Hawker v Miller

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
HAWKER & ORS v MILLER
[2011] SASCFC 76
Judgment of The Full Court
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Peek)
29 July 2011
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES
Appellant appeals against a decision from a District Court Judge awarding him damages for injuries following an accident - appellant awarded $80,600 by way of general damages and $1798.88 by way of special damages.
Appellant, whilst riding a bicycle, collided with stationary van driven by respondent - principle issue on appeal was whether appellant's serious mental illness was caused or its onset brought on, as a result of the injury he suffered in the accident.
Whether trial Judge failed to have regard to the totality of the evidence and erred in concluding that the appellant sustained a mild to moderate head injury - whether trial Judge erred in concluding that the appellant was in the prodrome of a schizoaffective disorder and that he had a genetic disposition to schizophrenia - whether trial Judge erred in concluding that the accident and head injury following the accident was not the cause of the appellant's schizophrenic disorder - whether trial Judge failed to apply correct legal principles on the evidentiary onus - whether trial Judge misapplied the onus of proof.
Discussion of the role and function of an appellate court - discussion of expert evidence before the trial Judge.
Held: Appeal dismissed - ample evidence from which it was open to the trial Judge to conclude as he did.
Fox v Percy (2003) 214 CLR 118; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Shorey v PT Ltd (as Trustee for McNamara Property Trust) (2003) 88 ALJR 1104; Adelaide Stevedoring Company Limited v Forst (1940) 64 CLR 538, considered.

HAWKER & ORS v MILLER
[2011] SASCFC 76
Full Court: Sulan, Vanstone and Peek JJ

SULAN J: This is an appeal from a decision of a District Court Judge awarding the plaintiff, Christopher James Hawker, damages for injuries following an accident. The plaintiff was riding a bicycle along a footpath when he collided with a stationary van driven by the defendant. The plaintiff brought his action by his next friends, Alan David Hawker and Karen Hawker, his parents.
The Judge ordered that the plaintiff recover from the defendant the sum of $80,600 by way of general damages, and $1798.88 by way of special damages. The plaintiff appeals the decision.
The evidence relied on by each party was extensive. Many medical experts were called. The plaintiff relied on the evidence of his father, his mother, Dr Pols, a senior consultant psychiatrist and Assistant Director of the Pain Management Unit at the Flinders Medical Centre, Professor Clark, the Head of the School of Psychiatry at Flinders University, and the Director of Cognitive Neuroscience Laboratory at the Flinders University, Dr Anastassiadis, a senior consultant in rehabilitation medicine at Hampstead Rehabilitation Centre, Associate Professor Koopowitz, a senior consultant psychiatrist, and Dr Field, a neuropsychologist. Other lay witnesses were called by the plaintiff.
The defendant relied on Professor Goldney, Professor of Psychiatry at Adelaide University, Dr Thompkins, the plaintiff’s treating doctor who saw the plaintiff at the time he was hospitalised for his psychiatric conditions and Dr Conway who had care of the plaintiff in February 1999. Other medical witnesses included Dr Paterson, Director of the Intensive Care Unit at the Adelaide Clinic, Mr Reid, a neuropsychologist, Associate Professor Wood, a psychologist, Professor Tennant, head of the Department of Psychological Medicine at the Royal Sydney Hospital, and Professor Sachdev, Professor of Neuropsychiatry at the University of New South Wales, all of whom gave evidence.
Background
It is necessary to set out at some length the history of this matter, because the plaintiff seeks to attack the findings of the trial Judge on the basis that they were not supported by the evidence. The main issue which arose before the District Court Judge, which arises in this appeal, relates to whether the plaintiff’s serious mental illness, being schizophrenia, or a schizoaffective disorder, was caused or its onset brought on, as a result of the injury he suffered in the accident.
On 3 November 1988, the defendant’s van was stationary on the footpath at Brooker Terrace, Richmond, waiting for traffic to clear before moving on to the road. The plaintiff was riding his bicycle and collided with the near-side of the van. The defendant observed the plaintiff lying next to the van. When he spoke to the plaintiff, he received no response. The defendant went into a dry cleaning shop nearby and returned with a person who administered first aid. The ambulance was called and, when it arrived, the plaintiff, who had regained consciousness, became very agitated. The defendant gave evidence that the plaintiff had been unconscious for one to two minutes.
The trial Judge found that the plaintiff suffered a mild to moderate head injury. That finding is challenged. The evidence of a witness, the woman who came to the plaintiff’s assistance, was to the effect that the plaintiff was semi‑conscious and appeared to be confused and agitated. When the ambulance and police arrived, he had to be restrained. The ambulance officer prepared a report in which he observed that there was no loss of consciousness following the accident, that the defendant was wildly shouting obscenities following the accident, and that he had to be restrained.
On examination, the plaintiff recorded a Glasgow Coma Scale score of 12. The Glasgow Coma Scale is a scale which is used for quantifying a person’s level of consciousness following traumatic brain injury. The highest score achievable is 15 points. Evidence from the neurologist and psychiatrists was to the effect that the Glasgow Coma Scale is of limited assistance. The score recorded can vary according to who is carrying out the task. It can vary according to medication which is given to the patient.
On admission to the Women’s and Children’s Hospital at about 5.15 pm, the plaintiff appeared confused. Glasgow Coma Scale readings were taken and recorded regularly. At 7.50 pm, he was recorded at 14 out of 15. The trial Judge noted that the allocation of points is rather arbitrary, and the process is imprecise. At 11.15 am on 4 November 1988, the nurse’s notes record that the plaintiff’s neurological observations were satisfactory.
The plaintiff had suffered facial injuries, including a fractured jaw, for which he was treated by a dental surgeon. He was transferred to Parkwynd Hospital. He was treated at the Parkwynd Hospital by Dr Hribar. No scans were carried out to investigate the possibility of a brain injury. On 6 November 1988, he was discharged.
After the accident, the plaintiff was observed to be withdrawn. In December 1988, whilst holidaying with his parents, he complained that his testicles were abnormal. His parents observed a marked change in his behaviour. Subsequently, when the plaintiff was diagnosed by psychiatrists, some considered that his concern about his testicles was indicative of the prodrome of schizophrenia, or a schizophrenic disorder.
On 2 February 1999, when he attended Dr Hribar for a check up, he began to cry uncontrollably and became hysterical. Dr Hribar considered that he was severely depressed. He was admitted to the psychiatric clinic at the Women’s and Children’s Hospital. It was noted that “four years ago he felt worthless”, and that he “felt a lot more depressed since the accident”.
Dr Conway had care of the plaintiff. It was noted that he had suffered self-doubt about himself prior to the accident. He had problems at school and did not wish to attend school.
When Dr Conway examined the plaintiff, he took a history. A CT scan did not detect any abnormalities. There was a family psychiatric history. The plaintiff’s paternal grandmother had several nervous breakdowns, and both his mother’s parents and her sister had suicided. The trial Judge found that the observations and history taken by Dr Conway are significant because they indicated problems that pre-dated the accident.
On 8 February 1999, the plaintiff consulted Dr Thompkins, a psychiatrist. Dr Thompkins considered that the plaintiff was suffering from agitated depression, and that there may be some psychotic features. Dr Thompkins consulted with the plaintiff’s mother, who told him that the plaintiff had complained of a chest deformity four months before the accident and had been seeing a reflexologist who massaged his spine prior to the accident. Dr Thompkins made a diagnosis that, prior to the accident, the plaintiff was in the prodrome of schizophrenia.
Dr Thompkins wrote a lengthy report to the plaintiff’s general practitioner. He made no reference to any traumatic brain injury. He concluded:
I agree he is suffering from an agitated depression, and there may well be some psychotic features. Given the obvious head injury and loss of consciousness, I also wondered about a resolving brain syndrome component. Perhaps his somatic preoccupation is more readily understood given his premorbid somatic concerns.
Counsel for the plaintiff submits that the trial Judge was in error in concluding that that evidence was important evidence of which a number of expert witnesses had failed to take account. Dr Thompkins gave evidence that it was more likely than not that the plaintiff was suffering from schizophrenia when Dr Thompkins first saw him.
On 6 March 2000, in the early hours of the morning, the plaintiff announced that he was going to find a former teacher to kill him. An ambulance was called. The plaintiff was admitted to the Adelaide Clinic, where he remained until 22 April 2000. Dr Paterson, the Director of the Intensive Care Unit at the Adelaide Clinic, diagnosed the plaintiff. He diagnosed the plaintiff as having a bipolar disorder with psychotic features. He considered that the plaintiff’s family history would suggest that the plaintiff probably had a biological vulnerability to psychiatric disorders. Dr Paterson was not prepared to diagnose a schizo‑affected disorder at that time, but considered it was a possibility.
On 22 April 2000, the plaintiff was discharged, against medical advice, at his father’s insistence. The plaintiff and his family moved to Queensland. Between April and October 2000, the plaintiff exhibited symptoms of a serious psychiatric disorder. His behaviour was erratic. He physically attacked his parents on several occasions.
The plaintiff again saw Dr Paterson in October 2000. Dr Paterson wrote:
…I therefore agree with Dr Thompkins assertion that with the very strong biological loading Christopher Hawker has, that he was vulnerable to the development of an affective or psychotic illness. The contribution of the head injury can only be speculative but given, from the history I have been able to obtain, the apparent chronological relationship with Christopher’s head injury and his subsequent development of affective instability I believe it is not unreasonable to speculate that the head injury has had a contributing role in the precipitation of Christopher’s presentation.
In February 2011, the plaintiff and his father consulted Professor Goldney, a psychiatrist, Mr Reid, a neuropsychologist, and Dr Paterson for the purpose of obtaining medico-legal assessments. Professor Goldney was of the opinion that the plaintiff had a severe psychiatric condition, probably a schizoaffective disorder. He also noted that there were features of schizophrenia. He was of the opinion that the schizoaffective disorder would not have been caused by the motor vehicle accident, but that the accident might have contributed to the onset of the disorder.
Mr Reid, who is a neuropsychologist, was of little doubt that the plaintiff had developed a psychotic illness, most likely a schizoaffective disorder. Mr Reid was of the view that, as at March 2001, there were no definitive features which were clearly indicative of ongoing cognitive impairment relating to acquired brain injury, rather than the cognitive deficits associated with a psychotic illness. Having examined the hospital notes, he said he would not expect any substantial cognitive defects post-accident resulting from the injury.
Dr Paterson also saw the plaintiff in early March 2001. Dr Paterson had read Dr Goldney’s report and stated that he agreed with its conclusions. He observed that patients with schizophrenia developed cognitive impairment. In his evidence he said that the plaintiff’s illness that he observed was a psychotic illness. He said that his initial diagnosis of a bipolar affective disorder had been made without a complete history. He later diagnosed schizophrenia. He was asked whether the symptoms which he noticed in February and March 2000 may have been explained by a traumatic brain injury. He said:
In my opinion they don’t get explained by a traumatic brain injury. In my opinion, as I’ve said all the way through, I don’t think I can ever say that the accident didn’t have some contributory role, but in my opinion – with family history, with what appears to be reliable evidence of a prodrome, with some symptoms prior to the event – my opinion is that it’s an aspect that’s part of the biological, psychological, social formulation as I was talking about earlier. But it’s not of its own, in my opinion, sufficient to explain why Christopher Hawker was as unwell as he was.
He said that he would have expected someone with a traumatic brain injury to have significant cognitive impairment. His observations were of a young man with schizophrenia who was manic, irritable, psychotic and extremely difficult to manage.
During 2001, the plaintiff spent a total of 37 days in Nambour Hospital. The records of his admission to the hospital show that the principal condition was “adjustment disorder with disturbed conduct”, and “schizoaffective disorder”.
In late 2003, the plaintiff and his mother moved to Sydney. Whilst in Sydney, he was admitted to the Prince of Wales Hospital at Randwick where he remained for 121 days, the principal diagnosis being schizoaffective disorder. An MRI scan of the plaintiff’s brain at the Prince of Wales Hospital was normal.
The plaintiff and his parents then returned to Adelaide. He was admitted to the Cramond Clinic at the Queen Elizabeth Hospital on 5 May, where he remained for approximately one month. He had been living alone with his mother, and had attempted to strangle her. That led to his admission to hospital.
In 2005, he spent considerable periods at the Flinders Medical Centre and at Glenside Hospital. He was placed under a continuing detention and treatment order in June 2005 until 6 November 2005. During the period 2004 to 2008, the plaintiff spent numerous occasions in hospital.
The plaintiff relied upon a number of medical experts at trial. The plaintiff’s case was that his illness was caused solely by the head injury suffered in the motor vehicle accident, and that his cognitive deficits are to be attributed to a traumatic brain injury. In the alternative, the plaintiff’s case was that he has a schizoaffective disorder which was caused by a head injury suffered in the motor vehicle accident or, alternatively, it was brought forward by a head injury sustained in the motor vehicle accident.
A further alternative that the plaintiff put forward was that he suffers from both a schizoaffective disorder unrelated to the car accident, together with cognitive deficiencies consequent upon the head injury, and the head injury has made the symptoms and treatment of the schizoaffective disorder more difficult than would otherwise have been the case.
The defendant’s case at trial was that all of the plaintiff’s symptoms are explained by an inevitable schizoaffective disorder, that he was predisposed to such an illness by reason of his family background and was, in fact, in the prodrome of that illness at the time of the accident. The defendant accepts that, while the head injury may have brought forward the plaintiff’s symptoms, all of the symptoms are consistent with a schizoaffective disorder and were not caused by the accident.
The plaintiff relied upon evidence of Associate Professor Koopowitz who saw the plaintiff in April 2005. He is a senior consultant psychiatrist at Glenside and was also a visiting consultant at the brain injury and rehabilitation unit at Hampstead Rehabilitation Centre. The plaintiff had been referred to him because his treating psychiatrist felt that the plaintiff needed longer term management for his psychiatric condition.
Associate Professor Koopowitz consulted the plaintiff on one occasion. Associate Professor Koopowitz, in a lengthy report, made the following concluding observations:
Taking the above into account it can be seen that the subject accident most likely triggered a cascade of life altering events. Prior to the accident, Mr Hawker was functioning as a seemingly well adjusted individual. In the years following the accident he has been unable to function at an academic or psychosocial level approaching that which would have been expected.
If the accident had not occurred the overwhelming likelihood is that Mr Hawker’s life would have followed the trajectory as planned.
…
In Mr Hawker’s situation, had it not been for the subject accident, he would not have been in the situation I encountered when I met him in April 2005.
Associate Professor Koopowitz disagreed with the diagnosis of schizoaffective disorder. The trial Judge observed that Professor Koopowitz’s opinions are contrary to the overwhelming body of evidence that the plaintiff suffers from either schizophrenia or a schizoaffective disorder. The trial Judge rejected the evidence of Professor Koopowitz.
Professor Tennant reviewed the various reports of psychologists and psychiatrists who had treated the plaintiff. He observed that members of the plaintiff’s family, including his mother and grandmother, had suffered psychiatric illnesses, his grandmother having suffered from schizophrenia. He considered that the family background is consistent with the plaintiff himself having developed what appears to be a psychosis with prominent defective features, namely a schizoaffective psychosis. He observed that there were significant signs that the plaintiff had developed the illness prior to the accident. He arrived at that conclusion, having considered the plaintiff’s school reports. Further, he observed that the plaintiff had developed what appeared to be a belief of some abnormality concerning his chest.
In his report, Professor Tennant assumed that the plaintiff had not lost consciousness. He was of the view that evidence of various studies tends to suggest that, for there to be a risk of psychosis following brain injury, the injury would usually need to be severe and usually identified on a CT scan. He was also of the view that those subjects who have a predisposition to schizophrenia, if they were to suffer significant brain damage, are at greater risk of ultimately development schizophrenia. He observed there appeared to be consensus that the plaintiff had suffered significant cognitive impairment. He said that both traumatic brain injury and schizophrenia could account for that particular cognitive impairment. His view was that, on the material presented to him, it was more likely that the cognitive impairment was due to his schizophrenic illness, rather than due to a brain injury. He concluded that he did not believe that the plaintiff’s accident contributed to his psychosis in any material way, but he accepted that it could be argued that, on the basis of his probable prodrome of illness proceeding, the accident brought forward in time his more positive features of psychosis. He was of the opinion that it was highly likely that the plaintiff would have eventually developed a psychosis, notwithstanding the accident.

Professor Sachdev, Professor of Neuropsychiatry at the University of New South Wales, whose expertise is the diagnosis and management of psychiatric and behavioural disorders arising from brain disease, was asked to provide a report commenting on the various differences of opinion that existed between the experts in this case. He was asked whether head injury could cause schizophrenia. In respect of that question, he concluded that there is a minor risk and that there is no consensus on the type of injury, although some evidence suggests that a more severe injury may be more likely to be a cause of schizophrenia.
Having reviewed the material, Professor Sachdev concluded:
… it would be wrong to categorically state that the head injury had no role in relation to his psychiatric disorder. It would also be wrong to say that the head injury caused the psychotic illness. I think that this role is best described as a contribution to the precipitation of the illness. One possibility is that he would have developed the illness in any event and the head injury brought it forward. However this is speculative and there is no way of knowing for certain. The role of the head injury must however be considered to be a minor one in the overall causation of his illness. If he already had pre-psychotic symptoms, the head injury could still be seen as having precipitated the psychotic illness.
Dr Pols is the Acting Director of the Pain Management Unit at the Flinders University of South Australia. He is a senior consultant psychiatrist. He took over the management of the plaintiff about five years after the accident. He prepared a number of reports and gave evidence. In a report prepared on 3 October 2007, he deals extensively with the history of the plaintiff’s condition. He concluded that the traumatic brain injury which the plaintiff suffered as a consequence of the accident has had a substantial impact upon the course and management of his illness. He was of the view that it is likely that the illness was precipitated by the injury and that, on the balance of probabilities, its course has been made worse by the injury and that the plaintiff’s impairment to civility has been increased by the injury. Dr Pols concluded that, on the balance of probabilities, the plaintiff was vulnerable genetically but not suffering from prodromal schizophrenia prior to the traumatic brain injury. He concluded that the traumatic brain injury interacted with the plaintiff’s genetic vulnerability and causally contributed to the development of his psychotic illness.
Dr Anastassiadis is the senior rehabilitation consultant in the Brain Injury Rehabilitation Service at Hampstead Rehabilitation Centre, which is attached to the Royal Adelaide Hospital. He studied the notes relating to the admission of the plaintiff to the Women’s and Children’s Hospital. He noted that the plaintiff had suffered amnesia, and noted that when the plaintiff was admitted to hospital he was combative and required restraint. He had considered the report of Associate Professor Koopowitz, who concluded that:
Christopher Hawker’s longitudinal clinical picture is highly consistent with what we would expect post-head injury. All the problems he still demonstrated with information processing are to be expected following a closed head injury and subsequent diffuse axonal injury.
Dr Anastassiadis had limited clinical contact with the plaintiff. He saw the plaintiff in 2005 after he had been referred by the Glenside Campus of the South Australian Mental Health Services for assistance with his cognitive and lifestyle rehabilitation following protracted mental health problems related to schizoaffective psychosis, thought to be most likely secondary to a traumatic brain injury. Dr Anastassiadis reported that, in his clinical experience, mental health disorders, including major depression and psychosis, can complicate traumatic brain injury, and are more likely to occur after moderate to severe degrees of traumatic brain injury. He concluded that the plaintiff sustained at least a moderately severe traumatic brain injury, and that this was associated with subsequent complication of depression and episodes of recurrent major psychotic and affective mental illness. He concluded that the plaintiff’s decline of cognitive functioning was as a result of the traumatic brain injury. He considered that the plaintiff’s employment prospects, his ability to function socially, and his capacity to care for himself had been significantly affected by his cognitive impairment and psychological and behavioural symptomotology.
Associate Professor Wood is a registered psychologist who has practised in clinical psychology and neuropsychology for over 25 years. He interviewed the plaintiff in April 2003. He referred to the plaintiff’s personal history and the details of the accident. He considered the notes of the hospital to which the plaintiff was admitted and the report of Dr Hribar. He referred to the report of Dr Thompkins in which he raised the issue of the plaintiff having shown signs of psychological disorder three months prior to the accident. Professor Wood assessed the plaintiff’s intellectual functioning, his memory, and his executive functioning. He concluded that the plaintiff was a person of average intelligence prior to the accident and to the onset of his mental illness. He said that an assessment of the plaintiff’s cognitive processes and executive functioning, indicated severe impairment. Professor Wood was of the opinion that the psychotic disorder is the primary cause of the plaintiff’s cognitive impairment. He referred to the opinions of Professor Goldney and, in particular, to Dr Thompkins who referred to abnormal somatic preoccupation prior to the accident, and the distractability in class documented in several school reports. He also concluded that the plaintiff’s behaviour at the scene of the accident was highly unusual. He concluded that he had some reservation that the accident was instrumental in causing the onset of the plaintiff’s mental illness of schizophrenia.
Dr Field is a senior clinical neuropsychologist. He saw the plaintiff on 27 November 2007. He conducted a number of tests. He concluded that the presentation of the plaintiff was consistent with the presence of a head injury, likely of severe to very severe degree. He said:
…The common concomitants of severe head injury can include conduct disorder secondary to involvement of the orbitobasal regions of the frontal lobes, together with planning and organisational dysfunction associated with dorsolateral function involvement of the frontal lobes. Mr Hawker’s presentation is highly consistent with this pattern.
Professor Goldney has practised psychiatry since 1969 and is a Professor of Psychiatry at the University of Adelaide. He considered the reports of Drs Thompkins, Paterson and Hribar. He also interviewed the plaintiff and the plaintiff’s father. Professor Goldney concluded that the plaintiff had a severe psychiatric condition, probably that of schizoaffective disorder. He placed some significance upon the family history and concluded that the plaintiff has a significant permanent impairment as a result of his schizoaffective disorder. He considered that the plaintiff would have developed his psychiatric condition regardless of the collision, but it is possible that the collision may have accelerated the onset of his condition.
The trial Judge’s findings
The trial Judge concluded that all the medical experts were competent and well respected in their field. He accepted that there were disagreements between them. He also concluded that, ultimately, he was not required to adjudicate on medical debates, but he was required to determine what the evidence establishes on the balance of probabilities and, in particular, whether the plaintiff had proved his case.
The trial Judge concluded:
I accept the evidence of Professor Tennant that the theory of Associate Professor Koopowitz is just supposition. Professor Koopowitz did not take into account the plaintiff’s predisposition, the possibility that he was in the prodrome or the actual development of his illness. His only contact with the plaintiff was when he sat in on the interview by a Senior Registrar. The information on which Associate Professor Koopowitz made his diagnosis was very sparse.
The trial Judge dealt in detail with Dr Pols’ reports and his evidence. Insofar as Dr Pols was of the view that the head injury suffered by the plaintiff had brought forward or expedited an inevitable schizophrenic schizoaffective disorder, the trial Judge accepted that evidence. The trial Judge concluded that, at the time of the accident, the plaintiff was in the prodrome of schizophrenia. Insofar as Dr Pols regarded that as a possibility only, the trial Judge rejected his evidence and accepted the evidence of Dr Thompkins that the plaintiff was in the prodrome of a schizoaffective disorder.
The trial Judge dealt extensively with the evidence of Dr Pols. He concluded:
Dr Pols’ opinion is inconsistent with the diagnosis of other clinicians who have been associated with the plaintiff in various hospitals in this State, in Queensland and in New South Wales. The evidence of Dr Pols is also contrary to the defendant’s experts whose evidence I accept.
Dr Pols said that the brain injury has made the management of his schizoaffective disorder much more difficult.
Difficulties with the opinion of Dr Pols are that it is based on the assumption that the plaintiff was not suffering from the prodrome prior to the TBI, it assumes a TBI of moderate severity and assumes that the TBI interacted with his genetic vulnerability. Dr Pols did not take into account the fact that the symptoms of a brain injury were not apparent immediately following the accident or for sometime thereafter. His evidence that the brain injury made the schizoaffective disorder worse is inconsistent with other evidence that all of the plaintiff’s symptoms can be explained by his schizoaffective disorder. Dr Pols’ evidence must be interpreted in the context that he was the clinician ultimately responsible for the plaintiff’s treatment and there was a reason for the brain injury to be emphasised to secure the assistance of organisations such as Brain Injury Options.
One fact which should not be overlooked is that Dr Pols’ first association with the plaintiff was more than five years after the accident and at a time when the plaintiff had already been suffering from a serious schizoaffective disorder for many years. It seems remarkable that the plaintiff could have been treated in so many institutions and have been both examined and treated by so many very experienced practitioners without the head injury being given the significance that Dr Pols attached to it.
I do not find the reasoning of Dr Pols as convincing as the evidence of the defendant’s witnesses. With exceptions which I refer to later I am unable to rely upon the evidence of Dr Pols in preference to the evidence of the defendant’s witnesses.
The trial Judge noted that Dr Anastassiadis acted on the assumption that Associate Professor Koopowitz’s diagnosis was correct, and that the plaintiff did have a significant head injury.
The trial Judge considered the detailed reports of Dr Anastassiadis and his oral evidence. He concluded as follows:
The evidence of Dr Anastassiadis does not establish that the plaintiff sustained a moderate, severe or significant head injury. Cross examination established that he did no more than repeat the opinion of others. The assessment of the plaintiff by Dr Anastassiadis did not consider the history of the development of the plaintiff’s illness, his predisposition or the fact that at the time of the accident the plaintiff was in the prodrome.
The trial Judge found that Dr Anastassiadis’ opinion was contrary to other evidence which the trial Judge accepted. He considered that the diagnosis of the plaintiff’s condition is primarily within the field of psychiatry. On that basis, he did not accept Dr Anastassiadis’ evidence and preferred evidence of other witnesses who he considered to be qualified in the area of psychiatry.
The trial Judge summarised the evidence of Professor Wood. He noted that Professor Wood had assumed that the plaintiff did not lose consciousness, and that there was no evidence of retrograde or anterior grade amnesia, and that these assumptions may be incorrect. He observed that there had been some evidence of loss of consciousness for one or two minutes, and some evidence of amnesia. However, the opinion of Professor Wood would not change if there was retrograde amnesia of seconds and post-traumatic amnesia of less than one day.
The trial Judge summarised Professor Wood’s evidence as follows:
Associate Professor Wood did not agree that an improvement in mathematics following tutoring was an indication that the plaintiff was not in the prodrome of schizoaffective illness.
Associate Professor Wood said that the orbito-basal frontal involvement indentified by testing was common with persons suffering schizophrenia. Because of that the orbito‑basal frontal involvement did not identify a head injury as the sole cause of the illness.
In cross-examination Associate Professor Wood said that it was not possible for the tests which he conducted to distinguish whether the cognitive impairment detected by the tests was attributable to psychotic illness rather than brain injury. He said that from his experience the severity of impairment was significantly greater than one would obtain from the type of head injury that the plaintiff suffered.
He thought that the plaintiff may have been suffering from a psychiatric disorder when he was admitted to the Adelaide Children’s Hospital in November 1998 because the behaviour at the scene was highly unusual. People with head injury do show some degree of agitation but the plaintiff showed verbal abuse and combative behaviour at the scene of the accident which was quite unusual.
Having looked at the data again Associate Professor Wood conceded that head injury might be classified as moderate, but he would not agree that it could be classified as severe.
He said that if the head injury was the cause of the plaintiff’s cognitive impairment he would expect to see evidence on a CT scan, MRI scan or the EEG (sic).
In his opinion the plaintiff suffers from a schizoaffective disorder. If he was manifesting the symptoms of traumatic brain injury they could be very much concealed by the psychiatric condition. On balance he did not think that the plaintiff had suffered a significant head injury which has produced the cognitive impairment. He said “The psychiatric disorder is so severe and the symptoms and the cognitive impairment are so absolutely characteristic of that disorder that they are probably masking any effect, if there is one, of the head injury”.
While he could not say whether the schizoaffective disorder was precipitated by the head injury, his view is that the plaintiff would have developed a schizoaffective disorder anyway. He said it was a “high probability”.
Associate Professor Wood said that for a number of years, at least a decade, he had held the view that the consensus was that there was no causal connection between head injuries and schizophrenia and psychotic illness. He had discussed the topic with Professor Goldney, who is a friend. He accepted that a traumatic brain injury may trigger or precipitate the onset of a mental illness.
There is no reason not to accept the evidence of Associate Professor Wood.
The trial Judge accepted the evidence of Professor Wood.
The trial Judge considered Dr Field’s report, together with his evidence. He concluded as follows:
Dr Field did not follow the development of the plaintiff’s illness. He did not take into account the plaintiff’s predisposition, whether he was in the prodrome at the time of the accident and the development of the illness. He did not consider the absence of evidence of a head injury on imaging or the course of the illness. In particular he did not take into account the fact there was no indication of a head injury immediately after the accident or for some time thereafter.
I accept the evidence of others that a traumatic head injury would have been obvious and at its worst immediately and would have improved over time. Dr Field has not identified when the effects of the head injury which he assumed became obvious.
For these reasons and for other reasons which are referred to in the evidence of Professor Sachdev I have not been able to derive any assistance from the evidence of Dr Field. His reasoning did not take all relevant material into account and his opinion was based on the narrow basis of his own testing and observations which are questioned by others. It would have been appropriate to take all available evidence into account.
I prefer the evidence of others that the deficits shown by the plaintiff are equally consistent with schizophrenia or a schizoaffective disorder.
The trial Judge accepted Professor Goldney’s evidence, which he concluded was corroborated by the evidence of other witnesses.
As to Professor Sachdev’s evidence, the trial Judge accepted his criticisms of Dr Field’s evidence, that being that the tests that Dr Field carried out were not a complete neuropsychological assessment, that his testing was selective and that he had concerns about Dr Field’s interpretations of the results. The trial Judge concluded that, on that basis, together with other views that had been expressed, he was unable to accept the evidence of Dr Field. He accepted Dr Sachdev’s evidence that stress can lead to the development of psychosis but not schizophrenia.
The trial Judge made the following findings. He concluded that the plaintiff’s condition is not wholly attributable to a diffuse axonal injury. He concluded that the plaintiff suffered mild to moderate head injuries from the accident. He concluded that the plaintiff’s reaction after the accident was a psychological reaction, not an indication of traumatic brain injury. There were no subsequent signs of brain injury. There were no signs of brain injury whilst the plaintiff was in the Adelaide Clinic, nor between the accident and November 1998. The trial Judge concluded that a brain injury of the magnitude required to produce the illness suffered by the plaintiff would have been of sufficient severity to have been apparent on imaging, and this had not been the case. He concluded that the plaintiff was predisposed to psychotic illness because of his family history. He found that, since at least February 2000, the plaintiff had suffered from a serious psychiatric illness, either a schizoaffective disorder or schizophrenia and that, at the time of the accident, he was in the prodrome of a psychiatric illness. He relied on the evidence of Dr Thompkins and the history taken by Dr Conway at the Women’s and Children’s Hospital. He also concluded that the plaintiff’s school records supported the conclusions that he had reached.
The trial Judge concluded that he was satisfied that the evidence established that the plaintiff was absent from school for significant periods, that his behaviour at school was unacceptable, and that he had academic difficulties which were out of the ordinary. He concluded that that evidence supported the diagnosis that the plaintiff was prodromal. The trial Judge concluded that the fact that the psychiatric illness did actually eventuate supported his conclusions about the plaintiff’s prodromal state. The trial Judge accepted the evidence of Professor Goldney and Professor Tennant that there was evidence of an emerging psychotic illness at the time of the accident.
The trial Judge concluded that the schizoaffective disorder from which the plaintiff suffers would most probably have manifested itself even if there was no accident, and that the plaintiff had a predisposition and was in the prodrome at the time of the accident. He concluded that the accident probably expedited the onset of the disorder. He concluded that the evidence does not establish that the head injury caused the plaintiff’s schizoaffective disorder.

The trial Judge did not attempt to resolve the debate between the experts on the question of whether a head injury can cause schizophrenia. He accepted the evidence of Professor Sachdev that nobody knows what causes schizophrenia. Epidemiological studies do not establish that head injuries cause schizophrenia or schizoaffective disorders.
The trial Judge had regard to the evidence of Dr Pols and accepted that the head injury has made the plaintiff’s schizoaffective disorder more brittle and made his condition more difficult to manage. The trial Judge then concluded:
The plaintiff carries the onus of proof. The evidence does not establish that deficits which can be attributable to the head injury alone have resulted in any greater level of care than the plaintiff has received in the past or will require in the future by reason of his schizoaffective disorder. Nor does the evidence establish that any of the plaintiff’s compensable disabilities, including the plaintiff’s undoubted incapacity for employment, are not attributable of the schizoaffective disorder alone.
The evidence does not establish that a worsening of the plaintiff’s condition or the fact that his condition is more difficult to manage by reason of a traumatic brain injury has given rise to an identifiable loss which sounds in damages.
In making these findings I have preferred the evidence of the witnesses called in the defendant’s case to the evidence of the plaintiff’s witnesses.
…
Generally I accept the evidence of all the defendant’s witnesses who agree on the important issues. They were all impressive witnesses and none of them provided any reason for their evidence to not be accepted.
I find that the evidence does not establish on the balance of probabilities that as a consequence of the head injury the plaintiff suffers from cognitive deficits which are not explained by his schizoaffective disorder.
…
It is impossible to separate the two conditions and to identify what behaviour can be attributed to the schizoaffective disorder and what behaviour, if any, can be attributed to the head injury alone. The evidence does not permit me to do that. There is reliable evidence that all of the plaintiff’s difficulties can be explained by the schizoaffective disorder.
…
I find that the evidence does not establish that the cognitive deficiencies from which the plaintiff suffers are attributable to the brain injury. There is evidence which I accept that the cognitive deficiencies are equally consistent with the schizoaffective disorder. There is the fact that the cognitive difficulties were not apparent immediately following the head injury. There is evidence that if the plaintiff’s disability was a consequence of a head injury it would have been at its worst immediately following the accident and may have improved as time passed by. In this case the plaintiff’s condition has deteriorated with the passage of time.
The appeal
Before I deal with specific complaints of Mr Niarchos, who appeared for the plaintiff, I make the following observation. The main argument for the plaintiff was, in essence, that in finding that the plaintiff was in the prodrome of a schizoaffective disorder in the period prior to the accident, the trial Judge relied on three intractably neutral matters of history, each of which was, upon examination, flimsy, and that he characterised these as symptomatic of the prodrome by reasoning backwards from the fact that the schizoaffective disorder had developed subsequent to the accident.
Mr Niarchos argued that some rather unusual behaviour and utterances exhibited by the plaintiff at the Women’s and Children’s Hospital immediately after the accident amounted to the “ramblings” of a schoolboy and did not constitute a proper basis to infer anything. Then he suggested that a finding that the plaintiff had “abnormal somatic concerns” pre-dating the accident was not open on the evidence. Further, he put that evidence describing the plaintiff’s performance at school in the year leading up to the accident was, upon close examination, unexceptional. Next, he argued that it was inappropriate to evaluate these three areas of suggested pre-accident abnormality against the history of proven development of schizoaffective disorder subsequent to the accident.
As I have observed, there was evidence going to each of the three matters I have mentioned and the Judge was entitled to accept it and place reliance upon it. Moreover, examination of such manifestations could only taken place in the context of a subsequent diagnosis of schizoaffective disorder. Once that diagnosis was made, it could well bring into perspective, and assist in characterising, previous behaviour which would otherwise have been dismissed as merely unusual or erratic. Of necessity, earlier questionable behaviours would only fall to be re-examined in the light of the later diagnosis. The argument on the appeal amounts to a re-agitation of arguments put at trial and rejected. I now turn to deal with some specific arguments.
Mr Niarchos seeks to challenge the findings of the trial Judge in a number of respects. First, he contends that the trial Judge failed to have regard to the totality of the evidence and erred in concluding that the plaintiff sustained a mild to moderate head injury. The trial Judge should have found that the head injury was moderate to severe. He also contends that the trial Judge was in error in concluding that the plaintiff was in the prodrome of a schizoaffective disorder, and that he had a genetic disposition to schizophrenia. Further, Mr Niarchos contends that the plaintiff’s incapacity and psychiatric condition was caused by the accident and the trial Judge was in error in concluding that that had not been established. He contends that the uncontradicted evidence is that the plaintiff suffered the onset of a medical disorder after the accident. Further, the medical evidence establishes a causative link between the accident and the plaintiff’s condition. Counsel contends that the trial Judge was in error in concluding that the accident and the head injury following the accident was not the cause of the plaintiff’s schizophrenic disorder. It is further submitted that the trial Judge, having found that the head injury suffered in the accident had expedited the onset of the schizoaffective disorder, was wrong in failing to apply the correct legal principles on the evidentiary onus.
Mr Niarchos contends that the trial Judge was in error in concluding:
(i) that the plaintiff’s condition was partly due to a genetic predisposition;
(ii)that the schizoaffective disorder would most probably have manifested itself, even if there was no accident;
(iii)that the history taken by Dr Conway was reliable;
(iv)that the plaintiff had developed abnormal somatic concerns before the accident and that, as a consequence, this supported the conclusion that the plaintiff was in a prodrome of a psychiatric illness before the accident; and
(v)that the plaintiff’s school records indicate learning difficulties and unacceptable behaviour prior to the accident.
It is further contended that the trial Judge misapplied the onus of proof, and that he ought to have found that the defendant failed to discharge its evidentiary onus of proof in requiring the plaintiff to disentangle the behavioural problems attributable to the head injury and those attributed to the schizoaffective disorder.
The role of the appeal court
An appeal is by way of re-hearing. In Fox v Percy,[1] Gleeson CJ, Gummow and Kirby JJ discussed the role and function of an appellate court. Their Honours observed that, on the one hand, the appellate court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance, and yet it must observe the natural limitations that exist in the case of an appellate court which is proceeding substantially on the record. The limitations include the ability to assess the credit of a witness or the accuracy of the witness’s observations or recollections. This is referred to as the “feeling” of a case which the trial Judge has, and is not observed, explained or experienced by the appellate court.
[1] (2003) 214 CLR 118.
The appellate court may not read all the evidence but, even if it does so, the written words do not always accurately convey the meaning and flavour of oral testimony. That does not mean that it is not open to an appellate court to draw different conclusions about witnesses, or to draw inferences which the trial Judge has not drawn. However, care is required before the appellate court will interfere with a judge’s conclusions on facts. The majority in Fox v Percy said:[2]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.[3] (References omitted)
[2] Ibid, 25.
[3] Ibid 126-8.
This test has been applied by this Court, and I approach this appeal having regard to those principles.
Before I deal with the grounds of appeal, it is helpful to make some general observations. A significant number of expert witnesses were called by each side. The witnesses provided voluminous reports and were extensively cross‑examined. The trial Judge summarised the evidence at length. He considered the evidence and made clear findings of fact. He determined who of the witnesses he preferred and gave reasons for accepting or rejecting their evidence.
As well as expert medical evidence, the Judge received evidence from the plaintiff’s parents. He had available school records of the plaintiff. He had available hospital notes and the observations of nursing staff. The trial Judge considered all these matters in arriving at his conclusions.
In assessing the case on appeal, this is not an appeal where the facts are largely undisputed and it is a question of what inference should have been drawn from those facts. This is a case in which there was a clear division of opinion between the expert witnesses. The trial Judge preferred the evidence of a number of the witnesses from that of others. In considering counsel for the plaintiff’s complaints and the Judge’s reasons, I bear in mind that he had a great deal of material before him. In choosing to accept some of the evidence and rejecting other evidence, he had the benefit of seeing and hearing the witnesses. I accept that it is for this Court to re-consider the evidence, but I do bear in mind the advantage the trial Judge had when considering the evidence.
The trial Judge dealt extensively with the evidence of each witness. He gave a careful and detailed analysis of their evidence. The trial Judge observed that all the experts are competent and were well respected medical specialists. He correctly analysed his role when he said:
What I must remember is that ultimately I am not required to adjudicate on medical debates, but must determine what the evidence establishes on the balance of probabilities; in particular has the plaintiff proved his case.
The trial Judge made the following findings:
I find that the plaintiff’s condition is not wholly attributable to a diffuse axonal injury as suggested by Associate Professor Koopowitz. I have already set out reasons for this finding.
He rejected the evidence of Associate Professor Koopowitz, who had expressed his opinion that the plaintiff’s condition was attributable to a diffuse axonal injury. He concluded that the plaintiff suffered a mild to moderate head injury.
The plaintiff’s reaction immediately following the accident was a psychological reaction, not an indication of a traumatic brain injury. The trial Judge was influenced by the fact that, between the accident in November 1998 and his admission to Adelaide Clinic in 2000, there were no signs of brain injury. If the condition was a consequence of a brain injury, such injury had to be sufficiently serious and severe to have been apparent on various MRIs, which it was not. A severe brain injury should have been apparent soon after the accident, which it was not.
The plaintiff was predisposed to a psychiatric illness, partly because of his family background. Since February 2000, the plaintiff has suffered serious psychiatric illness, either a schizoaffective disorder or schizophrenia. At the time of the accident, the trial Judge found that the plaintiff was in a prodrome of psychiatric illness. He relied on the evidence of Dr Thompkins and a history taken by Dr Conway.
Dr Thompkins had been told of psychosomatic concerns which were exhibited prior to the accident. These concerns were concerns about the plaintiff’s body. The plaintiff’s school records indicate certain unacceptable behaviour and absenteeism prior to the accident. The trial Judge concluded that the evidence of absenteeism from school, somatic concerns about the plaintiff’s body, his academic difficulties and behaviour, which was out of the ordinary, supported the conclusion that the plaintiff was prodromal. The trial Judge said that conclusion is corroborated by the fact that a psychiatric illness did actually eventuate. Mr Niarchos is critical of the Judge’s reasoning. He submits that the reasoning is circular. In my view, that submission should be rejected. The evidence of the plaintiff’s school performance and the other factors mentioned by the Judge were supported by the opinion of the psychiatrists, whose evidence the trial Judge accepted. The fact that the plaintiff developed a psychiatric illness can support the conclusion that, prior to that time and prior to the accident, he was prodromal.
The trial Judge concluded that the onset of the condition of a schizoaffective disorder was accelerated. He concluded that it was difficult to assess the period by which the condition was advanced, but it would have been no more than 12 months and could have been as short as a matter of weeks. The trial Judge brought forward the period by six months in assessing the damages.
In arriving at his conclusions, the Judge accepted the evidence of Dr Pols that the head injury had made the plaintiff’s schizoaffective disorder more brittle and made his condition more difficult to manage. However, the Judge could not identify the way in which the disorder had been made worse. The Judge concluded that the evidence did not establish that the deficits which can be attributable to the head injury alone have resulted in any greater level of care than the plaintiff has received in the past or will require in the future by reason of his schizoaffective disorder. The Judge concluded that the evidence did not establish that the plaintiff’s compensable disabilities, including his incapacity for employment, could be attributed to other than the schizoaffective disorder alone. He concluded that the evidence did not establish that a worsening of the plaintiff’s condition or the fact that his condition is more difficult to manage by reason of a traumatic brain injury has given rise to an identifiable loss which sounds in damages. He concluded that it is impossible to identify what behaviour can be attributable to the schizoaffective disorder and what behaviour, if any, can be attributed to the head injury alone.
In conclusion, the Judge found:
I find that the evidence does not establish that the cognitive deficiencies from which the plaintiff suffers are attributable to the brain injury. There is evidence which I accept that the cognitive deficiencies are equally consistent with the schizoaffective disorder. There is the fact that the cognitive difficulties were not apparent immediately following the head injury. There is evidence that if the plaintiff’s disability was a consequence of a head injury it would have been at its worst immediately following the accident and may have improved as time passed by. In this case the plaintiff’s condition has deteriorated with the passage of time.
Turning now to the grounds of appeal.
The onus of proof
Mr Niarchos, counsel for the plaintiff, contends that the trial Judge failed to apply the correct legal principles when considering the onus of proof. In his reasons, the trial Judge referred to the plaintiff having to establish his case on the balance of probabilities and to the plaintiff carrying the onus of proof. Mr Niarchos complains that the trial Judge failed to apply the principles enunciated in Watts v Rake[4] and Purkess v Crittenden.[5]
[4] (1960) 108 CLR 158.
[5] (1965) 114 CLR 164.
In Watts v Rake, the plaintiff was injured in a motor vehicle accident. The plaintiff complained about the award of general damages. The grounds of appeal were that the trial Judge was in error in concluding that the accident would no more than accelerate the appellant’s complete disablement from a previous existing disease and, secondly, that even if the appellant was suffering from the disease that would eventually completely incapacitate him, the evidence most adverse to the appellant was that such incapacity would not have occurred for 10 to 13 years from the accident and, therefore, the award was inadequate. Dixon CJ affirmed that the legal burden of proof rests upon the plaintiff to satisfy the tribunal of fact of the damages he or she has suffered. Dixon CJ then discussed the application of that principle. He said:
In the present case a proper application of the principles by which courts are guided in handling proof of facts of such a kind goes a long way to meet its difficulties. The plaintiff showed satisfactorily that, although not without disabilities, he was before the accident able to lead an active life both in work and in physical recreation and that his enjoyment of life was not impaired much, if at all. He proved further that the physical injuries he sustained in the accident had been a cause of the crippled condition in which he finds himself …[6]
[6] Watts v Rake (1960) 108 CLR 158, 159.

Dixon CJ then dealt with the defendant’s contention that the plaintiff was predisposed to many, or at least some of the arthritic and other conditions which had developed after the accident, that part of these current conditions are traceable to causes other than the accident and, had there been no accident, he would have eventually and prematurely have been incapacitated by the seeds of disability within him. Dixon CJ dealt with each contention. First, that a defendant takes his victim as he finds him. Secondly, if the disabilities of the plaintiff can be disentangled and one or more traced causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling to exclude the operation of the accident as a contributory cause.
Menzies J stated the position as follows:
It was for the appellant as plaintiff to prove his damages, and merely to prove his present condition and his incapacity to work would not prove that these things resulted from the accident. It was not, however, for the plaintiff to disprove that his pre-accident ill health would eventually cripple and incapacitate him. Prima facie, where a plaintiff was in apparent good health before an accident and is in bad health thereafter, the change would be regarded as a consequence of the accident and it is for the defendant to prove that there is some other explanation for it, e.g., that the plaintiff has aggravated his condition by some unreasonable act or omission. Similarly, although it is of course material to ascertain what was the pre-accident condition of the plaintiff who alleges that his post‑accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health. Such a case is not unlike that of a defendant in a defamation action proving in reduction of damages that the plaintiff had a bad reputation. It should also be observed that a negligent defendant must take his victim as he finds him and pay damages accordingly. The fact that the person injured was peculiarly susceptible to ensuing complications that would not in a normal person have followed from the injuries received, or that the person injured already had a disability which made the injury the more disabling – e.g., the loss of an only eye – does not mean that damages are not to be assessed according to the circumstances of the particular case. There are passages in the judgment here under consideration that are susceptible of meaning that the appellant had at the trial to establish not only that his present condition was due to the accident but, further, that he would never have reached that condition had it not been for the accident, whereas it was for the respondent to prove not only that the accident did no more than accelerate the occurrence of a condition that was inevitable, but also the extent of the acceleration.[7]
[7] Ibid 163-4.
Watts v Rake was discussed in Purkess v Crittenden.[8] Barwick CJ, Kitto and Taylor JJ said:
We do not regard that case as formulating the proposition that once a plaintiff has established a prima facie case that he has been incapacitated as a result of the injuries inflicted upon him by the defendant’s negligence the burden of establishing that his incapacity is wholly or partially the result of, or that total or partial incapacity would, in any event, have resulted from, some pre-existing condition in the plaintiff passes to the defendant in the sense that, when the whole of the evidence in the case has been given, the onus of proof on this issue rests upon him. The expression “burden” or “onus” of proof, “As applied to judicial proceedings . . . has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence” (Phipson on Evidence, 10^th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged (see e.g. Fitzpatrick v. Walter E. Cooper Pty. Ltd. and Mummery v. Irvings Pty. Ltd.). The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: “the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates” (ibid. par. 95) and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima facie case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. …[9] (References omitted)
[8] (1965) 114 CLR 164.
[9] Ibid 167-8.
Windeyer J explained his view of Watts v Rake in which he concurred with the majority judgment. He said:
In a personal injury case the ultimate burden is on the plaintiff to establish the extent of his injuries caused by the conduct of the defendant. If when the tort occurred the plaintiff was suffering from a progressive disease which, even if he had not been tortiously hurt, would certainly and within some reasonably predictable time have disabled him in the same way as the tort did, then the defendant’s conduct has merely hastened the inevitable; and damages must be measured accordingly. But a plaintiff, tortiously injured, who suffers thereafter in a way in which he had not previously suffered, may in the absence of any countervailing evidence rely upon the prima facie conclusion that for his disabilities and sufferings the defendant is responsible. …[10]
[10] Ibid 170.
In Shorey v PT Ltd (as Trustee for McNamara Property Trust)[11], in commenting on Watts v Rake, Kirby J, with whom Gleeson CJ, McHugh and Gummow JJ agreed said:
The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly. It is not to the point to complain that the injury, in the form of the fall, was trivial in itself and that it would be unfair to burden the respondents with the obligation to bear costs consequent upon the fact that the appellant was peculiarly susceptible to developing bizarre symptoms inherent in a conversion disorder. … (References omitted)
…
So far as the evidentiary presumption is concerned, this is the presumption hominis to which Dixon CJ referred in Watts. It stands in a plaintiff’s favour and “any tribunal of fact should insist that the defendant should overcome [it]”.[12] … (References omitted)
[11] (2003) 77 ALJR 1104.
[12] Ibid 1111, [44], [46].
He then cited the passage from Dixon CJ’s judgment earlier referred to.
Callinan J, in a dissenting judgment in Shorey, stated the position as follows:
The respondents accepted that in principle there was relevantly no distinction between a pre-existing and a supervening contributory case. But, they submitted, correctly, no argument had been advanced at any stage by the appellant that the respondents had failed to disentangle the various components of the appellant’s condition and their respective causes as required by the rule state in Purkess v Crittenden:’
“It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.”
Alternatively, if such a requirement, of disentanglement, were to be imposed upon the appellant at this late stage, for the reasons stated, and on the basis of the analysis made by Handley JA in the Court of Appeal, the respondents submit, and I would accept, that they have satisfied it.[13]
[13] Ibid 1120 [87] – [88].
It is contended on behalf of the defendant that the trial Judge made a number of critical findings, including his findings that the plaintiff suffered from a schizoaffective disorder which was not caused by the motor accident and, at best, the accident possibly accelerated its onset. The plaintiff was unable to identify precisely the way in which the schizoaffective disorder had been made worse. The trial Judge made findings that there was a schizoaffective disorder, that there were prodromal phases associated with those disorders, the prodromal phase could be seen, having regard to the plaintiff’s pre‑accident emotional concerns and the history taken by Dr Conway. Secondly, his absences from school and his school record and, thirdly, the somatic concern with the chest.
In other words, the defendant contends that the trial Judge made positive findings based upon the evidence and that he, in fact, applied the principles enunciated in Watts v Rake and cases following that decision.
I agree with the defendant’s submission. I will deal with the approach of the trial Judge more specifically when I consider the grounds of appeal. In summary, the trial Judge made positive findings about the plaintiff’s medical condition prior to the accident. He made findings based upon the evidence of the plaintiff’s condition after the accident. This case is distinguishable from Watts v Rake and Purkess v Crittenden. In this case, there was expert medical evidence about the plaintiff’s condition before and after the accident. There was evidence about the plaintiff’s long-term prognosis and the extent to which the accident had impacted upon his medical condition. The Judge was required to make findings and draw conclusions from that evidence. There was no error in the Judge’s approach.
I do not consider that there is any substance in Mr Niarchos’s complaint concerning the onus of proof. A discussion of the evidential onus which might otherwise fall upon a defendant is unenlightening in the context of this case. That is because both sides called expert evidence and it was for the Judge to determine whether, having regard to the evidence he accepted, the plaintiff had proved his case. The Judge was entitled to take the view that, while the plaintiff demonstrated that subsequent to the accident he suffered from schizoaffective disorder, he failed to demonstrate that the condition was caused by the defendant’s negligence.
Turning specifically to the grounds of appeal.
Grounds 1 to 4
Mr Niarchos, submits that the trial Judge erred in concluding that there was a genetic disposition in respect of the plaintiff’s psychiatric illness. The trial Judge found that the plaintiff was predisposed to a psychiatric illness because of his family background. Counsel submits that the trial Judge erred in relying upon the family history taken by Dr Conway at the time of the plaintiff’s admission to the Women’s and Children’s Hospital. The submission must fail.
There was a great deal of evidence which supported the trial Judge’s findings. Dr Pols, who was called by the plaintiff, considered a number of other medical reports. He accepted that the plaintiff had a family history of psychiatric illness. Dr Pols considered that there was a good case to support the conclusion that the plaintiff was disposed to suffer from psychosis or a schizoaffective disorder.
Mr Niarchos submits that the trial Judge was in error in finding that the plaintiff was in the prodrome of schizophrenia or a schizoaffective disorder prior to the accident. He submits that the finding of the prodrome was based on an unfounded assumption relating to the plaintiff’s concern about a chest deformity. It is submitted that Dr Thompkins relied on an imagined chest deformity, which was also relied upon by Professor Goldney, Professor Tennant and Professor Wood. It is submitted that the only imagined somatic concern of the plaintiff was about his testicles being loose, which occurred a few weeks after the accident. It is contended that the trial Judge erred in concluding that the plaintiff had abnormal somatic concerns before the accident.
As to the evidence about the plaintiff’s performance at school, Mr Niarchos submits that the school performance was not significant. The evidence of Professors Goldney, Tennant and Wood should, therefore, be rejected. Mr Niarchos places weight upon the evidence of Professor Sachdev that there was nothing definitely to suggest that there was something brewing in the plaintiff prior to the onset of the head injury.
The evidence to support the conclusion that the plaintiff was in a prodrome of schizophrenia or a schizoaffective disorder is, first, the history. There was evidence that, prior to the accident, the plaintiff had suffered problems which supported the diagnosis of a prodrome. The evidence included the history of emotional problems encountered by the plaintiff prior to the accident, including feelings of worthlessness, difficulties at school and absenteeism. These symptoms had existed some four years prior to the accident. The plaintiff’s school reports document difficulties prior to the accident. The evidence of Dr Thompkins about the plaintiff’s concern about his chest deformity also supported the diagnosis.
Dr Paterson, Professor Goldney and Professor Tennant all agreed that the plaintiff was in the prodrome of his schizoaffective disorder prior to the accident. The trial Judge accepted that evidence.
Further, the plaintiff contends that the trial Judge erred in relying on the evidence of Dr Thompkins and Dr Conway. The trial Judge dealt extensively with their evidence. The trial Judge accepted their evidence. There is no basis for this Court to interfere with the trial Judge’s assessment of the evidence. The findings were open to him.
Mr Niarchos contends that the trial Judge failed to give sufficient weight to evidence which supports the contention that the plaintiff was not in a prodromal phase. The trial Judge rejected the evidence of the plaintiff’s parents and accepted objective evidence from others which supported the findings that the plaintiff was in a prodromal phase. In my view, there was evidence in the school reports and from witnesses upon which the Judge was entitled to rely in arriving at his conclusion.
Mr Niarchos submits that the trial Judge erred in concluding that the plaintiff had abnormal somatic concerns prior to the accident. He submits that these concerns were relied upon by Professors Goldney, Tennant and Wood. Their opinion and agreement with Dr Thompkins that this was an indication of the plaintiff being in a prodromal psychiatric illness was flawed.
The submission overlooks a number of facts. The medical evidence was that the plaintiff, when providing a history, told Dr Conway of emotional problems he had suffered prior to the accident. These problems preceded the accident by up to four years. Further, the evidence relating to his school performance for some years prior to the accident supported the diagnosis that he was in the prodrome of a schizoaffective disorder.
Mr Niarchos relies on the evidence of Dr Pols that the recent improvement in maths would negative that view. However, Professor Wood expressed a contrary opinion:
QI’d ask you to assume that the school reports indicate that the plaintiff’s maths grade in the first semester was an E and, in the second semester, so just before the accident, was a B. Evidence has been given in this matter that an individual who is in the prodrome of schizo-affective disorder would not improve in their performance in a particular subject, even in response to tutoring. Do you agree with that.
ANo, I don’t agree with that. I think, if the tutoring was able to focus the individual’s attention, then he could well improve on that particular topic.
Professor Tennant also expressed a contrary view, based on studies conducted in Europe:
QDr Pols has given evidence in relation to this matter to the effect that if the plaintiff was in the prodrome of his schizoaffective disorder prior to the accident then it would have been impossible for his academic performance and in particular mathematics to improve in response to tutoring. Do you have any comment with regard to that assertion.
AWell, the evidence most certainly doesn’t support that. There’s now a range of studies that show that even after the development of schizophrenia, florid schizophrenia and a chronic disorder, one of the treatment modalities that has been embraced, particularly in Europe and to some extent in limited parts of Australia is what’s called a treatment of the cognitive deficits. This is done usually using computer assisted games and so on and with that program even in established cases of disorder you can improve the cognitive performance of these subjects with schizophrenia so that their judgment can improve, their concentration and other cognitive elements of their functioning improve. So that particular statement, particularly in the prodrome before the illness has set in and become chronic, would be wrong.
Dr Thompkins gave evidence that the plaintiff demonstrated problems which strongly suggest that he may have been in a prodrome:
… this young man showed some educational problem which in retrospect is strongly suggesting that it may have been part of a prodrome.
Professor Tennant said that over the years the evidence of the decline in school performance suggests that the plaintiff was in the prodrome. Professor Goldney did not agree with Dr Pols’ evidence that the improvement in the plaintiff’s maths results counters the view of a prodrome:
QSo my question was whether you agree with the proposition that an individual in the prodrome of a schizo-affective disorder could not improve their academic performance in response to tutoring.
ANo, I think that’s quite incorrect for several reasons. First of all, symptoms fluctuate, so even without tutoring he may have improved to some extent. Secondly, it is one of the therapeutic manoeuvres now for schizophrenias, particularly in the early stages, to have cognitive training and there is good evidence now that that is effective. So even somebody who has got an established psychiatric illness can improve in their functionings. That is one of the parameters now. The third reason is that, particularly in mathematics, mathematics is an all or none sort of subject. It is a concrete subject. It is interesting that there was that film ‘A Beautiful Mind’. He was a mathematician and he was a brilliant mathematician. So, mathematics is a fairly concrete area. People with schizophrenia have thought disorders where they have difficulty in grasping vague concepts and are stringing them together. So, a person would have more difficulty in fact in doing an arts subject with schizophrenic thought disorder. Some people may say it would promote their creativity but in general terms it makes it much more difficult for a person, whereas with mathematics it is a concrete sort of phenomenon. So, if you can attend to the task, you can do mathematics, as that particular movie showed, with a person with schizophrenia, so I think it is wrong.

Mr Niarchos submits that the evidence relating to the plaintiff’s concern about his chest deformity as supporting a diagnosis of a prodrome is not supportive of that diagnosis. Dr Thompkins gave evidence that the plaintiff’s mother informed him of the plaintiff’s concern about his chest deformity some months prior to the accident. He gave evidence that the concern about the chest deformity was after the accident. The trial Judge preferred the evidence of Dr Thompkins. His evidence was supported by contemporaneous notes.
In my view, the trial Judge had the benefit of hearing and seeing the witnesses. Further, the notes support the evidence given by Dr Thompkins. The finding by the Judge was consistent with the evidence.
I have considered the evidence. I agree with the conclusions of the trial Judge.
There is no basis for this Court overturning the findings.
Grounds 5 to 7 – severity of the head injury
Mr Niarchos submits that the trial Judge should have made a positive finding that the plaintiff lost consciousness. The severity of the plaintiff’s head injury was relevant to the conclusion of a number of the medical witnesses. The trial Judge should have rejected the medical opinions of doctors who assumed that the plaintiff had not lost consciousness. Mr Niarchos contends that the plaintiff’s response when he regained consciousness was consistent with a moderate to severe head injury.
The issue in this case was the extent of any head injury, and whether it was a mild to moderate or moderate to severe injury. The clinical records at the Women’s and Children’s Hospital indicate no loss of consciousness. The original medical reports of Mr Reid, Professor Sachdev, Professor Wood and Professor Tennant assumed no loss of consciousness. However, when they were asked to assume that there had been a loss of consciousness for some minutes, each witness concluded that the head injury was mild to moderate.
It was open on the evidence, therefore, for the trial Judge to have concluded as he did. The trial Judge made reference to the evidence that the plaintiff had lost consciousness. The trial Judge had regard to the plaintiff’s post-accidental behaviour, and his conclusion that there was a psychological reaction not due to the head injury was open on the evidence. As to the issue of amnesia, the medical evidence of Professor Sachdev and Professor Wood was that ante grade amnesia of two to three minutes supports a finding of moderate head injury. It was open on the evidence for the Judge to conclude that was the case. The fact that various scans undertaken of the plaintiff did not support brain damage is evidence that the plaintiff suffered, at the worst, a moderate head injury. After the accident he exhibited no signs of a severe head injury.
Mr Niarchos complains that the Judge gave inadequate weight to the Glasgow Coma Scale test. The evidence of the medical experts is that the Glasgow Coma Scale is an imprecise test, and is not an adequate measure for determining the extent of a head injury. The submission that the trial Judge did not give it sufficient weight is rejected.
As to the development of cognitive impairment, the evidence did not support cognitive impairment after the accident. After the accident, the plaintiff returned to school for a short period. He appeared to cope. The major concerns about cognitive impairment occurred well after the accident when the plaintiff developed florid symptoms of schizophrenia. The performance of the plaintiff at school after the accident was not supportive of trauma resulting in significant cognitive impairment. Further, the fact that MRI scans did not reveal any brain injury strongly supports the Judge’s findings that the accident and any head injury therefrom was not the cause of his cognitive disorder.
It is contended by Mr Niarchos that the evidence of the plaintiff’s sexual inhibitions supported the plaintiff’s case that the head injury was causative of the plaintiff’s deteriorating state. He contends that the trial Judge was incorrect in concluding that the plaintiff’s behavioural issues could be explained by the schizoaffective disorder.
The difficulty with Mr Niarchos’ submission is that there was a period after the accident when the plaintiff’s behaviour was such as was described as “being quiet, withdrawn and a bit bland”. This observation does not support a conclusion that it was the accident which was the cause of his cognitive dysfunction.
Mr Niarchos complains that the trial Judge, in concluding that the cognitive defect suffered by the plaintiff was not attributable to the brain injury and that they are equally consistent with his schizoaffective disorder, failed to have regard to the evidential onus on the respondent to disentangle the contribution of each to the cognitive defect.
In conclusion, it is said that in finding that the plaintiff had failed, on the balance of probabilities, to prove that it was the brain injury which caused the cognitive defects, the trial Judge reversed the onus of proof.
The trial Judge concluded:
I find that the evidence does not establish on the balance of probabilities that as a consequence of the head injury the plaintiff suffers from cognitive deficits which are not explained by his schizoaffective disorder.
…
I find that the evidence does not establish that the cognitive deficiencies from which the plaintiff suffers are attributable to the brain injury. There is evidence which I accept that the cognitive deficiencies are equally consistent with the schizoaffective disorder. There is the fact that the cognitive difficulties were not apparent immediately following the head injury. There is evidence that if the plaintiff’s disability was a consequence of a head injury it would have been at its worst immediately following the accident and may have improved as time passed by. In this case the plaintiff’s condition has deteriorated with the passage of time.
Mr Niarchos’ submission misinterprets the trial Judge’s findings. At [466] there is a specific finding that the cognitive defects are not attributable to the brain injury. The trial Judge accepted that, without other material evidence, the cognitive disorder is equally consistent with the brain injury as with a schizoaffective disorder. However, there was evidence, such as there being no apparent cognitive defects or difficulties immediately after the accident, which supported the conclusion that the head injury is not causative of the cognitive deficiencies. The absence of signs or symptoms of frontal lobe disinhibition between February 1999 and March 2000 gave rise to a strong inference that the cognitive defects were not attributable to the head injury. There was evidence from Dr Thompkins, Dr Paterson, Mr Reid and Professor Tennant which supported the Judge’s conclusion that, on the balance of probabilities, the cognitive defects were due to the plaintiff’s schizoaffective disorder. The trial Judge made positive findings. Those findings were open to him. He did not reverse the onus of proof.
Grounds 8 to 13 – causation
Mr Niarchos contends that the head injury resulted in an increased risk of the condition of schizoaffective disorder. He contends that the defendant’s conduct materially contributed to the injury the plaintiff suffered. Further, he submits that presumptive inference arose on the evidence that the head injury caused, or materially contributed to, the onset of the brain injury, including cognitive defects and psychological condition.
Mr Niarchos contends that, in finding that the accident expedited the onset of the schizoaffective disorder, the plaintiff had satisfied the onus to establish that the accident was causative of the schizoaffective disorder.
In my view, this submission misinterprets the Judge’s finding. He found:
I find that the schizoaffective disorder from which the plaintiff suffers would most probably have manifested itself even if there was no accident. The plaintiff had a predisposition and was in the prodrome. I find that the accident probably expedited the onset of the disorder.
The trial Judge made a positive finding that the schizoaffective disorder would most probably have manifested itself if there had been no accident. He concluded that the accident simply accelerated the condition manifesting itself. That finding was open on the evidence of Professor Sachdev, Dr Thompkins and Professor Tennant.
The plaintiff relies on statements of Rich ACJ in Adelaide Stevedoring Company Limited v Forst.[14] The facts of that case were that a waterside worker was engaged in very heavy lifting. On the day in question, he had been exerting himself. Shortly after, he collapsed and died. There was a conflict of medical opinion as to whether coronary thrombosis is related to exertion. On the one hand, there was evidence that it was generally not related and, therefore, the death could not be attributed to the exertion. There was evidence to the contrary. The trial Judge accepted the evidence of the medical witnesses who were of the opinion that exertion would not cause the thrombosis. The Full Court reversed that decision. On appeal to the High Court, the Full Court’s decision was upheld.
[14] (1940) 64 CLR 538, 569.
In the course of his judgment, Rich ACJ said:
… I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology. When he finds that a workman of the not-so-young standing attempts in a posture calculated by reason of the pressure on the stomach to disturb or arrest the rhythm of the heart a very strenuous task not forming part of his ordinary work and then collapses almost immediately and dies from a heart condition, why should not a court say that here is strong ground for a preliminary presumption of fact in favour of the view that the work materially contributed to the cause of death? From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events. If medical knowledge develops strong positive reasons for saying that the lay common-sense presumption is wrong, the court, no doubt, would gladly give effect to this affirmative information. But, while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences. The conclusion of the special magistrate may prove to be in advance of its time, but, as matters stand, I prefer that of the Full Court.[15]
[15] Ibid 563-64.
Dixon J dissented. He expressed the view that, upon a question of fact of a medical or scientific description, a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the presented state of knowledge does not admit of an affirmative answer, and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification either as a probable inference or as an accepted hypothesis. Further, Dixon J considered that the evidence did not conclude that physical efforts commonly, although not invariably, are the inciting cause of coronary thrombosis.
In my view, the present case is distinguishable on the facts. This case is one in which there was positive medical evidence supporting the conclusions which the Judge eventually found. This was not a case in which the position was as in Adelaide Stevedoring.
The plaintiff submits that it having been found that the accident head injury had expedited the schizoaffective disorder, it was for the defendant to prove that the plaintiff would have suffered the onset of the schizoaffective disorder in any event. It is alleged that the evidence did not establish that the onset was inevitable.
The plaintiff challenges the trial Judge’s finding that the schizoaffective disorder would have manifested itself, even if there was no accident. It is the plaintiff’s case that, even if the trial Judge’s conclusion is correct, the accident precipitated the onset of the pre-existing condition, and the defendant had to disentangle what behavioural problems were caused by the pre-existing condition and what were caused by the accident.
The plaintiff relies on the trial Judge’s findings as follows:
[447] I find that the evidence does not establish that the head injury is the cause of the plaintiff’s schizoaffective disorder.
…
[464] It is impossible to separate the two conditions and to identify what behaviour can be attributed to the schizoaffective disorder and what behaviour, if any, can be attributed to the head injury alone. The evidence does not permit me to do that. There is reliable evidence that all of the plaintiff’s difficulties can be explained by the schizoaffective disorder. (underlining mine)
Counsel for the plaintiff relies upon the statement of the trial Judge underlined in the above paragraph.
Mr Niarchos, however, omits the finding of the trial Judge that there is reliable evidence that all of the plaintiff’s difficulties can be explained by the schizoaffective disorder. The submission that the trial Judge reversed the onus of proof is rejected. It was open to the trial Judge to accept evidence of the psychiatrists that the plaintiff’s behavioural problems were as a result of the schizoaffective disorder. Once that positive finding had been made, then the submission that it was necessary for the defendant to disentangle behavioural problems associated with the accident from those associated with the schizoaffective disorder falls away.
The defendant’s submission is correct that it was for the plaintiff to satisfy the Court as to the extent of his accident-related injuries. There was ample evidence from which it was open to the trial Judge to conclude as he did.
In my view, the appeal must be dismissed.
VANSTONE J: I agree that the appeal should be dismissed. I agree with the reasons of Sulan J.
PEEK J: I agree that the appeal should be dismissed for the reasons given by Sulan J.

[2011] SASCFC 76

29 July 2011

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Causation

Damages

Duty of Care

Expert Evidence

Negligence