Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd

[2002] TASSC 115

[2002] TASSC 115

CITATION:              Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd & Anor      [2002] TASSC 115

PARTIES:  GAHAGAN, James
  v

TAYLOR BROS (SLIPWAY & ENGINEERING) PTY LTD (ACN 009 489 800)

INCAT TASMANIA PTY LTD (ACN 054 616 410)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  424/1998
DELIVERED ON:  17 December 2002
DELIVERED AT:  Hobart
HEARING DATE:  18-21, 24-28 June, 1-3 July, 20-22 August 2002
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts - Negligence - Liability for others' negligence - Independent contractors - Duty of principal to provide safe system of work.

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, applied.
Aust Digest Torts [76]

Torts - Negligence - Essentials of action for negligence whether nervous shock or mental disorder - Common law - Causation not established.

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, referred to.
Aust dig Torts [56]

REPRESENTATION:

Counsel:
             Plaintiff:  P W Tree
             First Named Defendant:                 S P Estcourt QC and M Wilkins
             Second Named Defendant:            D Fagan SC and A Coleman
Solicitors:
             Plaintiff:  Ogilvie Jennings
             First Named Defendant:                 Page Seager
             Second Named Defendant:            Murdoch Clarke

Judgment  Number:  [2002] TASSC 115
Number of paragraphs:  74

Serial No 115/2002
File No 424/1998

JAMES GAHAGAN v TAYLOR BROS (SLIPWAY
& ENGINEERING PTY LTD (ACN 009 489 800)
and INCAT TASMANIA PTY LTD (ACN 054 616 410)

REASONS FOR JUDGMENT  EVANS J

17 December 2002

1. The claim for damages made by the plaintiff, James Gahagan, against each defendant is what is commonly described as a "nervous shock" claim.  It relates to a psychiatric disorder that affects the plaintiff which he alleges was caused by the experience he suffered when he went to the aid of Geoffrey Taylor, who was fatally injured in an accident at work on Friday, 19 May 1995 ("the accident").

1. The accident occurred in the hull of a vessel being constructed by the second named defendant, Incat Tasmania Pty Ltd ("Incat"), at its shipyard on the shore of Prince of Wales Bay.  At the time of the accident, Mr Taylor and the plaintiff were both employed by the first named defendant, Taylor Bros (Slipway & Engineering) Pty Ltd ("Taylor Bros"), Mr Taylor being its manager.  Taylor Bros had been providing labour and materials to Incat referable to the construction and repair of vessels at Incat's shipyard since at least February 1995.  On the day of the accident, Mr Taylor and other Taylor Bros employees, including the plaintiff, had been working on the completion of Incat's construction of a 78 metre catamaran ferry, Vessel 035 ("the vessel").

1. To substantiate a claim against either defendant, the plaintiff must, amongst other things, establish that the particular defendant is solely or jointly liable for the accident which resulted in Mr Taylor's injuries and that it was reasonably foreseeable that a person in the plaintiff's position, a fellow employee, who went to Mr Taylor's assistance, might in consequence suffer psychiatric injury.  That it was reasonably foreseeable that psychiatric injury might be suffered in those circumstances cannot be disputed.  What is in issue is whether the experience the plaintiff underwent, when he went to Mr Taylor's aid, caused the psychiatric illness which subsequently afflicted him.

1. In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, the High Court rejected the use of three control mechanisms which have been applied by courts when determining whether a duty of care exists in relation to a claim for psychiatric injury. These mechanisms are:

·   the requirement that a plaintiff directly perceive a distressing phenomenon or its immediate aftermath;

·   the requirement that the psychiatric injury be caused by a sudden shock; and

·   the requirement that liability for psychiatric harm be assessed by reference to a hypothetical person of normal fortitude. 

Whilst it is not necessary for the plaintiff to surmount these control mechanisms; his case is strengthened by his presence at the immediate aftermath of Mr Taylor's fall.

1. There are no witnesses to the accident.  Subsequent to its occurrence, Mr Taylor was found lying unconscious in the hull of the vessel suffering from severe injuries.  They included:

-a compound comminuted fracture of the right parietal-occipital bone with marked contusions to the right parietal lobe (this means that he had a fracture of the back of his skull in which the bone was broken into several pieces with damage to the underlying brain);

-a right sided pneumothorax (ie, air in the right pleural cavity which would have caused collapse of the lung);

-          a fracture of the right iliac crest (part of the pelvis); and

-          a fracture of the right transverse process of the 5^th lumbar vertebra (part of the lower spine). 

Mr Taylor died from these injuries several days after the accident, I infer, without regaining consciousness.

1. Mr Taylor was found lying between web frames 40 and 41 of the port hull.  What follows is a plan showing a cross section of the port hull at web frame 41.  What I will refer to as the outer side of the hull runs between A and B on the plan, and what I will refer to as the inner side of the hull runs between B and C on the plan. 

1. For all relevant purposes, the hull structure is aluminium.  The frame work to which aluminium sheets are attached to form the outer skin of the hull includes lateral web frames which, for planning purposes, are numbered from the stern to the bow, the frame nearest the stern being number 1 and the frame nearest the bow being number 53.  The web frames are about 1.2 metres apart (taking account of the rider bars around the apertures in the frames, they are 1.02 metres apart) and are connected at their outer edge by longitudinal T-bars.  The aluminium sheets which form the outer skin of the hull are welded to these T-bars and the outer edge of the web frames.  The vertical stroke of the T-bars varies in length but is not less than 70 millimetres long.  The flange which forms the top of the T-bar is about 50 millimetres wide.  The skin of the hull is welded to the base of the T-bar, not its flange.  The space between the T-bars varies from about 25 centimetres near the base of the hull to about 38 centimetres midway up the hull.  Subject to the need to accommodate the shape of the hull, the T-bars are parallel to the keel and create a ladder-like structure between each web frame running from the keel up the outer and inner sides of the hull.  Each hull is divided internally into watertight compartments by lateral watertight bulkheads and the intercostal bulkhead.  The latter is indicated on the plan between D and E.  These compartments are commonly referred to as voids.  Geoffrey Taylor's accident occurred in void 2, the compartment between lateral watertight bulkheads at the positions which would have been occupied by web frames 33 and 42.  Between these bulkheads there are eight lateral web frames, numbered from  34 to 41.

1. Each web frame has an upper and lower aperture as indicated on the plan.  The perimeter of each aperture is a flat rider bar 180 millimetres wide.  The maximum width of the lower aperture is 2.5 metres and its height at the line of the keel is about 2.6 metres.  The width of the upper aperture at its extremes is about 1.7 metres and its height at the line of the keel is about 1.3 metres.  In order to move longitudinally through a void, it is necessary to pass through the upper or lower apertures of each web frame.  A person walking along the keel would pass through the lower apertures.  In order to pass through the upper apertures, it is necessary to step from the rider bar at the base of one aperture to the rider bar at the base of the next aperture, or find some other means of support, such as planks laid through the apertures.

1. At the time of the accident, the construction of void 2 was virtually complete.  One of the last tasks to be performed was the installation of hatch covers on openings in the intercostal bulkhead between each pair of web frames.  These openings provided access from void 2 to the starboard side of the intercostal bulkhead.  I will refer to the latter area as the central void.  The openings were not to be closed until after the inspection and approval of the construction of the central void and related areas by a DNV inspector.  The letters "DNV" are the initials of the society which certifies the classification and seaworthiness of vessels.  A DNV inspection was carried out on the day of the accident.  During the prior week, Mr Taylor, the plaintiff, and two other employees of Taylor Bros, Kevin Williams and Detlef Schadock, had been performing work in preparation for the inspection.  The plaintiff and Mr Schadock had been clearing out debris and vacuuming. 

1. Access to void 2 is gained via a cylindrical manhole, 600 millimetres in diameter, through the port side of the vehicle deck, and down a 3 metre vertical ladder attached to watertight bulkhead 33.  The vertical ladder extends about half way down the bulkhead.  At the foot of the vertical ladder is a landing from which a further ladder, about 3 metres in length, is angled across the face of the bulkhead to the base of the hull on the starboard side of the keel.  In order to carry out some of the work performed by Mr Taylor and other Taylor Bros employees over the week prior to the accident, it was necessary for them to access the nine bays or passageways between the web frames on the inboard curve.  The bays run from the intercostal bulkhead, along the inboard curve, to the end of the extension of the curve into the hull space, that is, from D to G on the plan.  The lip of the extension of the inboard curve into the hull space, G on the plan, is about 3.4 metres above the keel.  At its centre, that lip extends into the hull opening about .66 metre beyond the inner side of the hull, C on the plan.

1. Witnesses gave evidence of a wide variety of methods which were adopted in order to gain access to the inboard curve.  They included walking along the keel through the lower aperture of each web frame to the point where access to the inboard curve was sought and climbing up the inner side of the hull to the curve.  The 50 millimetre wide flange end of each T-bar extends into the hull space at least 70 millimetres; accordingly the T-bars could be used as hand and foot holds, as could stiffeners and structures on the web frames.  The protrusion of the extension of the inboard curve into the hull space was skirted by climbing to a point where the person's feet were on the upper side of the rider bar above the lower aperture or on the rider bar at the bottom of the upper aperture.  A person could step from there to the inboard curve.  Another method was to climb up the outer side of the hull in much the same manner and then climb across the void at the level of the inboard curve using the rider bars just mentioned.  A further method was to climb up the watertight bulkhead at the forward end of the void with the aid of horizontal stiffeners across the face of the bulkhead.  At the appropriate level, access could be gained to the inboard curve at bay 41/42 and access could also be gained to other bays by moving through the upper aperture of each web frame.  A similar result could be achieved via the watertight bulkhead at the aft end of the void, but without first descending to the keel.  A worker could climb from the landing midway down the bulkhead, at the foot of the vertical access ladder into the void, across to the inboard curve at bay 33/34, or gain access to other bays by climbing through the upper apertures.  Variations on these methods included the use of a plank placed across the hull space to the inboard curve at the point where access was required.  One type of plank used for this purpose was an adjustable aluminium plank, the outer sheath of which was 300 millimetres wide; it was topped with plywood and had a minimum length of 3.08 metres. The distance from the outer side of the hull to the lip of the inboard curve was about 2.2 metres. Across the end of each plank was a downward facing strip of right angled aluminium, which fitted snugly over and behind the upper side of  a T-bar flange.  This allowed one end of a plank to be securely fixed to a T-bar at about F on the plan and the other end of the plank to rest on the inboard curve, a safe distance beyond G on the plan.

1. At the time of the accident, Ellis Leder was employed in the quality control section of Incat.  His duties included accompanying DNV inspectors when work was checked and assessed.  Early in the afternoon on the day of the accident, Mr Leder and a DNV inspector inspected the intercostal bulkhead in void 2.  It was noted that the angle at which stiffeners in the bulkhead had been cut at the point where they joined the hatch openings in bays 40/41 and 41/42 needed rectification.  After completing the inspection at about 2.30pm, Mr Leder directed Mr Taylor to perform the necessary rectification work.  Earlier that day, Mr Taylor and Kevin Williams had worked in void 2 installing hatch covers along the intercostal bulkhead.  Mr Williams said that, in order to gain access to the inboard curve and carry out this work, he climbed from the landing at the foot of the access ladder attached to the aft bulkhead to the upper aperture in web frame 34, the nearest aperture, and from there he moved from aperture to aperture to the point where he was to work.  Mr Williams said that in accessing bay 40/41, he used an aluminium plank which had been placed across the hull at that point at about the level of the upper aperture.  As I understand Mr Williams' evidence, he stepped from upper aperture 40 onto the plank in order to access bay 40/41.  One end of the plank was connected to a T-bar on the outer side of the hull at approximately F on the plan, and the other end of the plank was on the inboard curve beyond G in the plan.  Mr Williams said that he used the plank about 10 or 15 times that morning, and that Mr Taylor used a similar method to that adopted by Mr Williams when accessing the inboard curve.  This evidence is consistent with evidence from the plaintiff to the effect that Mr Taylor generally accessed the inboard curve via the upper aperture.

1. Mr Williams said that when he and Mr Taylor left void 2 that morning, they left the plank in posision as they knew that they needed to return to carry out further work in bays 40/41 and 41/42.  After leaving the void that morning, Mr Williams performed work elsewhere on the site.  Later that afternoon, presumably after Mr Leder and Mr Taylor had spoken, Mr Taylor told Mr Williams they had to return to the void to carry out rectification work.  To that end, Mr Taylor took Mr Williams' welding mask, and said that he would go ahead and set up while Mr Williams organised the welder.  Mr Williams located a main welder on the deck from where it was to be connected to a remote welder to be operated in the void; but on plugging the main welder into the power supply, Mr Williams observed that it was not operational.  Having unsuccessfully searched for an electrician to rectify the main welder, Mr Williams went into the void to explain the delay to Mr Taylor.  Mr Williams accessed bay 40/41 by walking through the upper apertures from web frame to web frame.  As he could not find Mr Taylor, it being close to knock-off time, he thought that Mr Taylor may have packed up and gone.  Mr Williams left the void to try and establish where Mr Taylor was, and returned to the void when he could not locate Mr Taylor.  This occurred on several occasions.  He estimates that on one occasion he was away from the void for about 10 minutes, and on another occasion he was away from the void for about 15 minutes.  Upon it occurring to Mr Williams that Mr Taylor may have fallen in the void, Mr Williams returned to the void and descended to the keel.  As he walked along the keel, he came upon Mr Taylor lying on the hull between web frames 40 and 41.  Having observed the extent of Mr Taylor's skull injuries, Mr Williams went for help.

1. The first at the scene were Incat workers, Barry Patmore and Darren Jefferson.  Consistent with the evidence of Mr Patmore, I find that Mr Taylor's body was adjacent to the keel on the port side of the hull.  Above his body was an aluminium plank sloping down across the void at an angle of about 45 degrees, the higher end of the plank was connected to a T-bar on the port side of the hull and its lower end was on the starboard side of the keel.  The plywood side of the plank was upper most.  The plank was about 6 inches above Mr Taylor.  Mr Patmore and Mr Jefferson moved the plank away and laid it parallel to the keel so that they could lay Mr Taylor on it.

1. I find that the plank removed from above Mr Taylor's body by Mr Patmore and Mr Jefferson is the plank which Mr Williams and Mr Taylor had left across the hull space between web frames 40 and 41 when they ceased work in that area earlier in the day.  The plank had been used by Mr Williams that morning; and it may have been used by him that afternoon, when he returned to the void looking for Mr Taylor.  Mr Leder noted the plank in that position, across the hull space, when he carried out his inspection that afternoon, before directing Mr Taylor to carry out rectification work in the void. 

1. On the basis of the evidence of Mr Williams and Mr Leder, I find that bay 40/41 was one of the bays where Mr Taylor intended working when he returned to the void.  From the position where Mr Taylor's body was found, I find that at the time of his fall he was endeavouring to access bay 40/41 via the upper apertures, the usual method he adopted for accessing the inboard curve.  The magnitude of his injuries strongly suggest that he fell from a height.  I consider it unlikely that he had gained access to the inboard curve at bay 40/41 before his fall; as there was no evidence of any item, such as the welding mask he had taken from Mr Williams, and other equipment it can be assumed he would have had with him, being found in the bay after his fall.  Photographs taken of the bay after his accident show it to be empty of all but a light, which had been left there that morning.  Photographs of the base of the hull in the general area where Mr Taylor fell, show a number of items that appear to include a welding mask which may be Mr Williams' mask.

1. I am in no doubt that the dislodgment of the plank, found above Mr Taylopr after his fall, from the position in which it had last been seen by Mr Williams and Mr Leder prior to the fall, is connected to the fall.  I am unable to determine how the plank came to be dislodged.  The manner by which the port end of the plank was secured to the T-bar on the outer side of the hull makes it most unlikely that it was dislodged other than by an upward force.  How that force was applied is anyone's guess.  Conceivably it was dislodged by Mr Taylor as he moved to it, or in his efforts to save himself when he fell.

1. I do not consider it probable that Mr Taylor fell whilst trying to lift the plank when standing on the inboard curve.  Whilst this could explain how the plank ended up, after the fall, with its port end higher than its starboard end, I reject this possibility.  My reasons are:

-          the absence of any sign that Mr Taylor had accessed the inboard curve before his fall;

-the physical impracticality of him undertaking the task of lifting the plank, it weighed 27 kilograms and was 3.08 metres long; and

-the lack of any need for him to move the plank, it led to bay 40/41, one of the bays in which Mr Taylor was to work. 

1. Accepting, as I do, that Mr Taylor fell whilst endeavouring to access bay 40/41, has the plaintiff established that the fall resulted from a breach of a duty of care which either defendant owed Mr Taylor?

"… (P)rima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage …";  The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 41, Mason J at 44.

1. Plainly, the first defendant, Taylor Bros, the employer of Mr Taylor, owed him a duty of care which included a duty to provide a safe system of work and a safe place of work; obligations which carried with them the need to provide Mr Taylor with a safe means of accessing and exiting the place where he was working, the inboard curve.  The second defendant, Incat, was not Mr Taylor's employer and denies owing him any duty of care which bears on the circumstances of his fall.

1. At the time of his fall, Mr Taylor was working for Taylor Bros, an independent contractor engaged by Incat.  Incat's contention that it owed no duty of care to Mr Taylor raises the question of whether, in the circumstances of this case, such duty as Incat might otherwise have owed Mr Taylor was discharged by Incat's engagement of Taylor Bros, an independent contractor, to perform the task Mr Taylor was undertaking.  The authorities on this question are comprehensively reviewed in Hetherington v Mirvac Pty Ltd & Ors [1999] NSWSC 443, Woods CJ at CL, pars 127 - 174. The decision which I find to be of most assistance is Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. In that case, Stevens, a trucker and independent contractor engaged by Brodribb, a sawmiller, sued Brodribb in respect of injuries Stevens suffered as logs were being manoeuvred onto a truck. Stevens' injuries were caused by the negligence of Gray, another independent contractor engaged by Brodribb. As to whether Brodribb owed a general common law duty of care to Stevens, Mason J said at 31:

   "The interdependence of the activities carried out in the forest, the need for co-ordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb.  Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury.  Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined.  If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system."

2. Deane J, at 53, agreed with Mason J's reasons for concluding that Brodribb owed Stevens a duty of care.

1. As to a submission that Brodribb owed Stevens a duty of care arising from the general supervisory functions exercised by Brodribb in the vicinity of the accident, Wilson and Dawson JJ said, at 45:

"The obligation said to be imposed upon Brodribb, which in the case of servants would be part of its duty to provide a proper place of work, proper plant and equipment and a safe system of work, was said to arise upon the ordinary principle that in the absence of such provision it was foreseeable that harm would be done to persons, such as the plaintiff Stevens, working in the area where the logging operations were being carried on. Reliance was placed upon the decision in McArdle v Andmac Roofing Co (1967) 1 WLR 356; (1967) 1 All ER 583 which held that the employment of a contractor to do certain roofing work did not displace the overriding responsibility of the employer to take precautions for the safety of subcontractors working together in close proximity in circumstances of obvious danger. It is true that the decision in that case resulted from the application of the familiar concepts of proximity and foreseeability in the law of negligence and may be said to support the appellants' submissions in these cases. There is no reason why those same concepts should not provide a basis upon which it might be found that Brodribb was under a duty of care towards Stevens and we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees. "

1. Brennan J said, at 47 - 48, with reference to the duty of care he found that Brodribb owed Stevens:

"An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity.  The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman (1985) 59 ALJR 564, at p 587; 60 ALR 1, at p 42) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. "

1. Returning to the facts of this case, Incat controlled the worksite, the vessel under construction, and the bulk of the equipment used by workers.  It also designated what work was to be done by its employees, Taylor Bros, and, I assume, other independent contractors engaged on the site.  Generally, the work being performed required an ongoing interaction between Incat employees and employees of Taylor Bros, as illustrated by the task being undertaken by Mr Taylor at the time of his accident.  He was directed to perform that task by Mr Leder, an Incat employee.  The welder, lights and planks available for his use were provided by Incat.  The lights and planks in the void had previously been used by employees of both Incat and Taylor Bros.

1. For relevant purposes the crucial aspect of the task Mr Taylor was directed to undertake was gaining access to the inboard curve.  The need for workers to access the inboard curve was quite common.  Mr Williams had accessed the inboard curve about seven times on the morning of the day of the fall and I assume Mr Taylor had done likewise.  Shortly prior to Mr Taylor's fall, Mr Leder and a DNV inspector had accessed the curve and it was necessary for them to do so again after the requisite rectification work had been attended to.

1. I have no hesitation in concluding that there was a distinct risk of a person accessing the inboard curve falling and injuring themself in the absence of a safe system for doing so.  As to its own employees, Incat had a clear obligation to provide and implement a safe system for accessing the inboard curve and, in the circumstances, I can see no reason for absolving Incat from a similar obligation as to the provision of a safe system of access to workers such as Mr Taylor, who were not employed by Incat, but who Incat knew were required to access the inboard curve in its interests.  This is not a case of a contractor who has organised an activity involving a risk of injury to those engaged on it having done so in a way that would avoid or minimise that risk.  In that situation, once the activity was organised and its operation passed to an independent contractor, the head contractor might avoid liability to an employee of the independent contractor for the independent contractor's failure to implement the safe system that had been organised.  There is no evidence before me to suggest that prior to Mr Taylor's fall, Incat had provided, let alone considered, a safe system for accessing the inboard curve.  I am satisfied that Incat was subject to a duty of care to all workers on the site, which includes employees of Taylor Bros, to provide a safe system for accessing the inboard curve.  With respect to the provision of that system, as distinct from its implementation, I can see no reason for distinguishing between the duties owed by Incat and Taylor Bros.

1. The variety of means by which workers accessed the inboard curve are referred to in par11.  They all involve a risk of serious injury.  There was an obvious risk that a worker negotiating the one metre gaps between upper apertures might fall and there was similarly an obvious risk that a worker endeavouring to climb from the keel to the level of the inboard curve could lose his or her grip and fall; the lip is about 3.4 metres above the keel.  To facilitate access, it was necessary to rely on moveable artificial lighting, and it was to be expected that workers accessing the curve would on occasions be carrying tools and the like.

1. Addressing the considerations enumerated in The Council of the Shire of Wyong v Shirt & Ors (supra), at 47 - 48, I find that the magnitude of the risk of a worker being injured whilst accessing or exiting the inboard curve was significant and that the degree of probability of an injury occurring was reasonably high. As to alleviating the risk, I heard contradictory evidence about the utility and cost of using various forms of scaffolding to provide access to the inboard curve. It has been suggested that the void space could have been "carpeted out" with extendible planks at the level of the inboard curve. The most obvious means of reducing the risk was the provision of a ladder. I reject evidence to the effect that it would have been no safer to use a ladder than it was to climb to the inboard curve using the T-bars and other protrusions on the side of the hull, web frames or watertight bulkbeads. Whilst T-bars provide secure hand and foot holds, this means of access falls well short of that which a stepped ladder can provide. As foot holds, T-bars are limited in width, some extended into the void no more than 70 millimetres. This is only sufficient to provide a toe hold, and the only connection between the climber's boot and the T-bar is the upper edge of the flange at the end of the T-bar. A stepped ladder would allow a climber's boot to be squarely placed on the step from the heel of the boot forward, with contact being made for the full width of the step. The hand grip a climber can obtain on the flange at the end of a T-bar is less secure than the grip that a stepped ladder can provide as it is not possible to grip right around the flange; the fingers and thumb cannot meet and interlock. The various means adopted for climbing from the base of the hull to the inboard curve required a vertical climb and in some instances, for example when circumventing the lip of the inboard curve, it was necessary for a climber to lean back beyond a vertical position. Such a climb is far riskier than utilising a stepped ladder fixed at an appropriate angle. There was ample space in the void for a stepped ladder to be lent from the port side of the hull across to the inboard curve at a gradient which minimised the risk of falling or slipping. As the shape of the hull is not constant, the legs of the stepped ladder would have had to be adjustable and it would have been necessary to devise a means of securing the ladder at both ends. There is no reason for concluding that these outcomes would have been unduly difficult or expensive to achieve. Of course, a ladder is not the only means by which the risks of accessing the inboard curve could have been significantly reduced. I have no doubt that if either defendant had applied its resources to providing a safe means of access, it could have done so and that the costs and inconvenience involved was warranted by the risk. By failing to take any action to provide a safe system of accessing the inboard curve, each defendant breached its duty of care to Mr Taylor and I am satisfied, on the balance of probabilities, that their failure to provide such a system was a material cause of Mr Taylor's fall. The plaintiff has established each defendant's liability in respect of that fall.

1. 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.

1. 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.

In the latter half of 1996, Professor Kenneth Kirkby raised the possibility that the plaintiff's involvement with Geoffrey Taylor's accident might be a factor in the plaintiff's depression and the professor ultimately diagnosed the plaintiff as suffering from a post traumatic stress disorder in consequence of that involvement.  Thereafter, the professor's diagnosis became the favoured view of the medical experts involved in the assessment of the plaintiff's condition, albeit that the factual basis for the diagnosis was equivocal.  It was not clear whether the plaintiff reacted adversely to what he experienced at the time of Geoffrey Taylor's accident, or whether he thereafter suffered from intrusive thoughts and dreams referable to that experience.  If it is established that the plaintiff so reacted and suffered, this will provide a sound evidentiary basis for concluding that the Geoffrey Taylor incident materially contributed to the plaintiff's condition. 

1. The plaintiff in summary said in evidence that the Geoffrey Taylor incident was horrific and had an immediate effect on him, but that he did not show it as he did not want to draw attention to himself.  He said that since the incident, he has thought about the incident weekly and has had nightmares about it three to four times per week: the nightmares restrict his sleep to about five hours, with a break of about an hour, on a good night; he is frightened to go to sleep because of the nightmares.  He in substance said he did not mention these problems subsequent to the incident as if he had done so he would have been perceived to be weak.  The defendant challenges the veracity and reliability of the plaintiff's evidence on these matters which link his psychiatric condition to the Geoffrey Taylor incident.

1. The plaintiff was born in Glasgow, Scotland, on 25 February 1958.  After completing his schooling, he undertook a four year apprenticeship as a welder and following a further year at college, became a licensed ship welder.  He worked as a manual welder until he left Scotland when he was 22 years of age and thereafter worked as a welder in South Africa, then New Zealand and finally in Sydney where he married and settled down.  He, his wife and their three children moved to Hobart in about 1994.  Within about four months of their move to Hobart, the plaintiff obtained employment with Taylor Bros performing welding and general engineering work.  He was immediately despatched to Incat's shipyard to assist in work on a damaged ferry and thereafter worked for Taylor Bros, in the main at Incat, doing whatever Incat required Taylor Bros to do.

1. Prior to Mr Taylor's accident, the plaintiff had shown himself to be an able and hard worker.  He had been the "top boy" at the Glasgow shipyards.  Through working hard and saving, he was able to acquire two homes in Sydney before he and his family moved to Hobart.

1. On the day of Mr Taylor's accident, the plaintiff and another employee of Taylor Bros, Detlef Schadock, had been cleaning up bays on the inboard curve.  As the plaintiff was packing his equipment away at the end of the shift, Mr Williams ran up to the plaintiff and told him of Mr Taylor's accident.  The plaintiff went straight to Mr Taylor.  When the plaintiff arrived, Mr Taylor was being attended by Mark Redden, a work co-ordinator with Incat, and Phillip Dunn, another Incat employee.  The plaintiff and several others stayed with Mr Taylor until he was removed from the vessel; a task which took about an hour as it was necessary to cut a hole in the side of the vessel in order to carry him out.  During this period, the plaintiff held Mr Taylor's hand and spoke words of encouragement to him.  Mr Taylor was not responsive, he was breathing heavily and gasping.  The plaintiff assisted by cutting away some of Mr Taylor's clothing in order to allow his body to be checked for injuries.  The plaintiff participated in discussions as to what needed to be done and was most upset by the indecisiveness and want of professionalism of some of those involved.  The sight of Mr Taylor's head injury was appalling, the odour in the void was most unpleasant, and the noise associated with cutting a hole in the side of the vessel was excruciating.  When a drip was put into Mr Taylor's arm, the plaintiff was one of those who held it in place.  The plaintiff remained with Mr Taylor until he was removed from the vessel.

1. After leaving the vessel, the plaintiff sought out Mr Williams, as the plaintiff was to give him a lift home.  Mr Williams was in the nurse's room; he was showing signs of distress.  The nurse requested the plaintiff to take Mr Williams to the plaintiff's home that night as Mr Williams was having domestic problems; this the plaintiff did.  The nurse gave the plaintiff the card of a psychologist and told him to telephone the psychologist if the plaintiff felt that he or Mr Williams needed assistance.  That night the plaintiff telephoned the psychologist and requested her to attend on Mr Williams.  She was reluctant and asked the plaintiff whether he thought Mr Williams really needed assistance.  The plaintiff was annoyed that she placed some burden on him in relation to this decision.  The plaintiff did not personally seek any assistance from the psychologist.  The next morning, a Saturday, the plaintiff and Mr Williams returned to work.  On the Sunday, a day off, the plaintiff telephoned one of Mr Taylor's sons, Phillip Taylor, to enquire after Mr Taylor, and was told,  "It's all over bar the shouting".  Phillip Taylor said to the plaintiff,  "We want you to look after Kevin [Williams] for us" and the plaintiff agreed to do so.  The plaintiff called on Mr Williams; they agreed not to go work on the following Monday and Tuesday; although on the Tuesday, the plaintiff attended a debriefing for 16 people involved in the Geoffrey Taylor rescue.  The debriefing was arranged by Incat and conducted by a psychologist, in the course of it the plaintiff did not express any concerns about the impact of the experience upon him.  Towards the end of that Tuesday, the plaintiff received a telephone call from Phillip Taylor, who abused the plaintiff for being absent from work.  The plaintiff went straight to the Taylor Bros' offices in Battery Point and confronted Phillip Taylor, who apologised.

1. The plaintiff and Mr Williams returned to work at Incat the next day and the plaintiff continued to work at Incat until he injured his right elbow in an accident on 19 June 1995.  During this period, the plaintiff said he had no difficulty with Phillip Taylor, as they did not come into contact; the plaintiff was working at the Incat site under the supervision of Incat employees.

1. After injuring his arm on 19 June 1995, and visiting Dr Sutherland, the plaintiff went to the offices of Taylor Bros with a medical certificate to the effect that he was unfit for work for one week.  He handed the certificate to Phillip Taylor, who again spoke to the plaintiff in abusive terms, questioning the plaintiff's need for time off work.  The plaintiff's arm injury did not resolve as expected and Dr Sutherland issued further certificates as to the plaintiff's incapacity.  As part of the effort to rehabilitate the plaintiff, he was referred to Dr Stewart Graham, a consultant rheumatologist, and Anne FitzGerald, a clinical psychologist.  Anne FitzGerald's report on her consultation included the following:

"I saw James on the 5th July 1995.  He presented as bright, happy and confident. He reported being a qualified boilermaker/welder and having worked in a general engineering capacity with Taylor Bros since November 1994. He reported that it was heavy physical work, that he found it varied and interesting and had been very happy.

He was appreciative of what was being offered to him thorough Action Rehabilitation and thought it would be extremely beneficial for him. He valued the comprehensive medical examination and reported that he had already noticed a drop-off in fitness and some weight gain and was eager to begin a physiotherapy supervised exercise program.

He completed a SCL90 which showed some elevation on the somatization scale but this was directly related to concerns about his injured arm.  The depression scale was slightly elevated, all others were around normal. He reported sound family relationships and felt his injury had had little impact on relationships at this point.  I felt there were few psychological indicators of poor outcome. He reported that he was confident about returning to his prior work position, perhaps requiring a graded return to work program.  He was also confident of being able to get work at Incat if none was available with Taylor Bros.  However, he reported that he had worked closely with Mr Taylor, one of his employers, who was killed in a fall whilst working at Incat recently. He did report that one of his fellow work mates had been greatly distressed following this incident, but felt that he handled it well.

He reported beginning to consume more alcohol immediately after his injury but that he had not consumed any in the prior three days and felt that would not become a problem.

He felt that at this point he had little need of my input but that if his injury did not resolve quickly or if he was unable to return to his prior work he could see that my input could be extremely valuable."

1. Dr Graham was of the view that the plaintiff had suffered a severe injury to the muscles of his right forearm, and that the injury would never get better.  The plaintiff said that the doctor told him,  "It was stuffed … and that's the way it would be".  This prognosis prompted Dr Sutherland to refer the plaintiff to Mr Peter Field, an orthopaedic surgeon, who saw the plaintiff on 25 July 1995.  Mr Field recommended a series of steroid injections.

1. As the plaintiff was fit for work not involving the use of his right arm, he returned to light duties at the premises of Taylor Bros in Battery Point, not the premises of Incat, on 8 August 1995.  The plaintiff's recall is that he worked with Taylor Bros until the end of August.  His pay records and Dr Sutherland's notes record that the plaintiff worked for somewhat longer, until 5 October 1995.

1. Christian Feeger, a rehabilitation consultant, was engaged by Taylor Bros' workers compensation insurer, to facilitate the plaintiff's return to work.  Mr Feeger conferred with the plaintiff and Phillip Taylor.  His report of 15 August 1995 includes the following:

"FUNCTIONAL STATUS

Mr Gahagan notes that he has diminished grip strength and restricted range of movement in his wrist.

Describing himself as otherwise fit, Mr Gahagan mentioned that he had difficulty brushing his teeth and shaving. As Mr Gahagan intends to renovate his home, he is anxious to make a full recovery to enable him to commence renovations.

VOCATIONAL

A fully qualified welder with additional x‑ray welding skills, Mr Gahagan was based at Incat on a job sub-contracted to Taylor Bros at the time of his injury.

Mr Phillip Taylor ‑ co-owner of Taylor Bros, indicated (3/8/95) that no welding tasks were available for Mr Gahagan on his return to work. However, some basic painting and timber surface preparation work was available as the Taylor Bros' own vessel was being restored on the work yard slips in Battery Point.  …

It is clearly apparent that a high level of animosity exists between Phillip Taylor and Mr Gahagan, resulting in ongoing mutual distrust. Both Mr Gahagan and Phillip Taylor have expressed anger and frustration over the initial handling of Mr Gahagan's work injury.

With Mr Gahagan's return to work an apparently uncomfortable truce seems to he in force, with both parties realising that a full recovery is required. Both Mr Gahagan and Phillip Taylor are keen to part company as soon as Mr Gahagan's injury has been fully cleared.

SOCIAL

No apparent difficulty.

PSYCHOLOGICAL

No apparent difficulty."

1. Efforts to allievate the plaintiff's right arm disability continued during the period of his return to work on light duties.  Taylor Bros' insurer arranged for the plaintiff to be examined by Dr Tim Stewart, an occupational physician, on 10 August 1995 and on 24 August 1995, the plaintiff consulted Dr David Humphries, a specialist in sports medicine. 

1. On 5 October 1995, the plaintiff consulted Dr Sutherland, who noted that the plaintiff had been trying to do bigger things, but had not been sleeping as he was mulling over his elbow injury.  On 9 October 1995, the plaintiff again consulted Dr Sutherland, who noted that the plaintiff was depressed as he had been off work since the previous Friday.  The plaintiff complained of demeaning jobs at work and clashes with Phillip Taylor.  Dr Sutherland prescribed Aurorix, an anti-depressant.  When the plaintiff saw Dr Sutherland again on 20 October 1995, Dr Sutherland referred the plaintiff to Dr Weidmann, a psychiatrist.  Dr Sutherland's letter of referral to Dr Weidmann included advice that he believed the plaintiff was suffering from a reactive depression secondary to a right elbow injury which had been very slow to recover.

1. Following the break down of Mr Feeger's efforts to facilitate the plaintiff's return to work, Mr Feeger prepared a report dated 10 November 1995, which includes the following:

"INJURY / MEDICAL

Dr Sutherland - GP, has advised that Mr Gahagan's 'tennis elbow' should be regarded as a long term injury and in all likelihood his capacity to return to full duties may take 1 - 2 years.  This medical opinion was apparently supported by Dr Humphries … although both agree that physically at least, Mr Gahagan could (perform) selected duties, providing certain movements are avoided in the course of manual handling activities.

Phillip Taylor - Co-owner of Taylor Brothers, has expressed considerable consternation that Dr Sutherland and Mr Field - Orthopaedic Surgeon, have not been able to heal Mr Gahagan's injury, and has strongly agitated for surgical intervention. In response Dr Sutherland has spoken with several Orthopaedic Specialists who apparently counselled that Mr Gahagan should not have surgery given the nature of his injury. Of more pressing concern at this point, is Mr Gahagan's apparent decline into a state of depression, which according to Dr Sutherland has left him in a suicidal condition. Various anti‑depressants have been prescribed by Dr Sutherland with little effect. Consequently Mr Gahagan has been referred to David Weidmann - Psychiatrist, in late October, to attempt to address his acute psychiatric state.

FUNCTIONAL STATUS

A candid discussion with Mr Gahagan's wife, Jackie, late in August, indicated her serious concerns about Mr Gahagan's capacity to cope with the industrial climate of his work place. She indicated that Mr Gahagan had now resumed regular drinking sessions, commencing early in the mornings.

…

VOCATIONAL

(S)eems that despite Mr Gahagan's initial return to work (8/8/95) to selected duties on full hours, little support or encouragement was provided to promote a climate where appropriate task upgrades would be possible.

Subject to Mr Gahagan's psychiatric recovery, a careful approach to his return to work will be essential to allow him the opportunity to regain his confidence. As Mrs Taylor has already suggested (10/11/95), it may even be necessary to consider some form of redeployment if operations at Taylor Brothers (and more particularly prevailing attitudes) do not accommodate Mr Gahagan's injury and associated stress condition.

More preferable would be a satisfactory recognition that Mr Gahagan's condition requires cooperative treatment from his employers. This more than anything else, would help increase Mr Gahagan's future prospects for a full clearance.

PSYCHOLOGICAL

Dr Sutherland informed me (9/10/95) that he was now treating Mr Gahagan for depression, and had commenced treatment with an anti depressant Dr Sutherland directly attributed Mr Gahagan's diminished state to psychological problems associated with his injury. Although Dr Sutherland described Mr Gahagan as suicidal and in a seriously debilitated state, Phillip Taylor expressed his intense frustration over the prospect of Mr Gahagan's deterioration."

1. Dr Weidmann' notes of his initial consultation with the plaintiff on 31 October 1995 begin with the plaintiff's complaint about Phillip Taylor getting on his nerves and refer to:

-          the plaintiff's accident at work in which he injured his arm;

-          his clash with Phillip Taylor when he presented the first workers compensation certificate;

-          his concerns about the diagnosis and treatment of his elbow;

-          his problems when performing light duties; and

-his concerns that he had been badly treated by his bosses who believed that he was malingering.

Dr Weidmann's report to Dr Sutherland on 2 November 1995 includes the following:

"He suffers from major depression, single episode, characterised by depressed and anxious mood, loss of appetite in the face of 10kg weight gain, ideas of worthlessness, suicidal ideas, withdrawal if interest and loss of pleasure.

He feels stuck because of his physical injuries and feels very badly treated by his boss to the extent that he has a panic attack when he picks up his pay."

1. The plaintiff's depression did not deter his pursuit of a resolution of his arm disability.  He continued to consult Mr Field and when in Sydney over the Christmas period at the end of 1995, he obtained a referral to Mr Desmond Bokor, an orthopaedic surgeon.  Mr Bokor confirmed Mr Field's diagnosis of lateral epycondolitis and recommended that the plaintiff continue with physiotherapy and see how his elbow was in four to six months' time when surgery might be an option.  The plaintiff was apparently so upset by Dr Bokor's failure to provide a prompt solution that the plaintiff punched a brick wall, fracturing his right wrist.

1. Following the plaintiff's return to Tasmania from Sydney, his physical condition did not improve and Taylor Bros' insurers referred him to Dr Ian Sale, a psychiatrist.  Dr Sale's report on his assessment of the plaintiff on 1 February 1996 includes the following:

"History of Claim

Mr Gahagan was injured at his place of work during June 1995 when his arm was violently twisted while drilling some aluminum. Mr Gahagan explained to me that he had suffered persisting symptoms following this injury.

With considerable intensity and some distress, he described to me how he had received conflicting medical advice concerning his injury, and its likely outcome. Initial specialist advice had been to the effect that his arm was irreparably damaged and that the prognosis was poor. A second opinion was sought. The second specialist reached different conclusions, and recommended conservative management consisting of a course of cortisone injections, and allowing time to effect healing. More recently, Mr Gahagan has obtained a third opinion. While on a family holiday in New South Wales he saw a sports medicine specialist/surgeon. This specialist has suggested that there is surgical management available for his difficulties, and has undertaken to write to Mr Gahagan's general practitioner outlining these options.

Mr Gahagan told me that he had found it extremely difficult to cope with what had happened to him. He had become depressed and irritable, was weeping frequently and his use of alcohol climbed. His general practitioner thus made a referral to a psychiatrist, Dr Weidmann.

Mr Gahagan has seen Dr Weidmann on four occasions so far and has been prescribed medication, currently comprising Prozac 60mg daily. He had not felt any better at this stage. His symptoms currently include mood disturbance, increased alcohol use, irritability, insomnia, loss of drive and weight gain.

Mr Gahagan expressed both anger and shame about his current condition. He was particularly distressed about substantial weight gain and his loss of fitness.

…

Behaviour during interview

Mr Gahagan was obviously agitated and irritable, and considerable effort needed to be made in gaining rapport. After initially taciturn, when asked to explain about his difficulties following the injury, it was difficult to stop him. The major cause of his agitation appeared to be the differing medical views he has received, and how he might resolve these discrepancies .'

He was also agitated about the rehabilitation situation. He has been returned to restricted duties, but believes that his employer has acted in a demeaning way towards him. The background to his relationship with his employer is a complex matter. Apparently a principal of the firm was killed in a workplace accident not that long before Mr Gahagan's injury.  Mr Gahagan had been nearby and had assisted both during the emergency, and afterwards. However, following his own accident, he has been subject to comments he regards, to say the least, as insensitive, and which nearly led him assaulting their author.  Fortunately, a family member counselled him that the individual concerned may still be emotionally affected by the recent events involving this company, and that the remarks made should be viewed in this light.''

…

Comment

I would have no difficulty accepting that Mr Gahagan has become markedly depressed about his situation: I would see this as substantially reactive. Mr Gahagan strikes me as an individual who has prided himself upon his self reliance and physical fitness prior to the accident in question. He is also a man who has relied on his physical vigour for his livelihood. He was never going to be someone who coped well with injury, and unfortunately his situation has been aggravated by two other factors:

a         The conflicting medical advice he has received.

b         The deterioration in his relationship with his employer.

…

Regardless of what type of psychiatric treatment is accorded, there are underlying matters that need to be resolved if this man is to make progress. Clearly he needs to have authoritative advice about his arm problem, the management required, and the outlook. At this stage he is likely to be seeking another opinion, and one fears that he may then get a fourth version. The other problem area that needs to be attended to is the relationship with his employer. This is presumably a role for your rehabilitation provider. On the history provided, it could be concluded that Mr Gahagan is not being treated with fairness and respect."

1. As to the plaintiff's desire to undergo any treatment which might resolve his arm injury, and other matters, Christian Feeger said the following in his report dated 29 February 1996:

"Mr Gahagan and his wife, Jackie's request for treatment from Sydney specialist, Mr Bokor ‑ Orthopaedic Surgeon, has been met with some reluctance by both Dr Sutherland and Mr Field ‑ Orthopaedic Specialist, largely because his documentation and assurances (to the Gahagan's) had scant information on proposed surgery options. Nevertheless, Dr Sutherland is arranging for a second specialist opinion here in Hobart.

In discussion with Jackie Gahagan (22/1/96), she expressed a strong willingness for her husband to undergo treatment by Mr Bokor, stating that she felt that the quality of treatment provided locally in Hobart was sub-standard. Moreover, it appears that Mr Bokor has given verbal assurances to the Gahagan's that he can treat Mr Gahagan's right forearm injury to effect a full recovery.

FUNCTIONAL STATUS

With considerable pressure on their marriage, Jackie Gahagan resolved to return to her family home in Sydney with her husband and children during January for a break in routines and some moral support. However, Mr Gahagan remained totally opposed to the planned trip and was determined not to accompany his wife and children until he finally relinquished some half hour or so prior to departure.

Having since returned to Hobart in February, Jackie Gahagan believes that her husband is experiencing a somewhat improved state of mental health and is also hopeful of the benefits of Mr Bokor's surgical intervention to effect a full recovery.

…

VOCATIONAL

In the midst of uncertainty about Mr Gahagan's medical options, it would seem prudent to promote the benefits of a return to work in performing selected duties at an alternative work site. This would eliminate the critical difficulty of reconciling Mr Gahagan with his employers (Taylor Brothers).

Whilst such a proposal may not attract favour from Mr Gahagan, Dr Sutherland supports any measure that would focus Mr Gahagan's attention on positive activities rather than 'drinking himself into an early grave'.

PSYCHOLOGICAL

On the surface it appears that the Gahagan's are highly vulnerable to the suggestion that there may be a 'quick fix'. To this end, both Dr Sutherland and Mr Field have expressed their reservations over suggested treatment offered by a Sydney specialist; knowing only too well that should such treatment prove ineffective, the result could have lasting negative consequences."

1. On 23 February 1996, Dr Sutherland referred the plaintiff to Mr Guy Marquis, an orthopaedic surgeon, for a further opinion on whether surgical intervention was an option, explaining that the plaintiff "is understandably impatient to try and hasten the healing process.  As a result of his lack of progress he has become depressed … .  I would like your opinion as to whether surgical intervention is an appropriate option at this stage".  Mr Marquis confirmed the diagnosis of lateral epicondylitis which the plaintiff had already received from other orthopaedic surgeons, and did not recommend surgical intervention. 

1. The plaintiff's mental condition deteriorated and on 9 April 1996 he was admitted as an in-patient at the Hobart Clinic.  The admission assessment made on that date includes the following:

"Precipitating factors and brief history of current presentation:

·   Injured ® arm/elbow in work accident § 7/12 ago

·   Boss traumatic accident § 8/12 ago.  Jim helped with initial 1^st aid management

·   Lots of friction b/ween Jim & the 2 sons whom have taken over the business

…

Stream of thought:  Normal.  However very talkative description of circumstances in detail."

1. The Hobart Clinic records cover the period from 9 April 1996 to 3 May 1996.  The only reference in the records to Mr Taylor's accident is a note that the plaintiff said that he coped with it OK.

1. Following the plaintiff's discharge from the Hobart Clinic, he did not consult Dr Weidmann again.  Between 31 October 1995 and 26 April 1996, the plaintiff had consulted Dr Weidmann on about 16 occasions.  A report Dr Weidmann provided on 26 July 1996 includes the following:

"HISTORY

Mr Gahagan related that four to five months before he first saw me he was engaged in sub-contracting at Incat. Whilst in the course of his labours he twisted his arm using a drill. He then went to the First Aid room and then on to his own doctor (Dr Sutherland). He was diagnosed as having a 'tennis elbow' and given a week off work. He took the certificate to the workshop the same day and his boss gave him a less than welcome reception. Despite thinking this was unfair, he attended physiotherapy for a week then attended his general practitioner who put him off work for another week. The workplace then sent him to Dr Graham who was reported to have told Mr Gahagan that he 'would never get better', that there was 'no operation'. Mr Gahagan reported that he was in chronic pain and consulted several orthopaedic specialists. The overall opinion seems to have been to let time heal his injury.

He reported that he had, over the months, become increasingly anxious. In the beginning the anxiety was related to payday. He felt belittled having to turn up for pay when he wasn't working and also thinking that his employer had labelled him a malingerer.

Then he started to experience depressed mood with global insomnia (in particulars early morning wakening at 0200 hours), loss of appetite in the face of increased eating and a ten kg weight gain, loss of energy, not enjoying anything in life, an increased consumption of alcohol, frequent feelings of being better off dead and fleeting ideas of suicide.

…

With respect to work history he reported that he had been in stable employment for years, enjoyed work and had never had such problems with employers previously.

OPINION

1         Mr Gahagan suffered a chronic major depressive disorder, melancholic.

…

3On the balance of probability, my opinion is, that the depression was due to and substantially caused by

a)his chronic painful condition which 1 have assumed is work-related and

b)        his employer's negative response to his physical condition.

…

7With respect to psychiatric prognosis. This depends to a large degree on his physical prognosis. If there is some considerable resolution of his chronic pain and given that he has intensive psychiatric management, his outcome should be good. If the chronically painful condition continues, even given intensive psychiatric management, his prognosis is problematic.

8He has made frequent comments to me that surgeons, in his case, have tended to be against operative intervention. He has made it very clear to me on repeated occasions that he is willing to risk any surgical intervention and to risk any subsequent complications of any such intervention in the hope of recovery and return to work. As indicated I have seen Mr Gahagan on numerous occasions and I believe this claim to be sincere and genuine albeit naive."

1. When giving evidence, Dr Weidmann explained that the term "global insomnia" is a reference to a problem with all aspects of sleep which is a characteristic of fairly severe depression.  As to whether this included nightmares, he said that if nightmares had been specifically mentioned, generally speaking he would have made a note of it.  His notes included no reference to the plaintiff complaining of nightmares.

1. The plaintiff expressed reservations to Dr Sutherland about the value he was getting from Dr Weidmann and his rapport with the doctor, so Dr Sutherland referred the plaintiff to Dr Kenneth Kirkby, a professor of psychiatry.  For the purposes of his attendance on Professor Kirkby, the plaintiff prepared a chronology of relevant events; it was typed at the plaintiff's direction by his wife, then a law student.  It was provided to Professor Kirkby, and is as follows:

"12 May, 1996.

CHRONOLOGY OF EVENTS

RE: JAMES GAHAGAN AND TAYLOR BROS

1         Assist in attempt to rescue Geoff Taylor and save his life.

-     No acknowledgment.

2Request by In‑Cat nurse to take Kevin Williams home and look after him at my place. Request by nurse to allow Kevin to stay overnight. Gave me psychologist phone number for Kevin should it be required. Due to Kevin's condition telephoned psychologist who was eventually persuaded that her services were required immediately and that the matter could not wait until morning.

-     No acknowledgment .

3Although I did not feel like it I thought the best thing was to return to work at In‑Cat next day as scheduled which Kevin and I did do.

4         Request by Phil Taylor to "look after Kevin" after Geoff died.

Was not keen, wanted space of my own but complied due to circumstances. ie felt would not be right to burden Phil Taylor with my concerns at this time. Phil did not tell me how I was to 'look after Kevin'. Spent time with Kevin, giving moral support. We decided that it would be best to wait until after the funeral and then return to work at In‑Cat, making a fresh start on Monday. After making this decision and prior to the funeral Phil Taylor phoned and called Kevin and I 'arseholes' for not being back at work. Did not ask our reasons or how we were getting on before making this accusation.

-Felt confused and humiliated as it was Phil who had requested me to look after Kevin and I was only following his instructions.

Once again, no acknowledgement.

5Work accident at In‑Cat (Arm twist drill). Told by In‑Cat nurse to see a Doctor.  Phoned Taylor Bros and complied with their request that I consult their personal physician, Dr Sutherland. Dr Sutherland diagnosed 'tennis elbow', one week off work. Take certificate to Taylor Bros. Jan and Phil Taylor, present. Handed certificate to Phil. Phil said, 'I don't want you using that fucking arm at all. Not even to wipe your arse with.' This was said in the presence of his mother which upset me because I don't think that that kind of language should be used in front of women and also his comments were not warranted in the circumstances. I had done no wrong that deserved such a vicious verbal attack.

-     Added to my increased disappointment of Taylor Bros attitude.

Was beginning to feel as if I wanted nothing more to do with term.

6Christian Feeger should tell story from here. I can recall Christian taking many notes concerning my disappointment with the treatment Taylor Bros gave me which includes sending me without referral to their personal friend Dr Stewart Graham who told me my arm was stuffed. Comparisons were drawn to a badly corked thigh. Asked for Ultrasound scan but was told this was not necessary.

7Asked Dr Sutherland if he had received a report from Dr Stewart Graham to find out where to from here. Dr Sutherland had not, as I was led to believe by Taylor Bros, referred me and was amazed at the lack of ethics involved. He was not informed Also Dr Sutherland had no knowledge of a certain rehabilitation officer (Christian knows) who phoned and informed me my arm would never regain its full function.

‑By this time I felt angry and upset that Taylor Bros had interferred without regard for my wellbeing  or concern for my feelings.

8Dr Sutherland sends me to Dr Field who recommends an ultrasound. Shows torn tendon. Usually repairs through time or as a last resort surgical intervention. Request operation due to wanting to get better quickly so as I could then seek other employment. Dr Field said no, wait a little longer. I complied.

‑Felt happy that arm was not completely stuffed and would eventually heal one way or the other. Still felt upset by Taylor Bros attitude.

9         Light duties ‑ 8/8/95 - See C Feegers. report and guidelines.

Reality ‑ two weeks rowing out to boat approx 100 metres offshore with 1.5 arms to sand and paint entire boat. Madness, never heard of boat being painted on unprotected mooring which was subjected to turbulence from passing boats and changing weather and tidal conditions in my life.

‑ Resent Taylor Bros. Felt sick. Wanted out but knew could not get away from them until I could get another job. Knew this would not be possible until I was healthy.

9Told Dr Sutherland how I was feeling. He said it would all work out. Don't do anything silly. I decided to try to ignore Phil Taylor and my feelings but this was very hard to do.

10Phil Taylor employer tells Trevor employee that Tim's depressed now and Phil has been told to leave Jim alone and do not upset him. Phil found this amusing and so did Trevor who then related this conversation to other employees at smoko.

‑     On hearing this I just felt worse.

11       Jan and Greg Taylor caused my wife emotional discontent.

‑Deeply distressed and felt bad that I was not capable of handling of protecting my wife and family in this situation.

SUMMARY

Since the death of Geoff Taylor I have felt disappointed, shocked and angry at the way Taylor Bros, have behaved towards me. I tried to help their father and did what they asked only to be met with criticism, ridicule and abuse. They have never asked how I am. All that has happened is that Geoff's dead. No one thanked me for my involvement or acknowledged my efforts in his rescue. No one thanked me for doing what I was asked to the best of my ability as far as Kevin was concerned. Instead all I have received is constant pressure, ridicule, humiliation and abuse at the hands of Taylor Bros. I was not able to deal with these situations as I might have because I was too upset. Mentally and physically I am exhausted and can see no way out until I can be free of these people.

8         Dr Sutherland"

1. Prior to the plaintiff consulting Professor Kirkby, the plaintiff had not suggested to any of those he consulted that he had any concerns about what he experienced at the time of Geoffrey Taylor's accident, and he had not complained of dreams or intrusive thoughts referable to that incident.  When directly questioned about his reaction to the incident, he told Anne FitzGerald that whilst Mr Williams was quite distressed, he felt he handled the incident well; and in response to an enquiry at the Hobart Clinic, he said that he coped with the incident OK.  In the course of his initial consultation with Professor Kirkby, the plaintiff said he was shocked but not overwhelmed by the incident.  In a report provided by Professor Kirkby to the plaintiff's solicitors on 9 July 1996, the professor first raised the possibility that the plaintiff's condition might have been precipitated by the Geoffrey Taylor incident.  That extensive report includes the following:

   "Mr Gahagan described problems subsequent to two events in his work-place.  Firstly on the 23 May 1995, whilst working at the International Catamarans' premises, in the hold of a vessel, his boss, Geoff Taylor, sustained severe head injuries in an accidental fall. This occurred at the end of the day's shift when Mr Gahagan himself was preparing to go home. He went to the accident site, which was in a confined space in the hull, with poor access, and remained there for an hour or more assisting the medical care of Mr Taylor by holding the latter's arm with an intravenous drip in it, whilst a hole was cut in the side of the vessel to evacuate the injured person. He particularly recalls Mr Taylor's brain tissue extruding from his head wounds, as well as the excruciating din being in a confined space while a hole was cut in the metal hull; he did not have earmuffs on at the time and did not think to ask for these being distracted by his helping role in this acute emergency. Mr Taylor died of his injuries in hospital soon after.

   Whilst shocked by the accident, Mr Gahagan does not recall being overwhelmed by it. A mate was more disturbed by what had happened and over the next several days he describes assisting the mate to return to work and to overcome his anxiety. He states that the new boss was aggravated that he and the other man did not immediately return to work; this had annoyed and upset Mr Gahagan. The new boss was Mr Taylor's son who had taken over the running of the subcontracting operation where Mr Gahagan was working, following the tragic death of his father.

   Whether, because of this family tragedy or by virtue of a different personality or management style, Mr Gahagan describes the new boss as being abrasive, critical and verbally abusive at times. Nevertheless, it appears that the situation was reasonably stable until Mr Gahagan sustained a further work-related problem, an injury to his right arm on the 19 June 1995. He describes this leading to further invective from his boss and it appears that an increasingly complicated acrimonious relationship developed, which, from Mr Gahagan's point of view, was humiliating.

   For example, he was assigned for a period to assist with re-painting the interior of the boss's yacht. He was expected to carry out this awkward work using his good arm, despite this involving working at many different angles. His feelings of anger and humiliation turned to despair and anxiety. He developed anxiety attacks, including hyperventilation and sweating. He denies any history of such symptoms prior to these events. He felt depressed, had disturbed sleep and felt lacking in energy a motivation and withdrawn. He experienced some suicidal ideation as well as thoughts of retaliation.

   …

   My provisional diagnosis was of a major depressive episode, partly in remission by this stage, panic disorder with agoraphobia, and alcohol dependence on a longer term background of moderate to heavy social drinking. He did not have the features of numbing or intrusive thoughts of the accident at work, where the boss had died, such as would characterise a post-traumatic stress disorder. However, he was greatly preoccupied by the perceived unfairness of the treatment he described by his boss and his feelings of both humiliation and anger were palpable.

   …

   In summary, it is my view that Mr Gahagan is suffering from two forms of pathology. The first is an injury to his right arm, sustained in the course of his work. I have not had access to the investigations of this injury, such as ultrasound, nor to specialist orthopaedic or rheumatological reports. It would appear that this injury is improving with his non-jarring exercise program. I am unable to estimate any prognosis for this injury, which lies outside my area of specialist expertise.

   Secondly, Mr Gahagan has a current panic disorder with agoraphobia, a depressive disorder now largely in remission, and alcohol dependence which is heading towards resolution by his own efforts.

   It is my opinion that these psychiatric disorders were a direct consequence of incidents at work, in that I do not think he would have developed these problems in the absence of the three precipitating factors of the death of his boss, the change in boss to one whom he found aggravating, and the arm injury which led to a prolonged period off work. He does not have typical features of post-traumatic stress disorder related to the death of his original boss, although I would consider this event was a precipitating factor for his later development of panic disorder with agoraphobia. In particular, he describes a period of very high arousal while assisting with the first-aid for his boss in the confined surroundings of the hold of the ship, with a deafening noise level as the hull was cut open. In my view, this triggered a degree of anxiety which quickly became interwoven with the further arousal through his anger at his perceived unreasonable treatment by his new boss.

   In my view, both the physical and psychological conditions would separately be sufficient to account for his current incapacity to work. Further with respect to his psychological disorders he is currently wholly incapacitated for work."

1. At his first consultation with Professor Kirkby the plaintiff recounted what he had experienced in the hold of the vessel following Mr Taylor's accident, 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 which was to the same effect as his report of 9 July 1996.  At the time of his preparation of these reports, Professor Kirkby did not have:

-any information to the effect that the plaintiff's response to the Geoffrey Taylor incident was extreme fear, helplessness or horror, other than an understanding that the plaintiff was highly aroused by the incident;

-any history of the plaintiff suffering from emotional disability or vulnerability as a consequence of the incident; or

-any information that the plaintiff suffered from recurrent distressing recollections or dreams about the incident. 

The presence of indicators such as these are relevant to a diagnosis of post traumatic stress disorder.  As Professor Kirkby was equivocal about the presence of some of the common criteria for such a diagnosis, he refrained from making it, when he provided the reports of 9 July 1996 and 2 August 1996.  Professor Kirkby was, however, of the view that the level of the plaintiff's symptoms was consistent with the plaintiff suffering from a post traumatic stress disorder and that the plaintiff's rancorous relationship with Taylor Bros and his arm injury would not normally account for the same level of symptomatology.  Professor Kirkby said that at the time the plaintiff's major preoccupations were not related to the Geoffrey Taylor incident; his preoccupations were his relationship with Taylor Bros, or more particularly Phillip Taylor, and his arm injury ¾ being off work and not being the bread-winner.  My understanding of Professor Kirkby's evidence is that Professor Kirkby did not probe the Geoffrey Taylor incident in the course of his consultations with the plaintiff, as the professor considered this would be too distressing for the plaintiff.

1. Taylor Bros's insurer arranged for the plaintiff to travel to Melbourne on 1 August 1996 to have his arm injury assessed by a rheumatologist, Mr Ingpen, and an orthopaedic surgeon, Mr McNichol-Smith.  Thereafter the insurer made the plaintiff a lump sum offer to settle his workers compensation claim based on Mr McNichol-Smith's assessment that the plaintiff's incapacity arising from his arm injury would last for six - nine months.  The plaintiff did not accept the offer.

1. The first record of the plaintiff having a dream or intrusive thought in relation to the Geoffrey Taylor incident is the following note made by Professor Kirkby on 15 October 1996: 

"Remembers a dream ¾ Taylor and me living in one house.  James not getting any dinner in a pot.  Brain went about house like in virtual reality."      

At about this time, Professor Kirkby had asked the plaintiff to write down some of his dreams and on 28 October 1996 Professor Kirkby noted the plaintiff as saying he was trying to write down his stupid nightmares.  Prior to 15 October 1996, the plaintiff had not mentioned intrusive thoughts, nightmares or bad dreams involving the Geoffrey Taylor incident.  The plaintiff had, however, made comments referable to Phillip Taylor.  Professor Kirkby's records include notes of the plaintiff complaining that he still had nightmares about Phillip Taylor, and was troubled by frequent thoughts about the need to be polite to Phillip Taylor.  On 18 September 1996, Professor Kirkby was told by the plaintiff that because of his humiliation about the events at Taylor Bros, he was too insecure to collect his wages and sent his wife to do so.  On 4 September 1996, Professor Kirkby was told by the plaintiff of three different occasions over the prior weekend when he had gone somewhere and had become concerned that he might meet people from Taylor Bros.  So great was the plaintiff's phobia about Taylor Bros that, in an endeavour to alleviate it, Professor Kirkby accompanied the plaintiff on a visit to Taylor Bros slip at Battery Point.  That visit prompted the plaintiff to reiterate the difficulties and humiliations he had suffered when working, whilst incapacitated, on the Taylor Bros' boat.

1. Between Professor Kirkby's request in October 1996 that the plaintiff write down some of his dreams, and 10 October 2000, when the plaintiff moved to Queensland and ceased attending Professor Kirkby on a regular basis, the plaintiff consulted Professor Kirkby on about 140 occasions.  The professor's notes of these consultations include occasional reference to the plaintiff suffering from nightmares.  Only one note specifically records details of a nightmare about what the plaintiff experienced in the hull following Geoffrey Taylor's fall; it relates to using scissors to cut off Geoffrey Taylor's clothes.  Four other notes of nightmares refer directly or obliquely to Geoffrey Taylor.  A number of notes record dreams or nightmares involving Phillip Taylor.

1. As to other indicators of the plaintiff's emotional reaction to the Geoffrey Taylor incident, Professor Kirkby said that soon after he started working with the plaintiff, the plaintiff became visibly upset when they discussed that incident.

1. On 10 March 1997, Professor Kirkby provided the plaintiff's solicitors with a report in which he directly attributed the initiation of the plaintiff's condition to the Geoffrey Taylor incident, but did not go so far as to diagnose the plaintiff's condition as a post traumatic stress disorder.  The report includes the following:

   "Mr Gahagan has attended treatment sessions on average weekly over the ensuing eight months. In that time there has been a significant, though only partial,  improvement in his condition.  Firstly, he has become less obsessively preoccupied and angry about the work-related events which occurred subsequent to the death of Mr Geoff Taylor at INCAT and the humiliating treatment he reported from his employer following his arm injury in June 1995. The frequent tearfulness he experienced at that time has also abated, although he will still, at times, come to the verge of tears in discussing his feelings of loss and humiliation relating to these past events.

   …

   Regarding causation of his psychological condition, I would note the following:  Firstly, that the predominant emotional issues, mental preoccupation, and at times dream content, have related to the treatment Mr Gahagan reports from his employer after his arm injury.  In particular, he is haunted by memories of being out in the employers' boat in the Derwent Estuary in choppy conditions trying to scrape down the inside of the boat using his uninjured hand, feeling deeply humiliated and angry about this the while.  However, as his anger about these events has increasingly settled, he has on a number of occasions reflected, in an emotional manner, on the accident where Mr Geoff Taylor died and Mr Gahagan was assisting with his care in the confined and extremely noisy hold of the boat, prior to evacuation being possible.  It is clear that at the time he attempted to deal with the situation largely by suppressing it and that this was only a partially successful strategy.

   In my view there is a direct link between his subsequent over-arousal and anxiety symptoms and the stress and excess noise stimulation he received following Mr Taylor's fall.  It is further my view that, the death of Mr Taylor and the difficulties Mr Gahagan experienced after his arm injury, were directly related, both to the ambivalent relationship which built up with his new employer, and to Mr Gahagan's difficulty in fully articulating what was happening to him.

   In short, the causal chain of events which led to Mr Gahagan's emotional and occupational undoing, was initiated on the day that Mr Taylor died.  The problems were substantially reinforced and compounded by later events which grew out of this."

1. On 3 June 1997, Professor Kirkby first said that a post traumatic stress disorder was his primary diagnosis in respect of the plaintiff's condition.  His report includes the following:

   "With respect to his mental state, he generally presents somewhat 'on-edge' and 'toey', aggravated by his circumstances and past events and has some emotional lability with tearfulness at times, though he tries to suppress this. The more prominent emotions are of anger and frustration. He does not have the typical negative cognitions of depression, although he reports suicidal ideation at times, most particularly following reminders of his previous difficulties, such as seeing his previous boss driving past, or meeting somebody who worked at the ship-building factory, or seeing one of the boats anchored at the local port. Typically, such events will unsettle him for a day or so.

   With respect to diagnosis; the clinical picture is of continuing panic disorder with agoraphobia, depressive disorder largely in remission, and alcohol dependence. All three of these have significantly reduced in intensity but remain disabling at present. The episodes of triggering of symptoms by situations which recall his work at INCAT, and the drama in the hull of the boat where his boss sustained fatal injuries, indicate that post traumatic stress disorder is also present. Indeed given the chronology of events I would consider this the primary diagnosis. I consider the current rehabilitation to work to be timely and it should be beneficial. Further incremental progress is anticipated and the current graded and flexible introduction to the workforce is important given the persistent emotional distress he feels at times."

2. In evidence, Professor Kirkby confirmed his diagnosis that the plaintiff suffered a post traumatic stress disorder precipitated by the Geoffrey Taylor incident.  He said that the plaintiff's tendency to abuse alcohol and his proud and somewhat resolute character had rendered him vulnerable to suffering a stress or anxiety disorder.  The professor acknowledged that when he initially diagnosed the plaintiff's condition, he did not have a history of the plaintiff having felt any emotional disability or vulnerability stemming from that incident during the period between its occurrence and the time when the plaintiff injured his arm.  Nevertheless, the professor said that his understanding was that following the Geoffrey Taylor incident, the plaintiff's mental state was not fine and that the arm injury accident was somewhat of a relief to the plaintiff as it provided him with a physical reason to account for his inability to function.  The professor said that the plaintiff's rancorous relationship with Phillip Taylor and his arm injury and its sequelae would not normally account for the level of the plaintiff's symptoms, although the professor acknowledged that they could explain the symptoms.  He said that the plaintiff's somatic symptoms, events which triggered the plaintiff to recall the Geoffrey Taylor incident, and his dreams about that incident, pointed towards a post traumatic stress disorder. As to the regularity of the plaintiff's dreams about the incident, the professor said when he saw the plaintiff on 4 March 2002 the plaintiff said he dreamt about the incident most nights.

1. Dr Sutherland first became aware of the plaintiff's involvement in the Geoffrey Taylor incident when he received copies of Professor Kirkby's reports in April 1997.  Between 19 October 1995 and April 1997, Dr Sutherland was consulted by the plaintiff on more than 50 occasions, apparently without the plaintiff mentioning anything which linked his anxiety, distress and alcohol abuse with the Geoffrey Taylor incident.  No mention was made of nightmares or intrusive thoughts referable to the incident.  Nevertheless, having been provided with Professor Kirkby's report, Dr Sutherland agreed with Professor Kirkby's diagnosis.  In evidence, Dr Sutherland said he believed the plaintiff's psychiatric condition to be predominantly due to the events which occurred at or about the time that Geoffrey Taylor was severely injured.  Dr Sutherland said that Professor Kirkby's diagnosis made sense as the incident involving Geoffrey Taylor would have been of far greater magnitude than the plaintiff simply suffering from chronic pain in his right forearm.

1. On 22 July 1997, the plaintiff attended on Dr Sale, who had been requested to revise his assessment of the plaintiff and had been provided with a copy of the report in which Professor Kirkby diagnosed the plaintiff to be suffering from a post traumatic stress disorder.  Dr Sale's report on the outcome of his review includes the following:

"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.

…

5I believe that the earlier death of Mr Taylor was probably the major cause of Mr Gahagan's subsequent difficulty.  However, as noted above, there have been substantial contributions arising from his work place injury and its aftermath."

1. Following a further review of the plaintiff on 18 August 1998, in the course of which the plaintiff complained of suffering from frequent nightmares, the content of which related to the circumstances of Geoffrey Taylor's death, Dr Sale provided a report which includes the following:

"There have been two factors involved in Mr Gahagan's difficulties, a workplace injury during June 1995 and an earlier incident in which one of the principals of his employing firm had been killed in a workplace accident, an event which then had further ramifications for Mr Gahagan's relationship with his employer.

…

I found it very difficult to form a confident conclusion concerning Mr Gahagan's current status.  The history is suggestive of a chronic post-traumatic stress disorder complicated by episodic alcohol abuse and it seems likely that the more probable cause of this was the earlier workplace accident which had resulted in a fatality, and at which Mr Gahagan was present.  It is difficult to imagine that he would cope with any work situation (and vice versa)."

1. In evidence, Dr Sale confirmed his views as to the plaintiff suffering from post traumatic stress disorder and as to its cause, but said that it was probably one of the most complex cases he had come across when trying to tease out the different elements.  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.

1. The second named defendant called evidence from Fernando Roldan, whose qualifications include a Doctorate in Clinical Psychology.  He has considerable clinical experience in the assessment and treatment of post traumatic stress disorders.  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 Rolden 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 Rolden, 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.

1. From time to time the experts have expressed different opinions about the role played by the Geoffrey Taylor incident in the plaintiff's condition.  The differences are 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.  That incident is perceived to be a cause of the plaintiff's condition when the understanding of the expert is that the plaintiff reacted adversely to the incident and thereafter suffered from intrusive thoughts and nightmares referable to it.

1. The plaintiff did not assert that he had reacted adversely to the Geoffrey Taylor incident, or complain that it intruded into his thoughts and dreams, to any of those who treated him or were interested in his rehabilitation until about 17 months after the incident.  In evidence, the plaintiff said that the incident intruded into his thoughts weekly and into his dreams three to four times a week, and that in result he only slept for between three to five hours a night.  The plaintiff's wife, who gave evidence, said that sometime subsequent to the Geoffrey Taylor incident she became aware that the plaintiff was not sleeping soundly and was getting out of bed at night.  She did not give any evidence of the plaintiff complaining of intrusive thoughts or nightmares referable to the incident.  I consider this to be significant.  She was in a good position to observe the plaintiff's problems and she typed a list of them on 12 May 1996 for the purposes of his visit to Professor Kirkby.  That the list contains no reference to the plaintiff suffering any significant adverse reaction to the Geoffrey Taylor incident, or intrusive thoughts or nightmares referable to it, is a strong indication that these matters were not then of concern to the plaintiff.  The plaintiff, in substance, says that he did not mention them out of pride and he had decided not to mention them to anyone.  I do not accept this explanation.  There is no reason to distinguish these matters from other matters about which the plaintiff was readily complaining; for example, his resentment about the way in which he had been treated by Phillip Taylor.  The explanation is also inconsistent with evidence given by the plaintiff that he believes he told Dr Sutherland about his problems referable to the Geoffrey Taylor incident.  Several of the expert witnesses suggest that the plaintiff's failure to mention these matters may be attributed to him not being insightful or psychologically minded.  This suggestion does not accord with the plaintiff's evidence; he says he was aware of the matters, but chose not to mention them.  The plaintiff was sufficiently cognisant of his emotional concerns about other matters to mention many of them to his consultants.  I can see no reason why he was not also able to recognise and complain about the impact of the Geoffrey Taylor incident on him, if it had in fact been a cause for concern.

1. A question which needs to be addressed is whether the plaintiff manifested any signs of his psychiatric condition, or more particularly his reaction to the Geoffrey Taylor incident, prior to injuring his arm.  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.  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.  The plaintiff told Anne FitzGerald, the clinical psychologist he saw on 5 July 1995, about three weeks after injuring his arm, that he felt he had handled the Geoffrey Taylor incident well and gave a similar response when at the Hobart Clinic.  He ostensibly remained of that view for some time as in May 1996 he told Professor Kirkby that he had not been overwhelmed by the incident.  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.  David Street, a former work associate of the plaintiff, gave evidence to the effect that when he visited the plaintiff a fortnight after Geoffrey Taylor's accident, the plaintiff was a different person, he was drinking heavily, was shaken up by the accident and did not want to talk about it.  Mr Street was not an impressive witness.  I formed the view that he was trying to slant his evidence so as to assist the plaintiff.  I do not accept him as a reliable witness and I am not persuaded that he can distinguish between his observations of the plaintiff prior to and subsequent to the plaintiff suffering his arm injury.  In the course of responding to a question as to his observations of the plaintiff on the first occasion when they met subsequent to Geoffrey Taylor's death, which was before the plaintiff had suffered his arm injury, Mr Street described the plaintiff as drinking heavily.  He referred to the plaintiff drinking a bottle of Scotch and dragging Mr Street to the pub to have a bet and more to drink.  He described the plaintiff's drinking "as being way out of hand".  Later in his evidence, Mr Street acknowledged that this observation was not made at the time when he first visited the plaintiff, but on the occasion of a visit subsequent to the plaintiff injuring his arm.  Mr Street said that in about January 1996, the plaintiff complained that he was being moved from job to job by Taylor Bros.  Accepting that something to this effect was said to him by the plaintiff, Mr Street's recall that it was in about January 1996 is incorrect.  By that time the plaintiff had not worked for Taylor Bros since October 1995 when he ceased carrying out restricted duties.  The evidence does not satisfy me that prior to the plaintiff's arm injury he manifested any signs of suffering from a psychological condition or reacting in an out-of-the-ordinary way to the Geoffrey Taylor incident.

1. An aspect of the reasoning of some of the expert witnesses, in attributing the plaintiff's condition to the Geoffrey Taylor incident,  is the severity of the plaintiff's symptoms and the potential for reminders of the incident to precipitate symptoms.  Whilst I do not disregard these matters, I give them little weight in circumstances where, for 17 months after the incident the plaintiff: 

-          did not refer to the incident in the context of his condition; and

-complained bitterly of other matters which are plausible explanations for his condition.

1. I do not accept 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.  This evidence is inconsistent with and contradicted by many of the things he said or omitted to say to those involved in the assessment or treatment of his condition for a considerable time after the incident.  He only began mentioning the incident in the context of his depression after its potential relevance was raised by Professor Kirkby, and since that time the plaintiff's, initially occasional, references to bad dreams and intrusive thoughts involving the incident have progressed to the point that in evidence he said he has bad dreams almost nightly and intrusive thoughts three to four times per week.  I am not satisfied that the onset of the plaintiff's psychiatric condition began prior to him injuring his arm.  I am satisfied that 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.  It is clear from what the plaintiff said and did following his arm injury that it, and his relationship with Phillip Taylor, were overwhelmingly the plaintiff's predominant concerns.  I accept that 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; however, in the light of the matters to which I have referred, this possibility does not persuade me that the Geoffrey Taylor incident is a material cause of the plaintiff's psychiatric condition.

1. The claim is dismissed.