Hart v Cashman and Everingham t/as Cashman and Partners - [2007] NSWSC 233

No judgment structure available for this case.

CITATION: HART v. CASHMAN & EVERINGHAM trading as CASHMAN & PARTNERS [2007] NSWSC 233

HEARING DATE(S): 13 to 17, 20 to 23, 27, 28 March, 3, 13 April 2006

JUDGMENT DATE :
21 March 2007

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: Judgment for the defendants.

CATCHWORDS: Plaintiff claimed the defendant solicitors in breach of their duty to him by failing to comply with instructions to seek leave to adduce "fresh evidence" on the hearing of his damages appeal in 1995 of post traumatic stress disorder additional to cerebral or brain damage - plaintiff treated in 1973 in former Chelmsford Private Hospital - trial held in 1980 - lengthy delay in proceeding with appeal (1995) following a Royal Commission - Diagnosis of post traumatic stress disorder made in 1993 - questions as to what advice given concerning "fresh evidence" based on the diagnosis - solicitor entitled to rely upon counsel's advice - evidentiary requirements for expert medical opinion on a retrospective analysis of events over 20 years - evidentiary principles - expert opinion - requirement for cogent evidence on an application under s.106(2), Supreme Court Act 1970 to adduce evidence of post trial matters on an appeal - history of symptoms over many years - inconsistent evidence - whether historical substratum established necessary to support medical opinion evidence on the existence of post traumatic stress disorder symptoms and causation with treatment at former Chelmsford Private Hospital

LEGISLATION CITED: Supreme Court Act 1970 (NSW)

CASES CITED: White Industries (Qld) Pty Limited v Flower & Hart (A Firm) (1998) 156 ALR 169
Wakim v McNally [2002] FCA 208
Baldwin v Lisicic (Court of Appeal, 20 April 1993)
Makita V sprowles (2001) 52 NSWLR 729
Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34
Ramsay v Watson (1961) 108 CLR 642
Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844
Day v Electronik Fabric Makers (Vic) Pty Limited [2004] VSC 24
Whisprun Pty Limited v Dixon (2003) 77 ALJR 1598
Stingel v Clark (2006) 228 ALR 229
Tawyer v NSW Insurance Ministerial Corporation (Court of Appeal, 28 June 1999)
Radnedge v GIO (1987) 9 NSWLR 235

PARTIES: HART, Barry Francis v. CASHMAN, Peter & EVERINGHAM, Roland, t/as CASHMAN & PARTNERS

FILE NUMBER(S): SC No. 20266 of 2004

COUNSEL: P: P.R. Arden SC/M. Choat
D: D.G. Nock SC/B.J. Shields

SOLICITORS: P: Bryan Gorman & Co
D: Ebsworth & Ebsworth

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 21 MARCH 2007

No. 20266 of 2004

BARRY FRANCIS HART v. PETER CASHMAN & ROLAND EVERINGHAM, t/as CASHMAN & PARTNERS

JUDGMENT
HIS HONOUR:

1 The issue in these proceedings is whether the defendant solicitors who were retained by the plaintiff were negligent and/or in breach of contract in their conduct of his unsuccessful appeal in the Court of Appeal of New South Wales.

2 The plaintiff essentially contends that, had his appeal been competently conducted, he would have succeeded in satisfying the Court of Appeal that there existed special circumstances which would have entitled him to a grant of leave to adduce evidence on the appeal. That evidence related to a diagnosis made many years after trial that he suffered a post traumatic stress disorder. The plaintiff’s case against the defendants is that such evidence would have led to the Court of Appeal ordering a reassessment of damages or a retrial on damages in an amount considerably greater than had been awarded at his trial against the defendants to those proceedings, a Dr. Herron and the company that operated former Chelmsford Private Hospital.

3 The critical events occurred over a very lengthy period of time. The medical treatment over which the plaintiff originally sued was administered in 1973 and the trial was conducted in this Court before a jury of four in 1980. For reasons explained below, the appeal was heard approximately 15 years later in 1995. In 1993, the first diagnosis of post traumatic stress disorder was made, that is approximately 20 years after the medical treatment was administered.

4 The liability issue in the proceedings turns, in part, upon the resolution of a number of questions including, in particular, the following:-

(a) Whether there is cogent evidence establishing that the plaintiff was afflicted with a continuing post traumatic stress disorder following his discharge from Chelmsford Private Hospital in 1973 and as a consequence of the treatment he received at that hospital.

(b) The instructions that were given by the plaintiff to the defendants to apply to the Court of Appeal for leave to adduce in his appeal evidence of post traumatic stress disorder following the diagnosis made by Dr. Dent.

(c) The advice given to the plaintiff by the defendants and by junior and senior counsel on that matter.

(d) The plaintiff’s response to the advice given.

(e) Whether advice given on the question as to whether or not an application should be made to the Court of Appeal for leave to adduce evidence of post traumatic stress disorder was correct.

Supreme Court Act 1970 (NSW)

5 Issues related to the question of breach of duty include the following:-

(a) Whether the defendants, in breach of their duty to the plaintiff, failed to act on instructions.

(b) Whether the defendants, in breach of their duty to the plaintiff, failed to investigate and obtain cogent evidence in support of the proposition that he suffered from post traumatic stress disorder before, in and/or after 1980.

(c) Whether the defendants, in breach of their duty to the plaintiff, failed to properly brief counsel with relevant material and failed to obtain written advice on the question of seeking leave to adduce evidence in the appeal from senior counsel.

6 Whilst the plaintiff’s written submissions raised a number of matters concerning the principles governing the scope or content of the duty of care owed by a solicitor to his or her client and those going to lawyer’s immunity from suit the principal issues in contention and which directly determine liability are essentially matters of fact. These include:-

• The issue as to whether there was cogent evidence (or whether such evidence was available) of the plaintiff’s symptoms in and over the many years following his discharge from Chelmsford Private Hospital in 1973 and following the jury verdict in 1980.

• The issue as to whether there was cogent evidence of a causal relationship between the pattern of symptoms reported to Dr. Dent in 1993 and to Professor McFarlane in 2005 and the plaintiff’s treatment at Chelmsford Private Hospital.

• The issue as to the instructions given by the plaintiff to the defendants between 1992 and 1995 inclusive.

7 The analysis of the factual material in evidence in these proceedings has been undertaken by reference to a number of discrete subject topics as follows:-

A.	An outline history of the proceedings	p.5
B.	The appeal from the 1980 verdict and judgment	p.6
C.	Instructions given in relation to post traumatic stress disorder	p.9
D.	The plaintiff’s allegations of breach of duty	p.13
E.	Issues in relation to counsels’ advice	p.15
F.	The plaintiff’s career and other personal details	p.16
G.	The evidence in the proceedings	p.20
H.	The diagnosis made in 1993 of post traumatic stress disorder	p.21
I.	The solicitor/client relationship in the period 1993 to 1995	p.28
J.	Observations, findings and conclusions on the question of client instructions and legal advice	p.57
K.	The evidence and issues in relation to the diagnosis of post traumatic stress disorder	p.62
L.	The approach and basis for assessing the likelihood of success of an application under s.106, Supreme Court Act	p.88
M.	Conclusions	p.107

A. An outline history of the proceedings

8 The plaintiff, Barry Francis Hart, originally instituted proceedings against the defendants, Peter Cashman and Roland Everingham, then trading as Cashman & Partners, solicitors, in the District Court of New South Wales by Ordinary Statement of Claim filed on 21 August 2004. The proceedings were transferred to this Court on 13 May 2005.

9 The plaintiff was granted leave to file an Amended Statement of Claim in these proceedings on 13 May 2005. On 15 March 2006, leave was granted to file the Further Amended Statement of Claim. On 3 April 2006, the defendant filed a Defence to that amended pleading, dated 28 March 2006.

10 On the hearing of the present proceedings, Mr. P.R. Arden, SC. with Mr. M. Choat of counsel appeared on behalf of the plaintiff and Mr. D.G. Nock, SC. with Mr. B.J. Shields of counsel appeared on behalf of the defendants.

11 The plaintiff alleged that he retained the defendants in or about February 1992 for the purpose of conducting proceedings in the Court of Appeal of New South Wales. The appeal was commenced many years before, on 29 August 1980. It related to the judgment in the plaintiff’s favour given in this Court on 14 July 1980 in proceedings no. 12781 of 1979 against Dr. John Tennant Herron and Fairfield Heights Community Hospital Pty. Limited trading as Chelmsford Private Hospital. The latter defendant will be referred to in this judgment simply as “Chelmsford Private Hospital”. On 14 July 1980, the jury in the proceedings entered a verdict in favour of the plaintiff in the amount of $6,000 for false imprisonment, $18,000 for aggravated damages for assault and battery and $36,000 for general compensatory damages. The plaintiff was awarded interest in the amount of $12,100. In the appeal he challenged the award of damages on the following bases:-

(a) The damages awarded were inadequate.

(b) The trial judge had erred in ruling that there was no evidence upon which it was open to the jury to award exemplary damages.

(c) The trial judge was in error in depriving the plaintiff of the cost of 34 days of the trial.

B. The appeal from the 1980 verdict and judgment

12 The plaintiff initially was seen by Dr. Peter Cashman and thereafter he dealt with Mr. Roland Everingham and, for this reason, I will, for most purposes, refer to Mr. Everingham by name rather than to both defendants. Mr. Everingham had been involved in other proceedings concerning former patients of Chelmsford Private Hospital.

13 The plaintiff said that he gave instructions to Mr. Everingham both in writing and orally. In particular, he gave instructions in 1993, 1994 and 1995. Those instructions, he said, related to the condition which he claimed he suffered from as at the date of trial in 1980, namely, post traumatic stress disorder.

14 The grounds of appeal from the 1980 judgment relied upon by the plaintiff raised the following matters:-

(a) Inadequacy of damages.

(b) Failure to award exemplary damages.

(c) Limitations on evidence in reply (subsequently abandoned).

(d) The trial judge’s summing up.

(e) The award of interest.

15 On 25 and 26 March 1993, the Court of Appeal heard the defendant’s motion to dismiss or stay the appeal. That application was unsuccessful.

16 The plaintiff’s appeal was listed before Sheller, JA. on 11 June 1993 for directions. The plaintiff was allowed 28 days within which to file and serve an Amended Notice of Appeal expiring on 9 July 1993.

17 In the original and in the second Further Amended Statement of Claim filed in this Court, the plaintiff alleged that he gave certain instructions to the defendants in relation to the appeal, but that they failed to comply with them and, in consequence, there was not introduced into the amended appeal proceedings certain medical reports said to be supportive of the condition post traumatic stress disorder. In this respect, the plaintiff alleged that in 1993 he instructed the defendants to include in the appeal reliance upon the medical reports of Dr. Jonathan Phillips dated 28 August 1992 and that of Dr. Malcolm Dent dated 23 September 1993.

18 It was part of his case that on or about 28 August 1992, the defendants in fact served the report of Dr. Phillips on the solicitors for Dr. Herron and Chelmsford Private Hospital and, on or about 23 September 1993, they served the report of Dr. Dent. Mr. Everingham, in his affidavit sworn 3 September 2003, says that he served a copy of the report of Dr. Phillips of 28 August 1992 on the defendant on 19 November 1992. He said the report was served in connection with the plaintiff’s opposition to the application by the defendants for a permanent stay or, alternatively, an order dismissing the proceedings for want of prosecution.

19 On 8 March 1994, the New South Wales Court of Appeal granted leave to the plaintiff to file an amended Notice of Appeal and made orders as follows:-

“1. On or before 10 May 1994, the appellant to file and serve such affidavits as he seeks to rely on in support of an application to adduce fresh evidence in the appeal.

2. The appellant, on or before 29 March 1994, file and serve an amended Notice of Appeal.”

20 The plaintiff further alleged that on 29 March 1994, the defendants failed to comply with leave granted by the New South Wales Court of Appeal and failed to comply with his instructions in that they “did not include in the amended appeal documents the report of Dr. J. Phillips and Dr. M. Dent”. I will deal later with certain advice given to the plaintiff in February 1994.

21 On 29 August 1995, the plaintiff’s appeal came on for hearing in the New South Wales Court of Appeal. The plaintiff was represented by senior and junior counsel briefed by the defendants.

22 Mr. Arden, SC. explained that the delay in hearing the appeal “… was primarily due to the parties agreeing to await the outcome of various Medical Tribunal cases, criminal proceedings and the Royal Commission into Deep Sleep Therapy …”. The letters patent dated 14 September 1988 established the terms of reference for that Royal Commission. The report of the Commission was delivered on 17 December 1990.

23 Mr. Arden further explained that during the taking of evidence in the Royal Commission, the plaintiff became aware, for the first time, of the extent of “an apparent conspiracy between Dr. Herron and the staff at Chelmsford to cover up alleged activity concerning Mr. Hart’s lack of consent to the life-threatening treatment he was subjected to at Chelmsford. Although he had sought treatment from various doctors between 1973 and 1979 for his apparent psychiatric brain damage condition, he was unsuccessful” (transcript p.5). The issue of the consent form figured prominently as an issue in the course of preparation for the appeal.

24 On 6 June 1996, the Court of Appeal handed down judgment in consequence of which the plaintiff, as appellant, was unsuccessful. The appeal was dismissed and the plaintiff was ordered to pay the respondent’s costs of that appeal.

25 In or about June 1996, the plaintiff instructed the defendants to seek special leave to appeal from the High Court of Australia. A special leave application to the High Court was filed and it was heard on 10 April 1997. The application for special leave was refused. The plaintiff, as applicant, was ordered to pay the defendants’ costs.

C. Instructions given in relation to post traumatic stress disorder

26 In the second Further Amended Statement of Claim, the essential allegation made by the plaintiff was expressed in the following terms:-

“14. The plaintiff says that by reason of the defendant’s failure to file an amended (sic) grounds of appeal pursuant to the orders of the Court of Appeal on 8 March 1994 and in accordance with the plaintiff’s instructions, the defendant (sic) failed in its (sic) duty of care to the plaintiff in that the plaintiff lost the opportunity in the New South Wales Court of Appeal and in the High Court of Australia to include in assessment of damages evidence going to brain damage and post traumatic stress disorder.”

27 The questions of “fresh evidence” in relation to the alleged falsification of a consent form and of “fresh evidence” in relation to the disorder known as post traumatic stress disorder are of central importance. Detailed reference will be made later in this judgment to this aspect of the appeal proceedings. It is sufficient at this point to emphasise the plaintiff’s contention that he instructed the defendants to seek the leave of the Court of Appeal to adduce fresh evidence establishing that he had been diagnosed as suffering post traumatic stress disorder and that the disorder was related to his treatment given at Chelmsford Private Hospital. That evidence was said to be “fresh” evidence on the basis that the diagnosis of post traumatic stress disorder had only been established within the medical profession as a discrete medical condition subsequent to the trial held in 1980, namely, in the early 1980s, a fact not disputed by the defendants in these proceedings, and that he was first diagnosed in 1993.

28 As discussed later, it is of importance to observe that it was not the plaintiff’s case that the relevant “matter” that occurred after the trial was the late onset of post traumatic stress disorder, but rather the fact that the symptoms that he claims existed throughout were supportive of a diagnosis of post traumatic stress disorder and had remained undiagnosed until 1993 when he saw a Dr. Malcolm Dent, now deceased. One difficulty confronting the plaintiff and requiring resolution was the fact that, when examined in 1992, Dr. Phillips, consultant psychiatrist, did not diagnose the existence of such a disorder for the reason that he did not consider the plaintiff then had the necessary pattern of symptoms to make the diagnosis.

29 The plaintiff had been referred by the defendants to Dr. Jonathan Phillips for medico-legal examinations and reports on three occasions. He attended upon Dr. Phillips on 17 June 1992, 24 June 1992 and again on 30 October 1992. Following the first two consultations, Dr. Phillips reported to the defendant on 28 August 1992. He then opined that Mr. Hart had suffered from “chronic organic brain syndrome (dementia)” and “organic personality” disorder, as a consequence of his treatment at Chelmsford.

30 Dr. Phillips reported again on 1 March 2005 for the purpose of the present proceedings and in this report provided some support for a diagnosis of post-traumatic stress disorder. The history and diagnosis made by Dr. Phillips in 1992 and in 2005 will be examined below.

31 On 20 November 1992, the Mr. Greg James, QC., who was briefed by Greg Walsh & Co., provided an opinion, having regard to Dr. Phillip’s report dated 28 August 1992. Under the heading “fresh evidence” he stated:-

“I have read the report of Dr. Phillips … Dr. Phillips’ report would be admissible as fresh evidence on the appeal and would be important on the issue as to the quantum of damages.”

32 Mr. Everingham, who, as earlier indicated, had direct carriage of the appeal proceedings for the plaintiff, was cross-examined by Mr. Arden, SC. on this advice. Mr. Everingham stated that Mr. James, QC. dictated it in conference and it was made for the purpose of a submission to the Legal Aid Commission for legal aid funding purposes. It was, in effect, put to him in cross-examination that senior counsel’s advice had to be heeded and not placed to one side. Mr. Everingham responded by saying that Mr. James had only been engaged in the matter for a short time and that “I am telling the Court that we had new counsel and I took advice from counsel”. Mr. Everingham, in this respect, was referring to advice from Mr. Bates of counsel given at a later time and subsequently by Mr. Parker, QC. in conference who were both briefed to advise and appear on the appeal. Mr. Everingham stated that, though both counsel advised in relation to the issue of post traumatic stress disorder it was only Mr. Bates who committed his advice to writing.

33 Mr. Arden, SC. referred in his opening address to the fact that that Mr. Hart had never been shown Mr. James’ opinion. Mr. Everingham accepted, in cross-examination, that he had not briefed Mr. Bates with a copy of Mr. James’ advice. Mr. James’ advice did not, of course, address post traumatic stress disorder and referred only to Dr. Phillips’ 1992 report.

34 In paragraph 14(g) of the Particulars of Negligence , the plaintiff alleged that the defendant’s failed to procure the proper and necessary evidence to put to the Court of Appeal. It is asserted that the defendants were repeatedly instructed by him to put before that Court available evidence of his post traumatic stress disorder, which he maintained he had suffered from soon after his treatment at Chelmsford Private Hospital (the history of the plaintiff’s symptoms and medical condition over the relevant years is discussed below). He particularised his instructions by reference to correspondence annexed to his affidavit sworn on 6 May 2003. I will refer in greater detail later to the correspondence and its significance.

35 In a letter dated 2 February 1993 (document no. 7), the plaintiff wrote:-

“Now that a link has been established between the clonic shaking spasms and the treatment, I would be pleased to undergo unbiased medical examinations so that a report can be placed before the Court as soon as possible.”

36 In a subsequent letter of 5 March 1993 (document no. 9), he wrote:-

“According to Mr. (sic) Michael Dent – post traumatic stress syndrome has only become to be recognised as a medical condition in the early 1980s. There would have been very few doctors aware of this problem in the early 1980s …”

37 The plaintiff also noted after emphasising the importance of having “these facts (pointed out) to the Court of Appeal”:-

“It was not until last month that I became aware, after speaking to Tim McCombe of the Vietnam Veterans Association of the work of Dr. Dent and arranged for a consultation. The consultation took place on Monday 22 March 1993 (3 days before the Appeal Court hearing). Dr. Dent informed me that I was suffering from post traumatic stress syndrome and that my symptoms were obviously being caused by my experience in Chelmsford. I, accordingly, instructed you to contact Dr. Dent so that a report can be placed before the Appeal Court as a matter of urgency. This was not done – it would be the final irony and injustice if the court now struck out my appeal for alleged ‘lack of prosecution’ at the same time as I have finally found a doctor who understands the cause of the 20 year hell I have been through as a (sic) consequent of my unlawful (treatment) in Chelmsford …

Accordingly, I would be grateful if you would arrange for a report by Dr. Dent to be submitted to the Justices as soon as possible. In this regard, I have spoken to Dr. Dent’s secretary who I believe will be ringing you.”

D. The plaintiff’s allegations of breach of duty

38 In the written submissions on behalf of the plaintiff, and developed in oral submissions, it was contended that the defendants breached their duty of care in the following respects:-

(a) They did not protect the interests of the plaintiff.

(b) They failed to carry out his instructions to include post traumatic stress disorder as a fresh evidence point before the Court of Appeal.

(c) They did not properly consult with the plaintiff, and they did not consult with him on all questions of doubt.

(d) They did not keep the plaintiff fully informed and advised.

(e) They were not skilful or careful.

(f) They failed to identify material issues in dispute, whether those issues were directly elicited from the plaintiff or not.

39 In addition to the above, the written submissions assert that the defendants failed:-

(a) To advise the plaintiff on all matters, including his rights relevant to his claim.

(b) To carry out his instructions in the manner to which the retainer related.

(c) To identify a material issue in the dispute.

(d) To institute inquiries relevant to the available medical material by seeking clarification thereof and corroboration therefor.

(e) To skilfully and carefully address all the relevant issues to the appeal.

(f) To protect the plaintiff’s interests.

40 It was also submitted on behalf of the plaintiff that the defendants did not, at any time, advise or notify the plaintiff of the following matters:-

(a) That failure to pursue the fresh medical evidence application in the Court of Appeal would most likely prevent him from relying on it in the future should his appeal on other grounds fail.

(b) That the fresh medical evidence ground was material to the issue before the Court of Appeal in that it would probably have impacted significantly on quantum of damages then before the Court.

(c) That failure to take action posed a real and foreseeable risk to the quantification of economic loss.

41 The plaintiff claimed that by reason of the negligence alleged, he suffered loss and damage. This was said to be:-

(a) The loss of the opportunity to have his damages assessed on the basis that in addition to brain damage he suffered post traumatic stress disorder.

42 The plaintiff also claimed that, in consequence of the negligence claimed, he was deprived of having his economic loss assessed on the basis that he had, by reason of his medical condition, been rendered unemployable.

43 The plaintiff also claimed from the defendants exemplary damages.

44 The defendants’ defence was conducted upon the basis that there was no breach of duty by them towards the plaintiffs as alleged, or at all.

45 The plaintiff relied in these proceedings upon his two affidavits, the first sworn on 6 May 2003 and the second on 22 August 2005.

46 The defendant relied upon the affidavit of Mr. Roland Everingham sworn on 3 September 2003.

E. Issues in relation to counsels’ advice

47 In the plaintiff’s submissions, it was contended that the defendants cannot rely upon the advice provided by Mr. Bates of counsel to exonerate their conduct. It is noted at this stage that, Mr. Everingham gave evidence that senior counsel, Mr. Parker, QC., had also provided advice on the matter in conference. The advices of Mr. Bates and Mr. Parker will be discussed later in this judgment.

48 In the submissions for the plaintiff, a number of English authorities were cited, including those referred to in White Industries (Qld) Pty. Limited v. Flower & Hart(A Firm) (1998) 156 ALR 169. The proposition advanced in submissions was, in essence, that a solicitor must not blindly rely on counsel’s advice but must exercise his or her own independent judgment. Reliance was also placed upon the decision of the Full Court of the Federal Court in Wakim v. McNally [2002] FCA FC 208.

49 It was contended for the plaintiff that the advice of Mr. Bates was wrong and, in particular, was deficient in a number of respects. No reference to authority had been made by Mr. Bates in support of his opinion. It was observed that Mr. Bates had apparently not been briefed with advice that had been provided by Mr. Greg James, QC. (as stated earlier, the evidence established he had not been provided with the advice) or the report of Dr. Phillips nor a copy of the decision of the Court of Appeal in Baldwin v. Lisicic (unreported 20 April 1993). In particular in this case, the defendants, it was observed, had acted on behalf of the appellant/applicant in Baldwin’s case and, as well, were in possession of what was referred to as a “contradictory advice from eminent Queen’s Counsel”, a reference to Mr. James, QC.’s advice. The defendants, it was said, were bound to turn their own mind to the advice of Mr. Bates and to examine it so as to be sure that it was sound. This, according to the submission, they did not do. These matters will be examined later in this judgment.

F. The plaintiff’s career and other personal details

50 The plaintiff was born on 20 August 1935 in Sydney, he therefore being 45 years of age at the time of the trial in 1980 and presently is 71 years of age.

51 He gave evidence that he attended Newtown Intermediate High School, but did not sit for the Intermediate Certificate. He was, at that time, very much involved in photography and later obtained work involving the processing of motion picture film.

52 He undertook National Service in 1954 for approximately two years to early 1956 (Australian Army Certificate of Service, 22 October 1978, Exhibit A).

53 He obtained work with 20th Century Fox and then Paramount Films. Following the introduction of television into Australia in 1956, he was interested in telecasting work in the studio at Channel 9 in the Film Section (letter from Television Corporation Limited, Exhibit B).

54 The plaintiff remained in that employment for approximately six months and then worked for four or five years with Commonwealth Industrial Gas (CIG).

55 Earlier, at the age of 16, he joined a gymnasium and at the age of 23 he opened his own gymnasium business in Rockdale in about 1959. He subsequently sold that business and opened another gymnasium at Coogee.

56 In 1963, he left CIG to concentrate on his gymnasium activities. The Coogee gym was known as Coogee Bay Health Studio.

57 In 1966, his gymnasium was awarded the Weider Shield for the most successful gym in the Mr. Australia Competition that year.

58 In 1963, the plaintiff took up professional modelling and became involved in television commercial work. Between 1963 and 1972, he appeared in approximately 131 television commercials. He also became involved in acting and he was recommended to study with the New South Wales Arts Council Acting Course. He topped the class in 1971. He enjoyed acting and described those years as “the best years of my life”. He also enjoyed modelling and operating the gymnasium. He said, in evidence that by about 1970, when he started his acting he wanted to move on and “use my brain more”. He was getting “a bit stale with the gym”.

59 By 1972, he had earned sufficient money to be able to pay cash for a block of land on the Gold Coast at Mirwana Park. He believes that he paid approximately $8,500 for the property. He subsequently sold it and invested the proceeds of sale into four Gold Coast properties.

60 He said that, as at the early 1970s, he had a protrusion under the eyelids and did not consider that his eyes were suitable for modelling work. Accordingly, he went to see a plastic surgeon to have corrective surgery undertaken. He was treated at this time by a Dr. Chandler. The result of his plastic surgery was said to have been “a disaster” and he became anxious and depressed as a result.

61 He was referred in due course to Dr. Herron, psychiatrist to whom I have referred above. Having seen Dr. Herron on five occasions, it was suggested that he be admitted to Chelmsford Private Hospital. He was admitted there on 28 February 1973. It was alleged that he signed certain documents presented to him for hospital treatment.

62 He stated that he was feeling nervous and anxious and was given some tablets to take. He said that he woke up some two weeks later, at which time he was being transferred to Hornsby Hospital. He remained there for two weeks. He said he was extremely ill whilst an in-patient at Hornsby Hospital.

63 He was discharged two weeks later into the care of his mother and father.

64 He said that it was about three months after his discharge from Chelmsford Hospital that he got back to the gym, having, in the meantime, had someone look after it, a Mr. Robert Naylon. He said the first six months was “very, very bad”. He said he thought “I was going insane”. He said that he couldn’t concentrate or remember anything. He said he suffered extreme anxiety and used to have “strange jerking movements in my body”.

65 He had not experienced those sensations before. He described the jerking movements as like a “startled response”. He says he used to jump and sometimes he went into a fit. He said it was uncontrollable shaking “like a clonic shaking of my body, like an epileptic type fit”.

66 The plaintiff also said at this time that he experienced panic attacks which led to uncontrollable anxiety. He said that he became suicidal and was unable to recognise friends. He said he used to sit in the gym and stare at the wall.

67 He stated that the gym had been well established and was apparently operating well under the care of Robert Naylon. However, he gradually lost interest in the gym. All he was concerned about was what had happened to him at Chelmsford Hospital. He said, “that became my focus of everything”. Indeed, it may be observed that the Chelmsford matter and related events have remained a focus for him until the present time.

68 He said that he also lost ambition. In 1975, he received a phone call from a new theatre that wanted him to choreograph some form of production for them. He said that he helped them and that, as a result, he was offered a part in the play “One Flew Over the Cuckoo’s Nest”. He did not otherwise appear in any plays. There was a great deal of cross-examination about his appearance in that play. I do not consider, however, that that aspect is decisive of any issue in these proceedings.

69 The plaintiff subsequently commenced proceedings against Dr. Herron and Chelmsford Hospital. Those proceedings (referred to in paragraph [11]) ultimately were heard before Mr. Justice Fisher and a jury in 1980. The hearing took some three to four months. The plaintiff was only partly successful in those proceedings. He obtained a verdict against Chelmsford Private Hospital and Dr. Herron on the basis of false imprisonment, assault and battery and negligence.

G. The evidence in the proceedings

70 The plaintiff relied upon his primary affidavit sworn on 6 May 2003 and his affidavit in reply sworn 27 August 2005. Annexed to his primary affidavit was a 12 page “statement” which in turn referred to documents marked 1 to 43 (Exhibit 1 to his affidavit). A large number of documents were annexed to his reply affidavit. The plaintiff also tendered a number of other documents (Exhibits A to AU).

71 Exhibits K to Q consist of extracts of transcript from the 1980 trial of some of the evidence as to the “before” and “after” presentation and capacity of the plaintiff, that is, before and after his treatment at Chelmsford Private Hospital. Exhibit K is an extract of the evidence given by the plaintiff’s mother. I have had regard to these exhibits when considering the extent of historical evidence that could assist in corroborating the history of the plaintiff’s symptoms.

72 The defendants relied upon the affidavit of Mr. Everingham sworn 3 September 2003 with annexures 1 to 149 (comprising two volumes). There were no objections made to Mr. Everingham’s affidavit. Whilst Mr. Everingham gave evidence as to specific conversations he had with the plaintiff, he was permitted also to give evidence of other unspecified occasions when he said he related the effect of advice given to the plaintiff (see, for example, paragraph 72(1) of his affidavit). Mr. Everingham also gave evidence in his affidavit of oral advice he said was given in conference by senior and junior counsel.

73 Apart from extracts of transcript referred to earlier, the transcript of the 1980 trial was not tendered in the plaintiff’s case in the present proceedings. However, extracts of the plaintiff’s evidence at the trial found their way into evidence as annexures to Mr. Everingham’s affidavit sworn 3 September 2003 (RGME 40). In particular, the extracts of transcript included in those annexures were pp.46 to 48, 55, 59, 64 to 65, 69, 264 to 265. These included evidence of certain symptoms and changes said to have occurred following the plaintiff’s discharge from Chelmsford Private Hospital. Whether or not those symptoms in the period 1973 to 1980 as related in evidence at the original trial were attributable to brain damage or attributable wholly or partly to another condition is not a matter addressed by medical practitioners in evidence in the present proceedings. The symptoms referred to in the last-mentioned extracts included anxiety, sleeping disturbance, difficulties in concentration, some forgetfulness and withdrawal from certain activities outside the home.

H. The diagnosis made in 1993 of post traumatic stress disorder

(1) The events preceding the diagnosis by Dr. Dent

74 The plaintiff, having initially retained the defendants in 1992, relied upon correspondence, memoranda and other documents to establish the proposition that he instructed them to raise in the appeal proceedings heard by the Court of Appeal in 1995 the “fresh evidence” as to post traumatic stress disorder first diagnosed in 1993.

75 The matters that follow are noted by reference to the documents attached to the plaintiff’s statement and primary affidavit (references are to the guidecards to the documents contained in the folder of documents referred to in the plaintiff’s abovementioned statement):-

(a) On 5 February 1992, Cashman & Partners wrote to Mr. Hart confirming his instructions “to take over the conduct of the present appeal proceedings” (Tab 2).

(b) On 28 August 1992, Dr. Jonathan Phillips, consultant psychiatrist, wrote to Cashman & Partners. The report contains a history of the plaintiff’s treatment and problems and “current symptoms” . There is no reference under the heading “opinion” to any condition of post traumatic stress disorder (Tab 3).

“fit like attacks”

“Accordingly I should receive compensation for this psychological/psychiatric damage

This supporting evidence was not available until after the Royal Commission.”

At this stage, there had been no diagnosis made that he suffered ‘psychological/psychiatric damage” in the form of post traumatic stress disorder. The plaintiff went on to state that a link had been established between “the clonic shaking spasms and the treatment …” . He requested “unbiased medical examination so that a report could be placed before the court” . It is noted that this position in early 1993 was taken before Dr. Dent’s diagnosis was made (Tab 7).

psychological damage

“

No

damages were awarded for any psychological damage that the electrical and chemical assaults and batteries caused me during my three week false imprisonment in Chelmsford …”

“psychological damage”

(e) A little over two weeks later, on 22 March 1993, the plaintiff advised Mr. Everingham’s secretary that he had come under the care of Dr. Dent for post traumatic stress disorder. Mr. Everingham requested a report from Dr. Dent by letter dated 8 June 1993. He later forwarded a copy of the report to Phillip Bates of counsel (on 27 September 1993).

(f) On 6 April 1993, the plaintiff wrote to Mr. Everingham advising that it was not until March 1993 that he had became aware, after speaking to Mr. Tim McCombe of the Vietnam Veterans Association, of the work of Dr. Dent. A consultation with Dr. Dent took place on Monday 22 March 1993. Dr. Dent is said to have informed him that he was suffering from post traumatic stress disorder “… I accordingly instruct you to contact Dr. Dent so that a report could be placed before the appeal court as a matter of urgency. This was not done” (Tab 11).

(2) Dr. Dent’s diagnosis of post traumatic stress disorder

76 Central to the plaintiff’s case is the fact that, in 1993, Dr Dent diagnosed his symptoms as post traumatic stress disorder and that once provided with Dr. Dent’s opinion, so the plaintiff’s case ran, Mr. Everingham had “fresh evidence” identifying a condition or disorder that had not been recognised in medical circles in 1980 and therefore could not have been diagnosed between 1973 and 1980.

77 It is of some significance to note the evolution of the plaintiff’s case in relation to Dr. Dent. In his first report dated 23 September 1993, Dr. Dent stated that the condition of post traumatic stress disorder, which he said he had diagnosed, was a consequence of “ECT and narcosis while a patient of Dr. Herron”, as well as “chronic organic brain damage”.

78 In his next report dated 15 November 2003, he stated that there was a relationship between the alleged perjury of Dr. Herron in 1980 and the subsequent disclosure of the alleged perjury in 1989 (in the Royal Commission proceedings) and the condition of post traumatic stress disorder. These events, he stated, “caused further mental anguish and suffering to Mr. Hart and, in particular, exacerbated the post traumatic stress disorder”.

79 Before the first of these reports was received, Mr. Everingham raised with Mr. Bates, in a letter dated 9 July 2003, the prospect of introducing fresh evidence into the appeal. Under the heading “fresh evidence”, he wrote to Mr. Bates of counsel saying:-

“Please consider whether we should seek the leave of the Court to bring fresh evidence, in particular, in relation to the appellant’s:-

(a) economic loss; and

(b) injuries – brain damage and post traumatic stress disorder. In this regard, evidence of both Dr. Jonathan Phillips and Dr. Malcolm Dent could be brought. We enclose a copy of Dr. Phillip’s report.”

80 In letters dated 1 August 2003 and 13 August 2003, concerning issues that had been raised in correspondence by the solicitors for the defendant (in particular, a letter dated 20 July 2003), Mr. Hart contended in relation to the issue of fresh evidence, that the matters to be dealt with by Dr. Dent in his report were not “new” evidence but related to symptoms “of a psychiatric disorder which have been present since my unlawful treatment in Chelmsford Private Hospital in 1973 …”. He contended that all Dr. Dent had done was “to put a label on the symptoms that have been present for the past 20 years”. He asserted the transcript of the trial revealed that his symptoms were those of post traumatic stress disorder. In his letter of 13 August 1993, he stated that Dr. Dent’s evidence and the evidence of anoxic brain damage had to be considered in any negotiations to settle the case or “in any argument to the Appeal Court in regard to re-assessing damages”. The letter enclosed a document setting out references and details as to symptoms and other matters in the following terms:-

(a) Clonic fit like spasms and jerking movements of the body.

(b) Anxiety after Chelmsford.

(c) Withdrawn after Chelmsford.

(d) Sleeping after Chelmsford.

(e) Feelings about the assaults and batteries

(f) Dry retching after Chelmsford.

(g) Psychological reaction after Chelmsford.

81 It was put to Mr. Everingham in cross-examination that the plaintiff was “a demanding client”. Mr. Everingham agreed. The matters raised in the plaintiff’s correspondence in July 1993 appear to have led to the defendants requiring and obtaining written instructions from him on 21 August 1993 which stated:-

“I, Barry Hart, authorise Cashman & Partners to conduct the balance of my appeal in accordance with the view that is formed from time to time as to the proper conduct of the appeal. My instructions regarding settlement remain in place.”

82 In the appellant’s Statement of Issues dated 23 July 1993 drafted by Mr. Bates, the issue of post traumatic stress disorder was raised on the more limited issue addressed in Dr. Dent’s second report and to which reference has been made above. It stated:-

“The appellant will seek leave to introduce fresh evidence, viz., expert psychiatric evidence at the hearing of the appeal to deal, inter alia,

with the effect on him of his belief and knowledge that the respondent was guilty of the alleged conduct referred to in paragraphs 2 and 3

…”.

83 There were two reports of Dr. Dent tendered in the present proceedings, the first dated 23 September 1993, the second dated 15 November 1993. The first report contains a lengthy history derived from the plaintiff’s own accounts of symptoms given in sequential interviews. The first 11 pages of the report comprise what Dr. Dent describes (p.11) as “… my reiteration of themes and events is literally as he has described them to me …”. There is no reference in those pages to any medical reports or recorded history of examinations, consultations or investigations which contemporaneously recorded the plaintiff’s symptoms.

84 At the commencement of p.12, Dr. Dent concludes that “the Chelmsford matter has become the central stressor in his ongoing anxiety disorder best described as a Chronic Post Traumatic Stress Disorder”. That opinion is apparently based upon the plaintiff’s own history as he gave it to Dr. Dent for the report does not identify any source documentation or historical material establishing the nature or pattern of symptoms in the 20 years before 1993. The report (p.13) refers to unspecified and unidentified “transcripts” of “Court matters’ which record certain symptoms and problems related by the plaintiff. Dr. Dent also refers to Chelmsford records relating to the plaintiff’s treatment, to a report of Professor Wade and the report of Dr. Sydney Smith. The only matter of significance that he notes from the latter report is Dr. Smith’s “formulation and description” that confirms “brain damage in the form of dementing illness” and reference in an attached psychology report to evidence of “post-anoxic brain damage”.

85 Dr. Dent opined that the plaintiff’s then “current presentation” – perseveration, anxiety, forgetfulness, difficulties in concentration, problems with self-organisation are “consistent and persistent aspects of such irretrievable brain damage still in place”.

86 Dr. Dent referred to Dr. Phillips’ view (“organic personality disorder”). Dr. Dent’s ultimate opinion – “Chronic Organic Brain Damage” and “Post Traumatic Stress Disorder” - in consequence of electroconvulsive therapy and narcosis is expressed in terms as Dr. Dent’s then current diagnosis.

87 Importantly, given the nature of the plaintiff’s claim (undiagnosed post traumatic stress disorder in the period 1973 to 1980 and thereafter) Dr. Dent does not express or provide a retrospective diagnosis in addition to his current diagnosis (current, that is, as at 1993). He does not identify any historical material that establishes the plaintiff’s longitudinal history since 1973 as in fact supportive of an existing but undiagnosed disorder reaching back over the preceding 20 years.

88 Later in this judgment, the principles that apply to expert opinion evidence are discussed. In that discussion, the conclusion is also expressed that had there been an attempt to rely upon Dr. Dent’s opinion expressed in his report of 23 September 1993, it is unlikely that the Court of Appeal would have acted upon it (assuming the report was admitted at all) as establishing “special circumstances” in terms of s.106 of the Supreme Court Act 1970. The basis for that conclusion will be discussed later in this judgment.

89 The expert opinion evidence of Professor McFarlane is also discussed below. Significantly, Professor McFarlane did not suggest that an undiagnosed condition of post traumatic stress disorder existed in 1980 and subsequently continued over the next two decades. A primary reason for not having done so appears to be related to the relative paucity of historical medical material between 1973 to 1993, a matter also separately examined below.

I. The solicitor/client relationship in the period 1993 to 1995

90 Although reference has been made to events in early 1992 and those concerning Dr. Dent’s diagnosis and his reports, it is necessary to review other events from April 1993 to August 1995 concerning the plaintiff’s instructions and related events. Findings will be made below in relation to those events on the issues as to the plaintiff’s instructions and advice given to him.

91 On 6 April 1993, the plaintiff wrote to Mr. Everingham a lengthy letter setting out his concerns. This included reference to Dr. Dent’s diagnosis of post traumatic stress syndrome as having only become recognised as a medical condition in the early 1980s and, as noted earlier, he said that there would have been “very few doctors aware of this problem in the early 1980s”. The plaintiff went on to state:-

“The so-called ‘delay’ in this matter has in fact been helpful to my case as it has brought to light evidence that was not available before. There is so much more evidence available now than there was in 1980.

It was of the utmost importance to have pointed out these facts to the Appeal Court Judges.

”

92 The letter concluded by requesting that arrangements be made for a report by Dr. Dent “to be submitted to the Justices as soon as possible. In this regard, I have spoken to Dr. Dent’s secretary who I believe will be ringing you”.

93 On 7 April 1993 (BH1/33, page 238), the plaintiff set out a series of handwritten points including reference to post traumatic stress disorder and the symptoms which he claimed he suffered – clonic type fits, suicidal thoughts, nightmares and that “According to Dr. Dent, these are all symptoms of post traumatic stress syndrome and such problems were only recognised as a medical problem since the early 1980s”. He again requested that the facts be brought to the attention of “the Appeal court” as a matter of urgency “ie., report of Dr. Dent”.

94 On 2 July 1993, Mr. Everingham forwarded a brief to Phillip Bates of counsel. The brief was to prepare an amended notice of appeal. In his observations to counsel, Mr. Everingham referred to the plaintiff’s instructions as follows:-

“We are instructed by Mr. Hart (the plaintiff) to prepare a Further Amended Notice of Appeal so that the following issues can be considered on appeal:-

- any entitlement the appellant has to exemplary damages arising from the conduct of Dr. Herron on altering the consent form.

- any entitlement to a greater quantum for damages for personal injury, in particular, brain damage and post traumatic stress disorder.

- any entitlement the appellant has to a greater amount for economic loss.

Subject to Counsel’s opinion, it would appear in our view that the best prospects of success for the appellant is to raise such doubts in the Court of Appeal’s mind about the conduct of the hearing, that the verdict should be set aside and for the Court of Appeal to embark on a re-assessment of the damages. The (sic) would avoid the cost and delay of a re-trial.”

95 Mr. Everingham’s evidence was that on or about 8 July 1993, he received an advice from Mr. Bates concerning the amendments to the existing grounds of appeal.

96 On 9 July 1993, Mr. Everingham wrote to Mr. Bates and provided him with a draft of the amended notice of grounds of appeal. An enclosing letter sought his advice on a number of specific matters. Mr. Everingham, in his affidavit, stated that he was seeking to determine whether “fresh evidence” of the plaintiff’s economic loss and injuries of brain damage and post traumatic stress disorder might be brought into the appeal in addition to the fresh evidence arising from the alleged tampering with the plaintiff’s consent form.

97 The amended notice of appeal was filed on 9 July 1993. The defendant objected to the amended pleading.

98 The Amended Further Supplementary Notice of Appeal included new grounds of appeal (grounds 3, 4 and, arguably, 30). They raised two significant issues. The first was an issue of fraud in the sense of an allegation of conspiracy to pervert the course of justice, tampering with documents and false documentation being placed into evidence at trial. The second raised an issue of perjury alleged to have occurred in relation to the issue of the plaintiff’s alleged consent to treatment, the issue of the timing of a pathology report and delay in the diagnosis of the plaintiff’s pneumonia.

99 The history of this matter shows that a great deal of attention and discussion centred on the issue of alleged fraud and perjury arising from the consent form and findings of the Royal Commission and those matters arose a number of times in discussions as to what was termed fresh evidence. On 24 September 1993, Sheller, JA. raised the issue of a strike out application as a means of determining issues related to paragraphs 3 and 30 of the Amended Further Supplementary Notices of Appeal (paragraph 4 was withdrawn). The Court of Appeal gave judgment on 16 December 1993 on an application for dismissal of the proceedings.

100 That judgment raised the need for the plaintiff to elect. In this respect, under what was expressed to be the first course of action (related to the fraud allegation), the plaintiff would be required to repay monies paid pursuant to the judgment under appeal ($72,000 plus interest). Thereafter, considerable attention and discussion centred upon what course of action the plaintiff should follow.

101 On 23 July 1993 (BH1/9), Mr. Everingham wrote to the plaintiff advising that he had been contacted by Dr. Dent in relation to the costs of preparing a medico-legal report. He added the comment:-

“We wish you to bear in mind that depending on rulings of the court, it may or may not be possible to bring fresh evidence of your injuries in your appeal proceedings. If it were not possible (or necessary) to bring fresh evidence, then the costs incurred in obtaining Dr. Dent’s report may not be of assistance in your appeal proceedings. On the other hand, you may take the view that Dr. Dent’s reports serve other useful purposes.

We leave this matter in your hands.”

102 I have earlier referred to the fact that on 1 August 1993, the plaintiff wrote to Mr. Everingham “re Dr. M. Dent’s report”. He referred in this letter to the fact that matters on which Dr. Dent had been asked to report on were not “new” evidence but symptoms of a psychiatric disorder that had been present since his “unlawful treatment” in Chelmsford in 1973. In that letter, he also stated that he was seeing Dr. Dent “on an ongoing basis for the problems mentioned in the evidence of the 1980 trial and he has diagnosed the condition as ‘post traumatic stress disorder’. All that Dr. Dent has done is to put a label on the symptoms that have been present for the past 20 years. ‘PTSD’ is a (sic) compensational psychiatric illness …”.

103 In this letter, the plaintiff said that there should be “no problem in presenting Dr. Dent’s report and evidence to the Appeal Court”.

104 He also referred to the fact that he was sending transcript page references from the 1980 trial “which support the fact that I suffer from a recognised psychiatric illness known as post traumatic stress disorder as well as anoxic brain damage”.

105 In a handwritten letter dated 13 August 1993 (BH1/7) by the plaintiff to Mr. Everingham, he referred to extracts from the transcript of the trial in which he stated “you will clearly see that this is not new or ‘fresh’ evidence, but evidence of the fact that since 1973 I have suffered from a condition known as post traumatic stress disorder”. He referred to the fact that there was other evidence in the transcript “which would support Dr. Dent’s diagnosis, but I have not gone through the whole transcript …”.

106 On 20 August 1993, in a handwritten letter to Mr. Everingham (BH1/5), the plaintiff recited the history of his treatment at Chelmsford and that he had suffered a psychiatric condition known as post traumatic stress disorder as a consequence of that treatment. He stated the evidence of “this fact is overwhelming and well documented. I received no compensation for this injury”.

107 The plaintiff also referred to injury occasioned to him in the nature of anoxic brain damage in consequence of “the assaults and batteries” and having received no damages for that injury. He added:-

“I now have evidence that the psychiatric problems I suffered as a result of the assaults and batteries are a recognised psychiatric problem known as post traumatic stress disorder.”

108 On 21 August 1993 in a conference with Mr. Everingham, the plaintiff signed written instructions which are set out earlier authorising the defendants to conduct the balance of his appeal “… with the view that is formed from time to time …”.

109 Considerable attention was given in these proceedings to Mr. Bates’ letter of advice dated 29 September 1993 and to which I have earlier referred (BH1/15). In it Mr. Bates wrote, inter alia:-

“Thank you for sending me copy of Dr. Malcolm Dent’s psychiatric report of 23/9/93.

The matters raised by Dr. Dent would be relevant

at

a retrial on damages

if

such a retrial were to be granted by the Court of Appeal. However, in my opinion, the matters raised by Dr. Dent would not be admitted by the Court of Appeal on any issue arising at the appeal itself.

In view of the length and detail of the trial itself, and the long period which has elapsed since then, the Court of Appeal will only grant a retrial on damages if it is satisfied that there were major errors rather than minor criticisms.”

110 Mr. Bates went on to refer what he termed the “main issues of substance” to be argued on the appeal. These included what were said to be the failure by the trial judge to adequately put the case on brain damage suffered by the plaintiff, and the “cover-up” (concerning the allegation as to the false consent form) reported upon by the Royal Commission which was not reasonably discoverable by the plaintiff by the time of the trial. Mr Bates also referred to the events of the alleged cover-up in themselves, in combination with other matters that were raised at the trial, as entitling the plaintiff to an award of exemplary damages and/or to full party and party costs and/or indemnity costs.

111 The letter of advice went on to discuss the issues in the appeal.

112 In the plaintiff’s written submissions, it was contended that Mr. Everingham was not entitled to rely upon the advice of Mr. Bates. A number of propositions were advanced in support of this submission. It was contended that the advice was deficient and that Mr. Bates had not been briefed with either the advice of Mr. James, QC., or with the report of Dr. Phillips (1992) and had not been briefed with a copy of the judgment of the Court of Appeal in Baldwin v. Lisicic (supra). I will refer to this judgment below.

113 Mr. Bates’ advice was challenged upon the basis that he did not indicate that he had considered the provisions of the Supreme Court Act or Supreme Court Rules and he did not refer to any authority to support his opinion. It was submitted that the advice was “… in the form of a summary dismissal of the Defendant’s inquiry …”. It was contended that the defendants were not entitled to avoid liability by relying upon the advice given by Mr. Bates in September 1993. Mr. Everingham, it was submitted, was required to turn his own mind to the advice and examine it in order to ensure that it was sound. Had he done so, so the argument ran, the claimed deficiencies in the advice would have become apparent.

114 In relation to oral advice given by Mr. Bates and, that said to have been given by Mr. Parker, QC., it was submitted that “whether such advice was ever given is a matter in issue between the parties”. It was observed that there was a conflict in this regard between the evidence of the plaintiff and that of Mr. Everingham and that the evidence of the plaintiff was to be preferred.

115 It was further submitted that it did not matter in any event as, if the advice was found to have been given orally, it “… was as incorrect as the advice given in writing by Mr. Bates”. The oral advice, it was asserted, suffered from the same inherent deficiencies as existed in Mr. Bates’ letter of advice as counsel had not been properly briefed.

116 I will deal separately with Mr. Bates’ advice of 29 September 1993 later in this judgment.

117 On 28 and 29 September 1993, Mr. Everingham received further letters of advice from Mr. Bates of counsel. The second of those letters dealt with the question of Dr. Dent’s report of 23 September 1993.

118 The correspondence and memoranda record from time to time references to “fresh evidence”. Mr. Everingham, in his affidavit (paragraph 33), stated that from about September 1993 he used that expression:-

“… as a shorthand way of describing the evidence of the alleged tampering with the plaintiff’s treatment consent form. The plaintiff described this ‘fresh evidence’ as the ‘cover up’ because, in his mind, the defendant knew about it during the Supreme Court proceedings and it only became known to the plaintiff as a result of evidence given in the Royal Commission. Whenever I discussed the appeal with the plaintiff, I did not use the term ‘fresh evidence’ to describe the plaintiff’s post traumatic stress disorder.”

119 The submission was made in the plaintiff’s written submissions that Mr. Everingham should not be accepted in this respect. I have closely examined Mr. Everingham’s contemporaneous notes. I do not consider that he sought to use references to “fresh evidence” in a way that confused the evidence as to the tampering with the consent form and the evidence as to post traumatic stress disorder. The attack upon him in this respect was unfounded.

120 Mr. Everingham stated that he provided the plaintiff with a copy of Dr. Dent’s report of 23 September 1993 and copies of Mr. Bates’ advices dated respectively 28 and 29 September 1993. I will refer to the second letter of advice in some detail below.

121 On 9 October 1993, at the time of providing copies of the last-mentioned documents to the plaintiff, Mr. Everingham said he then sought to explain the position in light of the advice from Mr. Bates.

122 Mr. Everingham, in his affidavit sworn 3 September 2003 (paragraph 34), stated that at a conference held on 9 October 1993, he gave the plaintiff a copy of Dr. Dent’s report and the advice of Mr. Bates. In that paragraph, Mr. Everingham related the conversation at the conference in the following terms:-

“Barry, this is a copy of the advice which I have from Phillip Bates concerning the report by Dr. Dent concerning your post traumatic stress disorder. I asked Phillip to provide his advice in writing so that we could be absolutely clear on the use of Dr. Dent’s report in the appeal as you have raised this question in the past. You will see from the advice that Phillip is very clear that Dr. Dent’s report cannot be used in the appeal itself but can be used in the future if you succeed in the appeal and a retrial on the question of damages is ordered by the Court. Any damages flowing from your post traumatic stress disorder can be considered either by the Court of Appeal if it undertakes a reassessment or during any retrial on damages that may be ordered.”

123 Mr. Everingham stated in his affidavit that he handed the plaintiff a copy of the advice and provided him with the opportunity to read it. He then inquired of the plaintiff “Have you any questions?”. The plaintiff is said to have replied, “So you’re saying that the post traumatic stress disorder condition that I suffer from would be used in re-assessing my damages if I win my appeal”. Mr. Everingham said that he replied in the affirmative and that the plaintiff then said, “Good”.

124 During his cross-examination, the plaintiff described Mr. Bates’ advice of September 1993 as “nonsense” and that Mr. Bates had, in effect, advised in relation to evidence as to post traumatic stress disorder that “… it could never be done …”, referring, in this respect, to the calling of evidence in the Court of Appeal proceedings. It was put to him:-

“Q. You certainly had advice prior to the appeal about the way in which the evidence of Dr. Dent and Dr. Phillips, in particular, was to be used? A. Yes. Yes. Yes.”

125 At a later stage, it was also put to the plaintiff:-

“Q. But you were given advice, were you not, that you would be entitled in a new trial for damages to use Dr. Dent’s evidence in respect of that trial? A. Yes.”

126 Mr. Everingham also stated that on a number of occasions following the last-mentioned conference, the plaintiff raised with him the use to which Dr. Dent’s medical evidence concerning his post traumatic stress disorder could be put in the conduct of the appeal. He said that he distinctly recalled that on each of those occasions he provided him with what he described as “consistent and clear advice” which “for the purposes of simplicity” he summarised to the following form:-

“The evidence of your post traumatic stress disorder is not relevant to any issue in the appeal. If you are successful in the appeal, then you would be entitled to a re-assessment of your damages or a retrial on damages. At that time, Dr. Dent’s report would be used.”

127 On each of those occasions, Mr. Everingham said the plaintiff acknowledged to his satisfaction, either by word or “body language” (namely by nodding) his understanding and acceptance of the advice which he proffered to him.

128 Mr. Everingham added that he recalls that the plaintiff raised the same issue with counsel “on several occasions” (paragraph 34.3). He says that he recalls that both Mr. Parker, QC. and Mr. Bates proffered advice to the plaintiff “… which was consistent with the written advice from Philip Bates and the summary form of advice I gave to the plaintiff from time to time”.

129 It was put to Mr. Everingham in cross-examination that he ought to have sought advice from more experienced counsel. In his response, Mr. Everingham referred to the fact that Mr. Bates had, at that time, 13 years of experience as a barrister. In later cross-examination, he referred to the fact that Mr. Bates had been briefed in the trial and “had a reasonable understanding of the matters in issue”. It was put to Mr. Everingham that, by reason of the fact that the advice did not refer to any authority and was “a bald statement from a junior barrister without any authority or support …” (t.585) that he should not have acted on it and that it was contrary to advice that had been given by Mr. Greg James, QC. Mr. Everingham refused to accept any of these propositions.

130 On 29 October 1993 (BH1/14), the plaintiff wrote to Mr. Everingham advising that he was receiving treatment:-

“… for a very chronic post traumatic stress disorder brought about my unlawful treatment in Chelmsford. The psychiatrist cannot understand why no-one has picked up my problem in the past

20 years

. I would also remind you that Fisher trivialised my suffering in Chelmsford and this matter

must

be brought to the attention of the Appeal Court.”

131 On 10 November 1993 (BH1/11), Mr. Everingham again wrote to Dr. Dent referring to an earlier letter of 8 June 1993 in which a report had been requested. The doctor was asked to report on his opinion as to whether alleged perjury of Dr. Herron and subsequent disclosure of it in 1989 had caused further mental anguish and suffering to the plaintiff.

132 On 11 November 1993 (BH1/10), the plaintiff sent a handwritten letter to Mr. Everingham advising that on 10 November 1993:-

“I saw my psychiatrist, Dr. Graham Altman, 1 Harrison Street, Cremorne at 11.45 am. Dr. Altman’s telephone number is 953.5559.

I have attended Dr. Altman on about four previous occasions being referred to him by Dr. Dent for treatment of my post traumatic stress disorder.”

133 The letter goes on to refer to Dr. Altman’s suggestion that he be admitted to a clinic for two weeks for treatment following an episode of extreme distress suffered by the plaintiff. The plaintiff stated that being in the doctor’s rooms reminded him of Chelmsford and that the re-living of the Chelmsford experience in Dr. Altman’s rooms “was a devastating experience”.

134 Mr. Everingham, in cross-examination, said that Mr. Hart attended Dr. Altman on four occasions. He said Mr. Hart was unhappy with the treatment which he received. This was not a reflection upon Dr. Altman himself but that Mr. Hart was “not comfortable with what was going on”.

135 Mr. Everingham responded by letter dated 12 November 1993 (BH1/10A) stating that he was not in a position to provide him with any advice as to what to do as he had no medical expertise. He suggested that the plaintiff discuss proposed treatment with Dr. Altman.

136 Mr. Everingham was criticised in submissions for failing to obtain a report from Dr. Altman, especially as he had been a treating doctor. Dr. Altman commended treatment in 1993, 20 years after the “stressor” event, namely, the Chelmsford Private Hospital treatment. The difficulties in reconstructing the plaintiff’s pattern of symptoms over that period is discussed below, in particular, in the discussion of Professor McFarlane’s evidence. The significance of any failure to obtain a report from Dr. Altman is to be evaluated in light of that discussion.

137 On 15 November 1993, Dr. Dent wrote to Cashman & Partners (BH1/18). I will refer to the detail of this report below under the heading “medical evidence supporting the diagnosis of post traumatic stress disorder”.

138 On 1 February 1994 (BH1/16), Mr. Everingham wrote to the plaintiff concerning:-

• Fraud allegations.

“fresh”

139 In the letter, Mr. Everingham expressed the view that he considered there was good reason to think that Fisher, J. had misdirected the jury in important respects concerning the existence and extent of brain damage. He added:-

“… because we think you have reasonable prospects of success on these issues, we must allow the matters raised in the new grounds and which are the subject of the judgment of 16 December 1993 to impel the strength of the matters raised in the old grounds.

Furthermore, we would endeavour to introduce Dr. Dent’s report into the appeal proceedings and, in particular, those dealing with your ongoing injury arising from Dr. Herron’s evidence and conduct.

We favour this approach and recommend it to you. …”

140 It is noted that Mr. Everingham was here referring to Dr. Dent’s report, which dealt with the more limited issue in his report of 15 November 2003 as discussed earlier and not the general issue of post traumatic stress disorder said to have been caused by the plaintiff’s treatment at Chelmsford Private Hospital.

141 On 2 February 1994, Mr. Everingham wrote to the solicitors for the defendant serving copies of Dr. Dent’s reports of 23 September and 15 November 1993. This post-dated the judgment given in Hart v. Herron (No. 2) by the Court of Appeal on 16 December 1993. He stated in evidence in these proceedings that these reports were served “to lay out the plaintiff’s settlement position and to give the defendant an awareness of the full extent of the plaintiff’s medical condition. These reports were served in conjunction with my ‘without prejudice’ letter of 2 February 1994 requesting a meeting with the defendant’s solicitor to discuss settlement” (paragraph 43).

142 On 14 February 1994 (BH1/17), the plaintiff wrote to Mr. Everingham stating:-

“Please find signed agreement for option no. 2.

There are some amendments.”

143 The amendments referred to were handwritten additions or comments written on page three of Mr. Everingham’s letter of 1 February 1994. He added the following words to the end of the third paragraph, page 2, written by Mr. Everingham, “… and ongoing post traumatic stress disorder of chronic proportions”.

144 A copy of the letter written by Mr. Everingham dated 1 February 1994 had provision for it to be signed by Mr. Hart, which he apparently did on 15 February 1994. Mr. Hart added the handwritten comment to p.4 of the letter in these terms “signed by me on the understanding that option no. 2 will address the issue of (a) the conspiracy to pervert the course of justice, and Dr. Herron’s lies to the Supreme Court in 1980 and (b) the overall effect this evidence (if it had been available) would have had on damages and the outcome of the 1980 trial”.

145 In a without prejudice letter written on 2 February 1994, notice was given to Dr. Herron’s solicitors that the plaintiff proposed to move the Court of Appeal to assess damages on the basis of Dr. Dent’s report.

146 On 7 February 1994, the plaintiff wrote to Mr. Everingham (BH1/24). He expressed concern that it appeared Mr. Everingham had concentrated on the brain damage aspect of the appeal “… and not on the psychiatric damage that my unlawful treatment caused …”. He requested that the matters referred to in the letter be “brought to the attention of the Appeal Court in any argument about damages”. He then referred to passages from the summing up by Fisher, J. which he said trivialised his suffering and “ongoing psychiatric damage caused by the intentional torts”.

147 He also referred to the fact that he had suffered from post traumatic stress disorder, emphasising that that disorder “is a recently recognised psychiatric illness, the symptoms of which are well documented in the transcript of Hart v. Herron & Anor”. He went on to refer to post traumatic stress disorder as an illness for which large sums of money had been awarded to victims of the Granville train disaster and other disasters including the English Channel Ferry disaster. He emphasised his pre-Chelmsford employment history and ability to pursue a number of activities.

148 In cross-examination, Mr. Everingham’s attention was directed to the proposition that there existed no correspondence that demonstrated that the plaintiff was told that “fresh” evidence could not be adduced during the hearing of the appeal. Mr. Everingham relied upon a chain of correspondence that had been sent to the plaintiff, to which I have referred, the grounds of appeal, a copy of which was sent to the plaintiff, and a conference with senior and junior counsel which the plaintiff attended to demonstrate that the plaintiff was so advised. This evidence, it was contended, re-affirmed Mr. Bates advice in September 1993 that the plaintiff was made aware of counsel’s views and understood the basis upon which the appeal was to be conducted.

149 Mr. Arden put to Mr. Everingham that the terms of written advice by him to the plaintiff did not make it unambiguously clear that the evidence as to post traumatic stress disorder would not be introduced into the appeal. It was also put that, as the plaintiff suffered brain damage and post traumatic stress disorder, it was necessary to spell it out very clearly. Mr. Everingham responded “I was never in any doubt about Mr. Hart’s capacity to understand conversations I was having with him”. In giving evidence in these proceedings, the plaintiff did not exhibit any difficulty in understanding questions put to him in cross-examination.

150 Mr. Everingham stated that he sent a copy of the plaintiff’s letter of 7 February 1994 to Mr. Parker, QC. and Mr. Bates (on 9 February 1994). He says that he annexed a copy of the letter in writing to them because the plaintiff instructed him “I would be pleased if you would act on this matter”. In his letter to counsel, Mr. Everingham stated, inter alia:-

“Mr. Hart has also provided comments on evidence in the proceedings below which goes to post traumatic stress disorder. That material is attached for your information.”

151 On 9 February 1994, Mr. Everingham wrote to the solicitors for Dr. Herron (BH1/26) which referred to an enclosed offer of compromise. In paragraph numbered “3”, he stated:-

“You will be aware from Dr. Dent’s report served 2 February 1994 that our client is suffering from severe post traumatic stress disorder. He has been recommended to receive treatment for that disorder as a hospital in patient …”

152 On 16 February 1994, Mr. Everingham attended a conference with Mr. Parker, QC. and Mr. Bates. His file note, he said, assisted in his recall of a discussion that the respondents to the appeal had indicated their intention to challenge the “fresh evidence” concerning the tampering said to have occurred to the consent form.

153 Mr. Everingham said that his file note indicated that the conference occurred over three hours. He recalled that the evidence of the alleged tampering with the consent form and the evidence of the plaintiff’s post traumatic stress disorder were discussed by counsel in conference. He stated that his file note aided him “… to recall that Mr. Parker, QC. advised the plaintiff of the problems associated with relying on the ‘fresh evidence’ (that is, in relation to the point as to Dr. Herron’s knowledge of the alleged tampering with the consent form) …”. Mr. Everingham stated that, both in the conference and after the conference advice was given to the plaintiff as to the options available on the fresh evidence concerning the consent form. The plaintiff raised the question of post traumatic stress disorder and whether that condition was a matter which could be placed before the Court of Appeal. He stated that, to the best of his recollection, the plaintiff’s words were to the effect:-

“What about my post traumatic stress disorder which I have never been compensated for. Can we put that before the Court of Appeal?”

154 Mr. Everingham stated that his file note records the advice of senior counsel in the following terms:-

“Explained to Mr. Hart, that question of fresh evidence not necessary to winning appeal in obtaining a retrial. However, the effect on Mr. Hart of the subject conduct would form part of the reassessment of damages on re-trial.”

155 Mr. Everingham added that the term “subsequent conduct” was a short hand way of referring to the alleged tampering with the consent form and the effect that that knowledge had on the plaintiff. Mr. Everingham continued in his affidavit (paragraph 56) to state that, to the best of his recollection, there was further elaboration on the point for the purposes of clarifying the advice to the plaintiff. He said that the plaintiff, according to his best recollection, was provided with advice in conference by Mr. Parker, QC. and Mr. Bates to the effect:-

“If you succeed in your appeal, you will be entitled to a retrial or reassessment of damages. At that time, the further evidence of Dr. Dent would be admissible in any reassessment or retrial on damages.”

156 Mr. Everingham added that he recalled that Mr. St. John, QC. (who had voluntarily attended to assist counsel) concurred with the advice given on that point. He said that the plaintiff acknowledged his acceptance of the advice by saying words to the effect:-

“Yes I understand that that is the way that the appeal will work. I understand, that’s good.”

157 Mr. Everingham stated that he recalled that the advice given by Mr. Parker, QC. to the plaintiff on this question was consistent with the advice given by Mr. Bates in his letter of 29 September 1993 and with his own advice to the plaintiff in response to requests or inquiries as to whether evidence of post traumatic stress disorder could or would be before the Court of Appeal.

158 Mr. Everingham stated that, following the conference, his secretary located the facsimile forwarded by the plaintiff on 15 February 1994. He said that when he read the facsimile after the conference he believed the plaintiff had withdrawn his instructions to place evidence of post traumatic stress disorder before the Court of Appeal because he had accepted the advice given by senior counsel at that conference.

L. The approach and basis for assessing the likelihood of success of an application under s.106, Supreme Court Act

301 Professor McFarlane’s first report makes reference to the development of the plaintiff’s problems subsequent to 1979. In this respect although he does not use the expression “late onset post-traumatic stress disorder” his analysis, at least on one possible interpretation could reflect that concept. Accordingly, he stated that the historical reports, including the report of Dr. Corbett and the reported comments of Dr. Smith as recorded by Dr. Dent led him (Professor McFarlane) to state:-

“… it would also appear to be the case that in 1979 the predominant focus of Mr. Hart’s problems was on his memory impairment. It has only been with the passage of time that these impairments have lessened to a degree that the other components of his behavioural difficulties have become manifest to a greater degree. The repeated nature of his difficulties when giving an account of what occurred to him in Chelmsford Hospital combined with his unusual behavioural response, had not fully declared itself at this time.”

302 In this statement, Professor McFarlane assumes that the “behavioural difficulties” continued throughout, although not manifest to the same degree as in more recent times. Reference is made to the change in what is referred to as the “hierarchical system” as a possible explanation as to why emphasis may have been given to certain symptoms, for example, those relating to an organic disorder, with examiners not having recorded symptoms of other disorders. Whilst this is proffered as a possible explanation for the manifestation after 1979 of certain symptoms, Professor McFarlane’s analysis and the information available to him does not establish that this was in fact the case.

303 Reference is made in the report to the impact of the introduction of DSM-III in 1980 and its significance to diagnostic practice. Whilst the changes in psychiatric diagnosis under DSM-III and its later formulations is one potentially important element in establishing “fresh evidence”, the historical factual material that does or does not establish the nature of the plaintiff’s problems, disabilities or symptoms reported over earlier years by him as present at the time of consultation remains equally important in satisfying the requirement for cogent evidence in seeking leave to adduce “fresh evidence”.

304 In evaluating the likely approach and outcome, had an application for leave to adduce evidence been made to the Court of Appeal in 1995 with a view to establishing that the plaintiff had suffered from post-traumatic stress disorder in consequence of his treatment at Chelmsford Private Hospital, the following matters require consideration:-

(a) In discharging the onus of establishing that post traumatic stress disorder symptoms in fact existed (though not recognised as post traumatic stress disorder) over a lengthy period (in this case, in excess of 20 years from 1973 to 1995, when the appeal was heard) the existence of such symptoms in the relevant years would, for all practical purposes, need to be established by cogent evidence, including, in particular, by contemporaneous records and not merely by ex post facto global statements made by the plaintiff many years later as were made by him to Dr. Dent in 1993, to Professor McFarlane in 2005 and in evidence in these proceedings.

(b) The fact that there are a limited number of records by treating and other medical practitioners based on monitoring or review of the plaintiff’s progress and condition over the years following the trial limits the availability of evidence that distinguishes and corroborates post traumatic stress disorder symptoms from symptoms attributable to other factors.

(c) The absence of symptoms characteristic of post-traumatic stress disorder when the plaintiff was examined in 1992. Whilst in submissions for the plaintiff, it was observed that Dr. Phillips stated he took a “stringent” view in relation to the diagnosis of post traumatic stress disorder, the history taken by him and his opinion cannot, on that basis, be lightly put to one side. Dr. Phillips’ evidence as to the absence in 1992 of post traumatic stress disorder symptoms that year is, for reasons discussed above, significant evidence.

(d) If the Court of Appeal had been asked to accept that the plaintiff developed post traumatic stress disorder symptoms after Dr. Phillips’ examination in 1992, the plaintiff would have been required to adduce evidence that identified a stressor event that precipitated a late onset of the condition.

(e) There is no evidence in these proceedings which identifies any basis upon which it can be said to be a late onset condition and neither Dr. Dent nor Professor McFarlane addressed the possibility of late onset post traumatic stress disorder in the plaintiff’s case.

contemporaneous representation(s) about a person’s health

Evidence Act 1995 (NSW))

basis rule

Makita

305 Associate Professor Richard Clark had undertaken work associated with determining the biological basis of working memory dysfunction in post-traumatic stress disorder. He administered to the plaintiff what is termed the Brain Resource Company Cognitive and Psychophysiological assessment in January 2005. Whilst the results of that assessment led him to conclude that the memory difficulty reported by the plaintiff reflected brain damage he suggested that post-traumatic stress disorder has been the major contributor to his mental state and related problems since Chelmsford. He appears to reach that conclusion by taking into account that difficulties in what he terms working memory function and the display of high levels of arousal known to be effected by post-traumatic stress disorder.

306 The medical history, as Associate Professor Clark observed in his report of 28 February 2005, indicated that the plaintiff suffered from a mix of anxiety, stress and depression with some evidence of a susceptibility to anxiety and possibly to depression preceding the Chelmsford Private Hospital admission. Associate Professor Clark is a psychologist who has conducted research into the neuropsychological and biological basis of cognitive function.

307 The conclusion expressed by him, however, as with Dr. Dent is not based upon an analysis of contemporaneous records that established the nature, extent and pattern of symptoms over the approximately 30 year period that had elapsed between the Chelmsford treatment and his own assessment in 2005.

308 The evidentiary difficulties that would have faced the plaintiff in satisfying the Court of Appeal (and which are also operate in the present proceedings) are in part the product of:-

(a) The difficulty in determining whether post traumatic stress disorder symptoms, in addition to organically determined symptoms, existed from the outset and continued over what is an extremely lengthy period of time until first diagnosis.

(b) The fact that the medical evidence established an organic basis for the plaintiff’s symptoms described as irretrievable brain damage. That damage itself was found to be causative of anxiety, forgetfulness, difficulties in concentration, perseveration and problems with self-organisation (Dr. Dent’s report at p.15). Dr. Phillips, in oral evidence, attributed depressive symptoms to the “cerebral damage” . There is no basis for determining which of any of these features can be said to be specifically attributable to or arise from post-traumatic stress disorder (Dr. Dent’s report at p.16), and not from the brain damage.

(c) The absence of medical records predating 1993 documenting an ongoing pattern of specific symptoms said to be characteristic of post-traumatic stress disorder including symptoms such as hallucinations and suicidal tendencies.

309 In my opinion, the Court of Appeal, in determining an application for leave under s.106 of the Supreme Court Act, would not have considered the plaintiff’s own uncorroborated evidence as to the type and pattern of symptoms over more than two decades as sufficient. The Court would, in all likelihood, have regarded the existence or otherwise of evidence as to the history of symptoms as a matter of importance in evaluating the cogency of the evidence as to post-trial matters. This is, in my opinion, especially so if in the lengthy history of this matter there is contradictory evidence (of Dr. Phillips) that the onset of the relevant symptoms could only have developed two or three years prior to the appeal in 1995.

310 The plaintiff relied upon expert evidence from Mr. Barry Toomey, QC. and Mr. David Traynor, solicitor. Mr. Toomey has practised at the New South Wales Bar since 1967 principally in the field of tort law. Mr. Toomey’s affidavit sworn 18 April 2005 was read. To it was annexed his report dated 12 April 2005, a further report dated 29 June 2005 (Exhibit D) and a supplementary report dated 14 July 2005 (Exhibit E).

311 The defendant relied upon the affidavit of Mr. Paul Menzies, QC. and a report by him annexed to the affidavit dated 29 August 2003. Mr. Menzies was admitted to practice as a barrister at the New South Wales Bar on 9 March 1973.

312 In his report of 12 April 2005, Mr. Toomey set out three questions which he had been asked to answer and he provided the answers to each of those questions. They were in the following terms:-

“(1) What is your opinion in relation to the likelihood of success of an application under s.106 [of the Supreme Court Act 1970] to lead fresh evidence at Mr. Hart’s appeal on the question of damages? In particular, do you consider that ‘special circumstances’ existed within the meaning of s.106?

(2) If the Court had considered the fresh evidence, do you consider that it would have led to a re-hearing in the Supreme Court on the question of damages and, if so, at what date would the damages have been assessed: 1980 with interest or 1998?

(3) What, if any, damages do you consider would have been awarded upon a re-hearing of the damages question?”

313 In relation to question (1), Mr. Toomey examined whether “special circumstances” existed within the meaning of s.106. He clarified that he read that question as relating to the likelihood of success of an application to lead “fresh evidence” at Mr. Hart’s appeal on the question of damages “as would have been made available by proper and diligent preparation on the part of the Defendant”. Mr. Toomey explained:-

“I do this because it would be pointless to express a view on whether or not the solicitor should have caused Dr. Malcolm Dent’s report to be brought to the attention of the Court of Appeal if further evidence would have been necessary to ensure that Dr. Dent’s report could have full legal effect. It is my opinion that further evidence was necessary and that it was the duty of the Defendant to seek it out and have it available.”

314 Mr. Toomey stated that the further evidence envisaged by him would have addressed the crucial question on any application under s.106 of whether the subject matter of Dr. Dent’s report could reasonably have been available at the trial in 1980. The real question, he stated, to which the further evidence would have to have been directed was whether, in the light of the state of medical knowledge – particularly psychiatric medical knowledge in 1980 – evidence to the effect of Dr. Dent’s opinion could reasonably have been available.

315 Mr. Toomey referred to the report of Professor McFarlane dated 27 January 2005 which provided a history of the development of psychiatric practice and knowledge of the condition of post-traumatic stress disorder. He stated that this evidence, if accepted, would make it strongly arguable that evidence as to that disorder would not have been available at the trial in 1980.

316 Section 106 of the Supreme Court Act 1970 (NSW) is in the following terms:-

“(1) Where, in an appeal to which this section applies, it appears to the Court of Appeal that, because of matters which have occurred since the trial, the amount of damages awarded at the trial is manifestly too high or too low, the Court of Appeal may set aside the verdict, finding, assessment or judgment and may order a new trial on the issue of damages.

(2) The Court of Appeal may, if satisfied that special circumstances exist which render it desirable to do so, receive evidence as to matters which have occurred since the trial and which are relevant to the exercise by the Court of Appeal of its powers under subsection (1) and may making findings of fact as to what has occurred since the trial.

(3) The findings of fact made under subsection (2) shall not be binding on the parties except for the purposes of orders under this section or under s.107 and for the purposes of any judgment given under s.107.

(4) The powers of the Court of Appeal under this section are in addition to its other powers to set aside a verdict, finding, assessment or judgment or to order a new trial on an issue of damages or otherwise.”

317 The provisions of s.106 fundamentally turn upon establishing:-

(a) The occurrence of “matters” since the trial.

(b) That the occurrence of such matters indicate that the amount of damages awarded at the trial is manifestly too high or too low.

318 In the present proceedings, the “matters which have occurred since the trial” are, in effect, said to embrace the following matters:-

(a) The identification in the field of psychiatric medicine in the early 1980s of the condition of post traumatic stress disorder.

319 Accordingly, in an application of that section in a particular case:-

(a) The Court of Appeal has a discretion to set aside any verdict, finding, assessment or judgment and may order a new trial on the issue of damages. The discretion is one to be exercised on a sound factual and principled basis.

(b) Evidence that may be admitted are “matters which have occurred since the trial” .

“special circumstances”

320 Mr. Toomey observed (paragraph 1.7) that he could find no case dealing with what constitutes “special circumstances” in the context of s.106. The expression clearly imports the notion of circumstances that may be considered to be exceptional in quality or degree, unusual, out of the ordinary: Shorter Oxford English Dictionary, fifth edition (as to the primary meaning to be given to the word “special”).

321 For the purposes of his opinion and in relation to the statutory requirement as to “special circumstances” in s.106(2), Mr. Toomey set forth the facts which he assumed for the purpose of consideration as to whether or not special circumstances existed in this case. Those facts are identified in paragraph 1.10 as follows:-

• The plaintiff was suffering before and at the trial from a condition of post-traumatic stress disorder arising as a result of the tortious acts of the defendant.

• The state of medical knowledge at the time would not have allowed that condition and the chronic disabling consequences of it to have been diagnosed and laid before the Court.

• The trial on damages was conducted as a contest between the plaintiff alleging brain damage and psychological damage of an undefined kind and the then defendant alleging that the plaintiff did not suffer brain damage and if there were psychological after-effects, that they were minor and short lived.

• Fisher, J. (the trial judge) summed up to the jury in terms that if the plaintiff had not suffered brain damage, then he had “not suffered any injury” (summing up, p.84S-T).

• He modified that (summing up, p.136ff) to suggest that if the plaintiff had not suffered brain damage “he still has a case in damages but it is a limited one” – “it is an episode that lasted perhaps months. The worst part of it, I suppose, lasted weeks” – summing up, p.136J-U).

• Within a very short time of the trial, the existence of the syndrome (now called post-traumatic stress disorder) was defined and included in the Diagnostic and Statical Manual III of the American Psychiatric Association.

• Throughout the 1980s, the existence and nature of the condition became known among experts in psychological medicine.

• In 1993, the plaintiff was diagnosed as suffering from long standing and deep seated post-traumatic stress disorder which had disabled and would disable him from work and from a normal life indefinitely and probably permanently.

“award him very much larger damages than they did”

322 Mr. Toomey expressed the view that, in his opinion, the Court of Appeal would probably have regarded the circumstances as sufficiently special to allow the admission of the fresh evidence to which he refers under s.102(2) of the Supreme Court Act.

323 He assessed, at 25%, the contingency or risk that the Court of Appeal may have refused to hear the fresh evidence.

324 In relation to the second question “would there have been a re-hearing on damages?”, Mr. Toomey, with respect, correctly identified the cogency of the evidence as important in determining whether the Court of Appeal would have admitted the fresh evidence. If the court had been persuaded of the special nature of the circumstances and the cogency of the evidence, then, in his opinion, it would have ordered a re-hearing on damages.

325 In the latter event, Mr. Toomey opined that the damages would have been assessed as at the date of the new trial.

326 In this “opinion on damages” dated 29 June 2005, Mr. Toomey set out the principles which would have applied when awarding damages in a new trial had the plaintiff’s application to the Court of Appeal succeeded. His analysis accurately identified certain of the factual matters that were relevant to the question of assessment. These included the strong conflict that occurred at the trial on the question of the plaintiff’s psychological condition but for the Chelmsford incidents. In that respect, reference was made to the evidence of the assessment by Evan Davies, a psychologist, in November 1972 that before the Chelmsford experience the plaintiff exhibited symptoms which Mr. Davies claimed in evidence were those of a paranoid personality disorder. The plaintiff’s doctors agreed that the symptoms set out by Mr. Davies would justify that diagnosis, but they did not agree that the plaintiff exhibited the symptoms.

327 The other matter to which Mr. Toomey referred is the extent to which the plaintiff’s economic capacity and other matters had been effected by post-traumatic stress disorder arising out of the Chelmsford incidents. This determination would be inter-dependent with other matters identified in paragraphs 1 to 5 of his report.

328 In cross-examination, Mr. Toomey stated that it was his view that, had the evidence been admitted then it was a virtual certainty that a re-hearing would have been ordered. He confirmed the point expressed in his first report that there would have been a need for cogent evidence to have been available as the opinion expressed in Dr. Dent’s reports “was to a degree amorphous and unsatisfactory”. Mr. Toomey confirmed that he proceeded on the basis of the history expressed in Dr. Dent’s report and his conclusions.

329 Insofar as Dr Dent’s report referred to the plaintiff’s symptoms Mr. Toomey referred to the High Court’s decision in Ramsay v. Watson (supra). Mr. Toomey stated:-

“… and insofar as Mr. Hart had told Mr. Dent of the symptoms he was then suffering, I wouldn’t have thought that any other basis was needed for the admissibility of that as first hand evidence other than the fact that it had been said.”

330 Mr. Toomey candidly stated in relation to Dr. Dent’s opinion, “… it wasn’t a strong opinion”. He, accordingly, would have sought to have taken steps to obtain appropriate expert evidence on the question of post-traumatic stress disorder.

331 Mr. Toomey also stated that he considered the opinion of Dr. Phillips on the question of a depressive condition in determining whether the Court of Appeal would have admitted evidence of the existence of post-traumatic stress disorder. He acknowledged that Dr. Phillips’ evidence did not support Dr. Dent’s conclusions on post-traumatic stress disorder. He conceded that, if there was evidence against any suggestion the plaintiff had post-traumatic stress disorder, then the Court of Appeal would have taken it into account. I respectfully agree and refer in this respect, again, to the evidentiary difficulties that would have faced the plaintiff in establishing the existence of post traumatic stress disorder over the years 1973 to 1993/1995 in circumstances in which Dr. Phillips did not detect or identify any such disorder in 1992.

332 I have examined Mr. Trainor’s report dated 7 June 2005, Exhibit F. The author addresses issues in response to a series of questions (at pp.20-25). In particular, he addresses what he considers to have been the necessary “preparation steps” and the evidence he considers was necessary, including evidence as furnished by Dr. Dent, Professor McFarlane and Professor Clarke. It is unnecessary to separately analyse these matters in Mr. Trainor’s report as the issues which I have analysed elsewhere directly bear upon the issues raised and discussed by him.

333 In the plaintiff’s written submissions, it was contended that the following principles concerning “fresh evidence” may be gleaned from the authorities:-

(a) That the evidence must be admissible.

(b) That the evidence must be credible.

(c) That the evidence must be of such probative value and significance that, taken with the evidence given at the trial, it will, in all probability, be decisive of the issues between the parties.

334 I consider, with respect, that these propositions properly record the essential matters to be brought into account.

335 It was submitted on behalf of the plaintiff that the “fresh evidence” consisted of, or as I would understand the plaintiff’s submissions, included the diagnosis of post-traumatic stress disorder. It had been incumbent, it was contended for the plaintiff, that the defendants took appropriate steps as solicitors to ensure that evidence of post-traumatic stress disorder concerning the plaintiff was gathered and placed in admissible form. This required them to further investigate the diagnosis of the condition and, in particular, to obtain evidence of post-traumatic stress disorder in an admissible form for the Court of Appeal proceedings. Whilst I accept this submission, it does not address the fundamental difficulties that faced the plaintiff and the defendants as to the absence of available evidence of contemporaneous symptoms recorded over the relevant period and the conflicting evidence of Dr. Phillips to which I have referred to above.

336 It was, however, contended that the evidence of the plaintiff’s post-traumatic stress disorder was credible. He had the support of Dr. Dent, a specialist, and that it was claimed the defendants knew the treating psychiatrist, Dr. Altman, supported the diagnosis. Reliance was also placed upon the more recent opinion expressed by Professor McFarlane.

337 On behalf of the plaintiff it was submitted:-

“The evidence of post-traumatic stress disorder was of such significance that it inevitably would have resulted in an assessment of damages greater than those assessed by the jury in the 1980 trial.”

338 In this respect it was contended that the evidence was of significance in that it grounded a claim for economic loss, a claim that had not been accepted by the jury.

339 The plaintiff also contended that it was common ground that the diagnosis of post-traumatic stress disorder was not available at the time of the 1980 trial and could not have been discovered by the exercise of reasonable diligence before trial.

340 In relation to the question of competing public interests, it was submitted that the defendants could not rely on the principle of finality of litigation.

341 Mr. Arden placed reliance upon the approach taken by the Court of Appeal in Tawyer v. NSW Insurance Ministerial Corporation (unreported 28 June 1994, BC 9402674) as evidencing the attitude that it was suggested would have been taken by the Court of Appeal in 1995 had the defendants presented “fresh” evidence of the plaintiff’s post-traumatic stress disorder. Reliance was also placed upon the judgment of the Court of Appeal in Baldwin v. Lisicic (supra).

342 In Tawyer, the essential facts were that the accident occurred on 8 July 1984. The plaintiff underwent blood transfusions, later found to have caused Hepatitis C, a very serious condition. The virus was identified in the late 1980s and a test became widely available to identify it in 1990. The trial had been held in December 1991. Although the plaintiff had noticed lethargy at the date of trial, he had no reason to believe that he suffered from the ill effects of the blood transfusions.

343 The post-trial identification of Hepatitis C, therefore, occurred in a case whether there was no doubt about the very existence of Hepatitis C as at the date of trial. In the present case, the evidence not only raises a doubt about the existence of post traumatic stress disorder as at the date of trial in 1980, it does not, on the findings I have made, establish on the probabilities that the disorder, additional to the cerebral damage claimed at trial, in fact existed before 1980, or at the date of trial and/or continuing to the time of Dr. Dent’s diagnosis. Nor does the evidence establish a causally related case of late onset post traumatic stress disorder in circumstances discussed above. The diagnosis made by Dr. Dent and Professor McFarlane is heavily dependent upon acceptance of the accuracy of the plaintiff’s own statements given to each of them that he has, over the relevant period, suffered from symptoms said to support a diagnosis of post traumatic stress disorder.

344 In Baldwin v. Lisicic (supra), the plaintiff was injured in an accident on 28 March 1984. The trial was held in February 1991. Of several issues on appeal the “hotly contested issue” was the need for future dental treatment not proved at trial. Kirby, P., with whom Priestley and Meagher, JJA. agreed, adverted to the principles of finality of litigation and the requirements of its own authority as exemplified in the Court’s decision in Radnedge v. The Government Insurance Office of New South Wales (1987) 9 NSWLR 235.

345 In Baldwin v. Lisicic (supra), there was no doubt but that the plaintiff had experienced a pain syndrome. What was discovered following the trial was that the cause of the pain was temporomandibular dysfunction syndrome (TDS), not a cervical spine or neck problem.

346 The Court of Appeal received and accepted specialist evidence that the proper cause had previously been missed by medical and dental practitioners. The specialist stated that the plaintiff required temporomandibular surgery to correct the problem.

347 As in Tawyer, the existence of the underlining pathological condition as at the date of trial was not in issue. The cause of it was not discovered until after trial. The central fact in the present case was whether the plaintiff, as at the trial in 1980, in fact then suffered post traumatic stress disorder symptoms. Similarly, the issue of misdiagnosis or non-diagnosis of the plaintiff’s symptoms is dependent upon accepting that the medical evidence establishes that the plaintiff in fact suffered from post traumatic stress disorder as at 1980 as well as the symptoms of cerebral damage.

348 The defendants sought to place considerable reliance upon the decision of the Court of Appeal in Radnedge (supra). That case, however, involved an appeal against a judgment by the plaintiff as to the adequacy of damages awarded for personal injury, including a neck injury. Medical opinion obtained after judgment was to the effect that there had been a revision of the prognosis for the appellant and that it was not likely that she would improve but that the symptoms would likely remain indefinitely. The Court (Glass and Mahoney, JJA., Kirby, P. dissenting) stated that the grounds for the admission of evidence as to facts occurring after trial did not include the fact that there was, between judgment and appeal, a change in the diagnosis or prognosis in respect of matters of judgment of the kind in question. This was a reference to clinical or medical judgment on the status of a medical condition.

349 In particular, Mahoney, JA. (at p.249) stated, where after judgment there was a change of diagnosis or prognosis “… in respect of matters of judgment of this kind …” that did not provide a basis for the admission of such evidence.

350 The question arising under s.106 of the Supreme Court Act – new trial by reason of subsequent matters – must be considered in the context of the relevant post-trial period under consideration. The commencement of that period in this case is the year 1980, the year in which the trial was held, and the initial expression of opinion by Dr. Dent approximately 13 years later, in 1993. On the basis of the history given to him of symptoms alleged to have existed prior to 1993, Dr. Dent accepted that:-

• The plaintiff suffered from post-traumatic stress disorder as at the date of his examination.

• That the plaintiff suffered from post-traumatic stress disorder in 1980 at the time of trial.

351 The Court of Appeal in 1995, if an application had been made to adduce expert evidence of this kind, would, as earlier noted, have examined the cogency of the evidence. This, in turn, was materially dependent upon the factual basis for Dr. Dent’s opinion, to a significant extent involving a retrospective analysis of the preceding 13 years, to the effect that the plaintiff suffered from post-traumatic stress disorder in 1980, between 1980 and 1993 and at the time of his initial consultation in March 1993.

352 The nature and extent of the factual foundation of the medical opinion in support of both a retrospective and current diagnosis of post-traumatic stress disorder is a matter that directly affects the likelihood or otherwise of the Court of Appeal exercising the powers vested in it under s.106(2) of the Supreme Court Act to receive evidence on matters occurring after trial.

353 Whilst the plaintiff’s own accounts to Dr. Dent and to Professor McFarlane that he did suffer the symptoms of post traumatic stress disorder after 1973 provided some factual material which would be admissible in evidence, it is unlikely that the Court of Appeal would, in the lengthy history of this case, have acted upon it without corroborative evidence preceding the diagnosis made in 1993.

354 The Court of Appeal, in 1995, would have been called upon to make a judgment as to whether it would accept and rely upon the plaintiff’s own evidence to the effect that he himself said he did suffer from a range of symptoms that would support the diagnosis of post traumatic stress disorder after his treatment in Chelmsford Private Hospital. The difficulty in accepting that the Court of Appeal would have considered the plaintiff’s own account of symptoms as sufficient is underlined by Professor McFarlane’s statement as to the need for caution by reason of the distorting effects of time on recollection. Further, as noted earlier, Professor McFarlane did not suggest that he could or did diagnose the existence of post traumatic stress disorder in the plaintiff as at 1980.

355 The fact that Dr. Dent nor Professor McFarlane had, for the purpose of their factual analysis, a copy of the transcript of the trial conducted in 1980 and the fact that the transcript of the plaintiff’s evidence at trial was not, apart from extracts referred to earlier, tendered in the present proceedings, makes it increasingly difficult to identify precisely what other factual material was available as at the time of trial.

356 In the application of s.106 of the Supreme Court Act to the present case, the Court of Appeal would have been required to determine whether or not the historical medical and other material in evidence in these proceedings, if presented to it on such an application, supported the proposition that the plaintiff in fact exhibited or reported the required symptoms of post traumatic stress disorder from 1973 and continuing Dr. Phillips’ 1992 report, as earlier discussed, was also material to the question as to whether or not the Court of Appeal would have favourably exercised its discretion under s.106 of the Supreme Court Act 1970 to receive evidence.

357 Professor McFarlane does not refer to the history of symptoms as recorded by Dr. Phillips in 1992 nor to his opinion that the plaintiff did not suffer from post-traumatic stress disorder. Similarly, Professor McFarlane in his reports of 27 January 2005 and 28 February 2005 does not address or proceed upon the basis of the plaintiff’s condition being seen as in any way a late onset one.

358 On the basis of the findings to which I have referred, I consider that it is unlikely that the Court of Appeal would have found “special circumstances” within the meaning of s.106 of the Supreme Court Act in circumstances in which:-

• Professor McFarlane stated in evidence that he did not consider whether the plaintiff suffered from post traumatic stress disorder in the year of the trial.

• There existed evidence from Dr. Phillips that no such condition existed at the times he saw and assessed the plaintiff in 1992.

• Dr. Dent and Professor McFarlane were substantially reliant upon the accuracy and reliability of the plaintiff’s recollection of his symptoms over a lengthy period of years.

M. Conclusions

359 The conclusions that follow from findings made may be summarised as follows:-

(1) The plaintiff’s instructions to the defendants in relation to:-

(b) the question as to whether the diagnosis should be relied upon for the purposes of his appeal, were not disregarded or ignored by the defendants.

(2) Mr. Everingham sought and obtained advice from experienced counsel on that matter. He provided advice consistent with counsel’s advice to the plaintiff on a number of occasions up to February 2004.

(3) The advice received from junior counsel in 1993 on the matter was confirmed in February 1994 by senior and junior counsel.

(4) The effect of that advice was that an application to the Court of Appeal for it to receive medical opinion on post traumatic stress disorder should not be made but that expert evidence on that matter should be reserved for use in a reassessment or on a retrial on damages in the event of a successful appeal.

(5) There was no circumstance requiring Mr. Everingham to have reviewed his abovementioned advice between February 1994 and August 1995.

Supreme Court Act

(7) In evaluating the expert medical opinion relied upon by the plaintiff, two fundamental propositions underpin the approach to be taken:-

Makita

(b) The trier of fact must arrive at an independent assessment of the opinions and their value. That cannot be done unless the basis is explained. Only then can a proper assessment of the opinion be made.

(8) In the circumstances of the case and for reasons earlier stated, I do not consider that the historical medical and other material supports the existence of the pattern of symptoms indicative of post traumatic stress disorder causally linked to the plaintiff’s treatment at former Chelmsford Private Hospital. The evidence establishes on the probabilities that such symptoms had not in fact existed before 1992 and that such symptoms that the plaintiff did suffer were identified over many years before 1993 as associated with cerebral damage the subject of the judgment at trial.

360 It follows that there must be judgment for the defendants, and I so order. I will permit the parties to lodge written submissions on any application, if made, as to costs.

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Citations

Hart v Cashman and Everingham t/as Cashman and Partners [2007] NSWSC 233

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

1

White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) [1998] FCA 806

Sunlight Nominees Pty Ltd v Zotti and Zotti [2019] SASCFC 11

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

CITATION:	HART v. CASHMAN & EVERINGHAM trading as CASHMAN & PARTNERS [2007] NSWSC 233
HEARING DATE(S):	13 to 17, 20 to 23, 27, 28 March, 3, 13 April 2006
JUDGMENT DATE :	21 March 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	Judgment for the defendants.
CATCHWORDS:	Plaintiff claimed the defendant solicitors in breach of their duty to him by failing to comply with instructions to seek leave to adduce "fresh evidence" on the hearing of his damages appeal in 1995 of post traumatic stress disorder additional to cerebral or brain damage - plaintiff treated in 1973 in former Chelmsford Private Hospital - trial held in 1980 - lengthy delay in proceeding with appeal (1995) following a Royal Commission - Diagnosis of post traumatic stress disorder made in 1993 - questions as to what advice given concerning "fresh evidence" based on the diagnosis - solicitor entitled to rely upon counsel's advice - evidentiary requirements for expert medical opinion on a retrospective analysis of events over 20 years - evidentiary principles - expert opinion - requirement for cogent evidence on an application under s.106(2), Supreme Court Act 1970 to adduce evidence of post trial matters on an appeal - history of symptoms over many years - inconsistent evidence - whether historical substratum established necessary to support medical opinion evidence on the existence of post traumatic stress disorder symptoms and causation with treatment at former Chelmsford Private Hospital
LEGISLATION CITED:	Supreme Court Act 1970 (NSW)
CASES CITED:	White Industries (Qld) Pty Limited v Flower & Hart (A Firm) (1998) 156 ALR 169 Wakim v McNally [2002] FCA 208 Baldwin v Lisicic (Court of Appeal, 20 April 1993) Makita V sprowles (2001) 52 NSWLR 729 Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 Ramsay v Watson (1961) 108 CLR 642 Paric v John Holland (Constructions) Pty Limited (1985) 59 ALJR 844 Day v Electronik Fabric Makers (Vic) Pty Limited [2004] VSC 24 Whisprun Pty Limited v Dixon (2003) 77 ALJR 1598 Stingel v Clark (2006) 228 ALR 229 Tawyer v NSW Insurance Ministerial Corporation (Court of Appeal, 28 June 1999) Radnedge v GIO (1987) 9 NSWLR 235
PARTIES:	HART, Barry Francis v. CASHMAN, Peter & EVERINGHAM, Roland, t/as CASHMAN & PARTNERS
FILE NUMBER(S):	SC No. 20266 of 2004
COUNSEL:	P: P.R. Arden SC/M. Choat D: D.G. Nock SC/B.J. Shields
SOLICITORS:	P: Bryan Gorman & Co D: Ebsworth & Ebsworth