 Between January 1990 and December 1994 he successfully completed a training course conducted by the Royal Australian College of General Practitioners. As part of that course he worked for varying periods at medical practices in the metropolitan area of Sydney and in several country towns.

36 In the meantime, in 1988, he met Nantia Sotiropoulos at a Scottish dancing function, which he attended with his parents. They formed a relationship and were married on 26 November 1989 when he was aged 28 and she 25. They have 2 children, Michael born 26 March 2003 and Jessica born 9 March 2006.

37 By January 1993, the Plaintiff, having turned his interests to occupational health, was in employment as a medical officer with Mt Isa Mines Ltd at Mt Isa. His duties in that position involved “everything from rehabilitation, to screening programmes, to acute injuries”. His superior was Dr Robert Hoskins who was employed by Mt Isa Mines Ltd as its director of Occupational Health Services North Queensland. At Mt Isa he saw about 20 patients a day and was also “on call” alternate weekends, and outside ordinary surgery hours on alternate days of the week. He shared these duties with Dr Hoskins.

38 In September 1993, while still at Mt Isa, his wife was diagnosed with breast cancer and, in view of the limited medical services available there, they decided to return to Sydney. He did not work again for Mt Isa Mines but did not formally resign his employment for several months. I will need to return to the subject of his reaction to his wife’s illness.

39 During the first half of 1994, he and his wife travelled for several months in Greece. In this period, he also worked for a time with the Australian Government Health Service in Sydney. In August 1994 he commenced employment with the Illawarra Occupational Health Service (IOHS). That service, which was privately owned, conducted clinical and rehabilitation services and screening programmes, especially for residents of the Illawarra area. He saw on average about 25 patients per day. There were 3 medical practitioners employed, including Dr Steven Ng, and he established good relations with them. The owner Dr John Hogg was a surgeon who worked elsewhere.

40 When at IOHS, the Plaintiff’s intention was to obtain a specialist degree in occupational medicine and, at the time, he was undertaking a graduate diploma in Health Services Management. He was also still completing his training for the Royal Australian College of General Practitioners and had commenced a course with Monash University for a graduate diploma in Family Medicine.

41 In or about May 1995, he applied for an advertised position with BHP for a doctor in its Health and Occupational Safety Department located at Port Kembla. For this position he said that he was interviewed by a Mr Rod Harmon (as to which he was probably mistaken), a Dr Julian Caples and a human resources officer. He was told that BHP was seeking an occupational health physician who could be flexible and who would be expected to be on call at night and during weekends and who would actively participate in the company’s occupational health services. After the interview, he said that he briefly met Dr Chris Darling, although it seems that he may also have been mistaken as to that. Nothing turns on these errors of recollection.

42 Following the interview, he was telephoned and told that his application had been successful and he thereupon resigned from IOHS. When he started with BHP in June 1995, he found that Dr Darling was his immediate superior and that he, in turn, reported to Mr Harmon.

43 For about the first 3 months he stayed in a hotel at Cordeaux Heights owned by BHP. Later, his wife, who had remained in Sydney, joined him in a rented house at Cordeaux Heights and in June 1996 they purchased a house at Bulli. Dr Darling, who had come to Port Kembla from BHP at Melbourne, also lived at the hotel and the two men established a friendly relationship. Dr Darling told him, “You will be the clinical person and I will be the boss under Rod Harmon”. He also told him, “We need to fix up the occupational health services”, adding “We have to improve the rehabilitation system as far as getting people back to work and recovering and managing the primary injuries as well”.

44 Later, Dr Darling told him how he proposed to improve the rehabilitation service. The Plaintiff suggested that there should be a more “holistic” approach, involving each patient’s psychological state as well as his or her physical condition, a proposal which Dr Darling seemed to accept and which was endorsed, unsurprisingly by Mr Neil Harvey, a psychologist employed by BHP as an occupational health officer.

45 In or about August 1996, Dr Darling told him that he had been selected to attend a leadership course in Victoria, at the end of September. He said that it was an important course and that those invited to attend it were regarded by BHP as having a significant future in the company. He was pleased to be selected, and in the weeks following various people, including Mr Harvey, told him something about it. He understood from Mr Harvey that being selected for the course indicated that he was regarded highly by BHP, although he also told him that one employee left the course in “a foetal position”. The Plaintiff thought this meant it could be a life changing experience.

46 The course commenced with the arrival of most participants on the evening of Thursday 26 September 1996 and concluded in the afternoon of Friday, 4 October 1996. Business sessions started on Friday 27 September. It was conducted at a conference centre near Kilmore in Victoria. The Plaintiff travelled to Melbourne 3 days before the commencement of the course to meet other employees of BHP working there in occupational health and safety.

47 Whilst in Melbourne he spoke to other doctors at BHP‘s Occupational Health Centre including Dr Caples, who told him that the course he was about to undertake was “ for movers and shakers”. Upon hearing this, the Plaintiff “felt good, I thought it was going to be a really productive 10 days or whatever time it was”. Everything said to him about the course was positive and no one sought to discourage him from attending it.

48 He was transported from Melbourne to the conference centre by bus. He found that about 26 men and women were participating, of whom a number were employed in BHP’s Port Kembla occupational health and safety units, including Dr Darling, Mr Harvey, Ms Lisa Delaney, Ms Sue Cooper, Mr Stephen Keyte, Ms Diane Ford, Mr Lyle Hammond and Mr Harmon. The fact that these colleagues were attending did not concern him. He had known for at least several days that some, or all of them, would be there.

49 The centre itself was located in an isolated rural area. There were rooms for the course sessions, a communal dining room, recreational rooms and residential accommodation. The business sessions were held from 8am until 5pm or later.

50 When it came time to leave on the afternoon of 4 October, the Plaintiff was patently mentally unwell. He was unable to pack his bags and could not coordinate himself. When he held up the waiting bus someone came to his room and assisted him. Ultimately he managed to pack but he was the last person to board.

51 His appearance and behaviour came to the attention of both Mr Harmon and Mr Harvey who assisted him in boarding the aircraft to Sydney. He appeared to sleep during the flight. At Sydney airport, he was persuaded by Mr Harvey to take a taxi home, even though his car was parked there. He took the taxi to where his wife was staying with her parents at Fern Street Clovelly.

52 They went back to the airport together, collected his car and he drove to their home at Bulli. His speech to his wife was irrational and once home he told her that it had been a very intense week; that he had experienced strong feelings and sensations that were “very weird”; and that he had hallucinated seeing “black figures in the night”.

53 From Bulli, his wife contacted his brother Duncan, then practising medicine at Bega, who travelled from Bega to be with them. A radio doctor service was called and Diazepam was prescribed. Within a few days, the Plaintiff was referred by a general practitioner, Dr Russell to a psychiatrist, Dr Peter Klug who, in turn, arranged for him to be admitted to the Evesham Clinic at Mosman where he remained from October 11 to October 31. He was readmitted to Evesham Clinic on 7 December 1996 and remained an in-patient until 13 December.

54 In April 1997, he returned to work at BHP, although he was still feeling unwell and anxious. For a time, he worked 3 or 4 days a week under Dr Gerald Viset at BHP collieries. This return to work was organised by an occupational therapist involved in his rehabilitation and it was stipulated that he was not to work under Dr Darling. His role with Dr Viset was as an observer only and the trial was not successful as he continued to experience anxiety and nervousness and suffer panic attacks.

55 At a meeting about August 1997 involving Dr Viset, a Mr Cassar and a Mr Turner, the question of the Plaintiff working under Dr Darling again arose and he reiterated that he could not work under him. In the result, he has not worked for BHP since August 1997 when he was readmitted to Evesham Clinic for a period which lasted until September 30. He formally resigned in March 1998 when he accepted a redundancy payment.

56 In the period between about March and May 1998, he worked in a trainee position as a Psychiatry Registrar at St George Hospital. Altogether he worked there for about 1 month but, in his words, “it was a disaster”. He had many panic attacks each day and was unable to cope with the work. He was required to resign because of his poor performance. His next employment was as a locum for a Dr Davis at an occupational health assessment centre in Bondi Junction for 2 months whilst Dr Davis was overseas. Because of his extreme anxiety, he found the work beyond him.

57 From October 1996 up to the present, he has continued to consult Dr Klug, more or less on a weekly or fortnightly basis. He has also consulted a variety of other medical practitioners and health professionals and has been examined by psychiatrists and medical practitioners appointed by the Defendants and Cross-Defendants. The latter experience he found “terrifying at some stages and very depressing – because I am afraid they are judging me and I am – I feel embarrassed, humiliated, not very good because I have to go around justifying my life to these doctors”.

58 In 2000, he started work with a trade union operated health service on the basis that he would work 1 day a week between 9am and 5pm. After only 2 days, he “could not make it to the – from the car to the medical centre due to my level of anxiety”. He was “worried that I was out in the open – well that reminded me of being psychotic”.

59 He attempted to work for the Australian Government Health Service performing examinations and assessments. The doctor supervising him assessed his work as unsatisfactory after 6 hours. There have been other positions for which he has unsuccessfully applied – “because I have always wanted to get back to work”.

60 Since resigning from BHP he has undertaken further studies. He acquired a graduate diploma in Health Services Management, a qualification for appointment to hospitals as a medical manager. However, he has not attempted to obtain employment in that field because, “I make mistakes and I am not well”.

61 During 2000, through the Workers Educational Association, he undertook a computer training course with a view to improving his employability. He applied for a number of positions, including some away from Sydney, but was unsuccessful in obtaining an appointment. He has always frankly disclosed his medical history to prospective employers. In December 2004, he undertook and later successfully completed the degree of Master of Health Service Management at the University of Technology Sydney. That is also a qualification for employment in hospital management but he believes he would not be able to cope with the work. He has also completed a Master of Health Administration course at the University of NSW and currently is studying at the University of NSW for the degree of Master of Health Informatics.

62 His present weekly regime is that most days, including weekends, he wakes early and goes to a gymnasium for about an hour and a half. He then returns home and sleeps for a short period. At about 9am on the days his son goes to day care, he drives him there. He then returns home and studies. About twice a week, he spends time at a gymnasium with a personal trainer and once a week or so he has a consultation with Dr Klug and also with a psychologist, Ms Louise Shepherd. He also attends a yoga course at Bondi Junction and, on the advice of Ms Shepherd, a meditation consultant.

63 He spends much time about his home where his cooking skills are limited to such things as making toasted cheese sandwiches. His father-in-law who is retired does most of the cooking. He does not wash the clothes despite the availability of a washing machine because, “I have trouble with figuring out numbers on the washing machine”.

64 When he sees Dr Klug, he often goes with his wife but sometimes by himself. In the evenings, after dinner, he studies or watches television. His present medication is Abilify – 30 milligrams in the morning; Endep – 200milligrams at night and Seroquel – 200 milligrams.

RELIABILITY OF THE PLAINTIFF’S EVIDENCE:

65 As I have indicated most of what I have written above comes from the Plaintiff’s own evidence and, to a large extent, is not in dispute. However, much of his evidence was challenged and it is convenient to make an assessment of his reliability at this stage.

66 He was closely and rigorously cross-examined by counsel representing BHP and the two Cross-Defendants. The cross-examination by Mr Joseph alone occupied more than 8 days.

67 The cross-examination, in my opinion, significantly undermined his evidence, but there are other difficulties in the way of assessing his credibility. The sheer passage of time since his childhood, his medical studies, and his professional life up to September 1996 suggest, I believe, a cautious approach. This inherent difficulty is compounded by the fact that by the end of the course in October 1996, he was floridly psychotic and has since displayed many symptoms of mental illness. Moreover, it was established that at different times he has given conflicting versions of important matters and he conceded, in evidence, that he did not always tell the truth to examining doctors.

68 I formed the opinion that the Plaintiff’s memory, which he frequently claimed to be bad as a consequence of his illness, could selectively, when it suited his interests, be extremely good. He was very reluctant to give any evidence contrary to his perceived interests.

69 In the result, although I will hereafter make further reference to his evidence, I have concluded that I should regard the whole of it as potentially unreliable, in the sense that where in issue, it should not be acted upon without independent corroboration, or at least the exercise of the greatest degree of care.

CHILDHOOD:

70 The effect of the Plaintiff’s evidence as to his home life was that it was happy and that he was nurtured by loving and caring parents in a very stable environment. He described his father as “firm and loving and caring”. On occasions, both his parents resorted to mild physical punishment but he was unable to mention any particular instance, nor did he suggest that there was anything untoward about it, or even approaching the exercise of inappropriate violence.

71 However, there was material which cast doubt upon this description of his childhood, for the most part constituted by histories given to examining doctors. I think it unnecessary to collect all the relevant references, some will suffice. They seem to commence with a note by Dr Klug on 11 October 1996, the date the Plaintiff first consulted him, “Father’s brutal”.

72 On 20 February 1997, Dr Klug recorded in his notes:

“[Arrow upwards] unwell (I have spoken with family – father in particular). Attacks of severe anxiety/ associated with bizarre behaviour / hyperventilation/ also feels uncontrollably angry / can’t relate it to anything in particular.

Starting to relate if, father physical violence to them in childhood/ “that’s the reason I don’t like people touching me”.

Has been frightened of people in the street, in the cinema, verbally abusing him.

Finds father very supportive now/ “he’s me I owed”.

Knows he’s an emotionally closed person/ found it very difficult to deal with Chris Darling’s behaviour/ insistent on Angus changing his medical opinion/ CD’s clinical ignorance/ “He kept on abusing me and abusing me but I could never show that I was upset, then I went to this course which changed me from an emotionally closed person to an emotionally open person and then I was criticised for not wanting to alter my opinion. Then he got more aggressive” / but it reminded me of my father’s aggression when I was young/ “He’d stand over me (CD) – he’s 6 foot 4 inches and 18 stone.” / My heart rate (arrow upwards) whenever he came down the corridor to me.”

When really stressed, he wonders whether the door frame is moving.

“At the course they opened me up like a fucking clam shell and I didn’t know what to do – it’s just madness to do that in a week”.

Father was essentially disciplinarian”.

73 In the meantime, the Plaintiff’s wife on 11 October 1996 had written a letter to Dr Klug, presumably to assist him in assessing the Plaintiff, which contained this paragraph:

“Angus suspects a lot of this relates to childhood eg inconsistent parenting, not being good enough, feeling rejected from mother, and isolated from others eg he said he consciously remembers at age of 4 and 10 that he would be a stone and not let people hurt him and he jumped a class and he consciously wanted not to be first because they “kill tall poppies”.

74 A number of reports of Dr Klug were admitted into evidence, some of which refer to the Plaintiff’s childhood. For instance, in the second report dated 13 February 1997 addressed to BHP, there was the somewhat fleeting reference:

“Once again he could not give a coherent answer with respect to this but voiced some difficulties in relating to his parents (Subsequently on recovery he has been living with his parents and their relationship appears normal).”

And later in the report:

“Dr MacKinnon’s illness was in the absence of any prior psychiatric history. When he was psychotic he made reference to difficulties in his childhood but on recovery these do not appear to be relevant.”

75 Apart from a similar brief reference in a report dated 27 October 1997, the next report of Dr Klug, which makes a reference to the Plaintiff’s childhood, seems to be that dated 5 April 2006 which, when referring to a report by a Dr Yvonne Skinner, not in evidence, said:

“She notes that “I…took a history from Dr Mackinnon that at the age of 10 he thought he would kill himself at some stage and at 26 years wanted to kill himself”. This history was taken when Dr Mackinnon was severely unwell. He no longer maintains these views.”

76 In a further report by Dr Klug dated 21 April 2006, commenting on a report by Dr Rod Milton, there were these observations about the Plaintiff’s childhood:

“In this section Dr Milton focuses on minor differences in history from various professionals, which would almost always occur with the examination of a particular patient over time and particularly when the patient has been intermittently unwell. Clearly some of other statements made by Dr MacKinnon over the years, particularly when he was very unwell, must be viewed in the light of his distressed emotional state at the time. Dr Milton comes to the conclusion, despite disparate views about certain details, that some features of his childhood” … were odd, even bizarre …”, he comes to this view despite Dr MacKinnon’s father, himself a general practitioner, stating that Angus’ developmental and teenage years were normal. Nevertheless, Dr Milton assumptively concludes that Dr Mackinnon’s parents “..were not aware that he was suffering”. Dr Milton also concludes that it is likely that Dr Mackinnon concealed a range of significant problems from his parents during his childhood and adolescence. This is very speculative on the part of Dr Milton.”

At the time I first saw Dr Mackinnon he was floridly psychotic and in this state made passing references to difficulties in his childhood. These have not been reiterated since his symptoms have ameliorated. On interview with his family, there is nothing to indicate any abnormality during his developmental years or any disturbed family dynamic. The contrary Dr Mackinnon’s parents and siblings, whom I have met – in the case of Dr Mackinnon’s parents on many occasions – impress me as nothing but normal, supportive, empathic people who are understandably concerned about their son/brother.”

77 In May 2005 the Plaintiff was examined by Dr Philip Morris who took a history of “a happy stable and loving family upbringing”. Consultant Psychiatrist, Dr Jonathon Phillips, who first saw the Plaintiff on 30 June 2005 recorded, “He grew up in the parental household his father being a general practitioner and his mother a nurse. He described a strict and hardworking family but he gave no history of physical or sexual abuse”.

78 The Plaintiff’s parents and his brothers Duncan, Lachlan and Ian all gave evidence which encompassed his early life, although Lachlan and Ian were of course younger. It was established that his sister Fiona lives permanently overseas.

79 Dr William MacKinnon described for the Plaintiff a normal childhood and satisfactory schooling, which included active participation in various sporting activities. According to him, the Plaintiff related well to his peers and he had no concerns about his development. In cross-examination by Mr Joseph, he denied that he was particularly authoritarian or excessively disciplined the Plaintiff. He said most of the disciplining in any event was left to his wife.

80 Mrs Sheila MacKinnon who trained as a nurse in England said that she has four specialist certificates, including in respect of sick children. She testified that the Plaintiff‘s birth was normal and that he had normal milestones. He played well with his brother Duncan who was a year older, and made good progress at school, to the extent that at one stage he jumped a class. He joined in games with his siblings and with neighbourhood children. When he went to Shore, she said that he played rugby, was in the school cadets, and participated in swimming and athletics. In relation to her disciplining of the children there was this exchange with Mr Miller.

“Q. In relation to the times that your husband wasn't at home who was responsible for discipline around the house?
A. Me.

Q. In what way did you proceed to discipline or attempt to discipline the children?
A. Well I suppose I smacked them. I was the one that smacked the children really.

Q. In relation to Angus can you have any recollection of having smacked him?
A. Not specifically, no.

81 Mr Blacket in cross-examination pressed Mrs MacKinnon on the Plaintiff’s childhood:

“Q. Angus has said a number of things about his childhood that would suggest it was very, very unhappy at times and that he was a very withdrawn child who didn't communicate to his parents and others. I want you to assume that he has told the doctor that?
A. Yes.

Q. Is it possible that you as his mother - Angus kept things from you without you realising that in fact he was a disturbed little boy?
A. He never looked a disturbed, or acted disturbed, little boy to me. They did keep things from me that Lachlan had had the cane at school or things like that, but Angus was not a disturbed child. He was as normal as the rest of them and played around with the rest of them.

Q. He was, I significant to you - I think you have disagreed with this but I should put it again - he was a rather introverted quiet boy?
A. Angus was not quiet. He certainly was not quiet or introverted. He was not very gregarious but none of them were, but nobody was quiet or introverted. It was a noisy house.

Q. Can you think of any reason why he might suggest that whenever he discusses his childhood he gets anxious? Can you think of any reason why that might be so?
A. No, I can't really. Maybe his father shouted at him and he shouted at all of them sometimes.

Q. On occasions Angus was disciplined by his father, was he not, to your knowledge?
A. No more so than Duncan, Lachlan and Fiona.

Q. One of his complaints that he made to one of the doctors who saw him was that in fact he was woken up as a child from his sleep to be punished by his father?
A. That is absolute rubbish. That is rubbish.

Q. I think you--
A. Of course I was in the house with the children in bed.

Q. Was it not the job of your husband when he came home from time to time to discipline the children for offences that they had committed that you had not been able to punish them for during the day?
A. Well, really I said to him "I will tell your father" but it didn't make any impression. He didn't come home and start waking them up and hitting them around.

Q. Well Angus has related that as having occurred, and something that he found upsetting at the time, do you think Angus was telling the truth about that or was he making it up to the doctor?

82 Dr Duncan MacKinnon, the Plaintiff’s brother, said that he enjoyed a close relationship with his brother. They were very competitive and played a lot of sport together, “we had a good childhood”. Both of them had, he said, “a full life. We did highland dancing, sea scouts, bagpipes, cadets, little athletics in winter”.

83 He said that the Plaintiff had a few friends at school and occasionally invited them home. He said that he was bullied at Pittwater House and he believed his brother was also. However, there was no bullying at Shore. As to relations with his parents and discipline in the home, he gave this evidence to Ms McFee:

“Q. How would you describe your relationship with your father?
A. I respected my father and was close to my father. I loved my father. And my mother. I had a very happy childhood.

Q. And insofar as discipline was concerned?
A. Yeah, William was firm. He wasn't as firm as the schools were but he had strong principles and he wanted us to share those principles.

14. The acute psychotic phase of the schizophrenic illness most likely commenced coincidentally with the start of the leadership course, as hallucinations occurred on Day 1.

15. In my opinion, at least a portion (and possibly most) of Dr MacKinnon’s stress response to work stress at BHP and leadership course stress was due to his psychotic illness, schizophrenia; that is, the occurrence of anxiety, agitation, delusions and later, hallucinations, which distorted reality appreciation at the time, and subsequently resulted in memories of events which were traumatic, but had not actually occurred. It is possible that some of the work stress reported was due to early persecutory ideation (for example, Dr MacKinnon feeling persecuted by Dr Darling).

16. During the leadership course, there were numerous examples of delusions and hallucinations (for instance, food being poisoned, and various ways in which the Plaintiff felt that he was being influenced).

17. Dr MacKinnon indeed suffered a great deal of stress, but in my opinion, most of it was due to his psychotic illness, schizophrenia.

18. In the circumstances, I do not know the objective level of stress which occurred as a result of work at BHP and the leadership course. Assuming the worst possible case (severe stress as a result of those experiences), in my opinion, the role of such stress in the aetiology of the Plaintiff’s illness, was not significant.

19. Schizophrenia is not a disorder which occurs due to stress, as outlined in the scientific evidence above. In other words, it is neither probable nor likely that stress was a material contributing factor to the Plaintiff’s illness.

20. The stress of work at BHP and the leadership course could have acted as a temporary aggravating factor to the Plaintiff’s schizophrenia. However, I would not consider such a temporary aggravating facto to be a material contributory factor to an illness which is usually progressive and lifelong after onset, and is not scientifically related to psychosocial stress or trauma as causal factors.

21. During the schizophrenic prodrome and the acute psychotic phase, it is likely that virtually any environmental circumstance may be perceived as stressful, due to the distorting effects of psychotic symptoms on reality perception, irrespective of the objective reality of the environmental circumstances.

22. It is likely that the Plaintiff’s schizophrenia would have occurred in any event, irrespective of work stress at BHP or leadership course stress. The illness was already in progress during Dr MacKinnon‘s period of employment with BHP. As indicated above, at least some of this stress could be attributed to the interaction of the psychotic illness with work and the leadership course.

23. In my opinion, if Dr MacKinnon had not attended the leadership course (if, for instance he had been excluded through a screening procedure), it appears inevitable that his illness would have proceeded regardless, and would have manifested itself in the home, work or social circumstances.

24. Long term prospective studies have revealed that the first indications of schizophrenia often occur years prior to the onset of acute psychosis (Reference: H Hafner et al, Course and Outcome of Schizophrenia, chapter in Hirsch and Weinberger, 2003). It is possible that Dr MacKinnon had experienced earlier episodes of unwellness which may have appeared to be reactive depression, but which were actually early manifestations of schizophrenia

444 As I understand the evidence, Professor Keks’ comments are largely uncontroversial in so far as they relate to the aetiology of schizophrenia and I would accept them.

445 Professor Keks furnished reasons for his disagreement with those psychiatrists who had formed a different opinion to his diagnosis of schizophrenia. It is, I think, unnecessary for me to refer in any detail to this critique. He also provided two further reports, 29 May 2006 and 8 September 2006, in which he commented on reports by Dr Klug, Dr Morris, Dr Phillips and Dr Bruce Westmore. Again it is unnecessary to deal with these comments in any detail. It suffices to say that Professor Keks maintained his opinion that the Plaintiff is, and has been since October 1996, schizophrenic.

446 Each of the psychiatrists to whose reports I have referred gave oral evidence and were closely and skilfully cross-examined. It is fair to say that those called by the Plaintiff, Drs Klug, Morris and Phillips maintained their position that the Plaintiff’s mental illness was, and is, a mood disorder with psychotic features, while those called by BHP, Dr Milton and Professor Keks, maintained that the Plaintiff is schizophrenic.

447 All of the doctors have impressive qualifications and experience and I do not doubt the honesty of the opinions expressed. Each said he had read and understood the expert code of conduct and had complied with it, although Dr Klug, quite rightly, drew attention to the tension between his role as treating psychiatrist for 10 years and his duty to the court to give objective and dispassionate evidence. I do not mean to be critical when I say that he did not always, in my opinion, manage to separate entirely his relationship with his patient from his duty to the court.

448 The evidence of Dr Morris was also, I think, undermined on occasions when he seemed to adopt the role of advocate rather than expert.

449 The intrinsic difficulty involved in seeking to prefer one or other of the competing diagnoses is compounded by the problem of relating them to reliable histories or, in other words, factual substrata established by the evidence.

450 Although I do not propose to analyse the oral evidence and cross-examination of the doctors, the following extracts illustrate the difficulty. The first I take from the cross-examination of Dr Phillips by Mr Joseph:

“Q. Do you refer to the issue of memory as being a problem in this case? That is, Dr MacKinnon not being able to remember anything about what was happening in 1995 and 1996?
A. No, I don't, but I put it in because, at a theoretical level at least, it is something that again a clinician must be concerned about.

Q. Certainly, in your case, because you were trying to, in 2005, deal with events of 1995?
A. Correct.

Q. The point I am getting to is that, in the statement of Nandy MacKinnon, which was provided to you - for the record there appears to have been two, although one is headed "Statement of Nantia MacKinnon" signed on 27 July 2003 and an affidavit of hers signed on 11 November 2003 - in this document, the following is stated - I am going to read it to you.

The question is going to be: This provides a different, significantly different, interpretation of the stressor, in the terms of Dr Darling, than the one that you obtained. Okay?

Paragraph 30:

“Between January and June 1996 we were quite settled in Cordeaux Heights property. Angus enjoyed residing there and working at BHP. He found it a structured environment. Similarly, he was excited by his work prospects. He also found comradeship with Dr Chris Darling. I recall having Chris to dinner and was quite happy for the relationship to be a work acquaintance. It seemed that Angus got on well with him and from my observation they seemed to share work goals and experiences.”

Right? Now, that does create a different impression as to the relationship between Dr Darling and the plaintiff, as you obtained it?
A. It certainly does. Could I just check the dates with you again, if you wouldn't mind?

Q. January to June of 1996. They are the dates you are interested in?
A. Yes.

Q. Your history, as I think we have just identified it, started in late 1995 and continued, in an escalating fashion, until the leadership course?
A. Yes.

Q. Now, of course, if in fact that is accepted on its face, then you would not attribute work prior to the course as being of sufficient duration to have been causative of a developing psychiatric disorder, or a psychiatric disorder itself?
A. I think you used the word "work". I think you perhaps meant stress in that period.

Q. Yes, I did.
A. Well, there is certainly a very different view.

Q. Yes.
A. If Mrs MacKinnon's understanding or perception is correct, over those dates the stress was certainly less than I was told by Dr MacKinnon.

Q. Yes, and in a significant way?
A. Well, certainly.

Q. In terms of whether it was of sufficient duration, that is June to September, we are now dealing with, assuming everything else in Dr MacKinnon's favour - and I will come to that period shortly - it would suggest that the stress was more likely than not not to be of sufficient duration to be able to attribute it to any developing psychiatric condition, or psychiatric condition, prior to the course?
A. I broadly agree. I just make the point, again, that we can't be terribly categorical about timing.

Q. I understand that. There is a couple of things you cannot be categorical about. Timing is one?
A. Yes.

Q. The state of fragility is another?
A. Yes.

451 The second example I take from the cross-examination of Dr Milton by Ms McFee:

“I take it, as a general proposition, you would agree with me that the diagnosis of schizophrenia is based as much on the exclusion of other psychotic disorders as the presence of specific patterns of symptoms?
A. Well, yes, I think that's part of the diagnostic process, yes.

Q. You are aware of the various approaches towards the diagnosis; you are aware of the literature of McGorry referring to how difficult it is to diagnose a schizophrenia and I think the literature comes within the heading of, you know, spurious position?
A. Yes.

Q. You are, of course, aware of Professor Keks' views where he supports an alternative approach to diagnosis rather than reliance on the strict interpretation of the DSM-IV criteria?
A. This is Professor Keks, you said?

Q. Yes?
A. Yes, that's, I think, a very common view.

Q. And I take it that you would agree with the general proposition that the boundaries of definition are quite blurred these days?
A. Yes, I think that that's very much the case.

Q. That being so, there needs to be a consistency of approach to the diagnostic procedure?
A. Yeah, I think consistency but not rigidity.

Q. It would be necessary to avoid an implementation of an approach such as an apparent psychosis is psychosis, wouldn't it?
A. Sorry?

Q. It would be necessary to avoid implementation of a theory along the lines that apparent psychosis is psychosis?
A. Yeah, I'm not sure that I - I am familiar with that line of reasoning.

Q. One thing that is for sure is that there is a need to ensure that unrelated events are not related, made to have a relationship?
A. Oh, I don't think you can contrive relationships in a meaningful, sensible fashion.

Q. Do I understand that you hold the view that delusions are generally maintained with a fixed belief?
A. That - that has been the sort of classical teaching about delusion, but there are lots of shades of delusion that don't fit a firmly fixed belief that you can't talk the person out of.

Q. But you can't have a delusion with partial insight, can you?
A. I think you can. Mostly by the earlier definition, you have - delusion means you haven't got insight because you have got a false belief, but I think, as I was trying to describe yesterday in regard to ideas of reference, you will find that the patient will half believe it and half have insight, but this is vastly different from the normal person who would dismiss the issue at once.

Q. There is a clear distinction, nevertheless, between ideas of reference and delusions of reference, isn't there, doctor?
A. Yeah, people make a distinction, that's right.

Q. And you don't?
A. I don't - don't feel it is necessary to rigidly classify things. I think if you are doing research or in an academic position, one needs to do that for a research paper or something of that nature, but in ordinary diagnosis, it doesn't have quite as much meaning.

Q. His Honour directed a question to you yesterday about the definition of ideas of reference as opposed to delusions of reference and I take it would you agree with this example, by way of example rather than definition is that, "I listened to the TV last night and the news reader was speaking directly to me"; now, that is a delusion of reference, isn't it?
A. That is a delusion, yes.

Q. Whereas the comment, "I'm increasingly concerned about the TV news, I don't like watching it any more because it's getting too personal", that doesn't have that delusional context, does it--
A. Not quite.

Q. --it is more of an idea of reference?
A. Not quite. It's a little in that direction but not fully-fledged, one might say.

Q. Do I understand the import of your evidence, nonetheless, to be that you don't require the delusion of reference that an idea of reference is sufficient in order to conclude that there is a psychotic phenomena occurring?
A. In the context of other phenomena, if you take it on its own then it doesn't mean much, but if you take it in the context of others, you can give it some meaning.

Q. And just pausing there, of course, psychotic phenomena is not unique to schizophrenia; it occurs in many other disorders as well?
A. Yes.

Q. Including mood disorders with psychotic features?
A. Yes.

Q. Just in general terms, my learned friend Mr Blacket raised a concept with you of paranoid ideation?
A. Yes.

Q. Again there is a distinction between paranoid thoughts and paranoid ideation?
A. There is.

452 Many of the reports, in my opinion, magnified the difficulties the Plaintiff had with Dr Darling well beyond the level of reality. Some, in my view, used emotive language, unsupported by the evidence, in relation to the course. Furthermore they referred, contrary to the evidence, to a lack of professionalism in its conduct and to an inadequacy of systems in place for the welfare of participants; they failed to acknowledge adequately the possible significance of the Plaintiff‘s consumption of Duromine at about the time of the course and his very serious reaction to his wife’s illness; and they referred to childhood difficulties with his father and an excessive workload at BHP, which again, in my opinion, were not supported by the evidence.

453 On any view of the matter, the correct diagnosis of the Plaintiff’s mental illness was plainly a matter of difficulty upon which very highly qualified and experienced psychiatrists could legitimately differ. In the circumstances, I do not think it appropriate for me to state my preference as the correct diagnosis. Rather, I think I should say that I am not satisfied, on the probabilities, that the Plaintiff has discharged the onus of proving the diagnosis for which he contends.

CAUSATION:

454 I agree with the Plaintiff’s submission that if BHP encouraged or permitted the Plaintiff to attend the Leadership Course in breach of its duty and such course caused foreseeable psychiatric damage, then BHP would be liable for that damage, notwithstanding what might be regarded as a novus actus interveniens in the form of the course.

455 However, in my opinion, the cases relied upon by the Plaintiff such as Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070 did not absolve him from the obligation to establish causation between the leadership course and the damage actually suffered, in other words, a causative link between the course and whatever illness it is from which he suffers. It is true that the common law encourages a “robust” factual approach to causation issues (see for example what was said by Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSW LR 307). The Plaintiff’s counsel also relied on what was said by Rich ACJ in Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 53 at 563, in a workmen’s compensation case where the issue was whether the Plaintiff’s employment materially contributed to his sudden death from a coronary occlusion and there was substantial conflict in the medical evidence. His Honour said:

ie,

456 However, as it seems to me, a “robust” approach and the presumptive inference referred to in Forst are not particularly helpful in this case. They must give way to the evidence that while a breach of duty by BHP may have been causally related to a mood disorder with psychotic features as diagnosed by Drs Klug, Morris and Phillips, in light of current medical knowledge it was unlikely to be related, except in a very limited way, to a psychotic disorder such as schizophrenia.

457 As Mason P explained in T.C. by his Tutor Sabatino v State of NSW [2001] NSWCA 380:

“……. Australian law has not adopted a formal reversal of onus of proof of causation in negligence, even negligence involving breach by omission. A robust and pragmatic approach to proof of causation permits, but does not compel, a finding of liability in cases of negligence by omission which (as Gaudron J points out in Bennett) is necessarily based upon a hypothetical enquiry. A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant’s breach caused or materially contributed to the harm actually suffered.”

458 Here it was important for the Plaintiff to prove, on the issue of causation, that his illness has been predominantly a mood disorder rather than schizophrenia. It would also, of course, be important on the issue of damages if that had arisen for determination.

459 As the Plaintiff, in my opinion, has failed to prove the psychiatric disorder for which he contends, it follows as a consequence of my acceptance of Professor Keks’ opinion as to the aetiology of schizophrenia that he has also failed to prove any causal connection between the Leadership Course and the mental illness from which he suffers.

WORKERS COMPENSATION PAYMENTS:

460 By letter dated 6 December 1996 to Mrs Nandy MacKinnon, BHP accepted liability for the Workers Compensation claim “made by Angus for psychological condition”.

461 Apparently, payments and benefits were thereafter made and provided to the Plaintiff until August 2001, when BHP, by letter, informed him that “further liability has been denied”. The ground for such denial was stated as “any continuing disability that you may suffer from is not related to your employment with this company”.

462 The Plaintiff submitted that the payments under the Workers Compensation Act constituted an admission that, at the time the payments were made, the Plaintiff was incapacitated as a result of injury received in the course of his employment and that his work was a substantial contributing factor. There is authority to support that proposition which Newman AJ described as trite in Wiki v Atlantis Relocations (NSW) Pty Ltd (2003) NSWSC 481.

463 However, at most, the admission would only, in this case, go to the issue of causation. It has nothing to say in relation to the issue of breach of common law duty.

464 Moreover, there is I think, much force in Mr Joseph’s submission that in the circumstances of this case, the weight of any admission constituted by the making of workers compensation payments is extremely slight and likely to be overcome by other evidence.

FAILURE TO CALL WITNESSES:

465 Counsel for the Plaintiff submitted that I should draw the usual and permitted inferences from BHP’s failure to call without explanation, Colleen Durant, Neil Harvey, Fiona Shand, Dr Julian Caples, Lisa Delaney and Susan Cooper, most, if not all of whom are still employed by BHP.

466 Counsel for BHP addressed the submission in some detail with extensive reference to authority. Inter alia, it was submitted that the so called rule in Jones v Dunkel (1959) 101 CLR 298 must be considered with regard to each situation in which a witness is alleged to be absent; that it is not to be used to complete gaps in evidence or to convert conjecture into inference; that the rule only applies where a party is required to explain or contradict something; that it only applies where the party might reasonably be expected to call the witness; that the rule does not require a party merely to call cumulative evidence and that the rule applies to both parties.

467 In this light, I will make brief reference to the persons identified by the Plaintiff’s counsel:

468 Mr Neil Harvey – I have earlier given reasons why I draw no inference from his absence from the witness box.

469 Ms Fiona Shand – No explanation was given for BHP’s failure to call Ms Shand, although a document prepared by her was admitted into evidence. As she was the course director, she presumably was just as available to the Plaintiff as to BHP. It is true that she may have been able to deal with Mr Blackman’s assertion that he alerted her to his concerns about the Plaintiff. However, Mr Blackman’s evidence on this particular subject was rather vague and, in any event, related to day 6 or 7 of the course. Moreover, he could not remember her response. I draw no inference from BHP’s failure to call Ms Shand about events, which, of course, occurred 10 years ago.

470 Dr Julian Caples. – Although Dr Caples apparently remains a senior employee of BHP, I would not have expected it to call him. There is, in my opinion, no reason to suppose that he could have given relevant evidence not otherwise called, for example, through Dr Baynes.

471 Ms Lisa Delaney – She also apparently remains an employee of BHP. She was involved with the Plaintiff to some extent in the months prior to the course, in that she formed part of the group established by Dr Darling to assist him. She also attended the course. However, there was what I regard as ample evidence from others as to the Plaintiff’s presentation prior to and during the course. Ms Delaney may or may not have had a good recollection of the events of those times, but there is no particular reason to think she is likely to have a better recollection than those who did give evidence. I draw no inference from her absence from the witness box.

472 Ms Susan Cooper – Ms Cooper in the compensation department was, as I understand it, equal in rank to Dr Darling, with whom she had apparently a difficult relationship, albeit managed professionally. She is still with BHP and, indeed, sat in court during the trial from time to time. Again there is no reason to think that she would have a particular recollection of the events of August, September, October 1996, enabling her to make a useful contribution to the case. I draw no inference from BHP ‘s failure to call her.

473 Counsel for the Plaintiff and counsel for BHP commented on the fact that their respective opponents did not rely on reports from all relevant doctors. There was evidence that the Plaintiff, at the behest of BHP or Cross Defendants, was examined by psychiatrists, Drs Flanagan, Shand, Skinner and Brown, none of whose reports were tendered. In light of the large amount of medical evidence that was tendered, I do not draw any inference from the fact that not all the available material was put into evidence. Indeed, so far as Dr Skinner was concerned there was evidence that her view accorded with that of Professor Keks.

474 Counsel for BHP commented on the Plaintiff’s failure to call Dr Gertler and some or all of the many medical practitioners he has consulted before and since October 1996. Again, in light of the large amount of medical material tendered in the Plaintiff’s case, I do not think it appropriate to draw an inference in respect of any other material which may have been available.

475 Counsel for the Plaintiff commented on BHP’s failure to produce documents relating to the Plaintiff which may have had relevance to issues in the trial but which, according to the evidence, have been lost or, at least, cannot be found. There is no basis, in my opinion for the drawing of any inference in respect of such documents.

DAMAGES:

476 Although I am mindful that a trial judge finding for the defendant is nonetheless encouraged to assess damages, I do not think it would be appropriate for me to attempt to assess damages in this case. The reason for that is that not only, in my opinion, has the Plaintiff failed to establish breach of duty of care, but he has also failed to establish a causal connection between the alleged breach or breaches and his mental illness. At most, on my view of the case, he would be entitled to nominal damages only.

COSTS:

477 Although I apprehend that costs will largely follow the event, BHP in its submissions foreshadowed that some particular questions might arise in light of these reasons. Accordingly, I will reserve costs and give parties liberty to apply in respect of them.

478 ORDERS:

2. All outstanding cross-claims are dismissed.

3. Costs are reserved.

4. All parties have liberty to apply regarding costs on 7 days notice.

-o0o-

23/07/2007 - Incorrect spelling - Paragraph(s) 0

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Citations

Dr Angus MacKinnon v Bluescope Steel Limited (Formerly known as BHP Steel (AIS) Pty Ltd) and Dalmau & Associates Pty Ltd - Cross Defendants - Draft One Communications Pty Ltd and McKenzie & Associates Pty Ltd [2007] NSWSC 774

Most Recent Citation

Mackinnon v BlueScope Steel (AIS) Pty Ltd [2009] NSWCA 94

Cases Citing This Decision

1

Mackinnon v BlueScope Steel (AIS) Pty Ltd [2009] NSWCA 94

Cases Cited

8

Statutory Material Cited

1

Cafest v Tombleson [2003] NSWCA 210

Koehler v Cerebos (Australia) Ltd [2005] HCA 15

Cafest v Tombleson [2003] NSWCA 210

CITATION:	Dr Angus MacKinnon v Bluescope Steel Limited (Formerly known as BHP Steel (AIS) Pty Ltd) and Dalmau & Associates Pty Ltd - Cross Defendants - Draft One Communications Pty Ltd and McKenzie & Associates Pty Ltd [2007] NSWSC 774 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	22,23,24,25,26,29,30,31 May 2006 1,2,5,6,7,8,9,13,14,15,16,19,20,22,23,26,27,28,29,30 June 2006 3,4,5,6,7,10,11,12,13,14 July 2006 18,21,22,23,24,25,28,29,30, August 2006 1,11,12,13,14,15,18,19,20,21,22,25,26,27,28,29 September 2006 3,4,5,6,9,10,11,12,13,16,17,18,19,20,23,24,25,26,27,30,31 October 2006 1,2,3,6,7 November 2006 16,17,18,19,20 April 2007
JUDGMENT DATE :	20 July 2007
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 478
LEGISLATION CITED:	Accident Compensation Act 1985 (Vic)
CASES CITED:	Tame v State of NSW; Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845 Hatton v Sutherland [2002] 2 All ER 1 Wiki v Atlantis Relocations (NSW) Pty Ltd (2003) NSWSC 481. Bendix Mintex Pty Ltd v Barnes (1997) 42 NSW LR 307) Chomentowski v Red Garter Restaurant (1970) 92 WN (NSW) 1070 Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 53 T.C. by his Tutor Sabatino v State of NSW [2001] NSWCA 380 Jones v Dunkel (1959) 101 CLR 298
PARTIES:	Dr Angus MacKinnon - Plaintiff Bluescope Steel Limited - First Defendant Dalmau & Associates Pty Ltd - Second Defendant Draft One Communications Pty Ltd - Cross Defendant McKenzie & Associates - Cross Defendant
FILE NUMBER(S):	SC 20429 of 1999
COUNSEL:	Mr G Miller QC (until 13 June 2006), Mr H Marshall SC (from 26 June 2006) with Ms L McFee and Ms E Beilby (from 13 June 2006) - Plaintiff Mr M Joseph SC with Ms V Heath - First Defendant Second Defendant - No Appearance. Mr P Blacket SC - Draft One Communications Pty Ltd Mr A Colefax SC with Mr P Gow - McKenzie & Associates Pty Ltd
SOLICITORS:	Keddies Litigation Lawyers - Plaintiff Sparke Helmore - First Defendant Second Defendant - Not Applicable Henry Davis York - Draft One Communications Pty Ltd Hunt & Hunt - Mc Kenzie & Associates Pty Ltd