Gahagan v Taylor Bros (Slipway and Engineering) Pty Ltd
[2004] TASSC 23
•24 March 2004
[2004] TASSC 23
CITATION: Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd [2004] TASSC 23
PARTIES: GAHAGAN, James
v
TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD
INCAT TASMANIA PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 116/2002
DELIVERED ON: 24 March 2004
DELIVERED AT: Hobart
HEARING DATES: 27 – 31 October 2003
JUDGMENT OF: Cox CJ, Crawford and Slicer JJ
CATCHWORDS:
Torts – Negligence – Essentials of action for negligence – Where nervous shock or mental disorder – Common law – Causation not established.
Aust Dig Torts [56]
Torts – Negligence – Essentials of action for negligence – Damage – Causation – Generally – "Material cause" test.
March v Stramare (1991) 171 CLR 506; Medlin v The State Government Insurance Commission (1995) 182 CLR 1; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, considered.
Aust Dig Torts [60]
REPRESENTATION:
Counsel:
Appellant: P W Tree
First Respondent: S P Estcourt QC and L O Rheinberger
Second Respondent: D J Fagan SC and A Coleman
Solicitors:
Appellant: Ogilvie Jennings
First Respondent: Page Seager
Second Respondent: Murdoch Clarke
Judgment Number: [2004] TASSC 23
Number of Paragraphs: 68
Serial No 23/2004
File No FCA 116/2002
JAMES GAHAGAN
v TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD
and INCAT TASMANIA PTY LTD
REASONS FOR JUDGMENT FULL COURT
COX CJ
CRAWFORD J
SLICER J
24 March 2004
Order of the Court
Appeal dismissed.
Serial No 23/2004
File No FCA 116/2002
JAMES GAHAGAN
v TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD
and INCAT TASMANIA PTY LTD
REASONS FOR JUDGMENT FULL COURT
COX C J
24 March 2004
I have had the advantage of reading the reasons for judgment prepared by Slicer J and from which he concludes that none of the grounds of appeal has been made out. I agree with those reasons and with the proposed order that the appeal be dismissed.
File No FCA 116/2002
JAMES GAHAGAN
v TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD
and INCAT TASMANIA PTY LTD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
24 March 2004
For the reasons given by Slicer J I agree that none of the grounds of the appeal have been made out and that it should be dismissed. In the circumstances, it is unnecessary to consider the notices of contention.
File No FCA 116/2002
JAMES GAHAGAN
v TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD
and INCAT TASMANIA PTY LTD
REASONS FOR JUDGMENT FULL COURT
SLICER J
24 March 2004
The appellant seeks to set aside an order of the trial judge dismissing his action for damages for personal injury arising out of a workplace accident. His claim had been made on the basis that he had suffered mental illness caused by his finding of the body of a fellow worker at the accident scene and its ensuing trauma.
The appellant was employed by the first respondent ("Taylor Bros") which was, in turn, a contractor for the construction of a vessel being undertaken by the second respondent ("Incat"). On 19 May 1995, Geoffrey Taylor, a director and employee of Taylor Bros, was working on the vessel, fell and suffered fatal injuries. The precise circumstances of how he came to fall were never clearly identified. The appellant, who was also working on the vessel, went to the aid of Mr Taylor and remained with him for some considerable time. His claim for damages arose from the mental trauma said to have been caused by his experience in assisting another.
The appellant claimed that Taylor Bros had been negligent in its failure to provide adequate safety equipment and vicariously through the negligence of the deceased co-worker. He claimed Incat to have been negligent in providing an inherently unsafe place of work and failing to provide adequate safety equipment, procedures, and a safe workplace. Each respondent denied liability and sought, in the event of an adverse finding, contribution against the other.
Central to the appellant's cause were the issues of whether he had suffered the injury claimed and, if so, whether it had been caused by the accident. The learned primary judge, applying the tests required by the High Court in Tame v New South Wales (2002) 211 CLR 317, dismissed the action (Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd & Anor [2002] TASSC 115) on the bases that the evidence did not satisfy him:
"… prior to the plaintiff's arm injury [which had occurred on 19 June 1995] he manifested any signs of suffering from a psychological condition or reacting in an out-of-the-ordinary way to the Geoffrey Taylor incident … [nor] onset of the plaintiff's psychiatric condition began prior to him injuring his arm."
and that although:
"… the arm injury and its sequelae and the plaintiff's acrimonious relationship with Phillip Taylor may be the cause of his condition to the exclusion of the Geoffrey Taylor incident … as a consequent of the Geoffrey Taylor incident, the plaintiff might have been more vulnerable to reacting adversely to his arm injury and his problems with Phillip Taylor … [but] this possibility does not persuade me that the Geoffrey Taylor incident is a material cause of the plaintiff's psychiatric condition."
Grounds of appeal
The appellant claims both errors of law and fact, some of which are interlinked:
As permitted by the Supreme Court Rules 2000, the respondents filed notices of contention claiming that even if error be shown, the judgment ought nevertheless be permitted to stand or, alternatively, that claimed error on the part of the trial judge ought be corrected so as to permit a proper rehearing according to law. Each respondent hoped to be exculpated in that process.
Grounds 1 – 7 raise questions of law, whilst the remaining grounds require consideration of the findings of fact within the constraints permitted on appeal. The questions of law can be categorised as:
(1)a failure by the learned trial judge to determine what was the injury suffered by the appellant;
(2)the determination rejecting causation was incorrect in that:
(a) the wrong test had been applied;
(b) the reasoning giving rise to rejection was faulty;
(c) the form of reasoning was not properly exposed.
The remaining grounds attack either particular findings and/or amount to a claim that the evidence as a whole did not support the rejection of the claim of causation.
Test of causation
The grounds of appeal relevant to the issue of causation state:
"1The learned trial Judge erred in law that he failed to determine what the psychiatric illness, psychiatric condition, psychological condition, or mental condition (which several terms as used by the learned trial Judge are, in this notice, hereinafter referred to as 'the appellant's injuries') that afflicted the appellant was;
2…
3The learned trial Judge erred in law in that he failed to apply either the 'but for' or the 'common sense' test of causation;
4The learned trial Judge erred in law in holding that the test for causation was whether 'the Geoffrey Taylor incident is a material cause of the [appellant's injuries]';
5The learned trial Judge erred in law in failing to determine whether either respondent's breach of duty had materially contributed to the appellant's injuries;"
It is well established that, save in exceptional cases, a plaintiff must establish that he or she has suffered a recognisable psychiatric illness as distinct from mere grief, sorrow, fright or distress (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Tame v New South Wales (supra)).
This heading encapsulates grounds 3, 4 and 5 of the grounds of appeal. The pleadings of the appellant relevantly claimed:
"As a consequence of the experiences of the Plaintiff during his time with Mr Taylor comprising horrific sights, smells and sounds, none of which he would have suffered but for the injuries to Mr Taylor, the Plaintiff has suffered severe personal injuries"
namely:
"(a) Post traumatic stress disorder;
(d) [sic] Depression"
Two distinct questions arose, namely whether the appellant in fact suffered either of the injuries claimed, and, if so, whether either or both had been caused by the accident.
The evidence as to the existence or otherwise of the claimed injury was complex, and as is often the case, the expert witnesses differed in their opinions. Central to those opinions was whether the appellant had shown symptoms indicative of a post-traumatic stress syndrome which, in turn, depended in part on the time of onset of the claimed symptoms or acceptance of their happening. Those issues, in turn, required consideration of the credibility of the appellant's account and the contention that any distress manifested by him was occasioned by a subsequent arm injury suffered by the appellant one month later and the callous conduct of Phillip Taylor in his response to that injury. The learned trial judge found, at par30, in relation to the first question that:
"It is not disputed that the plaintiff suffers from a psychiatric condition which developed at some time subsequent to Mr Taylor's accident. What is in issue is whether the experience the plaintiff suffered when he went to Mr Taylor's aid is a material cause of the plaintiff's condition."
The second question arose because, in his Honour's words, at par31:
"In summary, until about 17 months subsequent to Mr Taylor's fall, the medical practitioners who assessed the plaintiff's mental condition were of the opinion that he was suffering from depression as a consequence of:
·his antipathy towards Taylor Bros arising from his resentment about the way in which he perceived he had been treated by Phillip Taylor, following Geoffrey Taylor's accident, and during a period when the plaintiff was incapacitated for work due to an arm injury; and
·his reaction to being incapacitated from work for a prolonged and indefinite period as a consequence of the arm injury."
It was not necessary to determine whether the appellant suffered from either depression or post-traumatic stress disorder or some other diagnosed condition. Varying diagnoses had been made at different times and it may be that the condition was an admixture. The learned primary judge accepted, and found, that the appellant suffered from a psychiatric condition or illness within the required terms defined in Mt Isa (supra).
The possibility that the condition might have been a consequence of the events of 19 May, had not been raised with the appellant's medical advisers until mid-1996, following examination by Professor Kirkby. At trial, the respondents maintained that the original basis of diagnosis was correct. Thus, questions of time of onset, delay in manifestation, and the like required resolution. The learned trial judge preferred the defence evidence or, at least, was not satisfied to the requisite degree of the appellant's contention. He found that:
(1)The evidence did not satisfy him that prior to the arm injury the appellant manifested any signs of a psychological condition.
(2)Whilst he did not disregard the opinion of the expert witnesses who gave great import to the severity of symptoms and their precipitation, he gave them little weight because, for 17 months after the May event, the appellant made no mention of that event, but complained about other matters involving the arm injury and the conduct of Phillip Taylor.
(3)He did not accept the appellant's evidence as to the existence or timing of claimed intrusive thoughts and nightmares or at least as being referable to the May events.
(4)He was not satisfied that the onset of the plaintiff's psychiatric condition began prior to the arm injury.
(5)He was satisfied that the arm injury, its sequelae and the acrimonious relationship with Phillip Taylor "may be the cause of his condition to the exclusion of the Geoffrey Taylor incident" since they were the "plaintiff's predominant concerns".
(6)The events of 19 May might have rendered the appellant more susceptible to the events stated in (5).
(7)The possibility of that susceptibility did not persuade him "that the Geoffrey Taylor incident was a material cause of the plaintiff's psychiatric condition".
The learned trial judge was not required to determine whether the arm injury and the relationship "may" have been the cause, although his approach on that issue is unassailable. The appellant was required to establish causation and the alternate hypothesis advanced formed an appropriate means of testing "cause and effect". Rejection of that hypothesis might have required a conclusion that the accident caused the injury, but, absent rejection, it did not require an affirmative finding in order to require a positive finding in favour of the appellant's cause. (Stapley v Gypsum Mines Ltd [1953] AC 663.) To that extent, the "but for" test was used by the learned trial judge as an alternate or negative criterion. As Mason CJ observed in March v Stramare (1991) 171 CLR 506 at 515 – 516:
"… the 'but for' test, applied as a negative criterion of causation, has an important role to play in the resolution of the question."
Two questions remain, namely whether the learned trial judge adopted the correct test of "material cause", and whether possible susceptibility required the conclusion of an appropriate nexus between the May accident and the injury claimed. The learned trial judge was required to consider possible multiple causes of the injury, only one of which gave rise to liability by the respondents. He was not dealing with the concept of cause in the context of apportionment legislation. As Deane J pointed out in March v Stramare (supra) at 522 – 523:
"Causation in the context of the elements of the tort of negligence is not the same thing as the 'scientific term descriptive of sequence in physical phenomena' (Clerk and Lindsell on Torts, 16th ed (1989), par1-103; and see, generally, the various papers in 'Symposium on Causation in the Law of Torts', (1987) 63 Chicago-Kent Law Review, esp Professor Wright, 'The Efficiency Theory of Causation and Responsibility: Unscientific Formalism and False Semantics', at pp 553ff.). For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility: whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it (cf Barnes v Hay (1988) 12 NSWLR 337, at p 339). The 'but for' (or 'causa sine qua non') test may well be a useful aid in determining whether something is properly to be seen as an effective cause of something else in that sense. In particular, the test will commonly exclude causation for the purposes of the law of negligence if the answer to the question it poses is that the accident which caused the injuries would have occurred in the same way and with the same consequences in any event (see, e.g., Duyvelshaff v Cathcart and Ritchie Ltd (1973) 47 ALJR 410, at pp 414-415, 416-417, 419; 1 ALR 125, at pp 134-135, 138, 142-143). There are however, in my view, convincing reasons precluding its adoption as a comprehensive definitive test of causation in the law of negligence. First, the clear weight of authority is against the substitution of such a formularized test of causation for a 'common sense idea of what is meant by saying that one fact is a cause of another' (see, eg, Fitzgerald v Penn (1954) 91 CLR, at p 277; The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569, at pp 590-592; Stapley v Gypsum Mines Ltd [1953] AC 663, at pp 681-682). Secondly, unqualified acceptance of the 'but for' test as even a negative or exclusionary test of causation for the purposes of the law of negligence would lead to the absurd and unjust position that there was no 'cause' of an injury in any case where there were present two independent and sufficient causes of the accident in which the injury was sustained. Less importantly, acceptance of the 'but for' test as a comprehensive test would carry with it the need to draw somewhat artificial distinctions to avoid the type of confusion between an accident which happened and one which did not which is to be seen in the discussion in Fitzgerald v Penn (at pp 276-277) of the unreported case of Skewes v Public Curator (Qld) (6 September 1954). Thirdly, the mere fact that something constitutes an essential condition (in the 'but for' sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a 'cause' of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation. Again, the mere fact that a person makes a gift of money to another is not, in any real sense, a 'cause' of the damage sustained by that other person when his agent negligently loses the money notwithstanding that the loss would not have occurred 'but for' the original gift."
The term "material cause" was used by McHugh J in March v Stramare (supra) at 531 – 532 in the following context:
"Despite the numerous judicial statements to the effect that being a causa sine qua non of the occurrence of damage is not enough to make an act or omission a cause of damage for legal purposes, another school of opinion asserts 'that the only genuine causal issue is that of sine qua non or "cause in fact".': see Hart and Honoré, at p lxvii, who reject this view. Many, probably most, academic legal writers on the subject assert that, once the 'but for' or causa sine qua non test is satisfied, the issue of causation is spent. Other issues such as 'proximate cause', 'sole cause', 'novus actus interveniens', 'real cause' and so on are the product of policy choices whose objects are to limit legal responsibility for damage resulting from acts or omissions of the kind in question. Accordingly, on this view, if a negligent act or omission materially contributed to the occurrence of damage, it will still be a cause of the damage for legal purposes even though, for policy reasons, there may be no legal liability for that act or omission. Moreover, a negligent act or omission will be held to have materially contributed to the damage if its contribution was not de minimis: Bonnington Castings Ltd v Wardlaw [1956] AC 613, at p 621."
The term "material" was still used as a qualitative prefix to distinguish the "but for" test from a meaningless philosophical construct. McHugh J, on reflection, modified his view in the "but for" test earlier expressed in Nader v Urban Transit Authority of (NSW) [1985] 2 NSWLR 501 at 530 – 531 because its application in a common sense way permitted a tribunal of fact "an unfettered discretion to ignore a condition or relation which was in fact a precondition of the occurrence of the damage", March v Stramare at 532. In his view:
"Directions to use commonsense notions of causation to find the 'proximate', 'real', 'efficient' or 'substantial' cause of an occurrence are invitations to use subjective, unexpressed and undefined extra-legal values to determine legal liability. To hold a person liable for damage resulting from a set of conditions or relations simply because his or her wrongful act or omission was a necessary condition of the occurrence of that damage would be an unacceptable extension of the boundaries of legal liability in some cases. But this truth does not justify the use of vague rules which permit liability to be determined by subjective, unexpressed and undefined values."
However, he pointed out as an obvious exception to the use of a sine qua non test:
"… must be the unusual case where the damage is the result of the simultaneous operation of two or more separate and independent events each of which was sufficient to cause the damage. None of the various tests of causation suggested by courts and writers, however, is satisfactory in dealing with this exceptional case."
His conclusion, stated at 534, was that:
"In general, however, the 'but for' test should be seen as the test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule concerned with remoteness of damage and not causation."
Even on the test as articulated by McHugh J, the term "material" is an apposite means of defining the "but for" test. The remaining justices in March did not disavow the "but for" test, but pointed out that a formalistic application of the term can lead to a result contrary to common sense that neither event is the cause. Most causation cases involve one event with a number of components, each of which might produce legal liability. The one event may have involved breaches of duty by the plaintiff and several defendants. The individual acts might, in combination, produce the outcome of injury. Here there was no one event. There were several events occurring over a considerable period of time which, in isolation or conjunction, might have produced a consequence. One or more of those consequences would have attracted legal liability with a requirement to pay compensation. The learned trial judge was required to decide, as a matter of fact, whether the occurrence said to have given rise to legal liability was causative of injury.
The term "caused or materially contributed to" was used by Kirby J in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at par135 and the New South Wales Court of Appeal in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, a case decided after March v Stramare, through the application of "common sense" to the facts of each case. That test had been earlier stated by the High Court in Medlin v The State Government Insurance Commission (1995) 182 CLR 1 in which Deane, Dawson, Toohey and Gaudron JJ in their joint judgment at 6 – 7, stated:
"For the purposes of the law of negligence, the question whether the requisite causal connection exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience (See Fitzgerald v Penn (1954) 91 CLR 268 at 277-278; March v Stramare (E and M H) Pty Ltd (1991)171 CLR 506 at 515, 522-523; Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 412-413, 418-419, 428.). And that remains so in a case such as the present where the question of the existence of the requisite causal connection is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage. In such a case, the 'but for' test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test (See, eg, March v Stramare (E and M H) Pty Ltd (1991) 171 CLR at 515-519, 522-524). If, in such a case, it can be seen that the necessary causal connection would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. It will be seen that, on the plaintiff's evidence, the present was such a case.
Nor can the question of causation of damage in a negligence action be automatically answered by classification of operative causes as 'pre-eminent' or 'subsidiary'. Regardless of such classification, two or more distinct causes, without any one of which the particular damage would not have been sustained, can each satisfy the law of negligence's common sense test of causation (See, eg, March v Stramare (E and M H) Pty Ltd (1991) 171 CLR 506). This can be most obviously so in a case where a 'subsidiary' cause operates both directly as a cause of the particular damage and indirectly as a contributing component of a 'pre-eminent' cause."
A concurrent cause is sufficient to ground liability (Henville v Walker (2001) 206 CLR 459) but here the learned trial judge was required to determine whether one or more events caused the injury. He was entitled to determine that a later event in time was the cause or, more correctly, that he was not satisfied that the earlier event either caused or was a concurrent cause of the injury. Kirby J in Shorey v PT Limited [2003] HCA 27 at 45, refined the language of concurrence in stating that there is liability "as long as the accident triggered the … condition and so long as its causative effects were still present as a factor to help explain the ongoing signs and symptoms".
Here the learned trial judge was required to consider three events separate in time. The arm injury and the conduct of Phillip Taylor could be regarded as concurrent or interlinked, but there was a clear distinction between their form and nature and that of 19 May. The learned trial judge, consistent with authority, was entitled to find that he was not satisfied that the former event caused the consequence complained of. He applied the correct test in his approach to the issue of causation.
Susceptibility and vulnerability
The impugned finding was:
"I accept that as a consequence of the Geoffrey Taylor incident, the plaintiff might have been more vulnerable to reacting adversely to his arm injury and his problems with Phillip Taylor; however … this possibility does not persuade me that the Geoffrey Taylor incident is a material cause of the plaintiff's psychiatric condition."
The learned trial judge did not conclude that the May event rendered the appellant more vulnerable, merely that he accepted it as a possibility which did not establish the event as having caused the injury. Even had the "fact finder" been affirmatively satisfied as to vulnerability or susceptibility, he was not required to conclude that the event "caused or materially contributed" to the injury. The prior event was part of the surrounding circumstances or matrix of the psychological condition. It provided a setting insufficient to constitute a cause in the common sense approach (March (supra) per Deane J at 523). The arm injury and the conflict were new events, independent of the May incident. The appellant was unable to show, on the evidence adduced, that the injury could not have occurred in a context not involving the May event. The concurrence test as stated in Henville or continued effect predicated in Shorey did not apply.
Reasoning and disclosure
The grounds relevant to this heading claim error in that:
"2The learned trial Judge erred in law in that he failed to expose any adequate reasoning process, or alternatively failed to adequately expose the reasoning process, which underpinned his Honour's holding that the appellant had failed to establish that the respondents' breaches of duty had caused the appellant's injuries;
…
7The learned trial Judge erred in law in failing to expose any, or any adequate reasoning process for the (apparent) rejection of the evidence of the appellant's general medical practitioner, (Dr Sutherland), his treating psychiatrist, (Professor Kirkby), and the first named respondents' medico‑legal expert psychiatrist, (Dr Sale), to the effect that the appellant's injuries were precipitated by the Geoffrey Taylor incident;"
The preceding analysis of the findings of the learned trial judge shows that it is possible to discern the basis on which the action was dismissed. The evidence was both complex and voluminous. Analysis of the reasons for judgment shows that the relevant evidence was identified, stated and analysed. There were significant differences of opinion between Professor Kirkby and Dr Sale which were exposed in the reasons. It was not incumbent on the learned trial judge to address in his judgment the reasoning process employed by the experts. He was not required to embark on an exhaustive examination of each piece of evidence (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) and was entitled to set out the evidentiary accounts in narrative form and examine the evidentiary basis for the respective conclusions or opinions (Whisprun Pty Ltd v Dixon [2003] HCA 48). He was required to consider their evidence and state whether the evidence favourable to the appellant was accepted and, if so, whether it was sufficient to establish the appellant's cause to the requisite degree (Mifsud v Campbell (1991) 21 NSWLR 725). The opinion evidence of Professor Kirkby and Dr Sale depended in part on the history provided by the appellant and certain assumptions which could be made on the basis of other material. The learned trial judge did not accept significant portions of the history provided by the appellant at trial and this being so, was entitled to doubt the accuracy of the account provided to the medical practitioners. He was entitled to give weight to the facts, as established, that portion of the history provided to Professor Kirkby had not been provided to earlier medical advisers and treating doctors during the previous 17 months. Non-acceptance of the accuracy of the history provided to Professor Kirkby lessened the import of his opinions. The methodology employed by the "fact finder" is readily discerned.
The remaining ground, which states:
"6The learned trial Judge erred in law or fact or both in holding, finding, or regarding the date of the onset of the appellant's injuries, or the first manifestation of signs that the appellant was suffering from the appellant's injuries, as determinative of the question of causation;"
is more conveniently dealt with in the consideration of the claim that the conclusion reached by the learned primary judge was against the weight of the evidence. For the reasons later stated, I would dismiss it.
Grounds 1 – 7 ought not be upheld. The learned trial judge did not err in law in relation to the issue of causation or his reasoning in dealing with the evaluation of and conclusions reached on the evidence of the respective expert witnesses.
Unsafe and unsatisfactory decision
The challenge to the decision as a whole (ground 9), concerns the difference of opinion between Professor Kirkby and Dr Sale (grounds 8(a) – (c), 10(a) and 12), the appellant's credibility (grounds 11 and 12), and the conflict with Phillip Taylor (ground 12). The remaining grounds concern discrete secondary matters involving the evidence of Mary Clifford (ground 10(b)), Paul Hornburg (ground 8(e)) and Dr Weidmann (ground 8(d)).
Weight and competing opinions
Grounds 8(a), (b), (c) and 10(a), state:
"8The learned trial Judge erred in law or fact or both in holding or finding that the appellant's injuries were not caused by the Geoffrey Taylor incident in that his Honour:‑
(a) failed to give any or any adequate weight to the evidence of Professor Kirkby and Dr Sale to the effect that post‑traumatic stress disorder is not a condition of immediate onset;
(b) failed to give [sic] or any adequate weight to the evidence of Professor Kirkby that the appellant's symptoms of panic and anxiety were more likely caused by the Geoffrey Taylor incident than by his subsequent arm injury or poor relationship with his employer;
(c) failed to give any or any adequate weight to the evidence of Dr Sale and Kevin Williams of the magnitude of the affront of the appellant's senses which the Geoffrey Taylor incident comprised;
10The learned trial Judge's decision is generally unsafe, unsatisfactory and ought not be permitted to stand because of a multiplicity of errors comprising (in addition to those in ground 8):‑
(a) the internal inconsistency between the finding in para56 of his Honour's reasons ('.. Professor Kirkby did not then record the plaintiff as exhibiting any undue distress or disturbance, and the Professor did not note the same, when that event was revisited, in the course of the 20 consultations which preceded a report he prepared dated 2 August 1996 ..') with his Honour's finding in para60 ('.. Professor Kirkby said that soon after he started working with the plaintiff, the plaintiff became visibly upset when they discussed that incident.');
The learned trial judge was not persuaded that the fatal accident was "a material cause of the plaintiff's psychiatric condition" which differs from a finding, as stated in ground 8, "that the appellant's injuries were not caused by the Geoffrey Taylor incident". The onus was on the appellant to affirmatively prove his cause.
Professor Kirkby and Dr Sale, who were called as witnesses for the appellant and first respondent respectively, were eminently qualified to assist the court with their professional opinions. However, as Dr Sale stated, the case "was probably one of the most complex cases he had come across when trying to tease out the different elements". The summation by the learned primary judge of the conclusion reached by Dr Sale, stated at par67 in the following terms:
"He said the plaintiff's condition was probably a result of the plaintiff's reaction to the Geoffrey Taylor incident, his rancorous relationship with Taylor Bros and the incapacity caused by his arm injury, but it was plausible that the Geoffrey Taylor incident was not a causative factor. He agreed that in attributing a causative role to the Geoffrey Taylor incident, he was reliant upon the veracity and reliability of the plaintiff's reports of dreams about the incident and reacting to reminders of the incident. In the absence of the Geoffrey Taylor incident, Dr Sale would not have expected the plaintiff to have suffered so severely. As to nightmares, Dr Sale said it would be extremely unusual for there to be a problem of frequent post traumatic nightmares seven years after the event. He said that in the great majority of cases of post traumatic stress disorder there is a gradual reduction in the frequency of the nightmares over the first few months following the precipitating incident and thereafter they are sporadic, perhaps occurring when something reminds the sufferer of the traumatic incident."
accurately reflected the evidence. But Dr Sale in his report following examination of the appellant on 22 July 1997, placed emphasis on the symptoms as described by the appellant, stating:
"Although generally uncomfortable about multiple diagnoses, I would be in general agreement with Dr Kirkby's assessment of Mr Gahagan's situation. Given symptoms such as intrusive memories, sleep disturbance, nightmares, irritability and withdrawal, I would probably place a stronger emphasis on the presence of a post-traumatic stress disorder arising out of the earlier accident involving his boss. However, it was also clear that his work-place injury and subsequent incapacity, the confusing medical situation that then developed, and his loss of self-esteem and role, particularly within his family, have all added to his problems and contributed to various depressive and anxiety symptoms."
Professor Kirkby likewise placed emphasis on the factors of "over arousal, anxiety symptoms and the stress and excess noise stimulation … received following Mr Taylor's fall".
The learned trial judge did not reject the proposition that the condition post traumatic stress syndrome is not a condition of immediate onset. He found that some of the symptoms as reported by the appellant had not been claimed or manifested until some 17 months after the May 1995 event. The first record of the appellant having had a "dream or intrusive thought in relation to the Geoffrey Taylor incident" was made in October 1996. Dr Sutherland, the appellant's treating medical practitioner, had seen the appellant on some 50 occasions between October 1995 and April 1997, without there being mention of "anything which linked his anxiety, distress and alcohol abuse with the Geoffrey Taylor incident".
It was not that the learned trial judge found that the syndrome ought be immediately manifest; he did not, but that the symptoms as claimed were inconsistent with the stated event. It was not only the delay in onset, but the failure of the appellant, in providing his history, to claim a link between his condition and the May incident, which caused the "fact finder" not to be satisfied of the causative nexus. He was not required to find that the syndrome existed, but assuming that he was so satisfied, he did not make his ultimate finding on the basis that the syndrome required an "immediate onset". His analysis of the evidence of both Professor Kirkby and Dr Sale shows that he gave their opinions due weight but not to the exclusion of their factual underpinnings.
The diagnosis of Professor Kirkby was originally one of "panic disorder with agoraphobia" which, after apparent resolution of some symptoms, was altered to a primary diagnosis of "post traumatic stress disorder". The alteration demonstrates a problem with any opinion evidence, namely acceptance of history and accuracy of the description of symptoms. Professor Kirkby did not examine the appellant until October 1996 and as of March 1997, had yet to formulate his primary diagnosis of post traumatic stress disorder, a diagnosis ultimately made in June of that year. Dr Sale first saw the appellant in July 1997, over 2 years subsequent to the fatal accident. In the light of those matters, the learned trial judge was entitled to have regard to the evidence of Dr Roldan, a clinical psychologist experienced in the assessment and treatment of post traumatic stress disorder, which was fairly summarised by the learned trial judge in the following terms at par68:
"He examined the plaintiff on 21 December 2001. Dr Roldan, in substance, accepts that if the plaintiff in fact reacted adversely to the Geoffrey Taylor incident and thereafter suffered from the symptoms reported as well as intrusive thoughts and vivid dreams referable to the incident, it would be reasonable to conclude that the plaintiff suffered from a post traumatic stress disorder. However, Dr Roldan said that if intrusive thoughts and recurrent dreams referable to the incident were not present until more than a year after its occurrence, then the more likely explanation for the plaintiff's symptoms are his severe interpersonal difficulties involving Taylor Bros and the chronic pain and disability associated with the plaintiff's arm injury. Dr Roldan, in substance, says that these factors could cause the plaintiff's condition, and that this was more likely when they were coupled with the plaintiff's pre-existing tendency to drink alcohol to excess and the increased time which the plaintiff's arm injury gave him for abusing alcohol. He said that alcohol can cause acute symptoms of panic and anxiety, irritability and insomnia."
His Honour considered, at par69, that the differences between the expert witnesses were "largely explained by alterations, at the time when the opinion was provided, in the understanding the expert had about the plaintiff's reaction to the Geoffrey Taylor incident". His Honour was entitled in assessing those differences to rely on their factual underpinnings. Matters stated by him to be cogent in that assessment included:
(1)the failure by the appellant to assert adverse reaction until some 17 months after the incident;
(2)the absence of symptoms of intrusive thoughts and dreams manifested to the appellant's wife and the absence of those symptoms in the account prepared for Professor Kirkby in May 1996;
(3)the unsatisfactory explanation provided by the appellant at trial as to why he had not earlier described and recounted the symptoms;
(4)rejection of a possible explanation of lack of insight or psychological awareness, and its inconsistency with the explanation provided by the appellant at trial;
(5)acceptance of the evidence of Ms Clifford and the absence of significant import in their observations;
(6)the significance of the account provided to Anne Fitzgerald, a clinical psychologist, and to a practitioner at the Hobart Clinic, after the arm injury, and the inconsistency of those accounts with the one later provided to Professor Kirkby;
(7)rejection of the accuracy of the evidence of David Street;
(8)general inconsistency of the evidence of the appellant both before and at trial.
There is no inconsistency between the narrative as stated by the learned trial judge in his reasons for judgment at pars56 and 60. The general account of the evidence of Professor Kirkby was being recounted and the dates of notes and reports faithfully stated. In his evidence during cross-examination on the contents of his report dated 10 March 1997, par64, Professor Kirkby stated:
"It says that he was visibly upset when discussing it. I note that this is quite some time after we've starting working together …".
The report upon which the cross-examination was based provided a detailed response to a question asked "regarding causation of his psychological condition" as of March 1997. The narrative is clear and there is no internal inconsistency. If there be error, it is in par60 which did not accurately replicate the answer recorded in the transcript. It ought have no bearing on the outcome of this appeal.
Grounds 8(a), (b), (c) and 10(a) ought be dismissed.
Relationship with Ms Clifford
This ground of appeal (ground 10(b)), claims error in the finding that "at that time, Ms Clifford's relationship with Mr Williams had broken down". The learned trial judge dealt with the issue in the context of his analysis of the reaction of the appellant to the fatal accident. He described the immediate effect on the appellant and continued, at par71:
"Notwithstanding this almost inevitable reaction, the plaintiff coped sufficiently well to be asked to look after Mr Williams, who was not coping. The plaintiff was able to respond responsibly to this request and to return to work the next day. Subsequent to the two days which the plaintiff and Mr Williams took off work, the plaintiff was able to return to and remain at work at Incat, where the Geoffrey Taylor incident had occurred, until the plaintiff suffered his arm injury."
Having recounted some intervening medical history, the learned trial judge returned to the evidence of Ms Clifford, stating, at par71:
"Mandy Clifford, who was living with Kevin Williams at the time of Geoffrey Taylor's accident, said she saw the plaintiff following the accident and he was withdrawn, tense and stand-offish. I am not satisfied that this demonstrates that the plaintiff was having any unusual difficulty coping with the accident. At that time, Ms Clifford's relationship with Mr Williams had broken down, with the result that it was considered desirable that Mr Williams stay at the plaintiff's home on the night following the accident rather than return to the residence he shared with Ms Clifford. These circumstances may explain the taciturn behaviour of the plaintiff towards Ms Clifford."
The evidence of Ms Clifford was that she had seen the appellant on the night of, or the day after, the fatal accident, and did not thereafter see him until a child's birthday party in January 1996. The question of her relationship with Mr Williams, peripheral, if relevant at all, was raised by the learned trial judge in a different context, in the following exchange:
"HIS HONOUR: Mrs Clifford, my recall of Mr Gahagan's evidence is that Mr Williams stayed with him - the night of the accident - stayed with he and his wife the night of the accident, because - and I might be quite wrong in my recall - because of some differences between yourself and Mr Williams at that time.
WITNESS: Definitely, yes it's quite possible.
HIS HONOUR: There was a - is that - did you and he break up at about that time? What was the -
WITNESS: Slight differences of opinion.
HIS HONOUR: Yes.
WITNESS: That's all I can put it down to.
HIS HONOUR: Did you get any impression from Mr Gahagan that he took a view about that break up?
WITNESS: No. I didn't ask."
and pursued by counsel for the second respondent in the same light, namely opportunity for observation on the reaction of the appellant in the terms:
Prior to the day when Mr Geoff Taylor fell, how much contact did you have with Mr Gahagan? How frequently would you see him? ... It would have been three or four times a week probably. To my recollection anyway.
And in what circumstances? ... I was friends with his wife and their children.
So, you visited his house? ... Yes.
And sometimes you saw Mr Gahagan there. ... Yes.
But your friendship was primarily with Mrs Gahagan? ... Yes.
After the accident, and after seeing him on the night or the next day of the accident, this - the next occasion when you saw him was around about the birthday of the daughter? ... I would say so.
And was that some weeks later? ... I honestly can't recall.
Right. And after that, do we take it that you had less frequent contact with the Gahagans. ... Yes I did.
In fact, less frequent contact with them from about the time of the accident which was about the time of your break up with Kevin Williams. ... It wasn't a total break up at that stage, but basically, yes I was cutting all ties from everybody.
HIS HONOUR: I'm sorry, I didn't hear that basically -
WITNESS: I was cutting all ties from everybody.
HIS HONOUR: I see, thank you.
MR FAGAN QC: Although it wasn't a total break up with Kevin Williams as at the date of this accident, the cutting of ties to which you referred really began from about that time? ... Yes."
No questions were asked of Mr Williams by counsel of the time of the break up of his relationship with Ms Clifford.
The finding was permitted by the evidence. Even had it not been so, its making had no bearing on the judgment. No findings of credibility depended on the relationship between Mr Williams and Ms Clifford. It merely fixed a time frame for the contact between the appellant and Ms Clifford.
The ground is not sustained.
Evidence of Paul Hornburg
This ground of appeal claims error of fact in that:
"8The learned trial Judge erred in law or fact or both in holding or finding that the appellant's injuries were not caused by the Geoffrey Taylor incident in that his Honour:‑
…
(e) failed to advert at all to the evidence of … or Paul Charles Hornburg, or to explain why he failed to have regard to their evidence;"
Paul Hornburg was a work and social colleague of the appellant who gave evidence in general terms as to his observations and impressions of his mood and behaviour before and after the May event. He was imprecise as to times as, for example, when he was unable to recall the period he had worked at Incat. His impression of the appellant prior to Mr Taylor's death was that:
"… he was a very happy go lucky - come to me son's christening and he was the life of the party."
He described the appellant as being funny at social functions. When he saw the appellant several days after the fatality "he [the appellant] didn't seem himself", an impression held on later occasions, instanced as:
"Yes, he just wasn't himself. He wouldn't sit down and talk to you. He'd rather be – you'd sit - go there and have lunch, he'd talk but it wasn't - like he used to be – he'd laugh but it'd be a false laugh."
Mr Hornburg was aware of the appellant's arm injury and described its aftermath as:
"When he injured his arm he just went downhill even further.
Thank you. Now did you continue to see Mr Gahagan socially in the period between when he - or Mr Taylor fell and he injured his arm? … Yes.
And in what context would you see him socially? … Oh I'd go to his place for a barbecue or he'd come to my place for a barbecue.
Right. And did you see any difference in the way in which he behaved in those social settings? … Yes, he just didn't want to talk at times, like he was - used to be really happy-go-lucky then he just - righto you were there, you got the feeling that sometimes he wished you'd hurry up and go home, he wanted to be by himself."
The majority of the occasions described by Mr Hornburg were subsequent to the arm injury and the confrontation with Mr Phillip Taylor. His evidence as to increased drinking by the appellant likewise referred to the post-arm injury period.
The witness was general and scant in his account, and did little to advance the conflicting hypotheses of causation. Whilst no direct reference to the evidence or analysis of it was made by the learned trial judge, its substance was encompassed in the finding that (at par71):
"I have no doubt the plaintiff was most distressed by the Geoffrey Taylor incident and that for a short while subsequent to it he was upset and subdued."
Failure to specifically recount the evidence, did not constitute error. Where a finding of fact is made contrary to the evidence of a witness whose evidence has not been noted or referred to in the reasons for judgment, an appellate court ought not act on that evidence and reverse the verdict unless it is satisfied that any advantage employed by the trial judge who had seen and heard the witness could not be sufficient to explain or justify the conclusion (Abalos v Australian Postal Commission (1990) 171 CLR 167; see also Devries v Australian National Railways Commission (1993) 177 CLR 472). Here, the learned trial judge made no finding contrary to the evidence of Mr Hornburg. The witness had said little, except in the most general terms, to advantage the cause of the appellant and most of what he did say post-dated the arm injury. His evidence as to distress was encompassed in the finding.
Ground 8(e) is not sustained.
Evidence of Dr Weidmann
Much of the reasons for judgment are in narrative form. A summary of the evidence, both of facts and opinion, is stated in either chronological or issue related form. The narrative exposes the various accounts of witnesses, identifies the areas of difference, and links disparate events into a cohesive framework. The conclusions reached are not necessarily stated at the completion of each area, or an issue raised by the evidence recounted. Conclusions are often stated as a synthesis of the evidence recounted at a later stage. The methodology used explains why, in the case of Dr Weidmann, his opinion evidence is stated but no specific statement is made by the learned trial judge. Central to the issue of psychiatric sequelae was the accuracy of the symptoms described by the appellant who had seen Dr Weidmann on some 16 occasions. It was the fact that Dr Weidmann, until the trial, was unaware of the "Geoffrey Taylor incident" which was significant. It was the failure of the appellant to describe the symptoms later claimed and their association with the May accident which was a factor in determining causation or its absence. During the period October 1995 and October 1996, the appellant never suggested any intrusive thoughts or dreams, nor any shock, horror or fear in relation to the May event. That evidence, unchallenged, formed a basis for doubting the credibility of the appellant, both at trial and in his history as presented to other medical witnesses, and further, was cogent material on which to conclude that the psychological condition emanated from later events. Ground 8(d) is not sustained.
Verdict against weight of evidence
Grounds 9, 11 and 12 state:
"9Alternatively, the learned trial Judge erred in law or fact or both, in holding or finding that the appellant's injuries were not caused by the Geoffrey Taylor incident, in that that finding was against the overwhelming weight of the evidence and is repugnant to common sense;
11The learned trial Judge erred in fact in not accepting the plaintiff's evidence about the extent of his reaction to the incident at the time of its occurrence, and as to him suffering from intrusive thoughts and nightmares referable to the incident since its occurrence;
12The learned trial Judge erred in fact in failing to find that the Geoffrey Taylor incident was a factor in the plaintiff's problems with Phillip Taylor, and hence was a cause of it."
Whilst the obligation of an appellate court differs from that of the High Court in determining an appeal such as this (Hoyts Pty Limited v Burns [2003] HCA 61, see Kirby J at pars49 – 59), it remains subject to judicial constraints (Fox v Percy (2003) 197 ALR 201; Chappel v Hart (1998) 195 CLR 232). The evidence ought be looked at as a whole (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430). His Honour reasoned on the basis of facts "objectively established" and paid regard to the "apparent logic of events" (Fox v Percy (supra); Abalos v Australian Postal Commission (supra)). The appropriate test remains as stated by Gibbs ACJ, Jacobs and Murphy JJ, in Warren v Coombes (1979) 142 CLR 531, at 551:
"… the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it."
The learned trial judge was entitled to reject the account provided by the appellant, both at and before trial. More importantly, he was not required to accept it or to conclude that the appellant had affirmatively satisfied him as to its cogency. There were many inconsistencies, both internal to the account and extrinsic by reference to other witnesses and material documented. He gave differing accounts to both treating and assessing doctors alike. He changed his emphasis on the factors which he claimed to have caused his condition. It was not necessary for the "fact finder" to find him to be mendacious, but sufficient to find his evidence to be inaccurate or based on reconstruction. Instances of inconsistencies have been stated in the consideration of grounds 8 and 10 of the notice of appeal. To those instances must be added the vehemence and intensity of the complaints made by the appellant about the despicable treatment by Phillip Taylor following the arm injury and the physical effects such as anxiety, despair and disturbed sleep associated with that treatment.
The onus which remained with the appellant is not discharged by his showing that a particular matter cannot be excluded as a cause of the injury (Bendix Mintex Pty Limited v Barnes (supra)). Ground 12 of the notice of appeal replicates, in part, grounds 2 and 3. While the appellant was not obliged to disprove the relevance of supervening causes or their incapacitating consequences, he was required to show that the causative effects remained present as a factor in the onset and continuation of the injury. As Kirby J stated in Shorey v PT Limited (supra) at par45, the respondents here were only liable if the appellant could show that:
"… the accident triggered the appellant's condition and so long as its causative effects were still present as a factor …".
Here the presumptio hominis referred to by Dixon CJ in Watts v Rake (1960) 108 CLR 158, has no application.
Grounds 9, 11 and 12 ought not be upheld.
Notices of contention
Notices of contention were filed by both respondents in which each sought confirmation of the judgment in terms exculpating each from liability. Those notices concerned issues of duty and breach, especially those governing vicarious responsibility. Given my conclusion that the appeal ought not be upheld, it is unnecessary to consider any import they might have to disposition. However, one matter arises from the competing contentions. Each respondent sought to contend, on the issue of breach of duty, that since the appellant could not demonstrate the actual cause of the accident, he could not establish liability against either respondent. Whilst it is true that in the case of multiple defendants it is incumbent on a plaintiff to establish breach of duty as against each defendant (Bendix (supra)), the requirement might not be as difficult in a rescue case. In Watts (supra), Dixon CJ referred to the evidentiary presumption presumptio hominis in relation to the issue of causation. He explained the operation of the presumption at 160 in the following terms:
"If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause. If it be the case that at some future date the plaintiff would in any event have reached his present pitiable state, the defendant should be called upon to prove that satisfactorily and moreover to show the period at the close of which it would have occurred."
The statement of principle was adopted, with approval, by Kirby J in Shorey (supra). The methodology is not dissimilar to that advocated by Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 in an assessment of damages once liability has been established.
The application, by analogy, of the principle of presumptio hominis would not ordinarily be justified in a case involving the one event with possible multiple tortfeasors, since it would be incumbent on an injured party to establish breach of duty and standard of care against one or both. Proportionate liability could only be assessed once primary liability had been established. But the principle might, in conjunction with another evidentiary aid, res ipsa loquitur apply, in a case involving a rescuer. A person who comes across an accident already occurred, who is injured as a consequence, ought be able to establish liability by the requirement that the original tortfeasor or tortfeasors establish the original cause and breach. In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, the High Court had cause to restate the relevant criteria necessary for reliance on the principle of res ipsa as:
(1)the absence of an explanation of the occurrence;
(2)the occurrence is of a kind that does not ordinarily occur without negligence;
(3)the cause of injury (instrument or agency ¾ breach or omission) was under the control of the defendant.
In a case where a passing motorist comes across an accident already occurred, it ought not be incumbent on him or her as a matter of public policy to establish which of the two drivers had caused the accident, especially if both are killed. Where it is obvious that the accident was a consequence of negligence, then it ought be preferable that the potential tortfeasors disentangle the cause and breach. There is now no denial of liability on the basis of voluntary assumption of risk or remoteness of damage (Haynes v Harwood [1935] 1 KB 146; Ward v T E Hopkins & Son, Ltd [1959] 3 All ER 225 and see generally Goodhart, Rescue and Voluntary Assumption of Risks, 5 Cam LJ, 192). It is the possibility of rescue which is within the risk which justifies the imposition of duty. As Cardoza J stated, with his celebrated acumen, in Wagner v International Railway Co (1921) 232 NY 176:
"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. … The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."
Dixon J in Chester v The Council of the Municipality of Waverley (1939) 62 CLR 1, drew the distinction between primary and secondary duty whereby the primary duty of the wrongdoer renders him prima facie liable to the injured person in breach of a secondary duty. Liability towards the rescuer ensues independently of the occasion of injury to the imperilled. The special status of a rescuer is recognised by the denial of a claim of contributory negligence unless the attempt at rescue was foolhardy (Morgan v Aylen [1942] 1 All ER 489).
There is limited judicial support for the application of res ipsa in cases involving non-delegable duty of care (Walsh v Holst & Co Ltd [1958] 3 All ER 33), vicarious liability for a wrongful act of a servant (Griffith District Hospitalv Hayes (1962) 108 CLR 50), and hospital cases (Cassidy v Ministry of Health [1951] 2 KB 343; Albrighton v Royal Prince Alfred Hospital [1979] 2 NSWLR 165). Applying, by analogy, the evidentiary presumptio hominis then it might be possible to show fault generally and require the defendants to "disentangle" the respective duties and breaches thereof.
Here the combination does not avail the appellant since the issue was whether the occurrence of death and its associated trauma caused the injury, not the respective duties and breaches of the respondents.
If causation had been established, I would not have readily concluded that the appellant was without remedy because he could not establish whether it was the first or second respondent which had been in breach of duty or standard of care, simply because the circumstances giving rise to the accident could not be ascertained.
Conclusion
I would propose that the appeal be dismissed.
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